16 Cal.4th 953, S046944, Rutherford v. Owens-Illinois, Inc.

Docket Nº:S046944
Citation:16 Cal.4th 953, 67 Cal.Rptr.2d 16, 941 P.2d 1203
Opinion Judge:[12] The opinion of the court was delivered by: Baxter
Party Name:Rutherford v. Owens-Illinois, Inc.
Attorney:[8] Morgenstein & Jubelirer, Eliot S. Jubelirer, Lee Ann Huntington and Bruce A. Wagman for Defendant and Appellant. [9] Brobeck, Phleger & Harrison, Thomas M. Peterson and Marilyn Fisher as Amici Curiae on behalf of Defendant and Appellant. [10] John C. Robinson and Bryce C. Anderson for Plainti...
Case Date:August 18, 1997
Court:Supreme Court of California

Page 953

16 Cal.4th 953

67 Cal.Rptr.2d 16, 941 P.2d 1203

THELMA L. RUTHERFORD et al., Plaintiffs and Respondents,


OWENS-ILLINOIS, INC., Defendant and Appellant.


Supreme Court of California

Aug 28, 1997

Page 954

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Morgenstein & Jubelirer, Eliot S. Jubelirer, Lee Ann Huntington and Bruce A. Wagman for Defendant and Appellant.

Brobeck, Phleger & Harrison, Thomas M. Peterson and Marilyn Fisher as Amici Curiae on behalf of Defendant and Appellant.

John C. Robinson and Bryce C. Anderson for Plaintiffs and Respondents.

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I. Introduction.

In this consolidated action for asbestos-related personal injuries and wrongful death brought and tried in Solano County, defendant Owens-Illinois, Inc. (Owens-Illinois) contends the trial court erred in instructing the liability phase jury pursuant to Solano County Complex Asbestos Litigation General Order No. 21.00. This instruction shifts the burden of proof to defendants in asbestos cases tried on a products liability theory to prove that their products were not a legal cause of the plaintiff's injuries, provided the plaintiff first establishes certain predicate facts, chief among them that the defendant manufactured or sold defective asbestos-containing products to which plaintiff was exposed, and that plaintiff's exposure to asbestos fibers generally was a legal cause of plaintiff's injury. The Court of Appeal concluded the trial court erred in giving the burden-shifting instruction.

The Court of Appeal further held that the judgment in this case must be reversed because the trial court erred in refusing to permit Owens-Illinois to present a "tobacco company defense." The Court of Appeal's judgment in this regard was error requiring reversal under our recent holding in Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 988-989 [60 Cal.Rptr.2d 103], a case consolidated and tried with the instant action and three others. However, because the Court of Appeal alternatively determined the trial court erred in giving the burden-shifting instruction, and because plaintiffs here additionally sought review of that aspect of the Court of Appeal's judgment, we must also in this case review the Court of Appeal's holding that it was error to give the burden-shifting instruction.

We conclude the Court of Appeal correctly determined that the burden shifting instruction should not have been given in this case. For reasons to be explained, we hold that in cases of asbestos-related cancer, a jury instruction shifting the burden of proof to asbestos defendants on the element of causation is generally unnecessary and incorrect under settled statewide principles of tort law. Proof of causation in such cases will always present inherent practical difficulties, given the long latency period of asbestos-related disease, and the occupational settings that commonly exposed the worker to multiple forms and brands of asbestos products with varying degrees of toxicity. In general, however, no insuperable barriers prevent an asbestos-related cancer plaintiff from demonstrating that exposure to the defendant's asbestos products was, in reasonable medical probability, a

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substantial factor in causing or contributing to his risk of developing cancer. We conclude that plaintiffs are required to prove no more than this. In particular, they need not prove with medical exactitude that fibers from a particular defendant's asbestos-containing products were those, or among those, that actually began the cellular process of malignancy. Instruction on the limits of the plaintiff's burden of proof of causation, together with the standardized instructions defining cause-in-fact causation under the substantial factor test (BAJI No. 3.76) and the doctrine of concurrent proximate legal causation (BAJI No. 3.77), will adequately apprise the jury of the elements required to establish causation. No burden-shifting instruction is necessary on the matter of proof of causation, and in the absence of such necessity, there is no justification or basis for shifting part of the plaintiff's burden of proof to the defendant to prove that it was not a legal cause of plaintiff's absestos-related disease or injuries. (See Summers v. Tice (1948) 33 Cal.2d 80, 86 [199 P.2d 1, 5 A.L.R.2d 91] (Summers) [burden shift justified because without it all tortfeasors might escape liability and the injured plaintiff be left "remediless."].) However, as will be explained, the giving of the burden-shifting instruction in this case was harmless.

Ultimately, the sufficiency of the evidence of causation will depend on the factual circumstances of each case. Although the plaintiff must, in accordance with traditional tort principles, demonstrate to a reasonable medical probability that a product or products supplied by the defendant, to which he became exposed, were a substantial factor in causing his disease or risk of injuries, he is free to further establish that his particular asbestos disease is cumulative in nature, with many separate exposures each having constituted a "substantial factor" (BAJI No. 3.76) that contributed to his risk of injury. And although a defendant cannot escape liability simply because it cannot be determined with medical exactitude the precise contribution that exposure to fibers from defendant's products made to plaintiff's ultimate contraction of asbestos-related disease, all joint tortfeasors found liable as named defendants will remain entitled to limit damages ultimately assessed against them in accordance with established comparative fault and apportionment principles.

II. Factual and Procedural Background.

Charles Rutherford (Rutherford) was in the Air Force from 1935 to 1940, after which he became an apprentice sheet metal worker at the Mare Island Naval Shipyard (Mare Island). He worked in the sheet metal shop for several years, and then became an engineering technician working with ventilation before retiring from Mare Island after 40 years. At the time of his death in April 1988, he had been married to Thelma L. Rutherford for 45 years, and they had 2 children.

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In January 1988, three months before his death, Rutherford filed an asbestos-related personal injury action in Solano County Superior Court naming as defendants nineteen manufacturers and/or distributors of asbestos products, including the sole defendant in this appeal, Owens-Illinois. The original complaint alleged Rutherford had contracted lung cancer as a result of his exposure to defendants' asbestos products while on the job at Mare Island, and alleged causes of action for products liability, negligent and intentional infliction of emotional distress, and loss of consortium. After Rutherford died of lung cancer in April 1988, the complaint was amended to allege a wrongful death action brought by his wife, Thelma L. Rutherford, and their daughter, Cheryl Rutherford Thomas (hereafter plaintiffs).

Plaintiffs' case was consolidated for trial with four other actions presenting the similar claims of various other plaintiffs, including those of Harvey Richards (Solano County Super. Ct. No. V21705). In the appeal taken by defendant Owens-Illinois from the judgment of damages recovered by Richards, we recently held that the immunity accorded by Civil Code section 1714.45 to suppliers of certain unhealthy consumer products such as tobacco represents a legislative judgment that, to the extent of the immunity afforded, such companies have no "fault" or responsibility, in the legal sense, for harm caused by their products, and that such companies are therefore not "tortfeasors" to which comparative fault can be assigned for purposes of Proposition 51. 1 Consequently, we reversed the judgment of the Court of Appeal insofar as it concluded the trial court prejudicially erred in not allowing Owens-Illinois to present a "tobacco company defense." (Richards v. Owens-Illinois, Inc., supra, 14 Cal.4th 985, 988-989 (Richards).)

Under procedures adopted by the Solano County Superior Court for general use in complex asbestos litigation within that county, trial of these consolidated cases was bifurcated into "damages" and "liability" phases (heard by separate juries). 2 In the first damages phase of trial, the jury was to determine, as to each plaintiff, whether exposure to asbestos was a proximate cause of injury (i.e., whether plaintiff was suffering from asbestos-related disease or, as here, plaintiffs' decedent had died from asbestos-related disease) and, if so, the total amount of resulting damages.

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Plaintiffs presented medical evidence that Rutherford had died of asbestos-related lung cancer. He had worked aboard ships around asbestos insulators at Mare Island starting in 1940. Although Rutherford's answers to interrogatories reflected he had never himself worked as an installer of asbestos insulation, he nevertheless had been exposed to respirable asbestos dust on a daily basis during periods of his employment at Mare Island. Three weeks before his death, Rutherford had furnished a medical history recounting his heavy exposure to asbestos products similar to that of other sheet metal workers in the shipyard. In 1985 he first noticed he would tire quickly and get out of breath easily. In 1986 Rutherford was diagnosed with lung cancer and underwent surgery. A year later a cancerous tumor was discovered in his head. He received radiation treatments but died three weeks later. Evidence was also presented that Rutherford had smoked approximately a pack of cigarettes a day over a period of 30 or more years until he quit smoking in 1977. As will be explained, this evidence took on heightened relevance at the second...

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