Hamilton v. Asbestos Corp., Ltd.
| Citation | 998 P.2d 403,22 Cal.4th 1127,95 Cal.Rptr.2d 701 |
| Decision Date | 15 May 2000 |
| Docket Number | No. S069596.,S069596. |
| Court | California Supreme Court |
| Parties | Linda HAMILTON, et al., Plaintiffs and Respondents, v. ASBESTOS CORPORATION, LTD., Defendant and Appellant. |
Rehearing Denied July 19, 2000.1
Parker & Bonis, James C. Parker, San Francisco; Stevens, Drummond & Gifford, Gary T. Drummond, Walnut Creek; Adams, Nye, Sinunu, Walker, James N. Sinunu, Barbara R. Adams, San Francisco, and Paul R.H. Walker, Los Angeles, for Defendant and Appellant.
Haight, Brown & Bonesteel, Roy G. Weatherup, William J. Sayers and Caroline E. Chan, Santa Monica, for Center for Claims Resolution as Amicus Curiae on behalf of Defendant and Appellant.
Brayton, Harley, Curtis, Brayton, Purcell, Curtis & Geagan, James L. Oberman, Oakland, Gilbert L. Purcell, James Geagan, Novato, Joanne E. K. Larson, San Francisco; Kazan, McClain, Edises, Simon & Abrams and Philip A. Harley, Oakland, for Plaintiffs and Respondents.
Rose, Klein & Marias, David A. Rosen, Los Angeles, Gideon Kracov; Ian Herzog, Santa Monica; Leonard Sacks, Granada Hills; Bruce Broillet; Thomas Stolpman, Long Beach; Robert B. Steinberg, Los Angeles; Roland Wrinkle, Woodland Hills; Gary Paul, Santa Monica; Steven Kleifeld; Harvey Levine; James Sturdevant, San Francisco; Wayne McClean, Woodland Hills; William Turley; Christine Spagnoli; and LeeAnn Tratten for Consumer Attorneys of California Amicus Curiae Committee as Amicus Curiae on behalf of Plaintiffs and Respondents.
Morgenstein & Jubelirer and Bruce A. Wagman, San Francisco, for Owens-Illinois, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.
Wartnick, Chaber, Harowitz, Smith & Tigerman, Harry F. Wartnick, San Francisco; Law Office of Daniel U. Smith, Daniel U. Smith, Los Angeles, and Ted W. Pelletier, for Asbestos Victims of America as Amicus Curiae for Plaintiffs and Respondents.
In this case we determine primarily whether a special statute of limitations for injury or illness caused by exposure to asbestos (Code Civ. Proc., § 340.2) bars an action for a certain asbestos-related disease brought by a worker who retired before suffering a disability as defined by the statute. The Court of Appeal held the action was barred because the plaintiff had brought an earlier action against the same defendant for a different disease arising from the same asbestos exposure. As will appear, we conclude that the second action is not time-barred and hence the judgment of the Court of Appeal must be reversed.
For two decades beginning in the early 1940's, plaintiffs' decedent Arthur Mitchell was employed in various industrial workplaces where he was exposed to asbestos. Mitchell's exposure to asbestos ended in 1963 when he went into business for himself as a television repairman. Nevertheless, in the late 1970's he began experiencing shortness of breath. In 1979 his condition was diagnosed as asbestosis, a noncancerous, chronic breathing impairment common in workers who have suffered prolonged exposure to asbestos. Despite his condition, Mitchell was able to continue working in his television repair business for another decade. He retired in 1989, not because of breathing difficulties but because he had reached the normal retirement age of 65 and was "tired of working."
Mitchell's shortness of breath, however, gradually grew worse. On October 13, 1993, he filed an action in San Francisco Superior Court (case No. 955576, hereafter Mitchell I) against Asbestos Corporation, Ltd., and numerous other defendants involved in making, selling, or using asbestos products. The complaint was served on some two dozen of the named defendants, but Asbestos Corporation was not among them.
The Mitchell I complaint primarily alleged that Mitchell's exposure to asbestos caused him to suffer "breathing difficulties, asbestosis, and/or other lung damage."2 The complaint then specifically alleged that "Plaintiff was diagnosed with asbestosis and asbestos-related pleural disease on or about 1979." The complaint prayed for compensatory and punitive damages.
In December 1995, before trial began in Mitchell I, Mitchell began to experience abdominal pain. A month later—in January 1996—exploratory surgery became necessary, and it revealed a cancerous growth throughout Mitchell's abdominal cavity. The growth was diagnosed as a malignant peritoneal mesothelioma, a rare and inevitably fatal cancer primarily triggered by exposure to asbestos. Again within a month—on February 3, 1996— Mitchell filed another action in the San Francisco Superior Court (case No. 975884, hereafter Mitchell II) against Asbestos Corporation and other defendants involved in making, selling, or using asbestos products. The complaint was served on Asbestos Corporation and several other named defendants.
The Mitchell II complaint primarily alleged that Mitchell's exposure to asbestos caused him to suffer "lung and/or other cancer, mesothelioma." The complaint then specifically alleged that "Plaintiff was diagnosed with mesothelioma on or about January 30, 1996 and with asbestosis and asbestos-related pleural disease on or about 1979." The complaint again prayed for compensatory and punitive damages.
On April 12, 1996—the day after Asbestos Corporation filed its answer—Mitchell moved for an order to consolidate his two actions (Code Civ. Proc., § 1048, subd. (a)) and to advance the resulting consolidated case for trial because of substantial medical doubt that he would survive for more than six months (id., § 36, subd. (d)). On April 30, 1996, the court granted the motion in both respects.
Because of pretrial settlements the case went to trial against Asbestos Corporation alone.3 The taking of testimony began on August 6, 1996. The medical witnesses testified to the following facts.
The alveoli are the numerous microscopic air sacs in the lung where the vital process of gas exchange takes place, i.e., where oxygen is absorbed into the bloodstream from the inhaled air and carbon dioxide is diffused out of the bloodstream into the air to be exhaled. For gas exchange to occur, the molecules of oxygen and carbon dioxide must pass through the interstitium or connective tissue, a thin, elastic membrane that connects, among other organs, the alveoli and the capillaries that surround them.
The witnesses described the mechanism by which asbestos causes asbestosis. Airborne asbestos fibers are inhaled into the lungs and pass into the airways. Many are intercepted and rejected by the clearance mechanisms of the airways, but fibers that are not intercepted may reach the alveoli. Fibers smaller than 50 microns in length are able to enter the alveoli.4 Fibers that enter the alveoli are deposited on the tissue surface and attract macrophages, white blood cells that attempt to absorb and eliminate the fibers. This effort fails, and causes an inflammation that in turn stimulates fibroblasts —specialized cells that make connective tissue—to increase their production of such tissue.
The result is fibrosis or scarring, a gradual but irreversible thickening and stiffening of the connective tissue.5 Asbestos disease is dose-response related: the longer or the more intense the asbestos exposure, the greater the injury. In addition, scarring continues even after the victim is no longer exposed to asbestos, because the fibers remain embedded in the connective tissue and the tissue continues to react to them.6
The scarring process makes the connective tissue increasingly resistant to gas exchange, and the affected alveoli eventually cease to function. If enough alveoli are thus affected, a characteristic symptom of asbestosis appears: increasing shortness of breath under exertion. The latency period, of a disease is the period between the time of exposure to the disease-causing agent and the time when the disease has progressed to the point at which it can be diagnosed; the average latency period of asbestosis is 20 years. Although the disease can drastically restrict the activities of its victims and may lead to a higher risk of other diseases such as cardiorespiratory complications and cancer, "Asbestosis is neither malignant nor necessarily fatal." (1 Encyclopedia of Human Biology (1991) p. 420.) Indeed, as the case at bar illustrates, a person can live for decades after a diagnosis of asbestosis.
The medical witnesses also described mesothelioma. The mesothelium is a layer of specialized cells forming a thin membrane that lines certain body cavities: where it covers the lungs and the inner surfaces of the chest wall, it is called the pleura; where it covers the organs of the abdominal cavity and the inner surfaces of that cavity, it is called the peritoneum. Mesothelioma is a form of cancer that starts to grow in such lining: the most common form starts in the lining of the chest cavity and is therefore called pleural mesothelioma; less common is the form that starts in the lining of the abdomen, called peritoneal mesothelioma.7
Observation has established a strong linkage between mesothelioma and exposure to asbestos fibers. As explained above, inhaled asbestos fibers enter the bloodstream through the connective tissue of the lung. But while some fibers remain embedded in that tissue and cause asbestosis, others migrate to different parts of the body. Some fibers are carried in the bloodstream; others move through the lymphatic system; still others are swallowed with mucus and enter the body through the digestive system. However they enter the body, asbestos fibers may ultimately lodge in the pleura or the peritoneum. Although the mechanism by which such fibers cause malignant mesothelioma is not yet fully understood, it is believed they may trigger chromosomal abnormalities in cells of the pleura or the peritoneum. Ordinarily the body's immune system will detect and eliminate cells having such mutations. But if enough of these genetic errors occur over a...
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