1

Filed 9/2/21; Opinion following rehearing

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BETH HARRIS et al.,

Plaintiffs and Appellants,

v.

THOMAS DEE ENGINEERING 

CO., INC.,

Defendant and Respondent.

 A153106

 (Alameda County

 Super. Ct. No. RG14725868)

In this asbestos case, Beth Harris and her children (Plaintiffs) appeal 

the trial court’s grant of summary judgment in favor of defendant Thomas 

Dee Engineering Company (Thomas Dee). We conclude that the trial court 

erred in its evaluation of an expert declaration submitted by Plaintiffs in 

opposition to Thomas Dee’s motion and that there is a triable issue whether 

Thomas Dee’s refractory work on a United States Navy ship exposed 

decedent Michael Harris to asbestos. Accordingly, we reverse the grant of 

summary judgment.1

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of part III.

1 In a separate order filed the same day, the trial court granted summary 

judgment in favor of defendant Triple A Machine Shop, Inc. In June 2019, 

this court reversed that order. (Beth Harris et al. v. Triple A Machine Shop, 

Inc. et al. (June 26, 2019, A153794) [nonpub. opn.] (Triple A Machine Shop).) 

The present appeal was stayed between February 2019 and April 2021 

during Thomas Dee’s Chapter 11 bankruptcy proceeding.
2

BACKGROUND2

Mr. Harris was diagnosed with mesothelioma in March 2014. Two 

months later, he and his wife Beth Harris filed a personal injury complaint 

against numerous defendants alleging causes of action for negligence, strict 

liability, and loss of consortium. Mr. Harris passed away in October 2014. In 

July 2015, Mrs. Harris and her children amended the complaint to assert 

wrongful death and survival claims. 

In June 2017, Thomas Dee moved for summary judgment on the issue 

of exposure. The motion stated, “This motion for summary judgment is made 

. . . on the grounds that the undisputed evidence establishes that plaintiffs 

are unable to establish the essential element of causation in that plaintiffs 

are unable to establish that plaintiffs’ decedent was exposed to asbestos by an 

act or omission of [Thomas] Dee as alleged in the complaint. Because 

plaintiffs will be unable to establish any causal connection between plaintiffs’ 

injuries and [Thomas] Dee’s claimed operations as a boiler refractory 

contractor, plaintiffs’ claims fail as a matter of law.” Thomas Dee also moved 

for summary adjudication on strict liability and punitive damages issues.

Plaintiffs’ claims arise out of Mr. Harris’s alleged exposure to asbestos 

while he served in the U.S. Navy, specifically during repairs aboard the 

U.S.S. San Jose at the Triple A Machine Shop in San Francisco during Fall 

1973. From August 1973 to May 1974, Mr. Harris worked on the U.S.S. San 

Jose as a hull maintenance technician. Mr. Harris’s duties included 

maintaining and repairing the ship’s fire system, which ran through the 

entire ship. In addition to his daily shift working as a hull technician, Mr. 

Harris was responsible for “ ‘standing watch ’ ” four hours about every other 

2 Portions of this background summary are taken from this court’s decision in 

Triple A Machine Shop.
3

day. His watch duties required him to “ ‘patrol every part of the ship’ ” to 

check for leaks and fires, among other things.

Thomas Dee is a contractor that works with “refractory brick, mortar 

and castable cement situated on the inside of boilers.” Thomas Dee 

performed repairs on boilers aboard the U.S.S. San Jose during the Fall 1973 

repair period. The first part of the job required Thomas Dee to “ ‘tear out’ ” 

the existing insulation and refractory material. Plaintiffs’ expert opined that 

the “approximately 200 feet of insulation block removed from the three 

boilers . . . more likely than not contained asbestos.”

During the Fall 1973 repairs, Mr. Harris witnessed non-Navy 

personnel performing work aboard the ship. Mr. Harris testified he worked 

in the boiler room and also saw other people working in the boiler room. He 

did not see anyone working on the boilers.

William Ewing, a certified industrial hygienist, was Plaintiffs’ expert 

witness regarding asbestos exposure. In his deposition, he was asked about 

Mr. Harris’s testimony that he did not see any boiler work performed on the 

U.S.S. San Jose. Mr. Ewing testified, “If he wasn’t present when the work 

was done, then I don’t think there’d be any issue regarding any exposure.” 

Despite that testimony, in a declaration submitted by Plaintiffs in opposition 

to the summary judgment motion, Mr. Ewing opined that Mr. Harris “did not 

need to be present at the exact time that the insulation block was being 

removed, swept up, and/or installed by Thomas [Dee] workers to be exposed.” 

Instead, the removal of the asbestos-containing refractory materials from the 

boilers would have exposed Mr. Harris to asbestos whenever he was in the 

boiler room because asbestos fibers can remain suspended for up to 80 hours 

before settling out of the air and because the fibers can be continuously resuspended through a phenomenon known as “re-entrainment.” Mr. Ewing 
4

stated, “This cycle of re-suspension is well-documented and is generally 

accepted in the industrial hygiene field. . . . There is near universal 

agreement that asbestos fibers persist in the environment almost indefinitely 

and thus can represent a continuous potential source of exposure when 

present in buildings or other enclosed spaces.”

In moving for summary judgment, Thomas Dee argued that, because 

Mr. Harris testified he did not see anyone working on the boilers, and, 

because Plaintiffs’ expert testified Mr. Harris would not have been exposed to 

asbestos if he was not present when the work was being done, summary 

judgment should be granted. On reply, it argued Mr. Ewing’s declaration 

about the re-entrainment phenomenon had to be disregarded because it 

contradicted his deposition testimony and because an expert may not testify 

to opinions not disclosed during his or her deposition.

Following a hearing, the trial court granted Thomas Dee’s motion for 

summary judgment. The court’s order states: “Plaintiffs’ discovery responses 

do not specify any facts suggesting that they can produce admissible evidence 

that [Mr. Harris] was in the boiler room in which the ship’s boilers were 

located, and where [Thomas] Dee would have performed its refractory work, 

while employees of [Thomas] Dee were manipulating asbestos-containing 

refractory materials, or at any specific time shortly after such work when 

such fibers might still be subject to exposure.” With respect to Mr. Ewing’s 

declaration, the court stated that it “rejects plaintiffs’ attempt to create a 

factual issue by offering [their expert’s] ‘re-entrainment’ theory, disclosed in 

his declaration submitted in opposition to the instant motion. The 

declaration offers a new, previously not disclosed opinion that is contradicted 

by his deposition testimony.” The court did not address Thomas Dee’s 
5

summary adjudication issues, which were rendered moot by the grant of 

summary judgment.

The trial court entered judgment in favor of Thomas Dee. The present 

appeal followed.

DISCUSSION 

Plaintiffs argue that the trial court erred in refusing to give weight to 

their expert’s declaration and that the declaration demonstrates there is a 

triable issue whether Thomas Dee’s activities exposed Mr. Harris to asbestos. 

We agree.

I. Governing Law and Standard of Review

Summary judgment is appropriate “if all the papers submitted show 

that there is no triable issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, 

subd. (c).)3 “[T]he party moving for summary judgment bears the burden of 

persuasion that there is no triable issue of material fact and that he is 

entitled to judgment as a matter of law.... There is a triable issue of material 

fact if, and only if, the evidence would allow a reasonable trier of fact to find 

the underlying fact in favor of the party opposing the motion in accordance 

with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 850, fns. omitted (Aguilar).) In ruling on the motion, 

the court must draw all reasonable inferences from the evidence in the light 

most favorable to the opposing party. (Id. at p. 843.)

“The defendant is not required conclusively to negate an element of the 

plaintiff’s cause of action. The defendant need only show the plaintiff cannot 

establish at least one element of the cause of action, such as by showing the 

3 All undesignated statutory references are to the Code of Civil Procedure. 
6

plaintiff does not possess, and cannot reasonably obtain, needed evidence.” 

(Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438.) The burden 

then shifts to the plaintiff to show a triable issue of material fact exists. 

(§ 437c, subd. (p)(2).) “The plaintiff . . . shall not rely upon the allegations . . . 

of its pleadings . . . but, instead, shall set forth the specific facts showing that 

a triable issue of material fact exists . . . .” (Ibid.) We review a decision on a 

summary judgment motion de novo. (Saelzler v. Advanced Group 400 (2001) 

25 Cal.4th 763, 768 (Saelzler).)

II. The Trial Court Erred In Declining to Give Any Weight to Mr. Ewing’s

Declaration

As noted previously, the trial court “reject[ed] plaintiffs’ attempt to 

create a factual issue by offering” Mr. Ewing’s declaration in opposition to 

Thomas Dee’s summary judgment motion, because the re-entrainment theory 

of exposure was not disclosed in the expert’s earlier deposition and because it 

was in conflict with his deposition testimony.4 The trial court erred.

We first reject Thomas Dee’s contention that the trial court properly 

disregarded5 Mr. Ewing’s declaration because the re-entrainment theory of 

exposure was not disclosed in his deposition. Thomas Dee relies on the 

decision in Jones v. Moore (2000) 80 Cal.App.4th 557, which states, “When an 

4 The trial court also stated elsewhere in its decision that there was no 

“factual foundation” for the re-entrainment theory. Thomas Dee suggests the 

lack of foundation was the absence of testimony Mr. Harris was in the boiler 

room at a specific time after performance of Thomas Dee’s work, but the reentrainment theory as described in Mr. Ewing’s declaration did not require 

such evidence.

5 Thomas Dee asserts the trial court “excluded” Mr. Ewing’s declaration. As 

explained below (pp. 10-11, post), the more accurate characterization of the 

trial court’s ruling is that the court admitted, but then disregarded or gave no 

weight to the declaration in determining whether there is a triable issue of 

fact. 
7

expert deponent testifies as to specific opinions and affirmatively states those 

are the only opinions he intends to offer at trial, it would be grossly unfair 

and prejudicial to permit the expert to offer additional opinions at trial.” (Id.

at p. 565 (italics added).) Jones and similar cases stand for the proposition 

that “a party’s expert may not offer testimony at trial that exceeds the scope 

of his deposition testimony if the opposing party has no notice or expectation 

that the expert will offer the new testimony, or if notice of the new testimony 

comes at a time when deposing the expert is unreasonably difficult.” 

(Easterby v. Clark (2009) 171 Cal.App.4th 772, 780, italics omitted.) But here 

we are concerned with an expert’s opinions in a declaration in opposition to 

summary judgment, not trial testimony.6

We recognize that in evaluating a motion for summary judgment the 

court must consider only those declarations that set forth evidence admissible 

at trial. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541 

(Perry).) However, Thomas Dee construes Perry too broadly. There, the 

Supreme Court stated it was of “determinative importance” that the 

summary judgment statute provided that declarations “ ‘shall set forth 

admissible evidence.’ ” (Id. at p. 541, quoting § 437c, subd. (d).) The court 

concluded expert declarations could not be considered on summary judgment 

where the experts’ testimony would be inadmissible at trial because they had 

not been disclosed within the statutory time for exchanging expert witness 

information. (Id. at pp. 542-543.) In Perry, the party opposing summary 

judgment could have sought statutory relief from its failure to disclose, but 

6 Thomas Dee mistakenly asserts that McCoy v. Gustafson (2009) 180 

Cal.App.4th 56, applied Jones in the summary judgment context. Instead, 

the trial court there granted a motion in limine prohibiting an expert from 

offering an opinion at trial on a topic on which he did not opine during his 

deposition. (Id. at pp. 95–98.)
8

absent the granting of such relief the experts’ testimony was barred under 

the express statutory language. (Id. at pp. 541-542; see also § 2034.300.)

In contrast, in the present case, Thomas Dee cites no statute that 

renders Mr. Ewing’s testimony inadmissible at trial. Further, as Thomas 

Dee acknowledges, at trial the court has discretion to admit an opinion the 

expert did not disclose in his or her deposition. If appropriate notice of a new 

expert opinion is provided, the opinion may be admissible, and “the fact that 

an expert’s testimony at trial differs from his deposition testimony goes to the 

expert’s credibility; it does not, without some further evidence of prejudice to 

the opposing party, serve as ground for exclusion.” (Easterby v. Clark, supra, 

171 Cal.App.4th at p. 781.) That is, the testimony is admissible unless the 

determination is made at trial that admission of the testimony would be 

prejudicial. Thus, Mr. Ewing’s testimony was not, at the time of the 

summary judgment motion, inadmissible at trial.

The California Supreme Court’s recent decision in Sweetwater Union 

High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, supports our 

conclusion that Thomas Dee misconstrues Perry’s breadth. In Sweetwater, 

the court applied Perry in its analysis of the second prong of an anti-SLAPP 

motion, which is “ ‘a summary-judgment-like procedure.’ ” (Sweetwater, at p. 

945.) Sweetwater noted that courts considering both summary judgment and 

anti-SLAPP motions may only rely on “evidence potentially admissible at 

trial presented in the proper form.” (Id. at p. 945, italics added.) The court 

held that grand jury transcripts proffered by the plaintiff satisfied that 

requirement, drawing a comparison to the circumstances in Perry. (Ibid.) 

Sweetwater explained that in Perry “the failure to comply with the disclosure 

statute rendered the evidence incurably inadmissible at trial,” while the case 

under consideration involved “evidence that is potentially admissible at 
9

trial.” (Sweetwater, at pp. 948–949.) The court observed that “there is no 

categorical bar to statements contained in the grand jury transcript and plea 

forms,” and “there are no undisputed factual circumstances suggesting the 

evidence would be inadmissible at trial.” (Id. at p. 949.) Further, Sweetwater

cited with approval other cases that “support the distinction between 

evidence that may be admissible at trial and evidence that could never be 

admitted.” (Id. at 948.) Like Sweetwater and those cases, in the present case 

there is no categorical bar to admission of the challenged aspects of Mr. 

Ewing’s testimony, and there are no undisputed circumstances showing 

inadmissibility. Indeed, even if the re-entrainment theory was new, given 

that it was disclosed well before trial, there was little basis for the court 

below to conclude that the expert’s opinion was “incurably inadmissible” at 

trial. Accordingly, Perry is distinguishable.

We also reject Thomas Dee’s argument that the trial court’s order was 

proper under the California Supreme Court’s decision in D’Amico v. Board of 

Medical Examiners (1974) 11 Cal.3d 1 (D’Amico), because the statements in 

Mr. Ewing’s declaration regarding the re-entrainment theory of exposure 

contradicted his deposition testimony. In D’Amico, the court considered how 

to apply the “well-established rules governing summary judgment 

procedure”—in particular the proposition that doubts should be resolved in 

favor of the party opposing the motion—in a context where a party’s 

discovery responses suggest “ ‘ “there is no substantial issue to be tried.” ’ ” 

(Id. at pp. 20–21.) The court reasoned that “when discovery has produced an 

admission or concession on the part of the party opposing summary judgment 

which demonstrates that there is no factual issue to be tried, certain of those 

stern requirements applicable in a normal case are relaxed or altered in their 

operation.” (Id. at p. 21.) The court then quoted language from a prior court 
10

of appeal decision, stating, “ ‘[w]here . . . there is a clear and unequivocal 

admission by the plaintiff, himself, in his deposition’ ” and the plaintiff 

contradicts that admission in a subsequent declaration, “ ‘we are forced to 

conclude there is no substantial evidence of the existence of a triable issue of 

fact.’ ” (Id. at p. 21, quoting King v. Andersen (1966) 242 Cal.App.2d 606, 

610.)

The D’Amico court explained its reasoning as follows: “As the law 

recognizes in other contexts [citation] admissions against interest have a very 

high credibility value. This is especially true when, as in this case, the 

admission is obtained not in the normal course of human activities and 

affairs but in the context of an established pretrial procedure whose purpose 

is to elicit facts. Accordingly, when such an admission becomes relevant to 

the determination, on motion for summary judgment, of whether or not there 

exist triable issues of fact (as opposed to legal issues) between the parties, it 

is entitled to and should receive a kind of deference not normally accorded 

evidentiary allegations in affidavits.” (D’Amico, supra, 11 Cal.3d at p. 22.)

Thomas Dee asserts, “D’Amico stands firmly for the proposition that a 

declaration offered to directly controvert the declarant’s deposition testimony 

is inadmissible.” We disagree. In D’Amico, the California Supreme Court did 

not hold that declarations contradicting discovery responses must be 

“excluded.” Rather, the court stated only that such declarations may be 

insufficient to create a triable issue of fact. The trial court’s order in the 

present case is consistent with this understanding of D’Amico. Thus, the 

order does not state that the declaration is inadmissible. Instead, the trial

court declined to give the declaration any weight in its analysis of whether 

there is a triable issue of fact as to exposure.
11

Properly understood, D’Amico does not state a rule regarding the 

admissibility of evidence; instead, the case provides guidance in determining 

whether a declaration that contradicts prior discovery responses is sufficient 

to create a triable issue of fact.7 This is relevant to our standard of review: 

“The existence of a triable issue of fact is a legal question that we review de

novo.” (Brome v. The Department of the California Highway Patrol (2020) 44 

Cal.App.5th 786, 794; see also Saelzler, supra, 25 Cal.4th at p. 768.) 

Accordingly, regardless of the appropriate standard of review of evidentiary 

rulings on summary judgment, we review de novo the trial court’s conclusion 

that, under D’Amico, Mr. Ewing’s declaration was insufficient to establish a 

triable issue of fact.8

7 To this limited extent we disagree with statements in prior published cases 

that may be read to suggest D’Amico states a rule regarding the admissibility 

of evidence. (See, e.g., Taylor v. Financial Casualty & Surety, Inc. (2021) 

____ Cal.App.5th ____, ____ (2021 WL 3627529 at p. *7) [concluding 

declaration not “inadmissible” under D’Amico]; Turley v. Familian Corp.

(2017) 18 Cal.App.5th 969, 983 (Turley) [stating, “applying D’Amico properly, 

courts have held that the court may exclude the evidence where the 

declaration and the discovery responses are ‘contradictory and mutually 

exclusive’ ”]; Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 143-

144 (Ahn) [referring to the trial court’s “evidentiary” ruling in “excluding the 

declaration”]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120 

[“most of plaintiff’s declaration is inadmissible”].)

8 We recognize that Mackey v. Trustees of California State University (2019) 

31 Cal.App.5th 640 (Mackey), expressly held the abuse of discretion standard 

of review applied to the trial court’s rulings on “ ‘evidentiary objections’ ” 

under D’Amico. (Id. at pp. 657, 659.) And at least two other decisions that 

viewed D’Amico as stating a rule regarding the admissibility of evidence 

acknowledged uncertainty regarding the standard of review on summary 

judgment. (Turley, supra, 18 Cal.App.5th at p. 978 [acknowledging debate 

regarding standard of review of evidentiary rulings, but stating result the 

same under either de novo or abuse of discretion standard]; Ahn, supra, 223 

Cal.App.4th at p. 144 [same].) For the reasons stated above, we respectfully 

disagree with Mackey’s conclusion that a trial court’s ruling under D’Amico is 
12

We also disagree with Thomas Dee’s apparent suggestion that, even if 

D’Amico does not require the exclusion of a declaration, the decision does 

require that a trial court give no weight to portions of a declaration 

contradicting a declarant’s deposition testimony in any respect. The court in 

Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1514, cautioned 

that, although “admissions of a party obtained through discovery receive an 

unusual deference in summary judgment proceedings, and, absent a credible 

explanation, prevail over that party’s later inconsistent declarations[,] 

[citation] . . . later cases have cautioned that D’Amico should not be read ‘as 

saying that admissions should be shielded from careful examination in light 

of the entire record.’ ”

In the present case, the contradiction between Mr. Ewing’s declaration 

and his deposition testimony does not eliminate the declaration’s evidentiary 

value.9 The stated rationale for the D’Amico rule is that “admissions against 

interest have a very high credibility value.” (D’Amico, supra, 11 Cal. 3d at p. 

22.) And this is particularly true where a deponent testifies regarding a 

factual matter within his or her personal knowledge and arguably contradicts 

the testimony in a declaration. (See, e.g., Turley, supra, 18 Cal.App.5th at p. 

983 [testimony regarding personal knowledge of types of gaskets used by 

mechanics]; Ahn, supra, 223 Cal.App.4th at p. 147 [factual disputes 

regarding trucking services agreement]; Benavidez v. San Jose Police Dept.

reviewed for abuse of discretion. In any event, we would reverse even if we 

were to review the trial court’s decision under the deferential abuse of 

discretion standard: D’Amico provided neither a basis to exclude nor to 

entirely disregard the challenged testimony at the summary judgment stage. 

9 Plaintiffs dispute that Mr. Ewing’s declaration contradicted his deposition 

testimony. We assume for purposes of this decision that the trial court did 

not err in that respect.
13

(1999) 71 Cal.App.4th 853, 861–862 [dispute as to what plaintiff told police 

officers and knew about officers’ intentions]; Mason v. Marriage & Family 

Center (1991) 228 Cal.App.3d 537, 546 (Mason) [dispute as to date of injury]; 

Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [plaintiffs’ 

admissions regarding loan terms], overruled on other grounds in Riverisland 

Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 

Cal.4th 1169, 1182.)10 In contrast, in the present case, Mr. Ewing’s

declaration relates a scientific theory that he apparently did not discuss in 

his deposition, and his statements in the declaration do not contradict any 

prior testimony regarding facts he observed. (Cf. Price, at p. 482 [observing 

that, under D’Amico, “self-serving declarations of a party” cannot overcome 

“credible admissions on deposition”]; Benavidez, at pp. 862-863 [disregarding 

contradictory statements in a declaration and observing, “Either [the 

plaintiff] did not say anything or she asked to go to a shelter; either she 

thought the officers were staying to protect her or she thought they were 

leaving.”].)

It is instructive to compare the present case with Jacobs v. Fire Ins. 

Exchange (1995) 36 Cal.App.4th 1258, which did apply D’Amico to disregard 

an expert’s opinion that contradicted prior deposition testimony.11 That case 

10 Notably, in Turley, Ahn, and Mason, the courts still gave weight to the 

declarations at issue because there was no direct contradiction or because 

other evidence supported the credibility of the challenged declaration.

11 Given that D’Amico’s stated rationale is the special “deference” accorded to 

party “admissions against interest” (D’Amico, supra, 11 Cal.3d at p. 22), it is 

arguably appropriate to apply the decision less stringently when the 

declaration and prior deposition testimony is from a non-party. Nevertheless, 

for purposes of the present appeal, we assume D’Amico properly can be 

applied to give no weight to a declaration by a non-party in appropriate 

circumstances.
14

was an insurance coverage action related to an assault, where applicability of 

a coverage exclusion turned on the willfulness of the assault. (Jacobs, at p. 

1261.) The court stated it was proper to “disregard” an expert’s declaration 

where the expert contradicted his prior deposition testimony about whether 

the assailant had “ ‘capacity to understand the nature and consequences of 

his actions.’ ” (Id. at p. 1270.) However, in that case, the expert’s declaration 

disclosed no basis for the difference between the opinion offered during the 

deposition and in the declaration. (Ibid.) In contrast, in the present case, 

Mr. Ewing’s declaration explained the difference in his opinion by referencing 

the re-entrainment theory, which he stated is widely accepted in the scientific 

community.

“Summary judgment is proper only if all the papers submitted on the 

motion show there are no genuine issues of material fact requiring a trial.” 

(Ahn, supra, 223 Cal.App.4th at pp. 145–146.) In the present case, Mr. 

Ewing’s declaration showed there was in fact a triable issue as to exposure 

under the re-entrainment theory, even if he neglected to mention that 

phenomenon during his deposition. Accordingly, unlike in Jacobs, the trial 

court was not presented with a declaration that flatly contradicted deposition 

testimony and provided no basis to conclude that the opinion expressed in the 

declaration was actually the valid one. D’Amico does not require a court to 

give no weight to a declaration “where there is a ‘reasonable explanation for 

the discrepancy’ or ‘countenance ignoring other credible evidence that 

contradicts or explains that party’s answers or otherwise demonstrates there 

are genuine issues of factual dispute.’ ” (Mackey, supra, 31 Cal.App.5th at p. 

658; see also Ahn, at pp. 144–145 [“Courts have consistently refused to apply 

the D’Amico rule . . . when [other] evidence adduced on the motion credibly 

explains or contradicts a party’s earlier admissions.”]; Mason, supra, 228 
15

Cal.App.3d at pp. 545–546 [declining to “ignore” plaintiff’s declaration under 

D’Amico where “the trier of fact could reasonably conclude that the initial 

interrogatory response was . . . a simple mistake”].)

In the present case, it is for the ultimate factfinder to decide what 

weight to give Mr. Ewing’s testimony regarding the re-entrainment theory in 

light of his deposition testimony.12 But the trial court erred in refusing to 

give the declaration any weight. 

III. The Ewing Declaration Creates a Triable Issue Whether Thomas Dee’s

Work Exposed Mr. Harris to Asbestos

“In the context of asbestos litigation, a plaintiff must demonstrate 

exposure to a defendant’s product and biological processes from the exposure 

which result in disease. . . . [T]he proper analysis is to ask whether the 

plaintiff has proven exposure to a defendant’s product, of whatever duration, 

so that exposure is a possible factor in causing the disease and then to 

evaluate whether the exposure was a substantial factor.” (Lineaweaver v. 

Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415–1416.) In the present 

case, Thomas Dee moved for summary judgment on the issue of exposure; 

accordingly, we do not address whether any exposure was a substantial factor 

in bringing about Mr. Harris’s mesothelioma. (See Johnson v. ArvinMeritor, 

Inc. (2017) 9 Cal.App.5th 234, 240 (Johnson).) Proof of exposure requires 

“circumstantial evidence . . . sufficient to support a reasonable inference of 

exposure.” (Lineaweaver, at p. 1420.) “[A] plaintiff has no obligation to prove 

a specific exposure to a specific product on a specific date or time. Rather, it 

12 Thomas Dee may request an opportunity to further depose Mr. Ewing, and 

the discrepancy between his initial deposition testimony and his declaration 

may be the subject of cross-examination at trial. We leave it to the discretion 

of the trial court to dictate the terms of any further discovery, including 

allocation of the expense of any additional deposition.
16

is sufficient to establish ‘that defendant’s product was definitely at his work 

site and that it was sufficiently prevalent to warrant an inference that 

plaintiff was exposed to it’ during his work there.” (Turley, supra, 18 

Cal.App.5th at p. 985, quoting Lineaweaver, at p. 1420.)13

In moving for summary judgment, Thomas Dee relied on the deposition 

testimony of Mr. Ewing and Mr. Harris to argue there was no evidence it 

exposed Mr. Harris to asbestos. Most particularly, Thomas Dee relied on Mr. 

Harris’s testimony that he did not observe anyone working on the boiler 

when he was in the boiler room on the U.S.S. San Jose and Mr. Ewing’s 

testimony that, if Mr. Harris “wasn’t present when the work was done, then I 

don’t think there’d be any issue regarding any exposure.”

Assuming without deciding that this evidence was sufficient to shift the 

burden to Plaintiffs (see Aguilar, supra, 25 Cal.4th at p. 850), the evidence 

presented in opposition to the motion creates a triable issue whether Thomas 

Dee exposed Mr. Harris to asbestos. First, Plaintiffs demonstrated there was 

a triable issue whether the refractory material removed by Thomas Dee 

contained asbestos. Specifically, Mr. Ewing’s declaration stated that a bid 

estimate sheet prepared by Thomas Dee for brickwork repairs to three boilers 

on the U.S.S. San Jose referred to the removal of “approximately 200 feet of 

insulation block.” And he opined that the “insulation block to be removed 

from the three boilers more likely than not contained asbestos.” Thomas Dee 

points to deposition testimony in which Mr. Ewing admitted he was not sure 

whether the material contained asbestos, but that testimony is not 

13 We disagree with Plaintiffs’ contention that the plaintiff in an asbestos 

case merely has to prove a possibility of exposure. Instead, as this court 

explained in Johnson, supra, 9 Cal.App.5th at p. 245, the plaintiff must prove 

a probability of exposure.
17

inconsistent with his averment that it likely did contain asbestos, based on 

his “review[] [of] safety and industrial hygiene literature concerning the use 

of asbestos[-]containing insulation block at worksites such as shipyards, ships 

and industrial applications” and his review of interrogatory responses from 

“insulation block manufacturers.”

Next, as Thomas Dee apparently does not dispute, Plaintiffs presented 

evidence Mr. Harris worked in the boiler room in his capacity as a hull 

maintenance technician, in addition to being in the boiler room on watch. 

Under the re-entrainment theory of exposure, that gives rise to a reasonable 

inference of exposure, even absent evidence that Mr. Harris was present 

when Thomas Dee was removing refractory material from the boilers. As 

explained in Mr. Ewing’s declaration, “There is near universal agreement 

that asbestos fibers persist in the environment almost indefinitely and thus 

can represent a continuous potential source of exposure when present in 

buildings or other enclosed spaces.”

Thomas Dee argues that Plaintiffs cannot prove exposure if there is no 

evidence that Mr. Harris was present when Thomas Dee was removing 

refractory material from the boilers. Thus, Thomas Dee contends, “the 

decedent’s testimony creates the inference that there was no boiler work 

ongoing when he was present. Importantly, [Plaintiffs’] certified industrial 

hygienist, William Ewing stated at deposition [that] if decedent was not 

present when work was performed, he would not have been exposed to 

asbestos.” However, because Mr. Ewing’s declaration regarding the reentrainment theory of exposure must be considered in determining whether 

there is a triable issue, Thomas Dee’s argument fails.14

14 Thomas Dee requests that this court also consider 21 other evidentiary 

objections it presented below that it asserts the trial court did not reach. 
18

Viewed in the light most favorable to Plaintiffs (Aguilar, supra, 25 

Cal.4th at p. 843), the evidence supports a reasonable inference that Thomas 

Dee workers disturbed asbestos-containing materials as part of their repair 

work on the U.S.S. San Jose in Fall 1973, and that Mr. Harris was exposed to 

it due to re-entrainment of the asbestos fibers. It is, of course, for the jury to 

decide whether the evidence of exposure is sufficient to prevail at trial, but at 

summary judgment we must resolve “ ‘any evidentiary doubts or ambiguities 

in plaintiff’s favor.’ ” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 

96, 100; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 

[“ ‘Any doubts about the propriety of summary judgment . . . are generally 

resolved against granting the motion, because that allows the future 

development of the case and avoids errors.’ ”].)

DISPOSITION

We reverse the order granting summary judgment in favor of Thomas 

Dee. Plaintiffs are entitled to costs on appeal. (Cal. Rules of Court, rule 

8.278(a).)

However, “[I]t is not appropriate to incorporate by reference, into a brief, 

points and authorities contained in trial court papers, even if such papers are 

made a part of the appellate record.” (Colores v. Board of Trustees (2003) 105 

Cal.App.4th 1293, 1301, fn. 2; accord York v. City of Los Angeles (2019) 33 

Cal.App.5th 1178, 1188, fn. 4.) Thomas Dee also moved below for summary 

adjudication on two issues, but the company has made no request of this 

court with respect to those issues on appeal.
19

_______________________

SIMONS, ACTING P.J. 

We concur:

____________________________

BURNS, J. 

____________________________

RODRIGUEZ, J.*

A153106

* Judge of the Superior Court of Alameda County, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
20

Alameda County Superior Court, Case No. RG14725868

Trial Judge: The Honorable Brad Seligman

The Arkin Law Firm, Sharon J. Arkin; Levin Simes LLP, William Levin and 

Timothy Pearce, for Plaintiffs and Appellants. 

WFBM, LLP, Michael T. McCall, Margaret F. Mahaffey, and Anne C. Gritzer, 

for Defendant and Respondent.