High Volume Jurisdictions Verdicts and Appellate Rulings

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1 High Volume Jurisdictions Verdicts and Appellate Rulings Christine D. Calareso Selman Breitman LLP 6 Hutton Centre Drive, Suite 1100 Santa Ana, CA (714)

2 Christine D. Calareso is a partner in the firm s Orange County office and specializes in general liability issues, with an emphasis on complex toxic and mass tort litigation, including benzene, asbestos, diacetyl, pesticides, wood dust, and other alleged toxic exposures. Ms. Calareso s clients have included manufacturers, distributors, and suppliers of diesel fuel, solvents, oils, paints, pesticides, welding products, and press room/printing products. Ms. Calareso also assists as national coordinating counsel for several of the firm s clients, and directs litigation in numerous states. Ms. Calareso attended Wake Forest University in Winston-Salem, North Carolina, where she graduated magna cum laude in 1999 with a B.A. in English. She also received her J.D. at American University Washington College of Law in Washington, D.C., where she graduated cum laude in She is admitted to practice before all California State Courts, as well as the Southern and Central District Courts of California.

3 High Volume Jurisdictions Verdicts and Appellate Rulings Table of Contents I. Introduction II. Recent Verdicts A. Plaintiffs Verdicts B. Defense Verdicts C. Miscellaneous III. Recent Appellate Rulings A. Holdings Impacting Duty/Forseeability Campbell v. Ford Motor Company (May 21, 2012) 206 Cal.App.4th Barbara O Neil et al. v. Crane Co. et al. (2012) 53 Cal. 4 th Rita Bettencourt v. Hennessy Industries, Inc. (May 4, 2012), 205 Cal. App. 4 th 1103, Court of Appeal, First District Fern Barker v. Hennessy Industries, Inc. (May 22, 2012), 206 Cal. App. 4 th 140, Court of Appeal, Second District B. Holdings Impacting Causation Evidence Patricia Casey v. Perini Corporation (June 13, 2012), 206 Cal. App. 4 th Marilyn Davis et al. v. Foster Wheeler Energy Corporation (April 26, 2012), 205 Cal. App. 4th 731, Court of Appeal, Second District C. Holdings Impacting Damages/Costs Farag v. ArvinMeritor, Inc. (April 24, 2012) 205 Cal. App. 4th 372, Court of Appeal, Second District Bankhead v. ArvinMeritor, Inc. (April 25, 2012) 205 Cal. App. 4th 68, Court of Appeal, First District Leonard v. John Crane, Inc. (June 13, 2012) 206 Cal. App. 4 th 1274, Court of Appeal, First District Vanhooser v. Superior Court (Hennessy Industries, Inc.) (June 1, 2012), 206 Cal. App. 4th 921, Court of Appeal, Second District D. Legislation Potentially Impacting Recovery of Medical Expenses IV. Wrap Up High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 205

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5 High Volume Jurisdictions Verdicts and Appellate Rulings I. Introduction Over the past year, verdicts in California have been as unpredictable as ever. Both San Francisco and had some large verdicts for living mesothelioma cases. There have been defense verdicts, too, primarily in, where alternative causation defenses linked to years of plaintiffs smoking were also successful. Living mesothelioma cases continue to provide the largest pay-outs to plaintiffs counsel, while lung cancer cases are becoming riskier if the plaintiff also smoked. Recent developments in California at the appellate level are also beginning to trickle down into the verdicts favoring the defense, as demonstrated in both the Petitpas and Swanson cases. The landscape of case law in California has been shifting dramatically in California this year. With some exceptions, the scope of liability for theories of premises liability and strict liability has been contracted based on the foreseeability of the harm. However, liability still exists for product manufacturer whose products directly contribute to the harm. The standards for granting motions for summary judgment have shifted favorably for defendants arguing that plaintiffs are only relying on speculative evidence of exposure. With respect to damages, however, the bases for plaintiff spouse s loss of consortium claims have been expanded. II. Recent Verdicts The following are assorted verdicts and other trial results that have run the gamut of results for asbestos litigation. With respect to plaintiffs verdicts involving mesothelioma, the past year saw two enormous verdicts in Izell and Casey. However, this year also saw significant defense verdicts for non-mesothelioma lung cancer cases where smoking was a significant factor, and even a defense verdict in a para-occupational living mesothelioma case based on changes in California law. A. Plaintiffs Verdicts Elaine Paulus, et al. v. Access Hotels & Resorts, et al. (September 2012) (BC437739) Wrongful Death Mesothelioma Plaintiff Firm: Simon Greenstone Defendant Type: Valves/Packing $6.5 million Plaintiffs alleged decedent s exposure to asbestos occurred throughout his career as a member of UA Plumbers Local 78 from 1952 to As a plumber, he was exposed to asbestos from maintenance work, gasket work, packing work, insulation work and the actions of employees of the premises who also did this type of work. Ultimately, plaintiffs proceeded to verdict against Crane Co., and the jury found Crane Co. 10 percent liable. Although the jury found malice, no punitive damages were awarded. The matter was tried before the Honorable Kevin Brazile. James Lovelace v. A.O. Smith Water Products Co., et al. (July 2012) ( ) Living Mesothelioma Plaintiff Firm: Weitz & Luxenberg Defendant Type: Friction High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 207

6 Sacramento $2,072,164 Plaintiff James Lovelace filed suit against various asbestos-defendants, including manufacturers of brake products. At trial, only plaintiff James Lovelace s claims against Pneumo Abex remained. The jury awarded Mr. Lovelace $572,164 in past and future economic damages, and $1.5 million in noneconomic damages. The jury found that the Pneumo Abex products failed the consumer expectations test and failed to provide adequate warning. However, the jury further found that Pneumo Abex did not act with malice, oppression, or fraud. Finding Pneumo Abex 13 percent liable, the jury also apportioned 13 percent liability each to Bendix, Raybestos, DAP, Kaiser Gypsum, and asbestos plumbing products. The jury then ascribed one or two percent liability to 18 other entities that included primarily auto parts manufacturers and suppliers. The case was tried before the Honorable David W. Abbott. Bobbie Izell and Helen Izell v. Asbestos Companies, et al. (June 2012) (BC469931) Living Mesothelioma Plaintiff Firm: Baron & Budd Defendant Type: Fiber; Construction $30 Million Bobbie Izell was a 86-year old living mesothelioma case involving a concrete contractor and general contractor exposed to construction products during his twenty plus year career in the construction industry. Liability was allocated as follows to the remaining defendants: Amcord 6 percent; Parex LaHabra 1 percent; CalPortland 3 percent; Kaiser 20 percent; UCC 65 percent; and others 5 percent. UCC and Kaiser were also found to have acted with malice, oppression or fraud subjecting them to punitive damages. Kaiser then settled, leaving just UCC in the punitives phase. Ultimately, the jury saddled UCC with another $18 million in punitive damages. A motion for a new trial is set for hearing for October 12, Richard Keeney v. A.W. Chesterton (January 2012) (BC457255): Living Mesothelioma Plaintiff Firm: Farrise Law Firm Defendant Type: Valves/Packing $5.5 million Plaintiff Richard Keeney, a mechanic/millwright at C&H Sugar Co. obtained a $5.5 million verdict, holding John Crane liable for 12 percent for various valves and packing. The jury apportioned the remaining liability to Keeney s employer, C&H Sugar Co. Dominic Ventimiglia v. Alta Building Material Co., et al. (September 2011) (CGC ) Living Asbestosis/Lung Cancer Plaintiff Firm: Keller Fishback & Jackson Defendant Type: Fiber San Francisco $463, Asbestos Medicine Seminar November 2012

7 This was a personal injury lung cancer and disputed asbestosis claim involving a career lathe and plaster worker. Mr. Ventimiglia has a 100+ pack-year smoking history and was a current smoker. Plaintiff alleged he was exposed to asbestos during his 30 career in the construction industry. Plaintiff sued numerous construction product manufacturers, including fiber supplier UCC. The jury found UCC 33.3 percent liability, plaintiff 33.3 percent liable and Tobacco Co percent liability. Jury awarded $350,000 in non economic damages, $63,178 in economic damages and $50,000 in punitive damages. John Casey & Patricia Casey v. Asbestos Defendants (August 2011) (CGC ) Living Mesothelioma Plaintiff Firm: Brayton Purcell Defendant Type: Joint compound manufacturer & Labor contractor San Francisco $41,273,421 John Casey worked as a plumber and pipefitter at various Bay Area commercial and residential sites. The verdict against Kaiser Gypsum and FDCC California, Inc. consisted of $15 million in non economic damages, $1,018,421 in economic damages excluding medical expenses, $255,000 in past and future medical expenses and $5 million in loss of consortium. The jury was hung on the issue of punitive damages. After a three-week retrial on the issue of punitive damages the jury returned an award of $20 million. Judge granted Kaiser s motion for judgment notwithstanding the verdict and ordered a new trial on the punitive damages issue unless the Casey s agreed to a reduction of the punitive award to $3,544,852. William & Teri Mansir v. Air & Liquid Systems Corp, et al. (July 2011) Living Mesothelioma Plaintiff firm: Waters, Kraus & Paul Defendant Type: Gasket & Packing Manufacturer San Diego $2,350,961 Plaintiffs alleged Mr. Mansir was exposed to various asbestos-containing products, including gaskets and packing, while serving as a boiler technician in the Navy from 1961 to John Crane argued the Navy was responsible for Mr. Mansir s exposure and that he was exposed to asbestos from other products. The jury found against John Crane on design defect and failure to warn theories. The jury awarded $550,961 in economic damages and $1.35 million in noneconomic damages to William Mansir, and $450,000 in loss of consortium to Teri Mansir. The jury apportioned 5 percent liability to John Crane, 57 percent liability to the Navy and insulation defendants, 47 percent to others and 1 percent to William Mansir. B. Defense Verdicts Marline and Joseph Petitpas v. Amcord, Inc. et al. (August 2012) (BC473216) Mesothelioma Plaintiff Firm: Farrise Law Firm Defendant Type: Friction; Premises Defense, Nonsuit High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 209

8 Plaintiffs Marline and Joseph Petitpas alleged Marline Petitpas was directly exposed to asbestos when she visited her boyfriend and later husband at service stations. Plaintiffs also alleged Marline Petitpas was indirectly exposed to asbestos by his clothes from the service stations and from the construction site where he worked as a draftsman. Plaintiffs went to trial against a group of friction defendants and premises owner. The premises owner where Mr. Petitpas worked as a draftsman was granted nonsuit under Campbell. Defendants argued that they were not liable for indirect exposures under Campbell and that there was no evidence of substantial, direct exposures. The jury found that the service station owner did not know or have reason to know that there was an unreasonable risk of exposure to asbestos dust. The jury also found that Mrs. Petitpas exposure to asbestos from original equipment from a car manufacturer was not a substantial factor in her development of mesothelioma. At the time of this writing, plaintiffs have filed a motion for a new trial. A bifurcated trial is currently pending against a brake manufacturer. Alberta Swanson, et al. v. BorgWarner Morse Tec, Inc. et al. (August 2012) (BC438035) Mesothelioma Plaintiff Firm: Farrise Law Firm Defendant Type: Friction Defense, Nonsuit Plaintiffs brought their action against defendants alleging decedent was exposed to asbestos through his construction work at various locations. Plaintiffs ultimately proceeded at trial against one defendant that had previously employed decedent and had precluded the bulk of plaintiffs claims based on the doctrine of workers compensation exclusivity. A minor portion of the claim still remained, however, through allegations of take home exposure by decedent s son s work at the same company. In granting defendant s motion for nonsuit, the Court agreed with the authority of Campbell and found that defendant was not liable for decedent s take home exposure. John R. Elliot and Linda Elliot v. Akzo Nobel Paint LLC, et al. (April 2012) (BC468954): Living Mesothelioma Plaintiff Firm: Waters, Kraus & Paul Defendant Type: Joint Compound Defense This is a mesothelioma case involving John Elliot who served in the Navy from , worked as a laborer and painter in the construction industry from 1961 throughout the 1970 s and also as a painter for the University of California at Santa Barbara from 1980 through the 1990 s. Plaintiff went to trial against a Kaiser Gypsum, a manufacturer of joint compound. The jury returned a defense verdict. The matter was tried before the Honorable Deirdre Hill. William Patchen and Sharon Patchen v. A.W. Chesterton Company, et al. (March 2012) (BC421268) Living Lung Cancer Plaintiff Firm: Keller Fishback & Jackson Defendant Type: Gaskets/Packing Defense 210 Asbestos Medicine Seminar November 2012

9 Plaintiff alleged exposure to asbestos from packing materials associated with his 30 years as a pump repairman for the Crescenta Valley Water District and the Department of Water & Power. Plaintiffs went to trial against a national supplier of gaskets and packing. Defendant presented expert testimony that Plaintiff s extensive smoking history was solely responsible for his lung cancer and that Plaintiff s cumulative exposure to asbestos was insufficient to have caused his disease. The case was tried over a 5-week period before the Honorable Malcolm Mackey. Richard Steiner and Christie Steiner v. Advance Auto Parts, et al. (October 2011) ( ) Living Lung Cancer Plaintiff Firm: Farrise Law Firm Defendant Type: Friction Santa Barbara Defense Plaintiffs alleged that 49-year-old Richard Steiner was exposed to asbestos-containing brakes, clutches and gaskets while working as an automobile mechanic. Defendants argued that Mr. Steiner s lung cancer was caused by his extensive smoking history. The jury returned a defense verdict as to remaining defendants Ford, Volkswagen, Pneumo Abex, and Dana. The case was initially filed in, but transferred to Santa Barbara County, where plaintiffs resided. The matter was tried before the Honorable Thomas Anderle. C. Miscellaneous William S. Fox v. Alcoa, Inc., et al. (August 2012) (BC473017) Living Mesothelioma Plaintiff Firm: Waters, Kraus & Paul Defendant Type: Employer Defendant Plaintiff was employee of Alcoa for four years and alleged asbestos exposure in Texas. Defendant Alcoa filed a motion to bifurcate the workers compensation exclusivity affirmative defense. The motion was granted, and a bench trial was conducted on the issue. Judge Kevin Brazile then entered judgment in favor of Alcoa. Donald & Lana Kent v. Alfa Laval, et al. (August 2012)(BC433418) Living Mesothelioma Plaintiff Firm: Simon Greenstone Defendant Type: Valves/Packing Mistrial/Plaintiff attorney misconduct Plaintiff Donald Kent alleged exposures to asbestos primarily through his service by the U.S. Civil Service as a maintenance machinist, foreman, and general foreman from 1961 to 1965 and 1969 to Plaintiff Kent primarily worked at the San Diego Naval Air Rework Facility and on various service ships. Plaintiff s comments during closing arguments led to Judge Holly Kendig declaring a mistrial. Crane Co. was the remaining defendant. High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 211

10 Lorraine Demersseman, et al. v. California Water Service Company, et al. (April 2012) (BC398772) Wrongful Death Mesothelioma Plaintiff Firm: Waters, Kraus, & Paul Defendant Type: Contractor/Pipe Mistrial/Hung jury Plaintiffs contended their decedent was exposed to asbestos during his employment as a boilermaker for Bethlehem Steel Shipyard from , and as an inspector for California Water Service in southern CA from This portion of a bifurcated trial against the remaining defendant, a contractor for California Water, rested on the issue of whether decedent s alleged disease was mesothelioma or synovial sarcoma (a disease unrelated to asbestos exposure). After days of deliberations, the jury was deadlocked at 8-4 in favor of plaintiffs, but the judge declared a hung jury and granted a mistrial. Robert Thomas Schott, et al. v. Alfa Laval, Inc., et al. (April 2012) (BC390952) Wrongful Death Mesothelioma Plaintiff Firm: Simon Greenstone Defendant Type: Gaskets/Packing Nonsuit Plaintiffs alleged their decedent was exposed to gaskets and packing in the Navy. Evidentiary objections to decedent s deposition testimony were filed based on the fact that his identification was the product of leading questions on direct examination, and without foundation. Judge Kevin Brazile sustained the objections, and then granted a motion for nonsuit as to remaining defendant John Crane at the close of plaintiff s case. Carolyn Esters v. Acument Global Technologies, et al. (January 2012) (BC457257) Living Peritoneal Mesothelioma Plaintiff firm: Lanier Law Firm Mistrial/plaintiff attorney misconduct Plaintiff claimed she was secondarily exposed to asbestos brought home by her mother, who worked at Cherry Textron. The sole remaining defendant was a furnace manufacturer. Plaintiff claimed that her mother, who did not work with any asbestos-containing products or materials, was simply a bystander to work performed 100 feet away on equipment, including two of defendant s furnaces. Judge Ramona See granted defendant s motion for mistrial because of plaintiff s harassing behavior during questioning of defendant s corporate witness. III. Recent Appellate Rulings The first section of holdings from the Campbell and O Neil cases demonstrated a recent focus in California on the forseeability of the harm and a consequent reduction in the scope of duty imposed on premises owners and product manufacturers. In Campbell, the Court of appeal declined to impose liability for injuries to a contractor s family members that were allegedly exposed via take home exposure to asbestos because these exposures were unforeseeable. 212 Asbestos Medicine Seminar November 2012

11 In O Neil, the California Supreme Court declined to extend strict products liability to product manufacturers of products that were maintained with third-party replacement parts, even though the use of such parts may be foreseeable by the manufacturer. The Barker case keyed on the precedent of O Neil and further enhanced its reasoning by declining to extend liability to the manufacturer of a product that modified asbestos-containing products, although this case has since been depublished. However, O Neil and Barker were distinguished by Bettencourt to the extent that product manufacturers are still liable for products for which the manufacturer bears some direct responsibility for the harm because the product substantially contributed to the harm. Thus, the scope of product liability for products manufactured by one party that work with third party products is still being battled in the Appellate Courts. The second section of holdings from Casey and Davis are relevant to motions for summary judgment. Casey affirmed previous case law in California that requires plaintiffs to provide evidence of exposure beyond mere speculation. Casey specifically went through the discovery of the defendant and provided a guide post for future motions for summary judgment based on factually devoid discovery. Likewise, Foster refined O Neil and also stands for the proposition that plaintiffs need to make a factual showing of exposure beyond merely relying on speculation in discovery responses to create a triable issue of material fact. The final section of holdings discuss the changing landscape of damages in California. Farag allows defendants to avail themselves of the cost-shifting mechanism in California Code of Civil Procedure section 998 by making a single offer contingent on the acceptance of either plaintiff. Bankhead primarily stands for the proposition that punitive damages may be imposed on a defendant, even if the evidence demonstrates that the defendant has a negative net worth. Leonard and Vanhooser clarified the scope of loss of consortium claims; a plaintiff s spouse s loss of consortium claim now accrues from the time of diagnosis, and is determined by whether they were in fact married at the time the latent injury was discovered. It no longer matters if the plaintiffs married after the alleged conduct giving rise to the latent injury occurred. A. Holdings Impacting Duty/Forseeability 1. Campbell v. Ford Motor Company (May 21, 2012) 206 Cal.App.4th 15 In Campbell, plaintiff Eileen Honer alleged that she developed mesothelioma from washing her father and brother s work clothes. She contended the clothes were laden with asbestos dust her father and brother carried away from the Ford plant where they worked as insulators. The men worked as independent contractors hired by Ford between 1947 and 1948 to install asbestos insulation at its plant. A jury trial found Ford 5 percent liable, and plaintiff Honer was awarded $40,000 in damages, despite Ford s argument that it owed plaintiff Honer no duty. Plaintiff Honer never visited the plant but developed illness approximately 50 years after the alleged exposures. The appellate court reversed the trial verdict in plaintiff s favor on the grounds that Ford did not owe her any duty of care. The Court first examined whether the link between plaintiff s injury and Ford s conduct was sufficiently strong. It noted that the existence of possession and control is of major importance when imputing liability for conditions on the land. Id. at 30, citing Leakes v. Shamoun (1986) 187 Cal.App.3d 772, 776. It also recognized that a legal duty is generally owed to the class of persons who it is reasonably foreseeable may be injured as a result of the actor s conduct. Id. citing Lugtu v. California Highway Patrol (2001) 26 Cal.4 th 703, 724, fn. 13. Applying these principles, the Court found the link between plaintiff s injuries and Ford s acts was too attenuated. It reasoned that plaintiff was not injured on Ford s premises and that Ford could not have reasonably anticipated that plaintiff, a family member of its workers on its premises, would be injured by any conditions on said premises. Id. High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 213

12 The Court then examined whether imposing responsibility on Ford would be improper. Relying on the closely related scenario in Oddone, the court explained that the difficulty with these factors is that it is hard to draw the line between those nonemployee persons to whom a duty is owed and those nonemployee persons to whom no duty is owed. Id. at 32. In cases where the claim is that the laundering of the worker s clothing is the primary source of asbestos exposure, the class of secondarily exposed potential plaintiffs is far greater, including commuters, those performing laundry services and more. Id. at 33. Imposing a duty in these scenarios, held the court, saddles the defendant with a burden of uncertain and potentially very large scope. Id. The costs of preventing or defending against such expansive scope of liability is great and generally passed on to the consumer. Id. Thus Ford owed no duty to plaintiff Honer for the secondary exposure to asbestos, and the judgment was reversed. On June 19, 2012, the Second District denied rehearing in the Campbell v. Ford Motor Co. case and modified the opinion without changing the judgment. The modifications of the opinion appeared to limit the analysis to whether a premises owner has a duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner s business. 2. Barbara O Neil et al. v. Crane Co. et al. (2012) 53 Cal. 4 th 335 In O Neil, the California Supreme Court held that a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer s product unless the defendant s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products. Defendants Crane Co. (Crane) and Warren Pumps LLC (Warren) made valves and pumps used in Navy warships. They were sued in O Neil for a wrongful death allegedly caused by asbestos released from external insulation and internal gaskets and packing, all of which were made by third parties and incorporated into the pumps and valves later. It was undisputed that defendants Crane and Warren never manufactured or sold any of the asbestos-containing materials to which plaintiffs decedent was exposed. Nevertheless, plaintiffs claimed defendants should be held strictly liable and negligent because it was foreseeable workers would be exposed to and harmed by the asbestos in replacement parts and products by third parties used in conjunction with Crane s and Warren s pumps and valves. Crane moved to dismiss due to lack of evidence that decedent O Neil had been exposed to asbestos from any of Crane s products, and the trial court granted the motion. The appellate court reversed and found Crane strictly liable. The California Supreme Court reversed and remanded, holding that strict liability requires plaintiff s injury be caused by a defect in the defendant s product. Strict liability does not extend to distinct products that a consumer can be expected to use in conjunction with the defendant s product. The California Supreme Court again focused on foreseeability, stating that strict liability does not extend to preventing injuries caused by other products that might foreseeably be used in conjunction with a defendant s product. In the O Neil matter, decedent O Neil was not exposed to any asbestos from products made by defendants. O Neil s exposures came from asbestos dust released from insulation that was not manufactured or distributed by Crane and Warren. While some parts originally supplied with the defendant s products contained asbestos, none of these products remained on the ship by the time O Neil arrived. Thus, the broad rule plaintiffs urged would not further the purposes of strict liability. Nor would public policy be served by requiring manufacturers to warn about the dangerous propensities of products they do not design, make, or sell. Thus the appellate court was incorrect in finding defendants strictly liable. 214 Asbestos Medicine Seminar November 2012

13 3. Rita Bettencourt v. Hennessy Industries, Inc. (May 4, 2012), 205 Cal. App. 4 th 1103, Court of Appeal, First District The Court of Appeal deviated from O Neil, above, by holding that a proposed, amended complaint properly stated strict liability and negligence claims against manufacturer of product which caused asbestos exposure when the product was used as intended with another hazardous product. Bettencourt involved the consolidated appeals of multiple plaintiffs that had relied on plaintiffs counsel s master complaint. Essentially, Hennessy manufactured and distributed brake shoe grinding machines which were used to grind brake shoe linings to match the size and shape of brake shoes to brake drums. During the relevant time period, all brake shoe linings used on vehicles in the U.S. contained asbestos, and Hennessy s machines were specifically designed for grinding such linings. The use of Hennessy s products led to inhalation and ingestion of asbestos fibers, which cause serious disease. Several plaintiffs filed personal injury or wrongful death actions against Hennessy under strict products liability and negligence theories, alleging that the use of Hennessy s machines resulted in exposure to airborne asbestos fibers that caused injury. Hennessy moved for judgment on the pleadings, arguing that it was not liable because it did not manufacture or distribute asbestos-containing brake linings. The trial court granted the motion and denied the plaintiffs leave to amend, ruling that the injuries were caused by defects in other manufacturers products. The First District reversed in part, holding: Although a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer s product, it may be held strictly liable for such harm if the defendant bears some direct responsibility for the harm because the defendant s own product substantially contributed to the harm. In this case, when used as designed and intended, Hennessy s machines caused the release of the toxic agent that injured the plaintiffs, although the agent did not emanate from Hennessy s machines. Given that the product was intended to be used with another product for the very activity that created a hazardous condition, the plaintiffs could state a claim for strict liability, as they alleged that Hennessy bears some direct responsibility because its product contributed substantially to the harm. Plaintiffs allegations were sufficient to state a cause of action for negligence as well. It was thus error for the court to grant Hennessy s motion for judgment on the pleadings and to deny leave to amend. 4. Fern Barker v. Hennessy Industries, Inc. (May 22, 2012), 206 Cal. App. 4 th 140, Court of Appeal, Second District Distinguishing Bettencourt, above, the Court of Appeal held that a defendant manufacturer was properly granted summary judgment where its machines could be used in a non-hazardous manner even if they were designed to work with hazardous brake products. Decedent Barker worked as a mechanic at an auto repair garage from 1967 to His work brought him into contact with asbestos-containing parts and components. He also worked with or near machines manufactured by Hennessy s predecessor [brake shoe arcing machines and brake drum lathes]. Barker was diagnosed with asbestosis and asbestos-related lung cancer and died in Barker s family filed a wrongful death action against Hennessy alleging negligence and strict liability. Hennessy moved for summary judgment on the ground that its machines did not cause or create the risk of harm to which Barker was exposed. The trial court ruled that Hennessy had affirmatively shown its machines were stand-alone products and did not contain asbestos or require asbestos to operate, and granted summary judgment in favor of Hennessy. Plaintiffs contended that Hennessy owed a duty to warn about the risk of harm created by the intended use of its machines. The Second District affirmed the grant of summary judgment in favor of the machine manufacturer, holding: The Supreme Court has held that a product manufacturer may not be liable in strict liability or neg- High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 215

14 ligence for harm caused by another manufacturer s product unless the defendant s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products. Here, there was undisputed evidence establishing that Hennessy s machines could be used in a manner that was not necessarily harmful. The defective products were the asbestos-containing brake parts. The brake parts were dangerous even when not used in combination with Hennessy s machines. Thus, because Hennessy s machines were designed to be used and could be used in a non-hazardous manner, the trial court was correct in concluding that there were no triable issues of fact giving rise to a duty to warn of another manufacturer s defective product. However, on August 29, 2012, the California Supreme Court granted requests to depublish the Second District s decision in Barker v. Hennessy Industries, reported at 206 Cal.App.4th 140. Barker is no longer citable as California authority. B. Holdings Impacting Causation Evidence 1. Patricia Casey v. Perini Corporation (June 13, 2012), 206 Cal. App. 4 th 1222 In adhering to line of precedent in asbestos litigation from the Lineweaver and McGonnell cases, the First District Court of Appeal affirmed summary judgment in a matter where plaintiff failed to identify products that actually contained asbestos to which he was allegedly exposed because all that existed was speculation as to causation. Between 1962 and 2001, plaintiff John Casey worked as a plumber and pipefitter at countless jobsites. He was diagnosed with mesothelioma in January He and his wife filed a complaint for personal injury and loss of consortium against numerous defendants, including Perini Corporation (Perini), alleging that plaintiff John Casey developed mesothelioma through his occupational exposure to asbestos. Perini had been the general contractor at three jobsites where Casey had worked. Perini moved for summary judgment, arguing that the Caseys had no evidence indicating actual exposure to asbestos as a result of any of Perini s activities. After three hearings on the motion, the trial court granted Perini summary judgment. The First District has affirmed summary judgment, holding: A threshold issue in asbestos litigation is exposure to the relevant exposure product. The California Supreme Court has delineated a two-part causation test to be used in asbestos cases. First, plaintiff must establish some threshold exposure to asbestos-containing products and, then, must further establish in reasonable medical probability that a particular exposure was a substantial factor in bringing about the injury. Mere speculation or conjecture about exposure to asbestos is insufficient to demonstrate the existence of a triable issue of fact to preclude summary judgment. Here, there was no evidence that the jobsites at which Casey had worked were laden with permanently installed asbestos products. The Court of Appeal evaluated the deposition testimony of John Casey and determined that the deposition made clear that he had no knowledge about whether any of the products that others used or disturbed in his presence contained asbestos. Likewise, plaintiffs responses to all facts written was insufficient to support a claim. They contained little more than general allegations against Perini and did not state specific facts showing that Casey was actually exposed to asbestos and/or asbestos-containing products due to Perini s activities. Rather, the responses assumed, without any evidentiary support, that the dust and debris allegedly disturbed by Perini workers contained asbestos. These responses were determined to be factually devoid. Therefore, the Caseys could not identify any of the products used at the sites and all that existed was speculation as to causation. Thus the trial court was correct in granting summary judgment to Perini. 216 Asbestos Medicine Seminar November 2012

15 2. Marilyn Davis et al. v. Foster Wheeler Energy Corporation (April 26, 2012), 205 Cal. App. 4th 731, Court of Appeal, Second District Foster further affirmed the application of O Neil, and it also rejected plaintiffs attempts to use discovery responses to create an inference of a triable issue of material fact. In the 1960 s, decedent Davis (husband to Marilyn and father to the other plaintiffs) worked at the Shell Chemical plant in Torrance as an instrument technician. Foster Wheeler designs and manufactures steam generating equipment. There were three Foster Wheeler boilers at the Shell Plant while Ronald Davis worked there, and Davis at times worked near those boilers. He was diagnosed with mesothelioma in 2008 and died in Plaintiffs sued Foster Wheeler and many others, bringing causes of action for negligence, strict liability, breach of warranty, and loss of consortium, on factual allegations that Davis was exposed to defendants asbestos and asbestos-containing products and that defendants failed to warn of the dangers of those products. Foster Wheeler moved for summary judgment on the ground that it did not manufacture, sell, or distribute any asbestos containing product, that Davis was not exposed to asbestos dust emanating from any Foster Wheeler product, and raising other defenses. Plaintiffs response was that Foster Wheeler was liable because its boilers contained asbestos insulation and because it failed to warn Davis of the dangers of working around that insulation, and that Foster Wheeler was liable because it had itself exposed Davis to asbestos by removing asbestos-containing insulation from the boilers to perform routine maintenance. The trial court granted summary judgment in favor of Foster Wheeler. The California Supreme Court decision in O Neil v. Crane Co. (2012) 53 Cal.4th 335, which concerned the liability of a manufacturer of pumps and other equipment for injury caused when third-party asbestos was released when the equipment was serviced. In relying on O Neil, the Court of Appeal rejected plaintiffs boiler maintenance theory of liability, saying it was essentially undisputed that Foster Wheeler did not manufacture or sell asbestos-containing products, and that there was no asbestos insulation inside the Foster Wheeler boilers. The Second District also rejected plaintiffs argument that summary judgment should be denied because there may be evidence that defendant participated substantially in the use of asbestos insulation near where decedent was working such that it could be liable. Plaintiffs argued there may be evidence that Foster Wheeler participated substantially in the use of asbestos insulation near Davis, and therefore Foster Wheeler did not carry its burden on summary judgment because it did not establish the lack of such evidence. In support of this argument, plaintiffs submitted Foster Wheeler s discovery response in support of a proposed undisputed fact that Foster Wheeler conducted only a preliminary search for documents... and even based on that insufficient search, Foster Wheeler found documentary evidence that it was present at the Shell plant in Torrance, California during the relevant time period. In rejecting plaintiffs argument, the Court of Appeal noted that the response is not sufficient to raise a triable issue concerning Foster Wheeler s participation in the use of asbestos-containing insulation in the Shell plant. Indeed, plaintiffs did not ask for a continuance for further discovery at the trial level and could not prevail on the argument on appeal. C. Holdings Impacting Damages/Costs 1. Farag v. ArvinMeritor, Inc. (April 24, 2012) 205 Cal. App. 4th 372, Court of Appeal, Second District Plaintiffs and appellants Nasseem Farag (Nasseem) and Sanna Farag (Sanna) (collectively, the Farags) appealed a post-judgment order denying their motion to tax expert witness costs sought by defendant and respondent ArvinMeritor, Inc. (ArvinMeritor) pursuant to Code of Civil Procedure section 998. Califor- High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 217

16 nia Code of Civil Procedure section 998 states that if an offer made by a defendant under this statute is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post-offer costs and shall pay the defendant s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court... in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses,... actually incurred and reasonably necessary in... preparation for trial or... during trial... of the case by the defendant. The Farags contended a section 998 offer made jointly to a husband and wife is void. However, the Court of Appeal rejected this argument. Relying on Barnett v. First National Ins. Co. of America (2010) 184 Cal.App.4th 1454 (Barnett), the Court of Appeal concluded a section 998 offer may be made jointly to spouses because, under California s community property law, a cause of action for personal injury damages is community property (Fam. Code, 780) and under Family Code section 1100, subdivision (a), either spouse has the power to accept the offer on behalf of the community. Therefore, a single offer of judgment requiring both spouses to settle their claims triggered the costshifting statute in Code of Civil Procedure section Bankhead v. ArvinMeritor, Inc. (April 25, 2012) 205 Cal. App. 4th 68, Court of Appeal, First District The Court of Appeal held that punitive damages can be imposed against a defendant, even if that defendant can provide evidence that it has a negative net worth. In this asbestos personal injury case, a jury found ArvinMeritor, Inc. (ArvinMeritor) liable to Gordon and Emily Bankhead for compensatory and punitive damages. On appeal, ArvinMeritor did not challenge the jury s verdicts as to liability or the amount of compensatory damages. However, it contended the trial court erred in declining to reduce the amount of punitive damages awarded by the jury. ArvinMeritor disputes the punitive damages award on two grounds: first, that the amount is excessive under California law in light of ArvinMeritor s financial condition, and in particular, the evidence that ArvinMeritor has a negative net worth; and second, that the ratio of punitive to compensatory damages is so high as to violate the due process clause of the United States Constitution, under the guidelines adopted by the United States Supreme Court. As to the first contention, the Court of Appeal held there is no legal requirement that punitive damages must be measured against a defendant s net worth. Here, there was expert testimony that ArvinMeritor s net worth was not a reliable indicator of its ability to pay punitive damages, and that other indicators in its financial data merited the amount of the award. As to ArvinMeritor s second contention, the Court of Appeal concluded the 2.4-to-one ratio of punitive damages to compensatory damages awarded by the jury did not violate the federal due process clause of the Fourteenth Amendment, or the guidelines for making such awards as articulated by the United States Supreme Court. 3. Leonard v. John Crane, Inc. (June 13, 2012) 206 Cal. App. 4 th 1274, Court of Appeal, First District The Court of Appeal held that a plaintiff spouse has a valid loss of consortium claim when a latent injury that was not discoverable first becomes manifest, even though the conduct giving rise to the latent injury may have predated marriage. Plaintiffs were married in In 2010, John Leonard was diagnosed with mesothelioma due to exposure to asbestos-containing materials many years prior to the marriage in 218 Asbestos Medicine Seminar November 2012

17 2001. The Leonards sued Crane and several other defendants for personal injury and loss of consortium arising from John s exposure to asbestos between 1958 and Crane demurred to the loss of consortium claim. In ruling in favor of Crane, the trial court relied on Zwicker v. Altamont Emergency Room Physicians Medical Group [(2002) Cal. App. 4 th 26] which held that a loss of consortium cause of action is cognizable only if the plaintiff was married to the injured spouse at the time of defendant s wrongful conduct, regardless of when the injury became manifest. Mrs. Leonard maintained that her cause of action did not accrue until the injury to her marital relationship occurred in 2010 when John was diagnosed with mesothelioma. The First District reversed the trial court s sustaining of Crane s demurrer, holding that the rule is well-settled that an injury claim matures, and the limitations period accrues, once there is appreciable and actual harm, however uncertain in amount. A cause of action for latent injury or disease generally accrues when plaintiff discovers or should reasonably have discovered she has suffered a compensable injury. The First District refused to abide by the broad conclusion reached in Zwicker that a pre-marital injury cannot provide the basis for a loss of consortium claim in California. Here, John Leonard s injury was latent and could not reasonably have been discovered prior to the marriage, despite his prior alleged exposures. Thus Mrs. Crane s injury did not occur until her husband was diagnosed with mesothelioma in 2010, which, in turn, damaged the marital relationship, giving rise to her claim. 4. Vanhooser v. Superior Court (Hennessy Industries, Inc.) (June 1, 2012), 206 Cal. App. 4th 921, Court of Appeal, Second District As in Leonard, above, in an asbestos exposure case, a couple s marital status at the time of the diagnosis of the latent injury determines whether first element of loss of consortium is satisfied. Plaintiff Kenney was exposed to asbestos in the 1960 s and 1970 s during his service in the U.S. Navy and, until 1990, as an auto mechanic. His last encounter with Hennessy s products was some point between 1988 and August Kenney and Vanhooser married on December 31, Plaintiff Kenney was diagnosed with mesothelioma in June Plaintiff Kenney sued numerous companies, including Hennessy, for negligence and strict products liability. Plaintiff spouse Vanhooser pursued a cause of action for loss of consortium. Hennessy moved for summary judgment on the loss of consortium cause of action on the ground that plaintiff spouse Vanhooser did not marry Kenney until after his exposure to asbestos. The trial court granted the motion, and plaintiff spouse Vanhooser petitioned for writ of mandate. The Second District granted the writ, holding that one of the elements of a cause of action for loss of consortium is a valid and lawful marriage between the plaintiff and the person injured at the time of the injury. With latent diseases, courts have found that it is difficult to determine when the injury occurs because no temporally discrete event exists that encompasses the defendant s breach and the plaintiff s injury. In reference to latent injuries, the California Supreme Court has established that a cause of action for latent injury generally accrues when the injured person discovers he has a compensable injury. The Second District concluded it would consider the couple s marital status at the time of the diagnosis to determine whether the first element of a loss of consortium cause of action is satisfied. Since plaintiff Kenney and plaintiff spouse Vanhooser were married at the time of Kenney s diagnosis, summary judgment was improperly granted in favor of Hennessy and the petition was granted. D. Legislation Potentially Impacting Recovery of Medical Expenses A controversial bill that would have increased medical damages payouts in personal injury lawsuits in California died in the final legislative session. California Senate Bill 1528 introduced would have required the courts to award in damages the reasonable and necessary value of medical treatment to victims suing for High Volume Jurisdictions Verdicts and Appellate Rulings Calareso 219

18 damages. This bill would supersed the landmark 2011 case, Howell v. Hamilton Meats & Provisions, Inc., where the state Supreme Court held that victims suing over injuries only had right to medical damages equal to the cost paid by their health insurers for treatment, not the reasonable and necessary value of those services. We expect this bill will be re-introduced during California s next legislative session. IV. Wrap Up Verdicts in California remain high (and can be outrageous) in matters involving living mesothelioma. However, cases involving lung cancer, particularly where smoking is a major issue, have resulted in defense verdicts in the past year. We also expect the Campbell decision to continue to play a factor in defense verdicts as the plaintiffs bar searches for a way to get around the apparent bar to take home exposure cases. Liability for product manufacturers and premises defendants seems to be contracting based on theories of foreseeability of the harm. For strict liability, manufacturers are no longer being held responsible for other manufacturer s products, unless the product was designed to work with the harmful product. Loss of consortium causes of action were reinforced by the decisions in Leonard and Vanhooser, to the extent that it is now very difficult to challenge a loss of consortium claim unless the plaintiffs were not married at the time of the injury/diagnosis. Finally, the recovery of medical expenses may be taken up in the California legislature in order to get around the Howell decision that only allows plaintiffs to recover the costs of their treatment, not the value of the treatment. 220 Asbestos Medicine Seminar November 2012

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