Testimony by a coworker that he personally observed Plaintiff’s husband using Defendant’s products at work was sufficient to survive a summary judgment motion in an action alleging that a worker’s exposure to such product caused leukemia, according to a California appeals court. See Gregorio v. Rust-Oleum Corp., No. 30-2007-00031378 (Cal. Ct. App. Apr. 19, 2013), available at www.bdlaw.com/assets/attachments/Gregorio.pdf. 

Plaintiff’s husband worked for 19 years as a tool and die maker and manager at various manufacturing facilities, and subsequently died from acute myelogenous leukemia. Gregorio, slip op. at 2. Plaintiff alleged that her husband’s leukemia was caused in part by his exposure to significant concentrations of benzene and other toxic chemicals in products manufactured by Defendant Rust-Oleum. Id. at 2-4. Plaintiff brought suit against Rust-Oleum, and other chemicals manufacturers, for negligence, strict liability, fraudulent concealment, and breach of implied warranties, alleging that her husband’s exposure to Rust-Oleum’s products was the proximate cause of his injuries. Id. at 2-3.

The trial court granted Rust-Oleum’s motion for summary judgment based on its argument that Plaintiff failed to establish Rust-Oleum’s products caused the injuries to the decedent. Id. at 4. The appellate court found that testimony from the decedent’s coworker that he observed the decedent using some Rust-Oleum products was sufficient to raise a triable issue of material fact, rejecting Rust-Oleum’s arguments that the co-worker’s testimony was flawed because he could not identify pictures of the specific products at issue. Id. at 7-14. Notably, Rust-Oleum included a deposition transcript of the co-worker’s testimony in the appellate record, but failed to include any legible exhibits of the product pictures it showed the coworker. Id. at 13-14.