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Sick plaintiffs don’t need even the vaguest recollection of using an asbestos product to drag its manufacturer into court. The First District Court of Appeal overturned a San Francisco judge Wednesday in Weber v. John Crane, Inc., 06 C.D.O.S. 9763, siding with plaintiff Joseph Weber, who had developed mesothelioma from exposure to asbestos and died six months ago. The defense had seized on the fact that, in a 2004 deposition, Weber said he couldn’t recall whether he came into contact with John Crane products while working on or around naval cruise ships in the 1960s. At a hearing the following year, Superior Court Judge James Warren agreed with defense lawyers from San Francisco’s Hassard Bonnington that Weber’s testimony showed he couldn’t draw a connection between his illness and John Crane products. Warren granted a defense motion for summary judgment and threw out the case against the company, which makes mechanical seals, among other products. “What I am concerned about is, we don’t have any suggestion that anybody knows anything � in these moving papers, in this record knows anything about Crane” that would back up Weber’s claim, the judge said in court at the time. The appeal court, however, said it was John Crane’s lawyers who hadn’t come up with enough evidence � not the plaintiff. John Crane didn’t do enough to show that Weber didn’t have � and couldn’t reasonably obtain � evidence to show he was exposed to an asbestos-containing product made or supplied by the company, Judge William Stein wrote in Wednesday’s published ruling. “That Weber was unable to recall whether he worked around a John Crane product over 40 years ago suggests only that plaintiffs will not be able to prove their case with Weber’s deposition testimony,” wrote Stein. The company’s position, he added, “is not supported by logic or by the relevant case law.” Justices James Marchiano and Douglas Swager concurred. The opinion points to a 1999 ruling from the First District in another asbestos case, Scheiding v. Dinwiddie Construction Co., 69 Cal.App.4th 64, in which the defendant, a general contractor, conducted no discovery but then pressed for summary judgment, arguing that the plaintiff had no evidence to show his exposure occurred at one of the company’s job sites. The First District sided with the plaintiffs in that matter. On Wednesday, the First District emphasized it was not defining the minimum amount of evidence a defendant has to produce in order to shift the burden to the plaintiff and make him show there is a triable issue of fact. “But we do hold the defendant must in some way show that the plaintiff does not have and cannot reasonably obtain evidence of causation,” Stein wrote. Weber’s lawyer, Paul Harley, said he was “kind of shocked” that Warren, who retired in June, had dismissed the case to begin with. “It’s only in asbestos cases that I find judges look for some expedited or easy way to get rid of cases, or at least parts of cases,” said Harley, a partner at the Berkeley firm Paul, Hanley & Harley. Harley claims defense lawyers use summary judgment motions to conduct last-minute discovery to find out what potential evidence plaintiff lawyers have up their sleeve, and to distract them from preparing for trial. “We needed this clarified, and now [after the First District ruling], it’s pretty clear,” he said. Philip Ward, a partner at Hassard Bonnington and a lawyer for John Crane, said he has not decided whether to petition the Supreme Court for review, but he “totally disagree[d]” with the First District’s ruling. After a deposition that extended three or four days which included questioning from Weber’s lawyer, Ward said, the plaintiff was unable to identify a John Crane product he worked with on naval vessels. In spite of the appellate court’s ruling, the defense lawyer continued to argue that inability should be sufficient for summary judgment. “Before you sue somebody, at a minimum you ought to have positive evidence in your hand that a defendant has some positive liability to your client,” Ward said.

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