Coughlin v. Owens-Illinois, Inc

• Decision Date: 29 December 1993
• Docket Number: No. A050481,INC,OWENS-ILLINOI,A050481
• Citation: 21 Cal.App.4th 572,27 Cal.Rptr.2d 214
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 21 Cal.App.4th 572, 26 Cal.App.4th 1511, 31 Cal.App.4th 1633, 36 Cal.App.4th 165, 40 Cal.App.4th 1776, 45 Cal.App.4th 250, 49 Cal.App.4th 1879 21 Cal.App.4th 572, 26 Cal.App.4th 1511, 31 Cal.App.4th 1633, 36 Cal.App.4th 165, 40 Cal.App.4th 1776, 45 Cal.App.4th 250, 49 Cal.App.4th 1879, Prod.Liab.Rep. (CCH) P 13,853 Frank J. COUGHLIN, Plaintiff and Respondent, v., et al., Defendants and Appellants.

Page 214

27 Cal.Rptr.2d 214

Previously published at 21 Cal.App.4th 572, 26 Cal.App.4th 1511, 31 Cal.App.4th 1633, 36 Cal.App.4th 165, 40 Cal.App.4th 1776, 45 Cal.App.4th 250, 49 Cal.App.4th 1879

21 Cal.App.4th 572, 26 Cal.App.4th 1511, 31 Cal.App.4th 1633,

36 Cal.App.4th 165, 40 Cal.App.4th 1776,

45 Cal.App.4th 250, 49 Cal.App.4th 1879,

Prod.Liab.Rep. (CCH) P 13,853

Frank J. COUGHLIN, Plaintiff and Respondent, v. OWENS-ILLINOIS, INC., et al., Defendants and Appellants.

No. A050481.

Court of Appeal, First District, Division 3, California.

Dec. 29, 1993.

Rehearing Denied Jan. 24, 1994.

Review Granted April 21, 1994.

Review Transferred to the Court of Appeals Dec. 23, 1997.

Lee Ann Huntington, Eliot S. Jubelirer, Samantha J. Smith, Morgenstein & Jubelirer, San Francisco, for defendant and appellant Owens-Illinois, Inc.

Robert D. Bjork, Jr., Mark P. Epstein, Bjork, Lawrence Poeschl & Kohn, Oakland, for defendant and appellant The Celotex Corp.

Heather McKee, W. Ruel Walker, Charles Bond & Associates, Berkeley, John Wallace, Jackson & Wallace, San Francisco, for amicus curiae on behalf of appellants.

Jeffrey B. Harrison, Law Office of Jeffrey B. Harrison, San Francisco, John C. Robinson, Law Office of John C. Robinson, Vallejo, Bryce C. Anderson, Law Office of Bryce C. Anderson, Concord, for plaintiff and respondent.

WHITE, Presiding Justice.

Frank J. Coughlin filed suit on January 16, 1986, against 20 named defendants for asbestos-related personal injuries. By the time the jury was empaneled, all but two of the defendants--appellants Owens-Illinois, Inc. and The Celotex Corporation--had settled with Coughlin. The case against Owens-Illinois and Celotex was tried in two phases. In the first phase the jury determined the amount of Coughlin's compensatory damages, which they set at $411,359 in economic damages and $1,000,000 in noneconomic damages. In the second phase, which focused on the defendants' liability, the jury found that each defendant was a legal cause of Coughlin's injury. The jury determined that Celotex was the legal cause of two percent of Coughlin's damages while Owens-Illinois was the legal cause of one percent. The court deducted the amount Coughlin had received from the earlier settlements and entered a joint and several judgment against Owens-Illinois and Celotex for $891,359. This amount consisted of $259,798.26 in economic damages, and $631,560.74 in noneconomic damages. These timely appeals followed.

On appeal, both defendants contend the trial court erred when it refused to apply Proposition 51 to this case. 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 to the proportion of such damages which equals the tortfeasor's own percentage of fault. It applies only to causes of action which accrued on or after its effective date. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1192-1193, fn. 2, 246 Cal.Rptr. 629, 753 P.2d 585 (Evangelatos ).)

Owens-Illinois makes two additional arguments which Celotex does not join. First, Owens-Illinois contends the trial court erred when it instructed the jury pursuant to Alameda County Amended General Order No. 7.07. This instruction shifts the burden to defendants in asbestos cases to prove that their products were not a legal cause of the plaintiff's injuries, provided the plaintiff establishes certain predicate facts. Second, Owens-Illinois contends the jury improperly awarded certain damages.

We conclude the trial court acted properly when it gave the burden shifting instruction and that there was no error regarding the amount of damages. However, we believe the trial court applied an inappropriate test to determine when plaintiff's cause of action accrued for the purpose of applying Proposition 51. Consequently, we reverse the judgment and remand with instructions to permit the fact finder to determine the date of accrual.

I FACTS

A. Procedural Background.

Coughlin filed his complaint for asbestos-related personal injuries on January 16, 1986. The complaint named 20 defendants, including Owens-Illinois and Celotex. ¹ Coughlin The case was specially set for trial in early 1990 after Coughlin learned he had peritoneal mesothelioma, a fatal asbestos-related cancer. The court trifurcated the trial, with compensatory damages being tried in the first phase, liability issues in the second phase, and, if necessary, punitive damages in the third phase. ² At the beginning of the first phase of trial, Coughlin asked the court to find that Civil Code section 1431.2 (enacted by Proposition 51) did not apply to his lawsuit. This section limits a defendant's responsibility for noneconomic damages to several liability. The trial court agreed that Proposition 51 did not apply to plaintiff's case because "the complaint is broad enough that it includes asbestos injury and isn't contained to asbestosis."

                alleged in his complaint that asbestos products manufactured by the defendants "cause or contribute to pulmonary diseases commonly known as asbestosis and a wide variety of cancers, including mesothelioma."   He also alleged he had been exposed to each of the defendants' asbestos products in the course of his employment from 1951 to the present, and that as a result "is now suffering and will in the future suffer injury from asbestos-related disease."
                

At the beginning of the first phase of trial the parties stipulated that Coughlin was dying from peritoneal mesothelioma, and that this disease was caused by his exposure to asbestos. Following 18 days of trial, the jury determined that Coughlin's peritoneal mesothelioma ³ had resulted in the following damages: (1) $411,359 in economic damages (including $74,743 for "lost household services"); and (2) $1,000,000 in noneconomic damages (pain and suffering).

A new jury was empaneled to hear the second (liability) phase of the trial. Pursuant to Alameda County Complex Asbestos Litigation General Order No. 7.07 (Amended), Coughlin waived his right to seek punitive damages against the defendants in exchange for the burden shifting instruction permitted by that order.

Under General Order No. 7.07, the plaintiff in an asbestos case is entitled to a burden shifting instruction provided he has joined all of the known suppliers of the asbestos to which he was exposed, except for those suppliers who have settled or are subject to a bankruptcy stay order. If the plaintiff meets this condition and further proves, among other things, that plaintiff was actually exposed to asbestos or asbestos containing products manufactured or supplied by the defendants, then the burden of proof shifts to each defendant to prove by a preponderance of the evidence that its product was not a legal cause of any of the plaintiff's injuries.

Based on this instruction, the second phase jury found Celotex was responsible for two percent of the legal cause of Coughlin's injury, while Owens-Illinois was responsible for one percent.

B. The Evidence.

Neither defendant has challenged the sufficiency of the evidence to support the verdicts. Consequently, we do not review the voluminous record in detail. Instead, we focus on the evidence which is most relevant to the issues defendants have raised on appeal.

1. Coughlin's Work History.

Coughlin, who was 65 at the time of trial, first started working with asbestos in 1951. From 1951 to 1953 he worked at Bethlehem Steel's Fore River Shipyard in Massachusetts, where he installed asbestos insulation in new ships. He was exposed to asbestos every day on this job. He left the shipyard in 1953 and spent the next two years as a wheelman aboard ship. In 1955 he quit sailing and went to work at Norton Air Force Base in California.

Coughlin had several jobs at Norton Air Force Base which did not involve asbestos. However, from August of 1960 through In 1972, Coughlin was transferred to Hunters Point Naval Shipyard where he worked for a year installing and removing insulation from ships which were being repaired or modernized. In 1973 the Hunter's Point Naval Shipyard closed and Coughlin transferred to the Long Beach Naval Shipyard where he worked as an insulator and insulation foreman until 1979. In 1979 he transferred to the naval shipyard at Bremerton in Washington state where he worked until 1986. This was the last place he worked with asbestos products. ⁴

March of 1963 he worked at the base as an insulator, installing and ripping out asbestos on a daily basis. He was promoted to labor foreman in 1963, but returned to his asbestos work in 1968 when he became a pipefitter/insulator. From 1968 through 1971, Coughlin again worked installing and removing asbestos insulation on a daily basis.

2. Evidence of Exposure to Specific Brands of Asbestos.

The second phase of trial focused on the extent to which Coughlin was exposed to specific brands of asbestos products, including those produced by Owens-Illinois and Celotex or their predecessors in interest.

Coughlin used a variety of asbestos products during the years he worked as an insulator. Those products included preformed block and tubular insulation as well as asbestos "mud" (i.e., cement). Coughlin remembered that at the Fore River Shipyard in Massachusetts he used Johns-Manville, Pabco, Eagle-Picher, and Kaylo asbestos products. Kaylo is an Owens-Illinois preformed tubular insulation which contains chrysotile and amosite asbestos fibers. During the time Coughlin worked at Fore River (1951 to 1953) he used the same materials that were being used by the other insulators at that site. Armand Consalve, who worked at the Fore River Shipyard from 1940 to 1963, remembered that from 1950 to 1955 the company used both Johns-Manville and Carey asbestos cement and pipe coverings, as well as asbestos products known as "Kaylo" and "Eagle 66." Carey products were produced by Celotex's predecessor in interest, Philip Carey Corporation.

When...