California Accident Attorneys Blog
Factual and Procedural Background
Dale Beebe was employed by Braaten Electric, Inc. as an electrical foreman. In 2011, Potential Design, Inc., which was the general contractor on a construction project for two silos for Wonderful Pistachios and Almonds LLC hired Braaten Electric as a subcontractor to complete electrical work, including at one silo under construction in Firebaugh. Beebe worked at the Firebraugh site during two extended phases of the project, including from Jan. 13, 2012, to Dec. 20, 2012, and again from Sept. 12, 2013, to Sept. 26, 2014. During the time Beebe worked in the Firebaugh facility, he lived on the property in his recreational vehicle.
While Beebe was working and living on-site, the facility was filled with migrating swallows that roosted under the roof eaves of a pole barn. The roosting resulted in a substantial accumulation of bird droppings. After the project ended, Beebe was diagnosed with histoplasmosis, which is an infection caused by fungi associated with soil infested with bird feces. The histoplasmosis infected Beebe’s brain and caused permanent disabilities.
On Nov. 14, 2017, Beebe filed a lawsuit against Wonderful Pistachios and Potential Design. He alleged that the defendants allowed the bird feces and the fungi that fed on them to accumulate until Sept. 2014. At that time, Potential Design and Wonderful Pistachios cleaned up the bird feces by hydro-blasting them in the presence of Beebe. Beebe argued that this caused the toxic fungal spores to become airborne and for Beebe to unknowingly inhale them, resulting in his histoplasmosis infection and subsequent injuries.
Beebe alleged that he went to the hospital complaining about weakness in his limbs on Nov. 14, 2015, and was admitted into the hospital. The doctors performed imaging scans and discovered lesions on Beebe’s brain. When the lesions were biopsied, they came back positive for histoplasmosis, resulting in his diagnosis. Beebe’s complaint alleged multiple causes of action against the defendants, including negligence, premises liability, nuisance, strict liability, and negligence per se. Wonderful Pistachios filed a motion for summary judgment in April 2021.
With its motion, Wonderful Pistachios submitted declarations from two experts it had retained and argued that Beebe had failed to present evidence showing that the defendant’s actions caused his illness and injuries. One of the defense experts testified that the source of the fungi had not been determined through testing and that it was not possible to determine whether it originated from the Firebraugh site or elsewhere. The second defense expert testified that his expert opinion was that Beebe did not contract histoplasmosis from the Firebraugh site because of the amount of time that elapsed between when Beebe’s alleged exposure occurred and the onset of his symptoms slightly more than a year later. He also testified that histoplasmosis cases were rare in California.
Beebe filed an opposition and attached declarations from two experts he had retained. In his own declaration, Beebe stated that he had not been exposed to bird droppings between Sept. 2014 and Nov. 2015. He also declared that he had not worked at any other sites where bird feces accumulations were present. He stated that he had flu-like symptoms, including persistent headaches and fatigue, during the months between when he believed he contracted the infection and when he went to the hospital.
The first plaintiff’s expert testified that she had seen multiple cases of histoplasmosis in California and believed it was underdiagnosed rather than rare. Relying on a research article from 1956, she also testified that the San Joaquin Valley had experienced substantial numbers of histoplasmosis cases to the point that it was endemic at one time. She also testified that most histoplasmosis cases are asymptomatic. For those who are symptomatic, she testified that most will have symptoms within one to three weeks following exposure, but that is not always the case. She also testified that most of her histoplasmosis patients had gone for extended periods of time undiagnosed before they received a diagnosis. She testified that she believed that Beebe contracted the illness while working at the facility because casual exposure to bird droppings on sidewalks and elsewhere isn’t sufficient to cause the infection, but prolonged exposure and a disturbance in the fecal matter causes it to become airborne and can cause histoplasmosis. The second plaintiff’s expert was an occupational and health specialist who testified that Wonderful Pistachios and Potential Design did not follow industry standards for the removal of bird feces.
Wonderful objected to the expert declarations filed by Beebe, and the court held a hearing on Wonderful’s motion on July 7, 2021. The judge issued a ruling on Aug. 6, 2021, in favor of Wonderful Pistachios in which the court approved the company’s objections to the plaintiff’s experts and granted the motion for summary judgment. Beebe filed an appeal.
Issue: Did the trial court err in granting the objection to the plaintiff’s experts and finding there were no triable issues of material fact in regard to causation?
Beebe filed an appeal and argued that the court erred when it sustained the defendant’s objections to the plaintiff’s expert witnesses. He also argued that he had presented enough evidence to support a finding of causation and that the court erred by granting summary judgment in the defendant’s favor.
Rule: To have a triable issue of material fact, a plaintiff must present evidence of each of the elements of negligence, including causation. Failing to present enough evidence that the defendant’s actions or omissions were a substantial factor in the cause of the plaintiff’s injuries will mean the plaintiff failed to show a triable issue of material fact exists for the jury to decide.
A plaintiff can’t prevail in a tort action unless they can present evidence showing the existence of each of the legal elements of negligence. Even if the defendant’s actions or omissions were negligent, the plaintiff must also present evidence showing the defendant’s negligence caused their injuries and damages. Beebe argued that he had presented sufficient evidence to show a triable issue of material fact remained for the jury to determine and that the court erred when it sustained the defendants’ objections to his expert witnesses and granted Wonderful Pistachio’s summary judgment motion.
Analysis
The court began by considering causation and pointed out that the substantial factor test for causation was appropriate in Beebe’s case. Under this test, the civil wrong committed by the defendant must also have amounted to a substantial factor in the defendant’s resulting injuries, or the plaintiff will not have grounds to pursue a claim. This standard is broad, and it is enough if the plaintiff shows the defendant’s action amounted to a minor cause as long as it was more than a theoretical or infinitesimal contributor. Plaintiffs must show that there is a reasonable probability that the defendant’s actions were a substantial contributing factor. In toxic exposure cases, this means that the plaintiff must present evidence showing that there was a reasonable medical probability that their resulting illnesses were caused because of the defendant’s actions or omissions.
The trial court relied on the decision in Miranda v. Bomel Construction Co., 187 Cal. App.4th 1326 (2010) in granting the summary judgment motion. In that case, the plaintiff suffered a fungal infection that he alleged originated from a pile of dirt on an adjacent property to the shop where he was working. The defendant excavated the site and left the dirt pile, which was located around 15 feet from the shop. The plaintiff suffered an infection and had to have a portion of his lung surgically removed. Experts testified that the particular type of infection (Valley Fever) the plaintiff had suffered was endemic to California and that the fungi could be carried hundreds of miles by air currents. The defendant argued that Miranda could have tested the dirt pile for the presence of the fungus but failed to do so and objected to the admission of the declarations of the two physicians he submitted as expert opinions. In that case, the appellate court found that the testimony by the physicians was speculative and that Miranda failed to present evidence showing that there was a reasonable medical probability that his infection was caused by exposure to the dirt pile since the type of fungus responsible is widespread in California and easily disturbed and made airborne.
The Court of Appeal distinguished the Miranda case and instead found Beebe’s case was more similar to the fact pattern in Sarti v. Salt Creek, 167 Cal. App.4th 1187 (2008). In that case, a woman contracted a bacterial infection after consuming a portion of a restaurant meal comprised of raw tuna and raw vegetables. Her illness developed into Guillian-Barre syndrome. In that case, the court noted the relationship between the unhygienic conditions in the restaurant and the plaintiff’s subsequent infection and found that there was a reasonable probability that her illness was caused by the defendant’s negligence. The Court of Appeal noted that the court in Miranda distinguished Sarti because while the plaintiff in Sarti presented strong circumstantial evidence of the link between the unsanitary conditions at the restaurant and her illness, the plaintiff in Miranda failed to present strong circumstantial evidence showing a link between the dirt pile and contracting Valley Fever.
In Beebe’s case, the Court of Appeal noted the plaintiff presented strong evidence that the Firebaugh site was along the migratory path of the birds and that hundreds of swallows roosted on the property and left feces behind. He also presented sufficient evidence showing that the defendants failed to clean up the bird droppings appropriately for much of the two years he lived and worked on-site, and when they finally did so, they failed to file reasonable standards for the remediation of bird feces accumulations. By contrast, Miranda didn’t show that the dirt pile on the adjacent property was any more likely to be connected to his illness than any other dirt pile that might have existed elsewhere.
Conclusion
The court found that the trial court erred in granting the defendants’ summary judgment motion and reversed the decision. The case was returned to the trial court for further proceedings, and the plaintiff was awarded his costs on appeal.
Contact the Law Firm of Steven M. Sweat, Personal Injury Lawyers, APC
If you contracted an illness that you believe was caused by toxic exposure, you should consult an attorney at the law firm of Steven M. Sweat, Personal Injury Lawyers, APC. We offer free consultations and can advise you about the legal merits of your potential case and the remedies that might be available. Call us at 866.966.5240 to schedule a free consultation.