Ferris v. Gatke Corporation

• Decision Date: 28 March 2003
• Docket Number: No. A093413.,A093413.
• Citation: 107 Cal.App.4th 1211,132 Cal.Rptr.2d 819
• Court: California Court of Appeals Court of Appeals
• Parties: Augusta FERRIS et al., Plaintiffs and Appellants, v. GATKE CORPORATION, Defendant and Respondent.

132 Cal.Rptr.2d 819

107 Cal.App.4th 1211

Augusta FERRIS et al., Plaintiffs and Appellants, v. GATKE CORPORATION, Defendant and Respondent.

No. A093413.

Court of Appeal, First District, Division 4.

March 28, 2003.

Review Denied July 9, 2003.

Alan Richard Brayton, Brayton, Purcell, Curtis & Geagan, Novato, CA, for Plaintiff-Appellant.

Sedgwick, Deter, Moran & Arnold, Frederick, D. Baker, Charles T. Sheldon, Katharine Demgen, Charles P. Murrin; Bennett, Samuelsen, Reynolds & Allard, Richard Reynolds, Frederick W. Gatt and Don Schaefer, for Defendant-Respondent.

Gayle Irene Jenkins for Thelen Reid & Priest LLP, Los Angeles, CA, as Amicus Curiae on behalf of Respondent.

SEPULVEDA, J.

Does Sindell's burden-shifting "market share" theory of tort liability apply in litigation seeking recovery for personal injury and wrongful death from inhalation of asbestos fibers? (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (Sindell).) As will appear, while the answer to that general proposition has been the subject of uncertainty, we conclude the circumstances presented by this record make it unnecessary for us to resolve the issue vel non. It is sufficient, we decide, that assuming Sindell relief may under some circumstances be available to plaintiffs in asbestos-related tort litigation, the record in this appeal fails to furnish the requisites necessary to establish that species of group tort liability. In light of that conclusion, we hold the superior court did not err here when it barred plaintiffs from pursuing Sindell relief at trial. For not unrelated reasons, we also conclude the trial court was correct when it granted a defense motion for non-suit on plaintiffs' civil conspiracy claims. Given these dispositions, we will affirm the ensuing judgment for defendant from which this appeal is taken.

FACTUAL AND PROCEDURAL BACKGROUND

Asserting he had been employed in naval shipyards and around other sources of asbestos exposure during his working life and regularly had replaced the friction brake shoes on his own and his neighbors' automobiles for close to 40 years, in December 1998, Harley Ferris and his wife Augusta filed suit for damages in tort against numerous manufacturers, suppliers, and distributors of asbestos, including manufacturers of friction brake products containing that mineral. The original complaint sought damages for personal injury and loss of consortium on theories of negligence, strict liability, fraud and deceit, and civil conspiracy. Not long thereafter, Mr. Ferris died from the effects of mesothelioma, an incurable pulmonary cancer associated with and thought to be caused by inhalation of asbestos particles. Joined by the Ferrises' two sons, Augusta pressed on with the lawsuit, amending the complaint to plead an additional cause of action for wrongful death.

The cause was called for trial on August 8, 2000. The defense filed an in limine motion to exclude evidence supporting a market share theory of liability, contending plaintiffs had not and could not establish that friction brake products containing asbestos were fungible, and had not and could not join defendants with a substantial share of the national friction products market. This motion was denied by the trial court without prejudice to its renewal following a hearing under Evidence Code section 402. Following such a hearing on August 22, 2000, defense motions in limine to exclude evidence supporting a theory of market share liability were renewed. At a hearing held on August 31, 2000, the trial court granted those motions. Somewhat later in the trial court proceedings, on September 7, 2000, the court granted Gatke Corporation's motion for nonsuit on plaintiffs' claims in negligence and strict products liability, as well as their civil conspiracy claims, founded on negligence and products liability. After judgment for defendant was entered on November 17, 2000, this timely appeal followed.

ANALYSIS

1. On this record, the trial court did not err in barring plaintiffs from pursuing Sindell relief.

In Sindell, supra, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, the plaintiff sought to impose tort liability on the defendant pharmaceutical manufacturers, alleging that while pregnant, her mother (along with thousands of other pregnant American women between 1941 and 1971) was given a synthetic compound of the female hormone estrogen known as diethylstilbestrol or DES, as a miscarriage preventative. (Id. at p. 593, 163 Cal.Rptr. 132, 607 P.2d 924.) It was later determined that DES could cause cancerous vaginal and cervical growths in women exposed to it before birth by their mothers taking the drug during pregnancy. Judith Sindell eventually developed a bladder malignancy and related medical problems that, she asserted, were caused by her mother's ingestion of DES. Contending DES was produced from a common and mutually agreed upon formula "as a fungible drug interchangeable with other brands of the same product," and that the defendant manufacturers "collaborated in marketing, promoting and testing the drug, relied upon each other's tests, and adhered to an industry-wide safety standard," the plaintiff contended the defendant manufacturers were jointly and severally liable to her "because they acted in concert, on the basis of express and implied agreements, and in reliance upon and ratification and exploitation of each other's testing and marketing methods." (Id. at pp. 594-595, 163 Cal.Rptr. 132, 607 P.2d 924.)

Although it rejected the plaintiffs group liability theories denominated "alternative liability," "concert of action," and "industry-wide" or "enterprise liability" (Sindell, supra, 26 Cal.3d 588 at pp. 598, 603, 163 Cal.Rptr. 132, 607 P.2d 924), Justice Mosk's opinion for the majority crafted a burden-shifting approach requiring the defendant manufacturers to prove they did not produce the DES Ms. Sindell's mother had ingested, or be liable to the plaintiff in proportion to their shares of the DES national market. This novel theory of group liability—the so-called market share theory¹—was derived by the Sindell court from another celebrated California Supreme Court decision Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1 (Summers). (Sindell, supra, 26 Cal.3d at p. 598, 163 Cal.Rptr. 132, 607 P.2d 924.) In Summers, the court had held that a plaintiff, struck in the eye by birdshot when two hunters each negligently fired their shotguns in his direction, could recover damages from either or both. Despite the fact that only one of the defendant hunters could have fired the birdshot that struck the plaintiff, both were negligent wrongdoers and it would be unfair, Justice Carter reasoned for a unanimous court, to deprive the injured plaintiff of a remedy solely because it could not be determined which of the negligent defendants had fired the birdshot that actually struck him. (Summers, supra, 33 Cal.2d 80 at p. 86, 199 P.2d 1.) In these all-but-unique circumstances, the Supreme Court's Summers opinion dispensed with the requirement that a tort plaintiff must establish causation as a necessary condition to a defendant's liability.

Nearly a decade after Sindell, this court decided Mullen, supra, 200 Cal.App.3d 250, 246 Cal.Rptr. 32. There, three homeowners filed a statewide class action suit against numerous manufacturers of asbestos products used in residential housing construction, alleging personal injury and property damage to their homes from both the use of such products and the cost of its removal. Alleging the asbestos products were "`functionally interchangeable'" and that no testing procedures existed "`to identify which defendant made a particular asbestos-containing product,'" the complaint sought to impose liability on defendants under a Sindell market share theory. (Id. at p. 253, 246 Cal.Rptr. 32.) General demurrers without leave to amend were sustained by the trial court; plaintiffs appealed and this court affirmed.

"The briefest consideration," wrote Justice Poché, "demonstrates numerous inherent differences between DES and asbestos." (Mullen, supra, 200 Cal.App.3d 250 at p. 255, 246 Cal.Rptr. 32.) Quoting from a Florida Supreme Court decision, the Mullen court observed that "`DES was produced by hundreds of companies pursuant to one formula. As a result, all DES had identical physical properties and chemical compositions and, consequently, all DES prescribed to pregnant women created the same risk of harm.... [11] Asbestos products, on the other hand, have widely divergent toxicities ... caused by a combination of factors, including: the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product. There are six different asbestos silicates used in industrial applications and each presents a distinct degree of toxicity in accordance with the shape and aerodynamics of the individual fibers. Further, it has been established that the geographical origin of the mineral can affect the substance's harmful effects." (Id. at pp. 255-256, 246 Cal.Rptr. 32, quoting Celotex Corp. v. Copeland (Fla.1985) 471 So.2d 533, 537, 538 italics added by Celotex Corp.)

Unlike Sindell where the Supreme Court "took pains to establish that it was dealing with `fungible goods' ... produced `from an identical formula'" (Mullen, supra, 200 Cal.App.3d at p. 255, 246 Cal. Rptr. 32), our Mullen opinion observed that asbestos "is a generic designation possessing a rainbow-like diversity and a bewildering array of potential uses.... `Because `asbestos is not a "product," but rather a generic name for a family of minerals ... employed in a myriad of uses,'" the court reasoned, "`the unavoidable conclusion is that plaintiffs are attacking an entire industry, not seeking ... damages caused by a single fungible product carr[y]ing with it a singular risk factor.' In light of these circumstances, the...