Arena v. Owens Corning Fiberglas Corp.

• Decision Date: 12 May 1998
• Docket Number: No. A077005,OWENS-CORNING,A077005
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 15,245, 98 Cal. Daily Op. Serv. 3641, 98 Daily Journal D.A.R. 4965 Elizabeth ARENA, Plaintiff and Respondent, v.FIBERGLAS CORPORATION et al., Defendants and Appellants.

Page 580

74 Cal.Rptr.2d 580

63 Cal.App.4th 1178, Prod.Liab.Rep. (CCH) P 15,245,

98 Cal. Daily Op. Serv. 3641,

98 Daily Journal D.A.R. 4965

Elizabeth ARENA, Plaintiff and Respondent, v. OWENS-CORNING FIBERGLAS CORPORATION et al., Defendants and Appellants.

No. A077005.

Court of Appeal, First District, Division 1, California.

May 12, 1998.

Certified for Partial Publication. ^*

Review Denied July 29, 1998. ^**

[63 Cal.App.4th 1181] Philip A. Harley, Novato, James L. Oberman, Hercules, Brayton, Harley, Curtis, Novato, for Angelo Arena.

Camille K. Fong, Tilly & Graves, Thomas Peterson, Brobeck, Phleger & Harrison, San Francisco, for Owens Corning.

James C. Parker, Parker & Bonis, San Francisco, Gary T. Drummond, Stevens, Drummond & Gifford, Walnut Creek, for Asbestos Corporation, Ltd.

DOSSEE, Associate Justice.

Owens-Corning Fiberglas Corporation ("Owens Corning") and Asbestos Corporation Limited ("ACL") appeal from a judgment in favor of respondent Angelo Arena, awarding damages for injuries resulting from occupational exposure to asbestos. We conclude that a supplier of raw asbestos is subject to strict products liability, and in particular, to the consumer expectations test of a product defect. We agree with appellants that the trial court erred in failing to anticipate the Supreme Court's decision that Proposition 51

                applies to cases like the instant case in Buttram v. Owens-Corning Fiberglas Corp.  (1997) 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71.   We also conclude that Proposition 51 is applicable to the instant asbestos case even though it is based solely on a strict products liability theory.  Because we have determined that Proposition 51 applies here, we must remand the case for a determination of the proper allocation of noneconomic damages. ***
                

I

BACKGROUND

Respondent's Occupational Exposure to Asbestos

Respondent, Angelo Arena, was exposed to asbestos between 1946 and 1977, while working as a machinist and engineering technician at the Puget Sound Naval Shipyard in Washington state. ¹ Respondent, who was unable to travel due to his illness, testified via videotaped deposition regarding his career as a machinist. At first he worked in the engine rooms of ships with pipefitters, electricians, and insulators who were installing and removing asbestos insulation. The insulation was a gray powder which was mixed and formed before it was applied to the pipes on the ships. He recalled when the workers were tearing out insulation the area was "one big cloud of ... asbestos dust." At those times, he was given no breathing protection device and the dust got on his clothes and face. Respondent was never warned about the dangers of breathing asbestos.

In 1951, respondent's job title was changed to engineering technician. His duties then included ordering parts which involved visiting the shipyard's shops and vessels. In this capacity, respondent inspected and inventoried equipment in Shop 56 where the asbestos was mixed. He recalled that the dust was so thick in Shop 56 that he would breathe through a folded handkerchief. When he left Shop 56, there was dust on his clothing, which he shook off with his bare hands. He visited Shop 56 once or twice a year. Other places that he worked, such as engine rooms and storage spaces, also contained dust from asbestos products.

Methods of Installation and Removal of Appellants' Products

The asbestos products of appellants Owens Corning and ACL, along with those of other manufacturers, were used extensively at Puget Sound Naval Shipyard. Owens Corning manufactured an asbestos product called "Kaylo." Prior testimony of Lewis Saxby, a former Owens Corning executive, established that Owens Corning became the exclusive distributor for Kaylo in 1953 or shortly thereafter. In 1958, Owens Corning bought the division of Owens-Illinois which manufactured Kaylo. Appellant ACL, a Quebec corporation, supplied asbestos fibers to Eagle-Picher Industries, Inc., between 1935 and 1957. Eagle-Picher, which was under bankruptcy protection at the time of trial, produced an insulating cement containing asbestos known as Eagle 66 or Super 66.

Kaylo was a calcium silicate and asbestos pipe insulation product that was cut to fit the pipes with saws, rasps, and knives. Eagle 66 or Super 66 was a high temperature asbestos-containing cement made by Eagle Picher Industries. It came in bags and was mixed by hand in a bucket. Charles Ay, a former insulator and currently a certified asbestos consultant, described standard methods of installing and removing asbestos insulation procedures aboard ships like the ones which respondent worked on. Insulation is installed by altering it to fit the pipe, wiring it in place, sealing the joints with high temperature cement or "mud," and covering it with a fiberglass jacketing and finish cement. The common method for mixing the Eagle 66 cement was to use old paint cans, fill them half full with water, pour the cement into the cans, and agitate them to mix it. This operation was a heavy dust-producing process.

The work of cutting and removing the Kaylo pipe covering was also a continuous dust producing operation. Machinists, pipe

                fitters and insulators all helped to remove the insulation from the ships.  Normally, workers ripped it off with a pick or hatchet, and left it on the deck.  In Naval work, the different tradesmen worked on the ship at the same time.  Thus, insulators, machinists, sheet metal workers, electricians and others would all be working in the same area on the ship when the asbestos was being applied or removed.  Across the country, the insulation work off the ship was done in the pipefitter's shop.  According to uniform terminology in the Navy, every trade had a common numerical shop designation.  The pipefitter's shop was always called "Shop 56."   Ay visited the Puget Sound Naval Shipyard in 1976.  He noted that operations were conducted there just as he had described
                

Medical Evidence of Asbestos Causation

Medical evidence described the progress of appellant's condition, the nature of asbestos diseases in general, and the mechanics of how inhaling asbestos fiber causes cancer. Dr. Samuel Hammar, respondent's expert pathologist, testified that asbestos fibers cause cellular and DNA changes associated with cancer and asbestosis. The body reacts immediately upon inhalation of the fibers, producing scarring in the lungs, referred to as "pleural plaques." Although scar tissue probably begins forming fairly soon, early cellular changes are not clinically detectable.

Dr. Hammar testified that a negative 1995 cytology report on respondent's pleural fluid did not necessarily mean he did not have cancer. Cytology reports are negative in roughly half of the people who eventually are diagnosed with mesothelioma. The fact that the fluid in respondent's sample was bloody was a sign that is frequently associated with malignancies. Dr. Hammar confirmed that respondent would not be a good candidate for surgery, and that there is no effective treatment for mesothelioma. Respondent's x-rays in 1994 did not show an effusion or any evidence of a mass, but the late 1995 x-ray did disclose a mass and the effusion. Based on his review of respondent's laboratory reports and clinical history, Dr. Hammar believed that the most likely cause of respondent's bloody pleural effusion was mesothelioma. Dr. William Meseroll, a radiologist, and Dr. Carolyn Ray, respondent's pulmonologist, also testified that the mass in respondent's lung was probably mesothelioma.

The Instant Litigation

On February 8, 1995, respondent filed a complaint seeking damages against multiple defendants for injuries arising from his exposure to asbestos. ² His motion for trial preference due to his terminal illness was granted on February 15, 1996. On June 5, 1996, the parties waived a jury trial. On June 17, 1996, Owens Corning filed a motion arguing that the Washington statute of limitations barred the action. The trial court denied the motion. The trial court admitted, over objection, the deposition transcript of Eagle Picher manager Robert Bockstahler taken in other asbestos cases.

The trial court filed its final decision on September 10, 1996, concluding that respondent had demonstrated that he suffered from either lung cancer or mesothelioma caused by his exposure to asbestos, and that ACL and Owens Corning products were a substantial factor in causing the illness. The court concluded that Proposition 51 did not apply and awarded joint and several damages of $388,820.35. ACL filed a motion for new trial on October 25, 1996, which was, apparently, denied by operation of law. Owens Corning and ACL appeal.

II

DISCUSSION ^*

A. Consumer Expectations Test Applies to Supplier of Raw Asbestos

The instant case was tried on a consumer expectations theory of product defect. The trial court relied on Jenkins v. T & N PLC (1996) 45 Cal.App.4th 1224, 53 Cal.Rptr.2d 642 to conclude that the consumer expectations test applied to this case. ACL and amicus curiae, Cassiar Mining Corporation, argue that the consumer expectations

                test cannot be applied to raw asbestos because it presupposes an analysis of a product that is designed. 3  Amicus curiae argues that raw asbestos, being incapable of being designed, can not be defective by virtue of its design.  To support this argument, amicus curiae analogizes asbestos to rat poison, contending that a consumer may (correctly) expect rat poison to be dangerous.  Despite its dangerous nature, rat poison is not defective if properly labeled with appropriate warnings. 4  Here, however, the issue does not concern the circumstances under which a product that is ordinarily perceived as dangerous can be deemed defective, but whether the ordinary consumer, at the time of respondent's exposure, expected that normal use of asbestos was dangerous
                

Nature of the Tests for a Design Defect

Products liability law utilizes three methods to demonstrate that a...