Filed 12/15/15 Evans v. American Optical Corp. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


KENNETH EVANS et al.,                                                   B257665

         Plaintiffs and Appellants,                                     (Los Angeles County
                                                                        Super. Ct. No. JCCP4674)
         v.

AMERICAN OPTICAL CORPORATION et
al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Emilie
Harris Elias, Judge. Affirmed.
         Farrise Firm, Simona A. Farrise; The Arkin Law Firm, Sharon J. Arkin for
Plaintiffs and Appellants.
         Foley & Mansfield, Thomas J. Tarkoff, Cynthia Y. Chan; Degani & Galston, Orly
Degani for Defendants and Respondents.
                                    INTRODUCTION
       Plaintiffs Kenneth and Dorothy Evans1 sued Fluor Corporation (Fluor), along with
a host of other defendants, alleging that Kenneth Evans (Evans) developed asbestosis
from his exposure to asbestos when he helped to demolish a gas cooling tower over a two
to three week period in the 1950s. The trial court granted Fluor’s motion for summary
judgment, concluding that plaintiffs failed to establish a triable issue of fact that Evans
was exposed to asbestos from any Fluor products. We affirm.
                     FACTUAL AND PROCEDURAL HISTORY
       A. Complaint
       Evans was diagnosed with asbestosis in 2011. Plaintiffs filed their complaint for
personal injury and loss of consortium on May 15, 2012 against Fluor and multiple other
corporate defendants. Plaintiffs alleged that Evans developed asbestosis as a result of his
contact with a variety of asbestos-containing products over the course of his employment
with Southern California Gas Company from the 1950s to the 1990s.
       Plaintiffs alleged causes of action for negligence, breach of implied warranty,
strict products liability, fraud, conspiracy to defraud, misrepresentation and fraudulent
concealment, and premises liability, as well as a derivative claim for loss of consortium
by Dorothy Evans. Plaintiffs sought compensatory and punitive damages arising from
the asbestos-related injuries.
       B. Summary Judgment
              1. Fluor’s Motion
       Fluor moved for summary judgment or, in the alternative, summary adjudication.
In its motion, Fluor relied on Evans’ written discovery responses and deposition
testimony to argue that Evans lacked, and would be unable to discover, evidence to show
he was exposed to asbestos from “any products or services provided by Fluor” at any
time during his employment.

       1
          Kenneth Evans died on July 6, 2015, while this appeal was pending. We granted
plaintiffs’ unopposed motion seeking to substitute his wife, Dorothy, as his successor-in-
interest in this action.
                                              2
       During discovery, Fluor propounded special interrogatories and requests for
production of documents seeking identification of all witnesses, documents, and “each
and every fact” in support of plaintiffs’ allegations against Fluor. In response to the
special interrogatories, Evans provided further details regarding his alleged exposure to
asbestos: sometime in the 1950s, he helped demolish a natural gas cooling tower located
at Station 90 in Avenal, California, over a period of 14-21 days. The tower, which he
recalled as 60-80 feet tall, was “used to cool gas. Gas would run through copper piping
into the cooling tower and water cascaded down on the piping to cool the gas.” Evans
recalled that “the cooling tower had a sign on it that said ‘Fluor’ located on the northeast
bottom corner.” He “assisted a demolition crew in cutting, welding, tearing, cleaning,
and otherwise manipulating the cooling tower in the demolition process.” Evans’
response also echoed the general allegations in his complaint regarding Fluor, such as
that “[s]ince its inception, Fluor designed, manufactured, sold, supplied, . . . installed,
erected, overhauled, serviced and otherwise marketed FLUOR ASBESTOS-
CONTAINING PRODUCTS for utility, commercial and industrial application.”
       In a similar response to Fluor’s request for production of documents, plaintiffs
provided a multi-page list identifying categories of documents, such as all discovery in
the instant case, the depositions of the person(s) most qualified and custodian(s) of record
for Southern California Gas Company and Fluor, including all such depositions “taken in
prior asbestos litigation and all exhibits thereto,” other responses or documents identified
by Fluor in other cases “that are otherwise responsive but not specifically identified” (as
well as several sets of identified responses), the contents of Fluor’s “own records and
files,” an asbestos textbook, and various regulations and safety orders. In addition to
Evans, plaintiffs identified two other witnesses who might have information supporting
the claims against Fluor; both of those witnesses are deceased.
       Fluor also pointed to excerpts from Evans’ deposition testimony, in which Evans
admitted that he did not know when the tower was built and his only basis for
understanding that Fluor had built it was the “Fluor” sign he recalled on the outside of the
tower. Evans also testified about the materials that made up the tower, identifying

                                               3
redwood, copper bolts and nails, and copper pipes. He also recalled some “baffling” or
“batting” on the outside of the tower, which he described as a “4-inch-wide shingle.”
Evans initially testified that this batting was made of wood:
       “Q: And that’s like a -- your common roofing shingle?
       A: It was wood.
       Q: I see. So the . . . shingle was made out of wood, as far as you could recall?
       A: Yes.
       Q: Okay. And that’s the batting that you’ve just described?
       A: Yes.”
       However, later in the deposition, while describing his work picking up pieces of
wood falling from the tower as it was being demolished by a crane, Evans testified:
       “[A]: The batting that was on the outside of this cooling tower was gray in color,
       real fuzzy looking. . . .
       Q: Now, when I asked you previously about the batting, you said it was wood
       material, the batting?
       A: I believe it was wood, but like I’m saying, it had that fuzz looking on it [sic]. I
       think it was-- I don’t know what it was.”
       In an additional deposition taken for the purposes of trial preservation, Evans
testified that the tower’s “superstructure was redwood, and it had baffling on the outside,
and I’m not sure what that was made of. It had a gray-looking, gray-looking color to it.”
Asked if he recalled any of the material of the tower “resembling in any way cement,”
Evans responded that the tower “was built over a cement pond.” He did not otherwise
identify cement, or any other asbestos materials, as part of the tower. Evans also testified
that “there was dust in the air,” during the demolition, which would get on his clothes and
which he would breathe in.
              2. Plaintiffs’ Opposition
       Plaintiffs filed an initial opposition to summary judgment in January 2014,
requesting a continuance to conduct further discovery, particularly deposition testimony


                                             4
from Union Tank Car Company (Union).2 Following a continuance of the summary
judgment hearing and trial dates, plaintiffs filed a supplemental opposition containing
additional evidence, including the deposition testimony of their expert, Charles Ay. They
argued, as they do on appeal, that Fluor had failed to meet its initial burden to
demonstrate an absence of a triable issue, and that, in any event, plaintiffs had met their
burden to produce evidence from which a jury could reasonably conclude that the Avenal
tower was built by Fluor and contained asbestos.
       Ay testified at his deposition that he has inspected “lots” of cooling towers over
the years and that it was “[n]ot uncommon” to find asbestos-containing transite material
on these towers. In fact, of all the cooling towers he had tested, he could not recall an
instance where the tower did not contain transite. However, Ay acknowledged that he
did not recall having inspected any tower built by Fluor. Further, he had seen some
towers constructed with baffling made of wood, instead of transite. Ay opined that the
Avenal tower contained transite baffling. He based this opinion on Evans’ testimony that
the baffling was gray in color, coupled with his knowledge that transite was historically
used on cooling towers. He would not consider gray material to be wood, which is
brown. When Evans identified gray material, “that, to me, is a Transite-type material and
not a wood baffle.” Ay also noted Evans’ testimony that the demolition was dusty was
consistent with transite, because when “wood falls, it breaks, it does not make dust.
When transite falls and breaks, it makes dust.”
       Plaintiffs also supplemented their opposition with deposition testimony given in
prior cases by William Breen, designated by Fluor as a person most knowledgeable
(PMK). Breen testified that Fluor Products did manufacture cooling towers as of 1947
until the sale of the division to Union in the late sixties. The components came from

       2
         Earlier that month, Fluor’s custodian of records had testified during his
deposition that any documents related to Fluor’s cooling towers would have been
transferred in the sale of the division to Union. Plaintiffs served a subpoena seeking
responsive documents on Union, but Union responded that it had no documents to
produce. The trial court then granted Fluor’s motion to quash the subpoena, based on the
discovery cutoff before trial.
                                              5
Fluor, and some (but not all) of Fluor’s towers used cement asbestos board siding (also
called transite) on the outside. Fluor also made cooling towers with redwood siding.
Breen stated that redwood siding looked different from cement siding, as “[o]ne is wood
and is a redwood and the other is a whitish [sic] and is transite.”
       Plaintiffs produced no other evidence suggesting that Fluor built the Avenal
cooling tower, or that the tower contained asbestos.
              3. Trial Court’s Ruling
       At the hearing on the motion, the trial court relied on Evans’ statement that the
baffling material was wood. The court further found that Ay’s opinion that the tower
contained transite lacked foundation. Accordingly, the court granted summary judgment
for Fluor. Plaintiffs timely appealed.
                                         DISCUSSION
       Plaintiffs argue that Fluor failed to meet its initial burden to demonstrate that no
triable issues of fact exist, and further, that plaintiffs provided sufficient evidence to raise
a triable issue that the cooling tower in question was made by Fluor and contained
asbestos. We conclude that summary judgment was proper because there is insufficient
evidence to establish a probability that the Avenal tower contained asbestos. As such, we
need not reach the issue of whether Fluor constructed the tower.
              A. Applicable Legal Standards
       We review the trial court’s summary judgment rulings de novo. (Scheiding v.
Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69 (Scheiding).) “‘In performing
our de novo review, we must view the evidence in a light favorable to plaintiff as the
losing party [citation], liberally construing [his] evidentiary submission while strictly
scrutinizing [the defendant’s] own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff’s favor.’ [Citation.]” (Andrews v. Foster Wheeler LLC (2006)
138 Cal.App.4th 96, 100 (Andrews).)
       A defendant moving for summary judgment must make a prima facie showing that
there are no triable issues of fact in order to meet its initial burden of production.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861; see also Code Civ. Proc.

                                               6
437c, subd. (c).) “[A] defendant moving for summary judgment [must] present evidence,
and not simply point out that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence.” (Id. at p. 854, fn. omitted.) Once the defendant has met that burden,
the burden shifts to the plaintiff to make a prima facie showing that a triable issue of
material fact exists. (Id. at p. 850.) “The plaintiff . . . may not rely upon the mere
allegations or denials of its pleading to show . . . a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of material fact exists
. . .’ [citations].)” (Scheiding, supra, 69 Cal.App.4th at p. 69.)
       “‘A threshold issue in asbestos litigation is exposure to the defendant’s product. . .
. If there has been no exposure, there is no causation.’ [Citation.]” (Whitmire v.
Ingersoll–Rand Co. (2010) 184 Cal.App.4th 1078, 1084.) It is plaintiffs’ burden to
establish some threshold exposure to asbestos through Fluor’s products. (Casey v. Perini
Corp. (2012) 206 Cal.App.4th 1222, 1236 (Casey).)3
       B. Fluor Met Its Initial Burden On Summary Judgment
       We first turn to plaintiffs’ claim that Fluor failed to meet its initial burden to
produce evidence sufficient to make a prima facie showing that plaintiffs could not
establish causation. As discussed above, Fluor based its summary judgment motion on
plaintiffs’ discovery responses and deposition testimony, arguing that this evidence
demonstrated that plaintiffs did not have, and could not possibly obtain, evidence of
exposure.
       A defendant moving for summary judgment “cannot simply ‘argue’ that a plaintiff
lacks sufficient evidence to establish causation; the defendant must make an affirmative
‘showing’ that the plaintiff cannot do so.” (Andrews, supra, 138 Cal.App.4th at p. 103.)


       3
          To ultimately prevail in their underlying claim, plaintiffs would need to establish
that this exposure was to a reasonable medical probability a substantial factor in
contributing to any asbestos-related disease suffered by Evans. (See Rutherford v.
Owens–Illinois, Inc. (1997) 16 Cal.4th 953, 974-977.) However, the parties did not
address this issue in their summary judgment briefing or on appeal, focusing instead on
the preliminary question of the sufficiency of proof that the cooling tower was made by
Fluor and contained asbestos.
                                                7
Circumstantial evidence supporting a defendant’s motion “can consist of ‘factually
devoid’ discovery responses from which an absence of evidence can be inferred,” but
“the burden should not shift without stringent review of the direct, circumstantial and
inferential evidence.” (Scheiding, supra, 69 Cal.App.4th at p. 83.) Several of the cases
relied on by the parties demonstrate the circumstances under which a defendant may
point to the absence of evidence in plaintiff’s discovery responses to infer that the
plaintiff does not have, and cannot obtain, sufficient evidence to survive summary
judgment.
       In Andrews, for example, the plaintiff lacked personal knowledge of any exposure
to the defendant’s asbestos-containing products. (Andrews, supra, 138 Cal.App.4th at p.
103.) On summary judgment, defendant also pointed to Andrews’ written discovery
responses, which contained “little more than general allegations” that Andrews was
exposed to products “constructed, assembled, supplied and/or distributed” by defendant,
and thus lacked “specific facts showing that Andrews was actually exposed to asbestos-
containing material” from defendant’s products. (Id. at p. 104.) In affirming summary
judgment for defendant, the Court of Appeal stated that if plaintiffs “respond to
comprehensive interrogatories seeking all known facts with boilerplate answers that
restate their allegations, or simply provide laundry lists of people and/or documents, the
burden of production will almost certainly be shifted to them once defendants move for
summary judgment and properly present plaintiffs’ factually devoid discovery
responses.” (Id. at p. 107; see also Casey, supra, 206 Cal.App.4th at pp. 1229-1230
[summary judgment proper where plaintiff’s deposition “made clear that he had no
knowledge” and his written discovery responses “did not establish any specific evidence”
of exposure].)
       By contrast, in Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1436,
defendant moved for summary judgment based only on the plaintiff’s deposition
testimony that he did not recall ever working with a product manufactured by defendant,
did not recognize defendant’s name, and had no personal knowledge of other documents
or witnesses that could provide further information. The court noted that defendant “did

                                              8
not support its motion with evidence that plaintiffs failed to provide meaningful
responses to comprehensive interrogatories designed to elicit all the evidence plaintiffs
had to support their contention of liability,” nor did defendant “show that, after extensive
discovery, plaintiffs asserted they had no additional information.” (Id. at p. 1442.) Thus,
because defendant had not conducted discovery that was “sufficiently comprehensive,”
the court held that defendant could not create an inference “either of nonexposure or of
the inability to prove exposure” simply by pointing to plaintiff’s lack of personal
knowledge in response to a handful of deposition questions. (Id. at p. 1439.) Rather,
“defendant must make an affirmative showing that the plaintiff will be unable to prove its
case by any means.” (Ibid.) The court also expressly distinguished Andrews, noting that
there, “[i]n light of the interrogatory questions, the plaintiffs’ failure to provide any
information in effect admitted that they had no further information.” (Id. at p. 1440
(citing Andrews, supra, 138 Cal.App.4th at pp. 106-107).)
       Here, the state of the evidence draws this case closer to the factual circumstances
of Andrews rather than Weber. While Evans was able to provide some details during his
deposition testimony linking the tower to Fluor, his discovery responses provided no
specific facts suggesting that the tower contained asbestos. The evidence that Evans now
contends supports that crucial link—the testimony of Fluor’s PMK and Evans’ expert—
was not identified in his written discovery responses.4 And Evans’ list of documents
contained in his responses does not provide any further factual detail. Thus, Fluor was
entitled to rely on plaintiffs’ responses to its comprehensive discovery to establish that
plaintiffs lacked evidence of exposure.
       Plaintiffs’ reliance on Ganoe v. Metalclad (2014) 227 Cal.App.4th 1577 is
similarly unavailing. In Ganoe, we reversed summary judgment, concluding that
plaintiffs’ discovery responses contained specific facts showing that the defendant had
exposed plaintiff to asbestos. The plaintiffs identified evidence that the alleged exposure
occurred during the removal of old insulation, that Ganoe was present during this work,

       4
        We further conclude below that this evidence was insufficient to meet plaintiffs’
burden on summary judgment.
                                               9
expert testimony (also by Ay) that insulation of the type described “‘was almost certainly
asbestos-containing,’” that defendant had performed insulation work at the same plant
during the time in question, and that the only insulation work at the plant during that time
period was the work done in Ganoe’s presence, thus allowing a reasonable inference that
defendant “‘more likely than not’” exposed Ganoe to asbestos. (Id. at pp. 1580-1581.)
Here, as discussed above, plaintiffs did not provide any evidence in their discovery
responses linking Evans’ observation of the cooling tower materials with any evidence
that such materials were asbestos-containing or manufactured by Fluor. We therefore
conclude, as the trial court did, that Fluor made a sufficient affirmative showing to meet
its initial burden on summary judgment.
       C. Plaintiffs Failed To Establish a Triable Issue of Material Fact as to Causation
       Plaintiffs contend that, even if Fluor met its initial burden, they produced
sufficient evidence in opposition to summary judgment to raise a triable issue as to
causation. We disagree.
       “The quality of evidence of exposure must be sufficient ‘to allow the trier of fact
to find the underlying fact in favor of the party opposing the motion for summary
judgment.’ [Citation.]” (Casey, supra, 206 Cal.App.4th at p. 1237.) Plaintiffs must
provide “‘circumstantial evidence . . . sufficient to support a reasonable inference’
(Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1420 (Lineaweaver))
that the ‘defendant’s asbestos products or activities were present at plaintiff’s work site’
[citation].” (Ibid.) “Mere speculation or conjecture about exposure to asbestos, however,
is insufficient” to preclude summary judgment. (Ibid.; Andrews, supra, 138 Cal.App.4th
at p. 108 [citation omitted].) Nor does the simple “possibility” of exposure create a
triable factual issue. (McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98
Cal.App.4th 1098, 1105 (McGonnell) [speculation that at some time plaintiff might have
cut into wall that might have contained defendant’s compound that might have contained
asbestos is insufficient evidence].)
       Plaintiffs rely on three pieces of evidence to meet their burden: (1) the testimony
by Breen, Fluor’s PMK, that Fluor constructed cooling towers using transite siding

                                             10
during the relevant time period; (2) Evans’ description of the baffling on the Avenal
tower as “gray” and “fuzzy looking”; and (3) their expert’s opinion that, given his
knowledge of cooling towers and Evans’ description, the Avenal tower had transite
baffles.
       None of this evidence provides sufficient circumstantial support to allow a
reasonable inference that the Avenal tower was constructed with asbestos-containing
transite baffles. Breen testified that Fluor built two types of cooling towers during this
period—some made with redwood (non-asbestos) baffles, and some made with transite
(asbestos-containing) baffles. This practice was confirmed by Ay, based on his general
knowledge of cooling towers, though he lacked any specific knowledge as to towers built
by Fluor. Thus, while Breen’s testimony raises the possibility that the Avenal tower
contained asbestos (assuming it was built by Fluor), it does not establish a likelihood that
this was so.
       Evans’ own testimony similarly does not establish a likelihood of exposure. He
testified several times during his deposition that the baffles on the Avenal tower were
made out of wood; upon further questioning, he stated that he believed the material was
wood, but that it was gray and “fuzzy looking,” and then that he did not know what the
baffling was made of. Evans never suggested that the baffling was cement, despite a
direct question on that point. Nor did he submit any further explanation in his opposition
to summary judgment regarding his descriptions of the baffling material.
       As such, plaintiffs rely heavily on their expert to attempt to demonstrate a triable
issue of fact. But “[p]laintiffs cannot manufacture a triable issue of fact through use of an
expert opinion with self-serving conclusions devoid of any basis, explanation or
reasoning.” (McGonnell, supra, 98 Cal.App.4th at p. 1106.) “‘“[A]n expert’s opinion
rendered without a reasoned explanation of why the underlying facts lead to the ultimate
conclusion has no evidentiary value because an expert opinion is worth no more than the
reasons and facts on which it is based. [Citations.]” [Citation.]’” (Casey, supra, 206
Cal.App.4th at p. 1233.) Ay’s general statements regarding historical practices for
building cooling towers cannot establish that this particular cooling tower contained

                                             11
asbestos. Ay rejected Evans’ testimony that the baffles were made of wood. Based only
on Evans’ testimony describing the material as gray, Ay concluded that the baffling was
made of transite.5 But just as Evans’ testimony cannot provide the foundation to show
that the tower was likely constructed with transite, plaintiffs cannot base their expert’s
opinion on the same inadequate foundation. Ay’s opinion is “simply too tenuous to
create a triable issue” regarding causation. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 781.) Without evidence of actual exposure to asbestos, Ay’s opinion “creates
only ‘a dwindling stream of probabilities that narrow into conjecture.’” (McGonnell,
supra, 98 Cal.App.4th at p. 1105.) Similarly, Ay’s conclusory statement regarding the
dust produced by the demolition lacks sufficient foundation to provide evidentiary value.
Even under the most lenient standards, a plaintiff must demonstrate a “sufficient factual
nexus between the negligent conduct and the injury.” (Lineaweaver, supra, 31
Cal.App.4th at p. 1414.) Here, plaintiffs fail to provide the requisite nexus between the
materials in the cooling tower and Evans’ exposure to asbestos, and summary judgment
was proper.
                                      DISPOSITION
       We affirm the order granting summary judgment. Respondents are awarded their
costs on appeal.


              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                       COLLINS, J.

I concur:


WILLHITE, J.

       5
         Plaintiffs’ counsel conceded in her October 15, 2015 letter to the court that Ay
did not reference, or rely on, Evans’ description of the baffling material as “fuzzy.”
Instead, Ay referred only to the color when he testified that he considered wood baffling
to be brown, while gray “to me, is a Transite-type material.”
                                             12
EPSTEIN, P. J.
       I respectfully dissent.
       Because I am satisfied from the record that appellant has raised a triable issue of
material fact on each of the factual issues he must prove, I cannot join the opinion of my
colleagues that he has not.
       In order to succeed, appellant must prove that (1) he is suffering from asbestosis,
(2) as a result of exposure to asbestos while working on the dismantling of a water
cooling tower, (3) some of the materials of which contained that substance, and (4)
respondent Fluor as owner or operator of the tower was the party responsible for the
dismantling and is subject to liability for the injury. It is undisputed that appellant is
suffering from asbestosis, and that he participated in the dismantling of the water cooling
tower. What is disputed is whether Fluor was responsible for dismantling the tower and
whether appellant was exposed to asbestos material which was a part of the tower.
       The tower to be dismantled displayed a sign reading “Fluor.” The opinion of my
colleagues correctly concludes that the presence of the sign on the tower with the
company name Fluor is sufficient for a prima facie showing that Fluor Corporation was
responsible for the dismantling. (See Smith v. Deutsch (1948) 89 Cal.App.2d 419, 424,
and cases cited.)
       The principal question in this appeal is whether there is a prima facie showing that
appellant was exposed to asbestos as a result of the dismantling. That depends, in turn,
on whether the water tank structure contained asbestos material. The tower structure
itself was made of redwood, and it is not disputed that, to aid in its cooling function,
baffles were bolted onto the water tank. The issue in the case is whether those baffles
were constructed of a material containing asbestos.
       Appellant testified that the baffles were grayish in color and “fuzzy” in
appearance. Redwood itself has neither of these features. Appellant’s expert, Charles
Ay, testified to his considerable experience with water cooling towers. He testified that,
at the time relevant to this case, cooling towers were fitted with baffles, some made of
wood and some made of Transite, a cement or cement-like material containing asbestos.

                                               1
In Ay’s experience most, although not all, of these towers, including Fluor towers, had
Transite baffles. Unlike redwood, which has a reddish appearance, Transite has a whitish
appearance. When it collapses, Transite raises dust; redwood creates splinters, not dust.
As shown by the color of the baffles and the dust raised when the tower collapsed, Ay
stated his opinion that the baffles were made of Transite, an asbestos based material, and
not wood. He summarized: “Transite is historically used on cooling towers. It is the
combination of the color, my knowledge of cooling towers and the use of Transite that
lead me to one conclusion and one conclusion only, that the material described here was,
in fact, asbestos containing.”
       This evidence is sufficient to present a triable issue of material fact in support of
appellant’s claim that the baffles attached to the cooling tower were made of Transite, an
asbestos material, and that appellant was exposed to asbestos when the tower collapsed,
releasing asbestos dust.




                                           EPSTEIN, P. J.




                                              2
