Dumin v. Owens-Corning Fiberglas Corp.

• Decision Date: 22 September 1994
• Docket Number: No. A061034,OWENS-CORNING,A061034
• Citation: 33 Cal.Rptr.2d 702,28 Cal.App.4th 650
• Court: California Court of Appeals Court of Appeals
• Parties: Edward G. DUMIN et al., Plaintiffs and Appellants, v.FIBERGLAS CORPORATION, Defendant and Respondent.

Page 702

33 Cal.Rptr.2d 702

28 Cal.App.4th 650

Edward G. DUMIN et al., Plaintiffs and Appellants, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant and Respondent.

No. A061034.

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

Sept. 22, 1994.

Daniel U. Smith, Kentfield, Harry F. Wartnick and Steven M. Harowitz, Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore, & Harris, San Francisco, for plaintiffs and appellants.

Mark Snyderman, Gibson, Dunn & Crutcher, Washington, DC and Peter B. Logan, Wright, Robinson, McCammon, Osthimer & Tatum, San Francisco, for defendant and respondent.

STRANKMAN, Presiding Justice.

In an asbestos personal injury action and related claim, a partial directed verdict was entered in favor of an asbestos insulation distributor for plaintiff's failure to prove exposure to the distributor's product. We, too, find insufficient evidence of exposure and affirm the judgment.

STATEMENT OF FACTS

Edward G. Dumin (Dumin) sued for personal injuries sustained in working with asbestos products, and his wife Doris sought damages for loss of consortium in a related action consolidated in the trial court. A number of asbestos manufacturers and distributors were sued, but trial proceeded against respondent Owens-Corning Fiberglas Corporation (OCF) alone. From April 1953 until May 1958, OCF was a nonexclusive distributor of Kaylo, an asbestos insulation product made by Owens-Illinois Glass Company (OI). In May 1958, OCF became the manufacturer of Kaylo and continued its distribution.

Dumin, 63 years old at the time of trial, suffers from mesothelioma, an asbestos cancer. Dumin served in the Navy for 20 years from 1945 to 1965, working as a boiler tender and electronics technician aboard several ships and regularly handling asbestos insulation while a boiler tender. Dumin claims exposure to Kaylo while aboard the Pocono in 1953 and 1954 and while aboard the Agerholm in 1964 and 1965.

Dumin cannot identify Kaylo as one of the asbestos products to which he was exposed, but instead relies upon circumstantial evidence to establish exposure. In proving exposure to Kaylo aboard the Pocono, relevant on this appeal, Dumin introduced a witness's deposition testimony taken in a different asbestos case seven years earlier. ¹ The witness, David Durham, was a Norfolk Naval Shipyard mechanic, where the Pocono had its home port.

Durham prepared a long list of "some of the insulation" materials used at the Norfolk Naval Shipyard during his tenure there from 1942 to 1975. The list included OCF Kaylo, but Durham had difficulty identifying the time period of OCF Kaylo's presence at the shipyard, as opposed to Kaylo generally, which was manufactured by OI until 1958 and distributed by both OI and respondent OCF from 1953 until 1958.

In answer to a question as to the time OCF Kaylo was "customarily used" aboard ships at Norfolk Naval Shipyard, Durham replied: "... I think, Owens-Corning [OCF]--the best I recall, Owens-Corning Kaylo somewhere in the late '40s or early '50s." Durham explained that the product was simply called Kaylo, without reference to OCF also presented a marine engineer who was cross-examined about the sources of repair supplies for a ship, like the Pocono, home ported at Norfolk Naval Shipyard. The engineer said it was "[q]uite probable" that supplies taken aboard ship would be the same as those used at the home port shipyard.

                its distributor, and only in later years did Durham apply the distributor to the product.  Upon further questioning, Durham was able to state that he saw OCF's name on Kaylo boxes at the shipyard.  But the questioning reverted back to general product trade names, and Durham was asked the time period that Kaylo products were customarily used aboard ships at the shipyard.  Durham stated:  "Well, they have been used from, like I say, since I would say somewhere around the '50s, 1950, or somewhere along about that, on up until I left the shipyard."   At trial, OCF introduced an earlier deposition from yet another asbestos case in which [28 Cal.App.4th 654] Durham said "[t]he first recollection that I know of using Kaylo was in the middle '60s."
                

OCF moved for nonsuit, but the ruling was apparently deferred until after presentation of the defense case, at which time motions for nonsuit and directed verdict were considered together. The court initially denied the motions, finding sufficient evidence to support a jury determination that Dumin was exposed to OCF Kaylo aboard the Agerholm. In response to an inquiry from OCF's counsel, the court said it was deferring the question of whether Dumin could argue exposure aboard other ships. The court later ruled that there was insufficient evidence that Dumin was exposed to OCF Kaylo on any ship other than the Agerholm, and so prohibited argument from Durham's testimony that Dumin was exposed aboard the Pocono. The parties understand the court's ruling to represent a nonsuit or directed verdict on the issue of Dumin's exposure to OCF Kaylo aboard the Pocono. The remaining issue of exposure aboard the Agerholm was submitted to the jury, which returned a verdict in OCF's favor upon the finding that Dumin's injury was not caused by the defective OCF Kaylo. Dumin appealed, and contests the trial court's ruling finding insufficient evidence of exposure aboard the Pocono.

DISCUSSION

A judgment of nonsuit or directed verdict is proper if there is no evidence of sufficient substantiality to support a verdict in plaintiff's favor after viewing the evidence in the light most favorable to plaintiff, resolving all presumptions, inferences and doubts in plaintiff's favor, and disregarding any conflicting evidence. (Helm v. K.O.G. Alarm Co. (1992) 4 Cal.App.4th 194, 198, fn. 1, 5 Cal.Rptr.2d 615.) Nonsuit or directed verdict is appropriate where plaintiff's proof raises nothing more than speculation, suspicion or conjecture. (Ibid.)

In its best light, the evidence establishes: (1) Dumin was aboard the Pocono in 1953 and 1954, and his duties included making any necessary boiler repairs with insulation materials; (2) the Pocono was home ported at the Norfolk Naval Shipyard; (3) OCF Kaylo was used at the Norfolk Naval Shipyard as one of many asbestos insulation products at sometime around the early 1950's; and (4) the Pocono's repair supplies were probably received from the Norfolk Naval Shipyard. ² The question is whether this evidence would support a jury determination that Dumin was exposed to OCF Kaylo, since Dumin must establish exposure to prove that his asbestos disease was caused by OCF's conduct in distributing its product.

As recognized by the Ninth Circuit, "[t]wo different approaches have been taken by the courts in determining the sort of evidence an asbestos plaintiff must adduce in order to establish a defendant's products as a legal cause of her injuries." (In re Hawaii Federal Asbestos Cases (9th Cir.1992) 960 F.2d 806, 816-817.) The more stringent approach requires particularized proof that plaintiff came into contact with defendant's product. (E.g., Blackston v. Shook & Fletcher In placing OCF Kaylo at the Norfolk Naval Shipyard, Durham's testimony established only that OCF Kaylo was "customarily used" at the Norfolk Naval Shipyard "around" the early 1950's. He did not say with even a semblance of certainty that OCF Kaylo was used at the shipyard in 1953 and 1954 when the Pocono was home ported there. Durham said OCF Kaylo was customarily used at the shipyard "somewhere in the late '40s or early '50s," but admitted that he had not ascribed company names to the Kaylo product until he became an instructor at the shipyard in the 1960's. In a resumed examination which inquired about Kaylo generally, not OCF Kaylo, Durham said the product was customarily used at the shipyard "around the '50s, 1950, or somewhere along about that...." While Durham saw Kaylo boxes bearing OCF's name, he never testified that the OCF Kaylo boxes were seen in the 1950's. Under other circumstances, such indefinite dating may suffice to identify a...