Evans v. Am. Optical Corp. (In re Asbestos)

• Decision Date: 22 November 2016
• Docket Number: B265222
• Citation: 5 Cal.App.5th 1022,211 Cal.Rptr.3d 261
• Court: California Court of Appeals Court of Appeals
• Parties: LAOSD ASBESTOS CASES Dorothy Evans et al., Plaintiffs and Appellants, v. American Optical Corporation, et al., Defendants and Respondents.

5 Cal.App.5th 1022

211 Cal.Rptr.3d 261

LAOSD ASBESTOS CASES

Dorothy Evans et al., Plaintiffs and Appellants,

v.American Optical Corporation, et al., Defendants and Respondents.

B265222

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

Filed November 22, 2016

The Arkin Law Firm, Sharon J. Arkin ; Farrise Firm and Simona A. Farrise for Plaintiffs and Appellants.

Foley & Mansfield, Jennifer McCormick, Oakland, Joseph V. Macha, and Judith A. Zipkin, Los Angeles, for Defendants and Respondents Hood Corporation.

COLLINS, J.

INTRODUCTION

Plaintiff Kenneth Evans was diagnosed with asbestosis

after a decades-long career working for the Southern California Gas Company (SoCalGas). For about 35 percent of his employment, Evans worked alongside contractors who helped build and replace gas pipelines; some of those pipelines were covered in a coating that contained asbestos. Evans and his wife, plaintiff Dorothy Evans, sued several contractors, alleging that they contributed to Evans's asbestosis. By the end of the trial, the only remaining defendant was respondent Hood Corporation, and the only remaining cause of action was negligence. The jury found that Hood's conduct exposed Evans to asbestos, but that Hood was not negligent. A defense judgment was entered, and plaintiffs appealed.

Plaintiffs argue that the court erred by (1) excluding two exhibits containing SoCalGas specifications for contractors, (2) allowing the president of Hood to use a contract from an irrelevant time period to refresh his recollection about the content of earlier contracts, and (3) giving the jury two erroneous instructions: one about employer duties, and another stating that Hood was required to adhere to a "professional" standard of care. We find that the trial court did not err, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Evans's work history and related evidence

The trial began against three different contractors, Hood, ARB Inc., and W.M. Lyles Co. Lyles was dismissed from the case mid-trial, and ARB was dismissed from the case just before closing arguments. We therefore focus only on the evidence relating to Hood relevant to this appeal.

Evans testified that he worked for SoCalGas from 1954 to 1990. He started out as a pipeline repairman, and after going to welding school he became a pipeline repairman welder. SoCalGas crews would only do small repairs; larger repairs and pipeline installation jobs were done by contractors. Evans repaired pipe, worked side-by-side with contractors on pipeline work, and inspected the work done by contractors to ensure that it complied with the required specifications. For the inspection work, Evans would ensure that the pipe was placed at the proper depth to match specifications and check the integrity of the contractors' welds. Differentiating between what SoCalGas did and what the contractors did, Evans testified that SoCalGas's job was to deliver gas to customers; the contractors' job was to install the pipelines.

Evans testified that gas delivery pipes generally were 80-foot sections of 20-inch diameter pipe. Each pipe section was "welded together one by one. They were primed, tarred, and wrapped, and then we'd move on to the next joint, another 80-foot." The gas delivery pipes were wrapped in an asbestos coating. Evans and those he worked with referred to the outer coating as "asbestos." The coating was three-eighths of an inch thick. For jobs laying new pipe, the pipes arrived pre-coated with 18 inches of bare pipe at the ends. After the joints were welded and inspected, the workers would cover the bare portions with asbestos coating. To do this, they had to "feather" the edges of the existing coating to a 45-degree angle by grinding it down with an electric wire brush. The joint would then be primed, tarred, and wrapped with layers of coating.

To repair pipe or create a "tie-in"—where new pipe was joined to existing pipe—the asbestos coating on the existing pipe was removed. Contractors "took it off with a hammer. They wire brushed it down...." When Evans personally was working on pipeline repair, he would do this work himself with an axe, scraper, and wire brush. After the repair or tie-in was complete, the pipe was primed, coated with tar, laid with "glass mat," coated with tar again, and then spiral-wrapped with asbestos coating. Evans also worked on MSAs—meter set assemblies—in which individual gas lines were tied into the large gas lines in the street. A similar process was used for this as for other tie-ins.

Evans testified that he worked with a number of different contractors over the years, including the ones who appeared as defendants at trial. He testified that up to 35 percent of his work at SoCalGas involved working with contractors. Evans testified that he did not recall whether he began working with Hood as a contractor in the 1950's or 1960's; his testimony on that issue was inconsistent. When asked about specific jobs, Evans recalled one job with Hood in the 1980's that involved laying miles of six-inch pipeline near Kingsburg, California. For another job in the 1980's, Hood laid miles of pipe that spanned the Kern Canal and tied into a main transfer line. In a third job, Hood worked with SoCalGas installing MSAs in Bakersfield.

Evans testified that on jobs not involving contractors, SoCalGas supplied all the parts used. He also testified that on jobs involving contractors, the contractors supplied the coated pipes and other materials to the job sites. On the other hand, Larry Bruce Svatos, president of Hood Corporation, testified that for all jobs ordered by SoCalGas, "All materials were provided by Southern California Gas." When Hood entered into a contract with SoCalGas, Hood would contact SoCalGas to order the supplies needed for the job, and SoCalGas would then supply the needed materials. Svatos testified that Hood provided the "labor and equipment necessary to perform the job," but "any items that ... become a permanent part of the gas system [were] supplied by the gas company," including "pipe, fittings, valves, flanges, wrap, any—any item that is left in the ground."

Evans testified that the SoCalGas specifications for each job dictated what kinds of primer, asbestos wrap, tar, welding rods, and other materials were required to be used for that project. The specifications also included requirements for how pipes would be prepared for welding, how they would be welded together, what kind of testing would be used to check the welds, how the welds were to be covered, and what materials would be used to cover the welds. Contractors were not allowed to deviate from the requirements imposed by SoCalGas. Evans testified that the contractors met the SoCalGas specifications as well as industry-wide standards as they did their work.

Evans testified that dust was created as the asbestos pipe coating was removed and then again when it was replaced. Evans testified that when he did this work himself, it was dusty and he breathed the dust. When the contractors did this work on the jobs he supervised, Evans said he generally was within about three to five feet of the work, and he breathed the dust that was created. Plaintiffs' industrial asbestos expert, Charles Ay, testified that exposure to visible asbestos dust would be considered high-degree exposure. Defense industrial hygiene expert, Howard Spielman, testified about tests involving workers doing similar asbestos pipe wrap removal work. Spielman said the results from the tests indicated that asbestos exposure from such work was below all permissible limits set out by the Occupational Safety and Health Administration (OSHA) and other regulatory agencies, even by today's standards. On cross examination, Spielman agreed that OSHA minimums nonetheless pose a health risk. When asked hypothetical questions about contractors similar to the ones Evans worked with, Ay testified that the contractors did not act reasonably, and Spielman testified that they did act reasonably.

Plaintiffs' expert Ay, over defense objections, also testified that contractors had a responsibility to both complete a job required by a contract, and to "do that job meeting all of the safety rules and regulations on or for that job and that product." Ay discussed posting signs, precautions required for working with hazardous materials, and warning people, saying, "That's the job of any contractor under safety regulations." Ay testified that he was familiar with contracts such as the ones at issue between SoCalGas and contractors such as Hood, and the contractors in this case had a duty to provide a safe working environment for employees.

Plaintiffs' counsel read to the jury testimony by a SoCalGas representative, Sylvester Caudle, who said that SoCalGas changed its procedures for dealing with asbestos sometime between 1978 and 1981. At that point, employees were informed that the pipe wrap had asbestos, and they were required to take precautions when dealing with it, such as wearing masks, wetting the pipe wrap with a solution before removing it, putting tarp under the pipe to catch the removed pipe wrap, sealing up the removed portions of the pipe wrap, and disposing of it properly. Caudle assumed that SoCalGas employees and contractors all received the same information.

Evans, however, testified that when he worked for SoCalGas, he did not know that asbestos could be harmful. He said he never received any safety training from SoCalGas regarding hazardous materials, the dangers of working around natural gas, or anything else. He never received warnings from SoCalGas or his union that asbestos could be hazardous. None of the workers wore respirators, face masks, or protective suits. No one would wet down the pipe wrap before chiseling it off. He never saw signs warning him to stay away from asbestos dust. When Evans shifted into a position teaching newly hired employees how to repair pipelines in 1968, he did not provide them with any warnings about the dangers of asbestos. In...