McGonnell v. Kaiser Gypsum Co

In McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, a plaintiff seeking damages for personal injuries resulting from asbestos exposure testified that he was familiar with the name "Kaiser Cement Company" and had seen bags with that name on them, but he could not recall where. He had not heard of a company called Kaiser Gypsum and had no recollection of working near or with Kaiser Gypsum products. (Id. at p. 1101.) In addition to his own testimony, the plaintiff relied upon invoices and other evidence which showed that (1) Kaiser Cement products might have been used once at the site, but no evidence that the product, at that time, contained asbestos, and (2) a few years before McGonnell began working at the job site, Kaiser Gypsum had sold joint compound, which might have contained asbestos, to a contractor for a project at the same site. (Id. at p. 1102.) It was therefore "at least within the realm of possibility that McGonnell encountered a wall with Kaiser joint compound during his 24 years of employment at that site." (Ibid.) Nonetheless, the court found that possibility insufficient to create a triable issue of fact because, "all that exists in this case is speculation that at some time McGonnell might have cut into a wall that might have contained Kaiser joint compound that might have contained asbestos. The evidence creates only 'a dwindling stream of probabilities that narrow into conjecture.' " (Id. at p. 1105.)