Court of Appeals of Washington, Division One; January 24, 2022

The decedent, Duane Hickson, filed an asbestos-related lawsuit alleging he was exposed to asbestos when he worked as a pipefitter throughout his life, including at the Atlantic Richfield Company (ARCO) Cherry Point Refinery. In April 2019, the decedent was diagnosed with mesothelioma and subsequently passed away on February 6, 2020.

ARCO moved for summary judgment, alleging that the plaintiff failed to demonstrate that the decedent had been exposed to asbestos at Cherry Point, that there was no expert testimony to establish causation, and that all the claims were purely speculative. The plaintiff’s opposition to the summary judgment motion asserted that the plaintiff’s expert, Dr. Carl Brodkin, had testified that if certain exposure was demonstrated, he would testifyas to causation.

The court granted ARCO’s motion, finding that the plaintiff did not show a genuine issue of material fact as to causation. The plaintiff appealed the court’s decision.

The appellate court first noted that “[s]ummary judgment is proper if the pleadings, depositions, answers, and admissions, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Morgan, 159 Wn. App. at 729; CrR 56(c). To survive summary judgment, the plaintiff would need to demonstrate that there was a genuine issue of material fact that he had been exposed to asbestos and that his exposure to asbestos caused his mesothelioma. Id. at 736.

Additionally, “[i]t is well settled that asbestos plaintiffs in Washington may establish exposure to a defendant’s product through direct or circumstantial evidence.” Id. at 729. However, “[i]n an asbestos case, the plaintiff must show a causal connection between the injury, the product, and the manufacturer.” Id. As such, even if there was sufficient evidence of exposure to survive summary judgment, the plaintiff must still satisfy the Lockwood test to establish that sufficient evidence shows asbestos was a substantial factor in causing mesothelioma. Morgan, 159 Wn. App. at 739; Lockwood v. AC & S, Inc., 109 Wn.2d 235, 248-49, 744 P.2d 605 (1987).

The Lockwood test has four factors: “(1) plaintiff’s proximity to the asbestos product when the exposure occurred and the expanse of the work site where asbestos fibers were released; (2) the extent of time the plaintiff was exposed to the product; (3) the types of asbestos products to which plaintiff was exposed and the ways in which the products were handled and used, and (4) the evidence presented as to medical causation of the plaintiff’s particular disease.” Morgan, 159 Wn. App. at 730.

Prior to his passing, the decedent was deposed and discussed his time working at Cherry Point. The court found that a close reading of the decedent’s deposition revealed that he did not offer any testimony that he removed asbestos-containing insulation from pipes at Cherry Point. Furthermore, the plaintiff’s expert witness, Dr. Carl Brodkin, reviewed the deposition transcript and interviewed the decedent about his work history and his occupational exposure to asbestos-containing products. Dr. Brodkin also had the benefit of reviewing discovery materials when he prepared his written report. Based on those materials and information, however, Dr. Brodkin concluded that he could not testify at trial that the decedent had asbestos exposure while working at ARCO.

Accordingly, the appellate court found that the evidence did not support a conclusion that the plaintiff satisfied the Lockwood factors, and therefore, the trial court did not err in granting summary judgment to ARCO.

Read the full decision here.