Anderson v. Owens-Corning Fiberglas Corp.

• Decision Date: 30 January 1990
• Docket Number: OWENS-CORNING,No. B034245,B034245
• Citation: 227 Cal.App.3d 1035,266 Cal.Rptr. 204
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 227 Cal.App.3d 1035 227 Cal.App.3d 1035, 58 USLW 2492, Prod.Liab.Rep. (CCH) P 12,416 Carl ANDERSON, Plaintiff and Respondent, v.FIBERGLAS CORPORATION, et al., Defendants and Appellants.

Page 204

266 Cal.Rptr. 204

Previously published at 227 Cal.App.3d 1035

227 Cal.App.3d 1035, 58 USLW 2492,

Prod.Liab.Rep. (CCH) P 12,416

Carl ANDERSON, Plaintiff and Respondent, v. OWENS-CORNING FIBERGLAS CORPORATION, et al., Defendants and Appellants.

No. B034245.

Court of Appeal, Second District, Division 4, California.

Jan. 30, 1990.

Review Granted May 3, 1990.

Howarth & Smith, Don Howarth, Suzelle M. Smith, Barbara Gregg Glenn and Brian D. Bubb, Los Angeles, for defendants and appellants Fibreboard Corp., Owens-Illinois, Inc., Pittsburg-Corning Corp., Keene Corp., AC and S, Inc., Armstrong World Industries, GAF Corp. and Celotex Corp.

Yusim, Stein & Hanger and Roger Bentley, Sherman Oaks, for defendant and appellant Eagle-Picher Industries, Inc.

Stemple & Boyajian, David Kupfer and Peter Kunstler, Los Angeles, for plaintiff and respondent.

ARLEIGH M. WOODS, Presiding Justice.

This is an appeal from an order granting a new trial following a defense verdict in a products liability case. The primary issues on appeal are the propriety of a "state of the art" defense in a design defect case where no punitive damages are sought and the interrelationship of a failure-to-warn theory and a "state of the art" defense. For reasons explained herein, we affirm the order granting a new trial.

Respondent Carl A. Anderson sued appellants Owens-Corning Fiberglas Corporation (hereinafter "OCF"), Eagle-Picher Industries, Inc. (hereinafter "EPI"), Fibreboard Corporation, Owens-Illinois, Inc., Pittsburgh-Corning Corporation, Keene Corporation, AC and S, Inc., Armstrong World Industries, GAF Corporation, Celotex Corporation, H.K. Porter Company, Inc. (hereinafter the "other" or "remaining" appellants) and others ¹ alleging that he suffered asbestosis and other lung damage as a result of his exposure to asbestos in his capacity as an electrician at the Long Beach Naval Shipyard from 1941 to 1984. Appellants were alleged to be engaged in the business of manufacturing, fabricating, designing, assembling, distributing, leasing, buying, selling, inspecting, servicing, repairing, marketing, warranting and advertising asbestos and products containing asbestos. The complaint stated causes of action for negligence, breach of warranty, and strict liability. Appellant prayed for general, special and punitive damages together with prejudgment interest. Pursuant to stipulation entered at the time of trial, respondent proceeded only on his cause of action for strict liability and did not seek punitive damages.

Extensive motions in limine were made by all parties. Among the motions which were granted were respondent's motion that appellants be precluded from presenting a "state of the art" defense ² and appellants' motion that respondent be precluded from proceeding on a failure to warn theory.

Following a four-week trial, the jury returned a special verdict finding no defect in design of the products manufactured by the defendants.

Thereafter, the trial court granted respondent's motion for new trial on the grounds that (1) "[i]t was prejudicial error for the Court to consider the exclusion of 'state of the art' evidence as requiring the exclusion of 'failure to warn' evidence and preclude Plaintiff from going to the jury with this issue" and (2) "... the evidence and common experience at this time puts beyond question the dangerous nature of asbestos as a product and its inherent defect as a product. The jury's finding for the contrary is not supported by either the Defendants' or the Plaintiff's evidence."

Although all appellants contend the court erred in granting the motion for new trial, their reasons for this assertion are not unanimous. Therefore, specific contentions of the parties will be addressed in the discussion which follows.

I

When the trial court ruled on respondent's motion to exclude state of the art evidence and appellants' related motion to exclude failure to warn evidence, there was no California case on point. Case law from other jurisdictions demonstrated that appellants had fought this same battle over a period of years in many jurisdictions with varying results.

Some of the courts in which the issue was raised held that a manufacturer could not be held strictly liable for injuries caused by its product where generally recognized and prevailing scientific evidence had not made the association between injury and exposure to the product, and that state of the art evidence was therefore relevant and admissible. (See, e.g., Lohrmann v. Pittsburgh Corning Corp. (4th Cir.1986) 782 F.2d 1156, 1164 [applying Maryland law]; Murphy v. Owens-Illinois, Inc. (6th Cir.1985) 779 F.2d 340, 342 [applying Tennessee law]; Bernier v. Raymark Industries, Inc. (Me.1986) 516 A.2d 534, 537-538 [Maine]; Steinfurth v. Armstrong World Industries (Ohio Com.Pl.1986) 27 Ohio Misc.2d 21, 500 N.E.2d 409, 411 [Ohio].)

Other jurisdictions held that "state of the art" evidence improperly injected an element of negligence into strict liability cases, and that the evidence was therefore irrelevant and inadmissible. (See, e.g., Kisor v. Johns-Manville Corp. (9th Cir.1986) 783 F.2d 1337, 1341 [applying Washington law]; Hayes v. Ariens Co. (1984) 391 Mass. 407, 462 N.E.2d 273 [Massachusetts]; Elmore v. Owens-Illinois, Inc. (Mo. banc 1984) 673 S.W.2d 434, 438 [Missouri]; Johnson v. Raybestos-Manhattan, Inc. (1987) 69 Haw. 287, 740 P.2d 548, 549 [Hawaii]; Lockwood v. AC & S, Inc. (1986) 44 Wash.App. 330, 722 P.2d 826, 835-838, affd. (1987) 109 Wash.2d 235, 744 P.2d 605; Beshada v. Johns-Manville Products Corp. (1982) 90 N.J. 191, 447 A.2d 539, 546-547.)

In September of 1988, five months after the notice of appeal was filed in this matter, the First District Court of Appeal filed its opinion in Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 251 Cal.Rptr. 805, in which it reviewed pretrial evidentiary rulings applicable to approximately 2,000 asbestos cases in Alameda County. (Id., at pp. 1195-1196, 251 Cal.Rptr. 805.) ³

Two of the issues raised in Vermeulen are relevant to the case before us: (1) whether state of the art evidence is admissible where the plaintiff relies exclusively on a consumer expectation theory of liability ⁴ and does not seek punitive damages (204 Cal.App.3d at p. 1198, 251 Cal.Rptr. 805); and (2) whether state of the art evidence is admissible where the plaintiff relies on a failure-to-warn theory of liability (204 Cal.App.3d at p. 1202, 251 Cal.Rptr. 805).

The Vermeulen court made no attempt to resolve the former issue. The reasons given for this refusal were the inadequacy of the record ⁵ and the breadth of the prohibition sought by defendants. ⁶

As to cases tried on a failure to warn theory, the court observed: "[W]e are again confronted with a general evidentiary ruling which is to be applied to the entire spectrum of products and uses which may conceivably arise among these hundreds of cases.... However, this order is not exclusionary across the board--the ultimate decision is necessarily left to the trial court in each case." (Vermeulen v. Superior Court, supra, 204 Cal.App.3d at p. 1203, 251 Cal.Rptr. 805.) For this reason the Vermeulen court concluded it "should deny the petition unless plaintiffs can demonstrate that such evidence is not admissible under any circumstance." (Ibid.) Following some discussion of the issue, the court did, in fact, deny the petition. (204 Cal.App.3d at p. 1206, 251 Cal.Rptr. 805.) Thus, the most that can be said of Vermeulen on this issue is that it rejected the plaintiffs' contention that state of the art evidence is inadmissible under any and all circumstances in products liability cases tried on a failure to warn theory.

Nevertheless, Vermeulen contains the following statement: "[W]e conclude that manufacturers may not be held strictly liable for failure to warn of risks of which they were unaware and could not have been aware by the reasonable application of scientific knowledge available at the time of distribution. Consequently, 'state of the art' evidence may well be relevant and admissible in a failure to warn case...." (204 Cal.App.3d at p. 1206, 251 Cal.Rptr. 805.)

For purposes of stare decisis, this statement leaves much to be desired. First, there is the lack of predictability resulting from the use of the words "may well" and the corresponding lack of guidance as to the factual or legal predicate for admission or exclusion of the evidence.

More importantly, however, is the unfortunate, though not uncommon, commingling of strict liability and negligence language. This confusion is evident throughout products liability law. For example, comment k to section 402A of the Restatement Second of Torts ⁷ provides that a producer of a properly manufactured prescription drug "may be held liable for injuries caused by the product only if it was not accompanied by a warning of dangers that the manufacturer knew or should have known about." (Brown v. Superior Court (1988) 44 Cal.3d 1049, 1058, 245 Cal.Rptr. 412, 751 P.2d 470.) The California Supreme Court agrees with the general consensus of authorities that "although [comment k] purports to explain the strict liability doctrine, in fact the principle it states is based on negligence. [Citations.]" (Id., at p. 1059, 245 Cal.Rptr. 412, 751 P.2d 470.)

While some courts have been careful to distinguish between strict liability and liability for negligence in products actions (see, e.g., Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133, 104 Cal.Rptr. 433, 501 P.2d 1153 [in which the court rejected the "unreasonably dangerous" requirement of Restatement section 402A, explaining that to burden the injured plaintiff with proof of an element which rings of negligence would represent "a step backward in the area pioneered by this court."] ), others have applied principles "borrowed from negligence" in cases employing strict liability rubric. (See, e.g., Lee v. Electric Motor Division (1985) 169 Cal.App.3d 375,...