Buttram v. Owens-Corning Fiberglas Corp.

• Decision Date: 18 August 1997
• Docket Number: No. S046375,OWENS-CORNING,S046375
• Citation: 941 P.2d 71,16 Cal.4th 520,66 Cal.Rptr.2d 438
• Court: California Supreme Court
• Parties: , 941 P.2d 71, 62 Cal. Comp. Cases 1031, Prod.Liab.Rep. (CCH) P 15,040, 97 Cal. Daily Op. Serv. 6549, 97 Daily Journal D.A.R. 10,671 James BUTTRAM, Plaintiff and Respondent, v.FIBERGLAS CORPORATION, Defendant and Appellant

Page 438

66 Cal.Rptr.2d 438

16 Cal.4th 520, 941 P.2d 71, 62 Cal. Comp. Cases 1031,

Prod.Liab.Rep. (CCH) P 15,040,

97 Cal. Daily Op. Serv. 6549,

97 Daily Journal D.A.R. 10,671

James BUTTRAM, Plaintiff and Respondent, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant and Appellant.

No. S046375.

Supreme Court of California

Aug. 18, 1997.

Rehearing Denied Oct. 15, 1997.

Wright, Robinson, McCammon, Osthimer & Tatum, San Francisco, James C. Nielsen, Glendale, San Francisco, Thomas H. Nienow, Gibson, Dunn & Crutcher, Jerry Fowler, Jr., and Larry L. Simms, Washington, DC, for Defendant and Appellant.

Morgenstein & Jubelirer, Eliot S. Jubelirer, Lee Ann Huntington, Bruce Wagman, San Francisco, Landels Ripley & Diamond as amici curiae on behalf of Defendant and Appellant.

Bryce C. Anderson, Clayton, Kazan, McClain, Edises, Simon & Abrams and Denise Abrams, Dianna Lyons, Oakland, for Plaintiff and Respondent.

Wartnick, Chaber, Harowitz, Smith & Tigerman, Harry F. Wartnick and Madelyn J. Chaber and Sanford Svetcov, San Francisco, as amici curiae on behalf of Plaintiff and Respondent.

BAXTER, Justice.

I. Introduction.

Defendant and appellant Owens-Corning Fiberglas Corporation (OCF) appealed from a products liability judgment in the amount of $1,519,475 entered against it in a trial involving plaintiff and respondent James Buttram's exposure to OCF's asbestos-containing products and his consequent contraction of pleural mesothelioma, an asbestos-caused form of lung cancer. In an order filed on October 17, 1996, we designated this matter the lead case for deciding the issue of when a cause of action seeking damages for personal injuries resulting from a latent disease such as asbestos-related mesothelioma accrues for purposes of determining whether the provisions of Proposition 51 can be prospectively applied.

Proposition 51, effective June 4, 1986, modified the common law rule of joint and several liability by limiting a tortfeasor's liability for noneconomic damages ¹ to the proportion of such damages equal to the tortfeasor's own percentage of fault. In Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-1194, 1205, 246 Cal.Rptr. 629, 753 P.2d 585 (Evangelatos ), we held Proposition 51 prospective only and applicable only to causes of action "accruing" on or after its effective date. (See Civ.Code, § 1431.2.)

In a posttrial motion, OCF argued Proposition 51 should be applied to this case to limit its liability for plaintiff's award of noneconomic damages ($450,000) to the proportion of such damages equal to its own percentage of fault. The trial court determined that because plaintiff's medical testimony established that undetected cancer cells in probability had started forming by 1984, two years prior to the effective date of Proposition 51, plaintiff's cause of action for injuries arising from pleural mesothelioma "accrued" prior to the initiative measure's effective date. The trial court therefore ruled Proposition 51's tort reform measures inapplicable to this case, leaving OCF jointly and severally liable for the entire award of noneconomic damages.

The Court of Appeal affirmed, concluding that for purposes of determining whether Proposition 51 applied, plaintiff's cause of action for damages resulting from the latent asbestos-related disease mesothelioma accrued "when he suffered some sort of appreciable, meaning compensable, harm or injury." Under the Court of Appeal's test, subclinical (i.e., undiscovered and unmanifested) cellular changes, such as development of the first cancer cell, constitute the "appreciable harm" that triggers accrual of a cause of action for Proposition 51 purposes in the latent disease context. It matters not that plaintiff did not suffer any actual symptoms of the disease, was unaware he would contract the disease, and was not diagnosed with the disease at the time the undetected cellular changes first occurred. Under the rationale of the Court of Appeal's holding, as long as plaintiff's medical experts can establish, in retrospect, that such subclinical cellular changes began forming at some time prior to the effective date of Proposition 51, the initiative's tort reform measures are rendered inapplicable in a case involving latent injuries.

For the reasons explained below, we reject the Court of Appeal's test for determining when a plaintiff's cause of action accrues for purposes of applying Proposition 51 in the latent disease context. We hold instead that a cause of action for damages arising from the latent and progressive asbestos-related disease mesothelioma has "accrued"--for purposes of determining whether Proposition 51 can be prospectively applied consistent with the rationale of this court's holding in Evangelatos, supra, 44 Cal.3d 1188, 246 Cal.Rptr. 629, 753 P.2d 585--if the plaintiff was diagnosed with the disease for which damages are being sought, or otherwise discovered his illness or injuries, prior to Proposition 51's effective date of June 4, 1986.

II. Factual and Procedural Background.

Since OCF did not challenge the sufficiency of the evidence to support the liability or damage verdicts in issue on appeal, we need not review the voluminous record in great detail. The following salient facts were found relevant to the Proposition 51 "accrual" issue by the Court of Appeal.

Plaintiff is a Vietnam veteran who served from 1964 to 1968 in the United States Navy. He was assigned to the destroyer U.S.S. Mullaney and, both while the ship was in dry dock for repairs and during its active service in Vietnam, frequently worked in the ship's boiler room. The boilers and steam pipes in the boiler room were all insulated with asbestos, and plaintiff was present in that room when the insulation was both being removed and repaired. Also, when the ship was conducting shore bombardment off the coast of Vietnam during its active service, vibration from the ship's guns caused breaks in the asbestos insulation and pipes in the boiler room, which plaintiff would also have to repair.

After plaintiff left the Navy in 1968, he had no further work with or exposure to asbestos-containing materials. Commencing in 1978, he worked as a maintenance mechanic with a chemical manufacturer. In 1991, at age 47, he had a routine annual physical examination which included a chest X-ray that revealed a problem with one of his lungs. After a series of tests at Kaiser Hospital, a biopsy revealed he had contracted pleural mesothelioma. He was advised there was no cure for this disease, and he would eventually die from it.

Subsequently, plaintiff had a lung removed, was given electric shock therapy to slow down his heart rate, and underwent chemotherapy. He filed suit on July 2, 1992, and several months later the trial court granted his motion for trial preference under Code of Civil Procedure section 36. Settlements were effectuated with several named defendants soon thereafter, and a trial as to OCF followed the next year.

In pretrial motions, OCF argued Proposition 51 should apply to the case. Plaintiff in turn urged that the initiative measure did not apply because both the wrongful conduct and the early stages of his injury predated Proposition 51's effective date. Plaintiff agreed to proceed to trial as though Proposition 51 applied, reserving the issue for a posttrial ruling.

After a bifurcated trial (phase I addressing causation and compensatory damages, phase II addressing exposure and liability issues), the jury returned a verdict in plaintiff's favor and awarded him damages totaling $1,519,475. Of this amount, $450,000 was allocated by the jury as noneconomic damages. The jury found OCF's percentage of fault to be 28 percent. In a third phase of the trial, the jury declined to award plaintiff any punitive damages against OCF.

The parties filed posttrial cross-motions with respect to the issue of the applicability of Proposition 51 to the case. Based on the unrebutted medical testimony of Dr. Barry Horn, the trial court determined plaintiff probably had subclinical cancer cell formation at least seven years before the discovery of fluid in his lungs in 1991. The court held that plaintiff's cause of action therefore "accrued," for purposes of Proposition 51, at the time of such asymptomatic cancer cell formation, and that since Proposition 51 was prospective only under this court's holding in Evangelatos, supra, 44 Cal.3d 1188, 246 Cal.Rptr. 629, 753 P.2d 585, it did not apply to plaintiff's case.

The Court of Appeal affirmed, observing that given the facts of this case, the question of accrual was largely a legal and not a factual one. In other words, if a "discovery" (i.e., "manifestation" or "diagnosis") accrual rule were to be applied, "that date would almost inevitably be 1991 or 1992, several years after the effective date of Proposition 51, hence triggering its applicability to the noneconomic portion of plaintiff's damages." Conversely, given the unrebutted testimony that plaintiff probably had subclinical cancer cell formation seven years prior to the 1991 discovery of fluid in his lungs, under the accrual test applied by the trial court, plaintiff's cause of action would have accrued no later than 1984, two years prior to the effective date of Proposition 51, thereby rendering the tort reform measures inapplicable to his case.

III. Discussion.

A. Proposition 51 and Evangelatos.

OCF and various amici curiae ² contend the trial court should have applied Proposition 51 to plaintiff's award of noneconomic damages. As noted, Proposition 51, which took effect June 4, 1986, significantly modified the common law rule of joint and several liability in comparative fault situations. Under the initiative measure's provisions multiple tortfeasors continue to be jointly and severally liable for all economic damages. However, joint tortfeasors are only liable for the percentage of noneconomic damages commensurate with their own percentage of fault. (civ.code,...