Asbestos litigation in California touches on issues as diverse as the bankruptcy of major manufacturers, the emergence of peripheral defendants, and the difficulty in proving levels and sources of exposure. With its ruling in DaSilva v. Union Carbide the California Court of Appeals demonstrates the analysis entailed in determining sources of exposure.[i] But does DaSilva expand our understanding of the threshold for a triable issue of fact found as discussed in the 2014 California Supreme Court’s Izell opinion[ii], or does it only reach inferences the lower court should have reached?

Facts of the Case

From late 1976 through 1977 (and possibly into 1978), plaintiff Alvarino DaSilva and his brother Joe worked together to remodel their aunt’s house. The work was described in Joe’s deposition testimony as moving an existing wall and putting up new walls to create an additional bedroom, which entailed placement and finishing of drywall. The plaintiff used an asbestos-laden, multipurpose joint compound for nailing and taping the drywall, followed by an asbestos-free topping joint compound as a final coat. Testimony from Joe DaSilva disclosed two brands of joint compound were used on the job: Hamilton and Kelly-Moore.[iii] Defendant Union Carbide provided asbestos for both brands, and Hamilton procured nearly all their asbestos from Union Carbide.

Union Carbide moved for summary judgment in part on the basis there was no testimony to explicitly identify purchase or use of the asbestos-laden multipurpose compound, so Mr. DaSilva could only speculate as to its presence on the job site, much less any exposure to asbestos-laden dust from that compound.[iv] After considering Mr. DaSilva’s opposition and Union Carbide’s reply, the trial court ultimately agreed with Union Carbide and granted the motion.[v] Mr. DaSilva appealed.[vi]

The appellate court reversed.[vii] The opinion tackled the question of whether there was a triable issue of fact regarding Mr. DaSilva’s alleged exposure to Union Carbide’s asbestos by way of Hamilton’s multipurpose joint compound, finding there must be sufficient evidence to permit a reasonable trier of fact to find it more likely than not Mr. DaSilva was exposed to United Carbide’s asbestos.[viii] The appellate court reasoned mere speculation is not enough, citing its 2012 ruling in Casey v. Perini Corp:

At the very least, the plaintiff must provide “circumstantial evidence … sufficient to support a reasonable inference” [citation omitted] that the “defendant’s asbestos products or activities were present at plaintiff’s work site.”[ix]

Relying on Izell, the court observed Hamilton’s two compounds could be distinguished by their usage, even if they were not explicitly identified by testimony as to their packaging. Hamilton’s asbestos-laden multipurpose compound was used to fill nail holes and to fill in seams between sections of drywall, while Hamilton’s asbestos-free topping compound was used as a final coat.

Although Mr. DaSilva could not testify as to distinguishing features of the packaging (a red dot versus a green dot), which was typically how the asbestos-laden multipurpose compound and asbestos-free topping compound were distinguished in practice, a jury could reasonably conclude it was more likely than not Mr. DaSilva used the compounds as intended. Specifically, a jury could find Mr. DaSilva used Hamilton’s asbestos-laden multipurpose compound for the placement of drywall and initial covering of nail holes and seams.

In their moving and reply papers, Union Carbide argued Mr. DaSilva could only speculate as to any exposure to its asbestos by way of Hamilton’s multipurpose compound[x], and in its reply it explicitly relied on Izell, part of which turned on a similar point and part of which turned against Union Carbide with respect to identification of Hamilton’s two compounds by way of its packaging, the “Red Dot” being the asbestos-laden multipurpose compound and the “Green Dot” being the asbestos-free topping compound.[xi]

The appellate court went a step further, as arguably required by the standard for granting summary judgment. Analyzing the evidence and drawing reasonable inferences in the light most favorable to the non-moving party, the court concluded a trier of fact could find it was more likely than not that Mr. DaSilva had been exposed to Union Carbide’s asbestos by way of Hamilton’s multipurpose compound.[xii]

Takeaway

Arguably, this opinion adds nothing new to the landscape regarding analysis of evidence for triable issues of material fact. It is possible Union Carbide fully anticipated and considered the possible inferences from the circumstantial evidence which would likely be submitted in conjunction with the MSJ and made a strategic decision to pursue it anyway. However, the opinion demonstrates that, in preparing motions for summary judgment, it is vital to anticipate the universe of possible inferences to be found from circumstantial evidence when viewed in the light most favorable to the non-moving party. A good litigator must always “analyze the chess board from both sides.”[xiii] This case underscores the importance of undertaking that analysis carefully.

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Sources

[i] DaSilva v. Union Carbide (May 5, 2026, A172033 [nonpub. opn.]).

[ii] Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962.

[iii] DaSilva.

[iv] Id.

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1237

[x] DaSilva

[xi] Id.

[xii] Id.

[xiii] Id.