Defendants not entitled to summary judgment as to "substantial factor" causation because testimony of experts created triable issue as to whether contractor's employee was harmed on premises
The Fifth District has overturned a grant of summary judgment in favor of a landowner for injury to an electrical contractor’s employee from the fungi such as Histoplasma Capsulatum. (Beebe v. Wonderful Pistachios (June 6, 2023) F083502.) Plaintiff and appellant Beebe (“Beebe”) worked for an electrical contractor performing extensive work on the premises of defendant and respondent Wonderful Pistachios (“Wonderful”) and was therefore allegedly exposed to a fungus related to bird feces on a constant basis. Specifically, Wonderful and/or its agents engaged in “hydroblasting” and other clean-up which caused the bird feces to be airborne, which is potentially dangerous because Histoplasma Capsulatum is a soil-based fungus that feeds upon bird feces. This feces was literally everywhere, covering almost every surface in a “pole barn” area where Beebe performed his work lasting weeks at a time during which time Beebe lived in an RV near the Barn. Beebe therefore alleged the fungus caused his Histoplasmosis and resulting surgery:
The toxic substance(s) were allowed to accumulate and become airborne by Defendants’ actions and/or omissions herein. The substance(s) contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is informed and believes and based thereon alleges that when inhaled, said substance(s) caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The complaint further noted: “On or about November 24, 2015, Plaintiff reported to the hospital due to symptoms including, but not limited to, weakness and numbness in his extremities. Plaintiff was admitted to the hospital and imaging scans were performed. Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such that Plaintiff required surgical intervention. The lesions were biopsied in or about February 2016. Plaintiff was then diagnosed with Histoplasmosis. (Id., pp. 3-4.)
Wonderful and the other defendants then brought a motion for summary judgment, arguing plaintiff could not provide their actions were a “substantial factor” in the harm, arguing the fact Beebe presented with symptoms sometime after exposure to the fungus at their location indicated Beebe might have contracted Histoplasmosis from exposure somewhere else. The motion was granted by the Hon. David R. Lampe of Kern County Superior Court and Beebe timely appealed.
Beebe explained a plaintiff does not have to preclude all other causes to bring a claim for “substantial factor” before the jury
Justice Smith wrote the opinion for the Fifth District and explained there was in fact a triable issue as to whether the defendants were the “cause in fact” of the harm. Beebe distinguished the prior case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, upon which the trial court relied. Miranda upheld summary judgment in favor of the defendant from an employee’s injury due to “valley fever” and the alleged exposure to the endemic Cochi fungus, finding it relevant the fungus could be carried over large areas by strong winds. The Beebe court noted that here, by contrast, there was evidence supported a much stronger inference the employee was exposed to the fungus at Wonderful’s premises:
Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility was on a migratory route for flocks of swallows that had been nesting at the Facility for years, particularly in the pole barn. Hundreds of swallows would nest there for long periods every year, including the entire time Beebe worked at the Facility. There can be no doubt that the presence of the birds was significant and problematic, given that WP&A personnel made various attempts (some ill-advised) in the relevant time period, to prevent the birds from roosting in the pole barn and other areas of the Facility.
The evidence also showed that the accumulation of bird feces was an extreme problem at the Facility, with some spots having layers of feces an inch or two thick. The accumulations interfered, at times, with the work the Braaten electricians [such as Beebe] were performing at the site (Beebe himself had to personally remove bird droppings at times). Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor of the pole barn, the feces were simply deposited on the surrounding soil and not removed from the site. Beebe testified he was not exposed to concentrated accumulations of bird feces anywhere other than the Firebaugh Facility. (Id., pp. 30-31.)
Beebe stressed that in order to prove factual causation a plaintiff must prove the case of the harm with “reasonable probability,” meaning factual causation involves “reasonable medical probability.” (Id., p. 24; emphasis added.) A plaintiff does not have to prove that no other causes could have contributed to the harm, and, consequently, does not have to provide factual causation with “certainty.” (Id.)
Crucially, the appellate court found the trial court had improperly excluded two of Beebe’s experts on the grounds their testimony was “speculative;” Even though a trial court’s ruling on evidentiary matters is viewed through the lens of an “abuse of discretion” standard, the trial court’s ruling did not survive analysis under this standard and plaintiff’s expert’s conclusions should not have been excluded. Therefore, the appellate court considered the declarations proffered by both sides, which declarations created triable issues of material fact as to the factual cause of Beebe’s harm.
Lessons for practitioners when dealing with issues of causation raised in a motion for summary judgment
Such motions often become a “battle of the experts” to the same extent as would a trial. For example, in Beebe the experts disagreed on a number of crucial issues, such as the prevalence of injury from Histoplasmosis in the area or whether exposure to Histoplasma Capsulatum would ordinarily cause symptoms immediately or if they might present later.
Beebe thus illustrates how difficult it is to obtain summary judgment based upon a “cause in fact” argument where the defendant alleges there are other possible causes of the harm such that the defendant’s conduct was not a “substantial factor” in the harm. Which possible causes were more likely to be the actual cause of the harm is ordinarily a triable issue the parties address at trial by the use of expensive — and sometimes difficult to obtain — expert witness testimony.
