Jenkins v. T & N PLC

• Decision Date: 28 May 1996
• Docket Number: No. B079266,B079266
• Citation: 45 Cal.App.4th 1224,53 Cal.Rptr.2d 642
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 14,633, 96 Cal. Daily Op. Serv. 3823 Milton JENKINS et al., Plaintiffs and Appellants, v. T & N PLC, Defendant and Appellant.

Page 642

53 Cal.Rptr.2d 642

45 Cal.App.4th 1224, Prod.Liab.Rep. (CCH) P 14,633,

96 Cal. Daily Op. Serv. 3823

Milton JENKINS et al., Plaintiffs and Appellants, v. T & N PLC, Defendant and Appellant.

No. B079266.

Court of Appeal, Second District, Division 7, California.

May 28, 1996.

Certified for Partial Publication ^*

As Modified June 5, 1996.

Rehearing Denied June 18, 1996.

Review Denied Sept. 25, 1996.

Davis & Thomas, Joseph D. Davis, Thomas D. Thomas and Charlotte E. Costan, Los Angeles, for Plaintiffs and Appellants.

Haight, Brown & Bonesteel, Roy G. Weatherup, William J. Sayers, Lisa L. Oberg and Caroline E. Chan, Santa Monica, for Defendant and Appellant.

FRED WOODS, Associate Justice.

Defendant T & N PLC ¹ filed an appeal from a judgment on a special verdict in favor of plaintiffs, awarding plaintiff Milton Jenkins $1,109,740 and plaintiff Maxine Jenkins $743,750. Defendant also appealed the trial court's order taking off calendar its motion to amend the judgment as to plaintiffs' settlement with defendant Fibreboard Corporation. Plaintiffs cross-appealed the trial court's application of Proposition 51. ²

FACTUAL BACKGROUND

Plaintiff Milton Jenkins was exposed to asbestos dust while working for St. Louis Southwestern Railroad as a yard clerk in 1942, 1946 and 1947, and while working on asbestos-containing pipe insulation when serving in the U.S. Navy from 1943 through 1945 and from 1951 through 1952.

No one warned Mr. Jenkins that being around asbestos dust might be hazardous to Mr. Jenkins recalled that the logo on the boxes of pipe insulation that he worked with in the military, depicted a "very prominent" "kitty-cat." This logo was used by Keasbey & Mattison, a wholly-owned subsidiary corporation of T & N which dissolved in 1962.

his health. Mr. Jenkins thought he worked safely with asbestos products.

The raw asbestos fibers in Keasbey & Mattison's pipe insulation were supplied in bulk by T & N. According to the deposition testimony of Sir Ralph Bateman, a former chairman of T & N, Keasbey & Mattison bought all its fibers from Raw Asbestos Distributors ³, a T & N division. Sir Bateman began working for T & N as a management trainee in 1931, transferred from Turner Brothers Asbestos or TBA, a T & N subsidiary, to R.A.D. in 1940 or 1941, was promoted to Director of R.A.D. in 1942, 1943 or 1944, and returned to TBA in 1948.

Sir Bateman's testimony about T & N being the sole supplier of Keasbey & Mattison's asbestos was contradicted by defense witness Brian Walker, who began working as a shipping clerk for R.A.D. in 1963 and eventually became a shipping manager. Although Mr. Walker knew that Sir Bateman was Chairman of T & N and had some connection with R.A.D., Mr. Walker never met him. Mr. Walker explained that R.A.D. kept "historical record" cards that were maintained by the customer's name and that extracted information from annual record shipping cards which specified the grades of asbestos fibers sold to T & N-affiliated companies. Management never discussed with Mr. Walker how R.A.D. did business from the 1930's through the 1950's. According to the historical record cards, R.A.D. supplied Keasbey & Mattison with asbestos in the 1940's and 1950's. The historical cards also indicated that Cape Asbestos Company supplied amosite asbestos to Keasbey & Mattison in 1939. There is no record on who supplied amosite asbestos to Keasbey & Mattison for the years 1941 through 1948, but T & N owned its own amosite mines.

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In 1991, Mr. Jenkins was diagnosed with mesothelioma. According to the Jenkinses' medical expert, pathologist Victor Roggli, M.D., mesothelioma is a latent, asbestos associated disease which can develop 30 to 40 years after exposure to asbestos. T & N's medical expert, pathologist John Craighead, M.D., admitted on cross-examination that he wrote an article stating that the type of mesothelioma which Mr. Jenkins contracted is exceptionally rare or never occurs in people not exposed to asbestos.

PROCEDURAL BACKGROUND

On May 29, 1992, the Jenkinses filed a complaint for personal injuries against multiple defendants, including T & N. The complaint contained causes of action for strict liability and loss of consortium. In addition to general and special damages, the Jenkinses sought damages for loss of earnings, income and earning capacity.

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DISCUSSION

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2. Does the strict products liability doctrine apply to a bulk supplier of raw asbestos fiber who has not made any finished consumer product?

Since it is not disputed that T & N was a bulk supplier of raw asbestos fiber who did not make any finished product, the independent review or de novo standard applies. Under this standard of review, the appellate court decides the issue anew, rather than defer to the trial court. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960; Edgemont Community The strict products liability doctrine was established in California through Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897. There, the state Supreme Court held that a "manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." (Id. at p. 62, 27 Cal.Rptr. 697, 377 P.2d 897.) The strict liability theory was then embodied in the Restatement Second of Torts section 402A. (6 Witkin, Summary of Cal. Law (9th ed. 1988) § 1243, p. 678.)

Services District v. City of Moreno Valley (1995) 36 Cal.App.4th 1157, 1166, 42 Cal.Rptr.2d 823.)

Section 402A of the Restatement Second of Torts provides in pertinent part: "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer ... if [p] (a) the seller is engaged in the business of selling such a product, and [p] (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. [p] (2) The rule stated in Subsection (1) applies although [p] (a) the seller has exercised all possible care in the preparation and sale of his product, and [p] (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

California adopted the Restatement Second of Torts section 402A. (See, e.g., Barth v. B.F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 250, 71 Cal.Rptr. 306.)

T & N contends that a component raw material incorporated into a finished consumer product does not constitute a "product" for strict liability purposes. However, a "component part manufacturer may be held liable for damages caused by a component part which was defective at the time it left the component part manufacturer's factory." (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 629, 157 Cal.Rptr. 248.) Contrary to T & N's contention that the Wiler opinion does not apply because the defect there was a valve attached to a car tire, the ruling is applicable whenever the component part was defective when supplied to the manufacturer of the finished product incorporating the component part.

T & N's argument that raw asbestos fibers cannot constitute a "product" for strict liability purposes also lacks merit. Although this issue apparently has not been specifically addressed in published California court opinions, it has been analyzed in other jurisdictions which, like California, have adopted the Restatement Second of Torts section 402A. (See Hammond v. North American Asbestos Corp. (1983) 97 Ill.2d 195, 73 Ill.Dec. 350, 454 N.E.2d 210 and Menna v. Johns-Manville Corp. (D.N.J.1984) 585 F.Supp. 1178.)

In Hammond, supra, a supplier of raw asbestos fibers was subject to strict products liability to the wife of a worker exposed to asbestos dust at his place of employment. Quoting the Illinois appellate court, the Illinois Supreme Court adopted the state appellate court's reasoning: " '[W]e conclude that raw asbestos is a product within the meaning of the Restatement. Although raw asbestos is processed before it is ultimately sold to consumers, raw asbestos and not some manufactured article caused the harm in this case. There was no change in the condition of the asbestos from the time it was sold until it reached the "ultimate user," Charles Hammond. Moreover, the argument that but for the manufacturing process the asbestos would not have been altered begs the questions. [p] The evidence showed clearly that handling asbestos in any form produces dust. Liability may be imposed in a products case if the injury results from a condition of the product and the condition is unreasonably dangerous and existed when the product left the defendant's control. The proclivity of raw asbestos to give off dust was certainly a condition that existed when the product left defendant's control.' " (Hammond v. North American Asbestos Corp., supra, 97 Ill.2d at p. 205, 73 Ill.Dec. 350, 454 N.E.2d 210; italics added; citations omitted.)

T & N argues that Hammond is inapposite partly because it concerned an employee of a manufacturer of asbestos-containing products Citing Hammond, the U.S. District Court for the District of New Jersey in Menna, supra, 585 F.Supp. at page 1183, acknowledged that "[i]t is well documented that exposure to asbestos dust can have pathological consequences whether the dust emanates from processed or unprocessed asbestos." Accordingly, the district court refused to shift liability from the asbestos suppliers to the plaintiffs' former employer.

who handled, opened and processed bags of raw asbestos. This argument conflicts with the Illinois Supreme Court's broad interpretation of the term "product" within the meaning of the Restatement Second of Torts section 402A. We adopt the analysis made in Hammond.

Since both Hammond, supra, and Menna, supra, as well...