Izell v. Union Carbide Corp., B245085

Citation180 Cal.Rptr.3d 382,231 Cal.App.4th 962
Decision Date21 November 2014
Docket NumberB245085
CourtCalifornia Court of Appeals Court of Appeals
Parties Bobbie IZELL et al., Plaintiffs and Respondents, v. UNION CARBIDE CORPORATION, Defendant and Appellant.

Certified for Partial Publication.*

Mayer Brown LLP, Michele Odorizzi ; McKenna, Long & Aldridge LLP and David K. Schultz, Los Angeles, for Defendant and Appellant.

Baron & Budd, P.C., John Langdoc, Denyse Clancy and Christine Tamer for Plaintiffs and Respondents.



Union Carbide Corporation appeals from a judgment entered in favor of plaintiffs Bobbie Izell and Helen Izell (Plaintiffs) on claims for personal injuries and loss of consortium stemming from Mr. Izell's alleged exposure to Union Carbide asbestos and subsequent diagnosis with mesothelioma

. After a four-week trial the jury returned special verdicts finding Union Carbide 65 percent comparatively at fault for Plaintiffs' injuries and awarding Plaintiffs $30 million in compensatory damages plus $18 million in punitive damages against Union Carbide. By remittitur, which Plaintiffs accepted, the trial court reduced the compensatory damages award to $6 million, but declined to disturb the punitive damages.

On appeal, Union Carbide contends the evidence was insufficient to support the liability finding, apportionment of comparative fault, and the remitted compensatory damage award. Union Carbide also challenges the punitive damages award as excessive. We conclude the evidence was sufficient to support the verdict, as well as the compensatory and punitive damages awards. Accordingly, we affirm.


Union Carbide purchased an asbestos mine near Coalinga, California, in 1963. Until 1985, Union Carbide supplied asbestos to companies that manufactured and marketed products for the construction industry.

Mr. Izell owned a construction business that built approximately 200 homes in Southern California from 1964 until 1994. Mr. Izell did not work as a laborer or supervisor on these projects, but he regularly visited and walked through the construction jobsites. All the homes were constructed with drywall interiors. Mr. Izell's workers applied various brands of premixed joint compound to cover nailheads, fill the seams between drywall boards, and fill corner sections of drywall. Once the joint compound dried, the workers sanded it one to three times, usually with sandpaper on a long pole, then by hand. Mr. Izell often was present when his workers sanded the joint compound. He described the resulting dust as a "little fog in the air." He also recalled breathing dust that was disturbed when his workers swept the excess joint compound from the floor.

Mr. Izell's workers also used gun plastic cement to apply stucco to the homes' exteriors. Mr. Izell was present when his workers tore open bags of gun plastic cement, and he breathed the dust from those products as well.

Mr. Izell recalled seeing four different brands of joint compound on his jobsites and two brands of gun plastic cement. Of the joint compound brands, Mr. Izell believed Georgia Pacific was the most common brand because it was the "dominate seller in those days," followed by Hamilton Red Dot, Kaiser Gypsum, and Kelly-Moore's Paco brand. Mr. Izell also saw his workers use Riverside and Colton gun plastic cement. At varying times from 1970 to 1978, Union Carbide supplied asbestos to each of the four joint compound manufacturers and to Riverside for use in its gun plastic cement.

In July 2011, at the age of 85, Mr. Izell was diagnosed with mesothelioma

. Initially, Plaintiffs sued more than 20 defendants who were allegedly responsible for the asbestos-containing products to which he claimed he was exposed. By trial, only five defendants remained, including Union Carbide, one joint compound manufacturer (Kaiser Gypsum), one stucco manufacturer (La Habra) and two gun plastic cement manufacturers (Colton and Riverside).

After hearing percipient witness and expert medical and scientific testimony, the jury returned a special verdict finding all defendants liable on all theories of strict product liability and negligence. The jury awarded Plaintiffs a total of $30 million in compensatory damages, consisting of $5 million in past and $10 million in future noneconomic damages to Mr. Izell and $5 million in past and $10 million in future loss of consortium damages to Mrs. Izell.

The special verdict form also asked the jury to apportion comparative fault among the defendants, Mr. Izell, and six other entities, consisting of three joint compound manufacturers (Georgia Pacific, Hamilton, and Kelly-Moore), two asbestos suppliers (Carey Canadian and Johns-Manville), and an unnamed asbestos-cement pipe manufacturer. The jury apportioned 95 percent of the fault to the five defendants, assigning 65 percent to Union Carbide, 20 percent to Kaiser Gypsum, and a total of 10 percent to the three stucco and gun plastic cement manufacturers. The jury allocated the remaining 5 percent to the nondefendant joint compound manufacturers and asbestos suppliers, finding each responsible for a 1 percent share of the comparative fault. No fault was apportioned to Mr. Izell or the asbestos-cement pipe manufacturer.

The jury also found Union Carbide and Kaiser Gypsum acted with "malice, oppression or fraud." Kaiser Gypsum settled before the jury was asked to decide the amount of punitive damages.

For the punitive damages phase, Union Carbide stipulated that it had a present net worth of $4.2 billion. The court instructed the jury that it should consider a variety of factors in deciding the amount, if any, of punitive damages to award, including a "reasonable relationship between the amount of punitive damages" and the harm to Mr. Izell. The jury also was instructed that it could consider evidence of harm caused to others for purposes of assessing reprehensibility, but not for purposes of "punishing the defendant directly for harm caused to others."

In his argument to the jury, Plaintiffs' counsel commented there was probably no amount of money that could deter Union Carbide, given its $4.2 billion net worth. Thus, counsel suggested the jury award something in the range of $8.6 million ($100,000 for each year of Mr. Izell's life) and $18 million ($1 million for each year Union Carbide sold asbestos after it knew its product caused cancer

). The jury returned a verdict awarding Plaintiffs $18 million in punitive damages.

Union Carbide moved for judgment notwithstanding the verdict (JNOV) and a new trial on all issues, including punitive damages. The trial court denied the JNOV motion, but conditionally granted a new trial "on the ground of excessive compensatory damages only," unless Plaintiffs consented to a remittitur reducing the compensatory damages award from $30 million to $6 million. The court declined to disturb the punitive damages award, concluding Union Carbide's stipulated $4.2 billion net worth and the evidence concerning the reprehensibility of its conduct supported the amount of the award, notwithstanding the substantial reduction in compensatory damages. Plaintiffs accepted the remittitur and the court entered judgment against Union Carbide.


1. Substantial Evidence Supports the Jury's Causation Finding

"In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant's defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.... [T]he plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff's or decedent's risk of developing cancer

." ( Rutherford v. Owens–Illinois, Inc.

(1997) 16 Cal.4th 953, 982–983 [67 Cal.Rptr.2d 16, 941 P.2d 1203] , fn. omitted ( Rutherford ).) We review a jury's causation finding for substantial evidence. ( Jones v. John Crane, Inc.

(2005) 132 Cal.App.4th 990, 997–999 .)

Union Carbide contends the jury necessarily speculated in finding Mr. Izell was exposed to Union Carbide asbestos and that the exposure contributed to his risk of developing mesothelioma

. We conclude the evidence of causation was sufficient.

a. Substantial evidence supports the finding that Mr. Izell was exposed to asbestos supplied by Union Carbide

"A threshold issue in asbestos litigation is exposure to the defendant's product." ( McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103 ( McGonnell ); Rutherford, supra, 16 Cal.4th at p. 982 , 67 Cal.Rptr.2d 16, 941 P.2d 1203.) It is axiomatic that, "[i]f there has been no exposure, there is no causation." ( McGonnell, at p. 1103 , 120 Cal.Rptr.2d 23.) Further, "[t]he mere ‘possibility’ of exposure" is insufficient to establish causation. ( Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108 ; Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 654–656 ( Dumin ).) "[P]roof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain [the plaintiff's] burden" of persuasion. ( Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104–105 .)

In McGonnell, the court affirmed summary judgment in favor of the defendant, concluding the plaintiffs' limited circumstantial evidence was insufficient to establish more than the mere possibility that the decedent had been exposed to the defendant's asbestos-containing joint compound. In opposing summary judgment, the plaintiffs in McGonnell offered "invoices showing the sale of [the defendant's] joint compound to a contractor in 1972," which indicated the materials were purchased for a project at the decedent's workplace. ( McGonnell, supra, 98 Cal.App.4th at p. 1105 , 120...

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