1

Filed 2/10/15 Green v. Certain T eed C orp. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DI VISION THREE

DOYLE D. GREEN et al.
, Plaintiffs and Appellants,

v. CERTAINTEED CORPORATION et al., Defendants and Respondents. A134983
( City and County of San Francisco Super. Ct. No. CGC

- 11

- 275894)

Plaintiffs Doyle D. Green and his wife Yvonne Green , Texas residents, appeal from adverse summary judgments entered in favor of several defendants in their action for damages arising from Doyle ’ s exposure to asbestos and subsequent diagnosis of
mesothelioma. The trial court ruled th at Texas law govern s p laintiffs’ claims again st certain defendants, including CertainT eed Corporation
, Bucy rus International, Inc., Terex Corporation, and Shell Oil Company (collect ively r e s pondents) , and applying Texas law granted r espondents ’ motions for summary jud gment and denied p laintiffs’ motions for a
new trial contestin g two of the summary judgment rulings. W e conclude the trial court correctly applied choice

- of

- law principles to the disposition of p laintiffs’ claims and did not err in any of the rulings chall enged on appeal.

FACTS AND PROCEDURAL HISTORY Doyle was born in Texas in 1936. Between 1954 and 1966, he served as a seaman,
gunner ’ s mate, and laborer in t he United States Navy. Most of his duty stations were located outside of California, but he did work at naval shipyards in Long B each,2

San Diego
, and San Francisco. After leaving the Navy, Doyle worked as a laborer at a mine in New Mexico for two years

. H e then retu rned to Texas, where he lived until his
death in 2012

. In July 2011, Doyle was diagn osed with mesothelioma, a cancer of the lining of the body ’ s internal organs that can be caused by the inhalation of asbestos

. Plaintiffs subsequently filed this action against r espondents and dozens of other defendants, asserting claims for negligence, st rict liability, and loss of consortium. Plaintiffs allege that Doyle was a California resident during a substantial period of his exposure to
asbestos

- containing products
, but their claims against the four r espondents arise out of Doyle ’ s work history in T exas in the years following his discharge from the Navy. As to CertainTeed, p laintiffs assert that, in the early 1980 ’ s, Doyle spent several months working as a crane operator on a project involving installation of the company ’ s cement pipe, which allegedly contained crocidolite asbestos. Asbestos dust was purportedly released into the air when plumbers cut the pipe with large power saws. Bucyrus and Terex allegedly manufactured cranes that Doyle operated between the late
1960 ’ s and 1980, the brake linings of which allegedly contained asbestos. Plaintiffs claim
that Doyle would often adjust, grind, and inspect the brake linings, releasing asbestos
dust into the air. With respect to Shell, p laintiffs claim Doyle was exposed to amosite
asbestos while w orking on the company ’ s Odessa oil refinery for about two to six months
in 1970. In the proceedings below, co defendant Kelley Moore Paint Company, Inc., which has since settled, moved to apply Texas law to p laintiffs’ claims. Respondents joined in
the mo tion. The trial court granted the motion, holding that Texas law would apply to

p laintiffs’ claims against certain defendants to whose asbestos

- containing products Doyle allegedly was exposed in Texas, but not to the claims against other defendants.
Subs equently, each r espondent moved for summary judgment
, arguing that under Texas law p laintiffs could not establish that Doyle’s mesothelioma was caused by exposure to their products

. With the exception of CertainTeed, each r espondent also argued that Doyle simply was not exposed to any of its products that contained asbestos.3

The court granted r espondents ’ motions for summary judgment, holding that under Texas law CertainTeed, Terex and Shell had negated the element of causation, that Bucyrus had negated the element of exposure, and that p laintiffs had failed to produce evidence creating triable issues of those material facts. Plaintiffs filed motions for a new trial contesting the summary judgment orders as to CertainTeed and Shell, which were denied.
Plaint iffs timely noticed their appeal from the judgments entered upon those orders.
DISCUSSION
I. Choice Of Law As it presents a purely legal question, we review the trial court ’ s choice

- of

- law
determination de novo. ( Samaniego v. Empire Today
, LLC (2012) 205 Cal.App.4th 1138, 1144.) Plaintiffs argue that the trial court erred in applying Texa s law on the issue of
causation and, alternatively, in refusing to apply the same causation standard to every
defendant. The fact that suit was properly filed in a California court is not, of course
, dispositive of the law to be applied. Under California ’ s governmental interest test, we conclude the trial court properly applied Texas law to the claims against r espondents
, regardless of the fact that different ru les of law may apply to the claims against other
defendants

. A. Governmental Interest Test
Under California ’ s so

- called “modern choice

- of

- law rule,” the law to be applied when there are multiple potentially concerned jurisdictions is governed by a three

- step governmental interest test. ( Frontier Oil Corp. v. RLI Ins. Co. (2007) 153 Cal.App.4th 1436, 1454

- 1455.) U nder the first step, the court must determine whether the applicable laws of California and Texas materially differ. ( Id. at p. 1454.) If so, und er the second step the court must determine whether both California and Texas have an interest in applying their own law to the dispute. ( Ibid. ) If both states have an interest, there is a true conflict and the court proceeds to the third step, known as the comparative impairment analysis, under which the court determines which state ’ s interest would be more significantly impaired if its laws were not applied. ( Id. at pp. 1454

- 14 55.)4 1. Step One Turning to step one, California and Texas apply different standards to determine the issue of causation in asbestos litigation. Rutherford v. Owens

- Illinois, Inc. (1997) 16 Cal.4th 953 ( Rutherford

), sets forth the “substantial factor” test, the controlling California
standard for causation in asbestos

- induced pe rsonal injury cases. Under the substantial factor test, a plaintiff “ must first establish some threshold exposure to the defendant ’ s defective asbestos

- containing products, and must further establish in reasonable medical probability that a particular expo sure or series of exposures was a ‘ legal cause ’ of his injury, i.e., a substantial factor in bringing about the injury.” ( Id. at p. 982.) “[T]he plaintiff need not prove that fibers from the defendant ’ s product were the ones, or among the ones, that actual ly began the process of malignant cellular growth.” ( Ibid. ) A plaintiff may prove causation by “demonstrating that the plaintiff ’ s exposure to [the] defendant ’ s asbestos

- containing product in reasonable medical probability was a substantial factor in

contr ibuting to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos

- related cancer.” ( Id. at pp. 976

- 9 77 , fn. omitted .) The Texas Supreme Court set forth its standard for causation in Borg

- Warner Corp. v. Flores (Tex. 2007) 232 S.W.3d 765 ( Borg

- Warner ). The court held that the plaintiff, a mechanic who had worked with brake pads manufactured by the defendant, had failed to show that his exposure to the brake pads caused his asbestosis, since the “record

. . . reveal[ed] nothing about how much asbestos [the plaintiff] might have inhaled” as a result of that exposure. ( Id. at p. 771.) After discussing the test set forth in Rutherford , the court concluded: “[S]ubstantial

- factor causation, w hich separates the speculative from the probable, need not be reduced to mathematical precision.
Defendant

- specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor i n causing the
asbestos

- related disease, will suffice

. . . . Given asbestos ’ s prevalence

. . . some exposure

‘ threshold ’ must be demonstrated before a claimant can prove his asbestosis was caused by a particular product.” ( Id. at p. 773.) The court held tha t “p roof of mere frequency,5

regularity, and proximity is necessary but not sufficient.” ( Id. at p. 772.) It noted “[t]here were no epidemiological studies showing that brake mechanics face at least a doubled risk of asbestosis.” ( Ibid. , fn. omitted. ) The c ourt stated that, “ [ w ] hile such studies are not necessary to prove causation

. . . ‘ the requirement of more than a doubling of the risk strikes a balance between the needs of our legal system and the limits of science. ’ ” ( Ibid

. ) Ultimately, the court concluded that without evidence of at least “the approximate quantum of fibers to which [the plaintiff] was exposed,” plaintiff failed to satisfy the de
minimis rule espoused in a Fourth Circuit decision applying Maryland law that Texas
courts followed. ( I

d. at p. 774.) Plaintiffs argue that the tests set forth in Rutherford and Borg

- Warner are the same, and that subsequent decisions from the Texas courts of appeal that require a stricter showing of causation have improperly strayed from Borg

- Warner

. These cases hold that a plaintiff must show (1) the total dose of asbestos from the defendant ’ s products to which he or she was exposed, and (2) whether that dose exceeds a minimum threshold dose above which an increased risk of developing an asbestos

- rela ted disease occurs

. ( Georgia

- Pacific Corp. v. Stephens (Tex.App. 2007) 239 S.W.3d 304, 320

- 321 ( Stephens ); Smith v. Kelly

- Moore Paint Co. (Tex.App. 2010) 307 S.W.3d 829, 833 ( Smith ); Georgia

- Pacific Corp. v. Bostic (Tex.App. 2010) 320 S.W.3d 588, 598

- 601, affd. (Tex. 2014) 439 S.W.3d 332 ( Bostic ).) These cases also discuss the importance of epidemiological studies in establishing causation. ( Stephens , at p p. 310, 316

- 318; Smith
, at p. 833; Bostic , 439 S.W.3d at p. 347 .) In their appellate briefs
, p laintiff s contended that the validity of the appellate
decisions issued after Borg

- Warner had been called into doubt because the Texas Supreme Court had granted review of the court of appeal decision in the Bostic case

. However, after the completion of briefing, the Texas Supreme Court affirmed the court of appeal ’ s decision, confirming that the Texas causation standard in asbestos cases is6

stricter than the California standard. ( Bostic , supra , 439 S.W.3d 332.) 1 Although affirming applicability of the substantial factor causation analysis, the Texas high court enunciated other requirements that the California courts have not required to establish
causation. ( Id. at p. 353.) The court held that “in the absence of direct proof of causation, establishing causation in fact against a defendant in an asbestos

- related disease case requires scientifically reliable proof that the plaintiff ’ s exposure to the defendant ’ s product more than doubled his risk of contracting the disease. A more than doubling of
the risk must be sho wn through reliable expert testimony that is based on epidemiological studies or similarly reliable scientific testimony.” ( Id. at p. 350.) Additionally, the court noted that proof of doubling of the risk may not be sufficient in cases where there is
evide nce of significant exposure from other sources, for example where it is established that a source of asbestos other than defendant increased the plaintiff ’ s chances of contracting mesothelioma by a factor of 10,000. ( I d

. at p. 351. )
2. Step Two
Since Te xas and California apply materially differ ent standards to determine
causation in asbestos

- related personal injury cases, we turn to step two of the governmental interest test to determine whether a true conflict exists. ( Frontier Oil Corp.
v. RLI Ins. Co. , supra , 153 Cal.App.4th at p. 1454.) We conclude that a true conflict does not exist because only Texas has a significant interest in the determination of p laintiffs’ claims against r espondents. Plaintiffs argue that both states have an interest because Doyle was exposed to
asbestos in California and Texas. However, p laintiffs are Texas residents, r espondents have or had operations in Texas, and Doyle ’ s alleged exposure to asbestos attributable to

r espondents ’ products or facilities occurred in Texas. Tex as has an interest in providing its residents with legal remedies for injuries incurred within the state. It also has an

1 Given the decision of the Texas Supreme Court, plaintiffs’ request for judicial notice and Bucyrus’ alternative motion for judicial notice , both requesting judicial notice of documents filed in the Bostic proceedings, are denied.7

interest in protecting Texas businesses from liability by ensuring that asbestos injury claims meet a clearly defined standard of proof

. California ’ s interest in the resolution of p laintiffs’ claims against r espondents is
far less clear. The claims arise out of alleged exposure to asbestos products that occurred
in Texas. While California has an interest in applying its law to claims inv olving out

- of

state injuries of California residents (see McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 95), Doyle has not lived or worked in California since he was discharged from the Navy in 1966. Plaintiffs do have claims against other defendants arising out of exposure to asbestos in California
, but we are concerned with claims against r espondents, not against the other defendants. Plaintiffs cite no authority suggesting that California has an interest in applying its law to a claim by an out

- of

- s tate resident against one defendant merely because that person also has claim s against other parties to which California law properly applies.

3. Step Three Although we conclude that no true conflict exists, to the extent that California has any interest in p laintiffs’ claims against r espondents, the third step of the governmental interest test would clearly favor application of Texas law. Since p laintiffs are Texas residents and Doyle ’ s alleged exposure to r espondents ’ asbestos

- containing products occurred in Texas, Texas ’ s interest in the application of its laws undoubtedly would be more significantly impaired by application of California law than would Calif ornia ’ s minimal interests be affected by applying Texas law. ( Frontier Oil Corp. v. RLI Ins. Co.
, supra , 153 Cal.App.4th at p. 1455.)
B. Different Causation Standards May Be Applied to Different Defendants Plaintiffs argue that two different standards of causation cannot be applied in the

same case

— one standard as against defendants responsible for Doyle’s asbestos exposure in Texas and another against defendants causing exposure in California or
elsewhere. Plaintiffs contend that the causation element of their claims is indivisible, that applying two different causation standards will lead to jury confusion, and that neither8

r espondents nor any other defendant asked the trial court to apply different causation
standards. Plaintiffs’ final contention m ay be quickly answered. Kelley Moore ’ s motion to apply Texas law, which was later joined by r espondents, did request that the trial court apply Texas causation law to the entire case. But the briefing and argument of the parties clearly addressed the appropriateness of applying Texas as opposed to California law to the claims against these r espondents. The briefing also brought out the differences in the claims against various defendant s that pertain to the choice

- of

- law determination. There was no element of surprise in the court ’ s ruling. By applying Texas law to only a subset of defendants, the trial court essentially granted the motion in part and denied the motion in part. There was no procedural error in doing so. Plaintiffs contend that the “indivisibility of the causation element” to which
reference was made in Cossman v. DaimlerChrysler (2003) 108 Cal.App.4th 370, 377 ( Cossman ) indicates that the same causation standard must be applied to the claims against all defendants. However, in that case the statement was made in the context of reiterating Rutherford ’s holding that “a plaintiff need not prove which asbestos product

‘ actually began the process of malignant cellular growth .’ ” ( Ibid. ) The holding in
Cossman was that the indivisibility of the causation element had no bearing on whether different statutes of limitations may apply to claims against different defendants. ( Ibid. ) We find nothing i n Cossman, Rutherford or any other California authority that precludes determining causation and liability of different defendants under different standards appropriate to the claim against the respective defendant. 2

2 Moreover, although we need not reach the issue, we note that if the same substantive law were applied to all defendants, including defendants with no significant contact with the state the law of which is chosen, a significant co nstitutional problem would be presented. (See, e.g., Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797 , 818 [ “ [F] or a State ’ s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or signific ant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” ].)9

Contrary to p laintiffs’ argument, applying two different causation stand ards will not necessarily cause jury confusion. “We must

. . . assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” ( People v. Yoder (1979) 100 Cal.App.3d 333, 338.) Passing the fact that there will be no jury to determine the claims against respondents since they are being resolved on summary judgment, were the claims to proceed to jury trial
, there is no reason to believe that jurors would be unable to fairly apply two differen t causation standards if properly instructed. If the trial court deemed there to be a particular risk of confusion, separate trials could be ordered. In all events, we conclude there was no error in the trial

court ’ s choice of the law to be applied in eval uating p laintiffs’ claims against the four

r espondents.
II. Summary Judgment
A. Standard of Review Summary judgment must be granted if all the papers and affidavits submitted, together with “all inferences reasonably deducible from the evidence” and unco ntradicted by other inferences or evidence, 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).) Where, as here, the defendant is the mov ing party, he or she may meet the burden of showing that a cause of action has no merit by proving that one or more
elements of the cause of action cannot be established. (See id. , subd. (o).) The defendant may do so by offering affirmative evidence that negates an essential element of the plaintiff ’ s cause of action or by offering the plaintiff ’ s factually insufficient discovery

responses. ( Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) Once the defendant has met that burden, the burden shifts to t he plaintiff to show the existence of a triable
issue of material fact as to that cause of action. ( Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)
We review the trial court ’ s summary judgment determinations de novo. ( Sangster
v. Paetkau (19 98) 68 Cal.App.4th 151, 163.) “We are not bound by the trial court ’ s stated
reasons or rationale. Instead, we review the summary judgment without deference to the10

trial court ’ s determination of questions of law. [Citations

. ] We may consider only those
fact s which were before the trial court, and disregard any new factual allegations made for the first time on appeal.” ( Ibid. )
B. CertainTeed, Terex, and Shell Motions for Summary Judgment The trial court granted summary judgment in favor of CertainTeed, Ter ex, and Shell on the ground that p laintiffs failed to create triable issues of material fact as to multiple issues in some cases, but as to all three of these respondents , to demonstrate that exposure to their respective products “was a substantial factor in causing [Doyle ’ s] mesothelioma pursuant to Texas law.” As an initial matter, CertainTeed, Terex, and Shell successfully shifted the burden on the causation issue by presenting affirmative evidence tending to show that their products were not a substan tial factor in contributing to Doyle ’ s mesothelioma. CertainTeed offered the declarations of two experts, Robert Spence and Dr. Peter Barrett. Spence opined that Doyle ’ s exposure from CertainTeed asbestos pipe was well below the asbestos exposure of a life time city dweller and therefore not significant. Barrett stated that there is unquestionably a threshold level of exposure to asbestos below which mesothelioma will not result and that exposure to background levels of asbestos does not
cause mesothelioma. Terex and Shell offered similar declarations from other industrial hygienists and medical doctors.
This evidence shifted the burden to p laintiffs to demonstrate the existence of a
triable issue as to the material fact of causation. As to each summary judgment motion,

p laintiffs attempted to meet that burden by offering: (1) Doyle’s declaration describing
th e circumstances of his exposure; (2) a declaration from William Ewing stating the amount and type of asbestos r espondents ’ produc ts contained and estimating the number of asbestos particles to which Doyle was exposed from those products ; 3 and (3) a

3 For example, Ewing’s declaration regarding Doyle’s exposure to asbestos in the brakes of Lorain cranes purportedly manuf actured by Terex or its predecessors, after explaining his method of calculation, concludes that Doyle’s “total dose from operating Lorain11

declaration from Dr. Barry Horn opining that the exposure levels described by Ewing are significant.
T his evidence was insufficient to raise a triable issue of material fact as to whether

exposure to the products or facilities of CertainTeed, Terex, and Shell was a substantial factor in causing Doyle ’ s mesothelioma. As discussed above , under Texas law a plaintiff
must do more than establ ish that he or she was exposed to some asbestos attributable to
the defendant. ( Borg

- Warner , supra , 232 S.W.3d at p. 773.) Rather, a plaintiff must quantify the exposure attributable to the defendant and establish that the exposure
exceeded a threshold tha t resulted in a statistically significant increase in the risk of developing mesothelioma. ( Ibid. ; Bostic , supra, 439 S.W.3d at p. 353.) Moreover, “in the absence of direct evidence of causation, the plaintiff must prove with scientifically reliable expert testimony that the plaintiff ’ s exposure to the defendant ’ s produc t more than doubled the plaintiff ’ s risk of contracting [mesothelioma].” ( Bostic , at p. 353. ) This is a high hurdle, and p laintiffs fail ed to clear it. Setting aside r espondents ’ evidentiary objections, Ewing ’ s declarations merely set forth the total amount of asbestos to which Doyle was exposed attributable to each of the

r espondents. While quantification of exposure is necessary, it is not sufficient. Ewing
do es not explain the significance of the quantities that he estimated or opine whether the quantities were sufficient to create an increased risk of mesothelioma.
Horn ’ s declarations do address the se risks, but they also fail to provide the evidence necessary to meet the Texas causation standard. Based on the declarations of Doyle and Ewing
, Horn opined that Doyle “suffered significant exposures to asbestos well above background/ambient levels of exposure

. ” H owever, he does not specify whether these exposure levels exceed a minimum safe threshold. Instead, he asserts that every exposure to asbestos “counts” toward increasing the risk of mesothelioma and that

cranes was likely in the range of 72 million to 1.26 billion asbestos fibers from operating for 6 months.”12

there is “no known lowest threshold of asbestos below which no disease occurs.” 4 Texas courts have repeatedly rejecte d this theory. ( See Bostic , supra , 439 S.W.3d at p. 355; Stephens
, supra , 239 S.W.3d at pp. 320

- 321)

. As the Texas Supreme Court explained in
Bostic : “T he any exposure theory effectively accepts that a failure of science to determine
the maximum safe dose of a toxin necessarily means that every exposure, regardless of amount, is a substantial factor in causing the plaintiff ’ s illness. This approach negates the plaintiff ’ s burden to prove causation by a preponderance of the evidence.” 5 ( Bostic , at
p. 340.) Plaintiffs argue that the substantial factor requirements set forth in Borg

- Warner and its progeny are inapposite with respect to CertainTeed and Shell because the type of
asbestos to which they exposed Doyle was different from the asbestos at issue in the Borg

- Warner case

. They reason that Borg

- Warner , Stevens , Smith, and Bostic involved

4 Horn’s d eclaration reads in part: “There is no method known to medicine or science by which to identify which fiber from which exposure caused mesothelioma to occur. There is no known lowest threshold of asbestos exposure below which no disease occurs. Accordingly , it is the consensus of medical, scientific, and epidemiological opinion that every exposure to asbestos ‘counts’ toward increasing the risk of disease. No exposure can be excluded as not having contributed to the risk. Every exposure to asbestos must be considered a substantial factor in causing the disease. [¶]

. . . [¶] It is, therefore, my opinion that Mr. Green’s exposure to asbestos from his work operating cranes and also his work adjusting and maintaining brakes on cranes; and being around joint com pounds being mixed, sanded and swept up in his presence; and being around thermal insulation materials that were swept up in his presence were substantial factors in increasing his risk of developing mesothelioma, and therefore were substantial factors in causing his mesothelioma.”

5 Plaintiffs contend that to the extent that Texas authority requires plaintiffs to set a forth a minimum threshold dose, we should ignore that authority since such a test makes it “scientifically impossible to prove causation in an asbestos case.” As plaintiffs point out, the petitioners in Bostic made an identical argument to the Texas Supreme Court. After this appeal was submitted, the Texas Supreme Court rejected the argument, reasoning that a less demanding standard would res ult in absolute liability against any company whose asbestos product crossed paths with the plaintiff and that Texas has “never embraced the concept of industry

- wide liability on grounds that proof of causation might be difficult.” ( Bostic , supra, 439 S.W. 3d at p. 340 .) As Texas law controls here, we cannot disregard the causation requirements set forth by the state ’ s high court.13

chrysotile asbestos, which is less toxic than the crocidolite asbestos used by CertainTeed and the amosite asbestos used by Shell. We disagree. While the Borg

- Warner court recognized the existence of different types of asbestos, its holding is not limited to chrysotile asbestos. ( Borg

- Warner , supra , 232 S.W.3d at pp. 773

- 774.) Likewise, the
court in Smith criticized epidemiological studies submitted by the plaintiffs for failing to distinguish among asbestos fiber types, suggesting that plaintiffs must choose their causation studies carefully

. ( Smith, supra
, 307 S.W.3d at p p. 838 , f n. 11, 839.) But w hile crocidolite and amosite exposure thresholds likely are lower than those for chrysotile asbestos, it does not follow, under the Texas view, that exposure to any amount of crocidolite or amosite asbestos can be considered a substantial factor in the development
of mesothelioma. Regardless of the type of asbestos involved, p laintiffs must still
establish that the exposure exceeds a harm

- inducing threshold

. Plaintiffs’ additional procedural arguments fare no better. Plaintiffs contend that
the trial court ’s rulings go beyond the issues framed by r espondents ’ moving papers which, they assert, were grounded solely on the contention that p laintiffs lacked evidence “quantifying” Doyle ’ s exposure

. However, i n their moving papers r espondents described the requirements of the substantial factor test set forth in Borg

- Warner and a rgued that

p laintiffs could not meet those requirements. While t hey argued that p laintiffs could not quantify the level of Doyle ’ s asbestos exposure for which each was responsible , the moving papers did not suggest that merely producing evidence quantifyin g the amount of
asbestos to which Doyle was exposed would satisfy the Texas standard

. T hey argued that
such evidence i s necessary but not sufficient. Nor did the trial court err in relying on Texas authority that was not cited in CertainTeed and Shell ’ s mo ving papers. While CertainTeed and Shell cited only Borg

- Warner and Stephens
, t he Texas Court of A ppeal
decisions in Smith and Bostic cited by the trial court do not enunciate a new causation
standard but merely elucidate the standard set forth in Borg

- Warner

. Moreover, b oth cases were cited in Kelley

- Moore ’ s earlier motion to apply Texas law, and p laintiffs cited
Bostic in their opposition to that motion. There was no element of unfair surprise in the trial court’s decision.14

C. Bucyrus’s Motion fo r Summary Judgment We address Bucyrus’s motion for summary judgment separately because the trial

court did not grant its motion based on plaintiffs ’ failure to establish a triable issue on t he
element of causation , but on their inability to prove that Doy le was exposed to any asbestos product for which Bucyrus was responsible. Nonetheless, without passing on the correctness of that determination, the summary judgment in Bucyrus’s favor must be upheld on the same grounds as the judgments in favor of the oth er respondents. The evidence submitted by Bucyrus negated both exposure and causation , and plaintiffs’
evidence failed to create a triable issue on the element of causation. So long as the opposing party h ad an adequate oppo rtunity to address the issue, th is court may affirm the summary judgment on any correct legal theory, whether or not it is the theory adopted by the trial court. ( Lujano v. County of Santa Barbara (2010) 190 Cal.App.4th 801, 806.) Bucyrus moved for summary judgment arguing that plaintiffs could not establish

exposure to , or causation of Doyle’s mesothelioma from exposure to, its products

. U nlike the other respondents, Bucyrus did not present epidemiological studies or expert
declarations to the effect that Doyle’s exposures fell below a safe threshold. Bucyrus argued that p laintiffs could not establish any exposure to its products or causation
, supported by Doyle’s own deposition testimony

. At his deposition, Doyle testified that he could not recall when, how often, or for how lon g he operated Bucyrus cranes; how often he performed maintenance on their asbestos brakes; or whether those brakes were even made or distributed by Bucyrus. He also indicated that he could only speculate as to whether Bucyrus cranes contained asbestos comp onents made, sold, or distributed by Bucyrus

. In attempting to show triable issue s as to exposure and causation
, p laintiffs
submitted declarations similar to the ones filed in opposition to the summary judgment motions of CertainTeed, Terex, and Shell. D oyle ’s declaration, however, attempt ed to clarify and expand upon his deposition testimony, providing more specificity as to the circumstances of his exposure to asbestos brakes on Bucyrus cranes, and stating he knew Bucyrus manufactured the brakes on his cranes because he recalled seeing Bucyrus brake15

boxes on his jobsites

. Plaintiffs also submitted a declaration from Ewing estimating the
total amount of Doyle’s exposure to asbestos emanating from the brakes on Bucyrus

cranes, based on Doyle’s description of his exposures
, and a declaration from Horn opining that Doyle’s exposure to Bucyrus brakes w as a substantial factor in contributing
to his mesothelioma. 6 Bucyrus objected to Doyle’s declaration on the ground that it contradicted his deposition testimony and therefore was inadmissible under D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1 ( D’Amico ). The trial court sustained Bucyrus’s objections
and thus concluded that p laintiffs had failed to raise a triable issue as to exposure.
We need not determine whether Doyle’s declaration was properly excluded under
D’Amico and its progeny because even if the declaration is considered, p laintiffs failed to

c reate a triable issue on the element of causation. Ewing and Horn’s declarations submitted in opposition to the Bucyrus motion suffer from the same defects as the
declarations submitted in opposition to the CertainTeed, Terex, and Shell summary judgment mo tions. Ewing does not explain whether the quantity of asbestos to which he
estimates Doyle was expos ed from Bucyrus brakes was significant . A nd Horn , although opining that that quantity was a substantial causative factor of Doyle’s mesothelioma,
relies on the theory that there is no known threshold of asbestos exposure below which no
disease occurs

. As discussed above, this theory has repeatedly been rejected by Texas

courts. (See Bostic , supra , 439 S.W.3d at p. 355; Stephens
, supra , 239 S.W.3d at pp. 320

- 3 21.) Thus, plaintiffs failed to establish a triable issue under Texas law as to the element of causation by Bucyrus pro ducts for the same reason they failed to do so with respect to the products and facilities of the other respondents. Hence, summary judgment was properly granted in favor of Bucyrus.

6 Plaintiffs also offered testimony from Bucyrus’s corporate representative, indicating that Bucyrus often sold and distributed replacement brakes for its cranes, as well as a warranty agreement requiring the purchaser of Bucyrus cranes to use Bucyrus replac ement parts.16 III. Motions f

or New Trial Plaintiffs also appeal the trial court ’ s order deny ing their motions for a new trial as
to CertainTeed and Shell. “A motion for a new trial is appropriate following an o rder granting summary judgment. [Citations.] .

. . [E] ven though, strictly speaking, ‘ summary judgment

. . . is a determination that there shall be no trial at all. ’ ” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 .) W e review orders grantin g or denying a new trial for abuse of discretion. ( Id. at p. 859.) However, when denial relies on the resolution of a question of law, we examine the matter de novo. ( Id. at p. 860.)
Most of the reasons for which plaintiffs argue that the new trial motion s should have been granted are duplicative of their contentions regarding the summary judgment
motions and are rejected for the same reasons

. However, plaintiffs also contend the trial
court erred in refusing to consider supplemental declarations from Horn . The new declarations opined that Doyle ’ s exposure to CertainTeed and Shell ’ s asbestos more than doubled his risk of mesothelioma, and attached epidemiological studies showing the high toxicity of crocidolite and amosite asbestos and deposition testimony from CertainTeed
and Shell ’ s experts acknowledging the high toxicity of th is asbestos. 7 The trial court rejected this additional evidence on the ground that it was not newly discovered and could have been presented with plaintiffs’ original opposition to the summary judgment motions. T he trial court did not abuse its discretion in so ruling.
To obtain a new trial based on new evidence , a party must demonstrate: “(1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discover ing and producing it; and (3) it is material to the moving party ’ s case.” ( Plancarte v. Guardsmark

7 Horn’s supplemental declaration in support of the motion as to Certain Teed concluded: “It is, therefore, my opinion that Mr. Green’s exposure to asbestos from his work around the cutting and beveling of CertainTeed asbestos cement pipe as quantified by Mr. Ewing was a substantial contributing factor in increasing his risk of developing mesothelioma, and therefore was a substantial contributing factor in causing his mesothelioma. It is also my opinion based on relevant epidemiological studie s that Mr. Green’s exposure from the cutting and beveling of CertainTeed asbestos cement pipe more than doubled Mr. Green’s risk of developing mesothelioma.” (Fn. omitted.)17

(2004) 118 Cal.App.4th 640, 646.) Here, Horn had already submitted declarations in support of p laintiffs’ oppositions to summary judgment and all of the cite d epidemiological studies were over a decade old. Plaintiffs argue that while this evidence might not be new, they were unaware that
this evidence was necessary since the summary judgment motions of CertainTeed and
Shell merely asserted that p laintiffs c ould not quantify Doyle ’ s exposure. However, as discussed above, the motions of CertainTeed and Shell were not predicated on this single deficiency. The showing made in support of the summary judgment motions shifted the
burden to plaintiffs to present suf ficient evidence to create triable issues as to both exposure and causation. Plaintiffs were given fair notice of the issues they were required

to address , and the trial court did not abuse its discretion by refusing to give them a
second bite of the apple. Moreover, even if the additional evidence were not rejected as untimely, the supplemental declaration did not require a new trial for another reason. Under Texas law
,

“ t he reviewing court must determine whether the epidemiological evidence is indee d reliable before it can be used to support an expert’s opinion. [Citation.] This means that the expert must identify the study, get it admitted into evidence, and explain how the methodology of the study is scientifically reliable. ” ( Minnesota Mining and Mfg. Co. v. Atterbury (Tex. App. 1998) 978 S.W.2d 183, 19 8 .) Horn ’s supplemental declaration does not attempt to explain or even describe the epidemiological studies up on which he relies. He merely asserts he reviewed the studies and concludes they support his opinion that Doyle’s exposures doubled his risk of mesothelioma. Thus, the trial court could well conclude that consideration of the supplemental declarations would not produce a different resolution of the summary judgment motions.
DISPOSITION The j udgments are affirmed. Respondents shall recover their costs on appeal.18 _________________________ Pollak, J.

We concur:

_________________________ McGuiness, P. J.

_________________________ Jenkins, J.