Lineaweaver v. Plant Insulation Co.

• Citation: 37 Cal.Rptr.2d 902,31 Cal.App.4th 1409
• Decision Date: 31 January 1995
• Docket Number: No. A060263,A060263
• Court: California Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 14,154 Robert LINEAWEAVER et al., Plaintiffs and Appellants, v. PLANT INSULATION COMPANY, Defendant and Respondent.

Page 902

37 Cal.Rptr.2d 902

31 Cal.App.4th 1409, Prod.Liab.Rep. (CCH) P 14,154

Robert LINEAWEAVER et al., Plaintiffs and Appellants, v. PLANT INSULATION COMPANY, Defendant and Respondent.

No. A060263.

Court of Appeal, First District, Division 1, California.

Jan. 31, 1995.

Harry F. Wartnick, Audrey A. Smith, Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, San Francisco, and Daniel U. Smith, Kentfield, for appellants.

Charles Bond, Heather McKee, Charles Marx, Charles Bond & Associates, Berkeley, John Wallace, Allan Gutsche, Carol Solfanelli, Jackson & Wallace, San Francisco, and Norman J. Watkins and Ruth Segal, Lynberg & Watkins, Los Angeles, for respondent.

STRANKMAN, Presiding Justice.

Appellants Robert Lineaweaver, Floyd King, and Ralph Ward brought actions against numerous asbestos suppliers seeking to recover for personal injuries sustained from their repeated exposure to asbestos insulation products. A bifurcated trial on the separate issues of damages and liability proceeded against a lone defendant, respondent Plant Insulation Company (Plant). A jury found each appellant to have suffered damages, but the trial court granted respondent's nonsuit motion on the issue of liability, concluding that appellants failed to present sufficient evidence of exposure to respondent's product. We also find insufficient evidence that appellants King and Ward were exposed to Plant supplied asbestos and affirm judgment against them. However, we reverse judgment as to appellant Lineaweaver upon finding sufficient circumstantial evidence to support a reasonable inference of exposure.

TRIAL COURT PROCEEDINGS

Appellants filed separate actions in 1989 against 41 asbestos suppliers for personal injuries sustained from their occupational exposure to asbestos. These three actions and others were consolidated for trial, and then trial bifurcated on the issues of injury and liability. Trial proceeded against a single defendant, respondent Plant, an asbestos insulation contractor and distributor.

The first phase of the trial concluded with the jury finding that appellants suffer from the respiratory affliction of asbestosis, marked by tissue scarring from the inhalation of asbestos fibers. The second phase of the trial was directed to determining liability. This latter phase of trial ended in a nonsuit judgment entered in favor of Plant, upon the trial court's conclusion that appellants failed to present sufficient evidence that their injuries were caused by exposure to Plant distributed products.

STATEMENT OF FACTS

Beginning in 1948, Plant was the exclusive Northern California distributor of Fibreboard insulation products, marketed under the Pabco trademark. Plant was primarily an insulation contractor that installed Pabco, but Plant also sold Pabco directly to other businesses.

Appellant Lineaweaver claims exposure to Pabco at the Standard Oil (now Chevron) refinery in Richmond, California. Lineaweaver worked at the refinery for 34 years, from 1950 to 1984, as a laborer and journeyman boilermaker/welder. His duties as a laborer included cleaning up asbestos debris and ripping out old insulation. As a boilermaker/welder, he worked near insulators and other tradespeople who produced asbestos dust. Plant was a significant supplier of insulation products at the Standard Oil refinery. According to one witness, Plant performed about 50 percent of the insulation work done at the refinery in the 1960's. Plant supplied Pabco was also used as substituted "fill-in" by another major insulation contractor at the refinery when its own insulation supplies ran out.

Appellant King worked as a laborer at Todd Naval Shipyard (Todd) in Alameda and San Francisco, California, from 1965 until 1986. King also worked periodically at Willamette Shipyard (Willamette) from 1966 to 1968, splitting his time with work at Todd. As a laborer, King swept and removed insulation debris from the shipyards and aboard ships during repairs. Occasionally, he removed old insulation. Plant was a prominent insulation contractor at Todd in the years before King's employment in 1965 and in the years after Fibreboard stopped using asbestos in its Pabco insulation, which was 1971. However, in the critical years of 1965 to 1971, a different insulation contractor, Owens-Corning Fiberglas Corporation (OCF), had an exclusive arrangement with Todd. In that time period, Pabco or other products would be used on ships at Todd only as incidental "fill-in" on perhaps one out of every three or four ships. On these jobs, the substituted products, or "fill-in," would account for about 10 to 15 percent of the insulation materials used. Likewise, Pabco was used only as "fill-in" at Willamette in the 1960's and 1970's.

Appellant Ward was a merchant marine from 1968 to 1990, where he worked almost exclusively in ships' engine rooms performing a variety of jobs from watch fireman to engineer. In his various capacities, Ward assisted in boiler work, cleaned up insulation debris, and occasionally removed asbestos insulation from pipelines. His claim of exposure to Pabco relies on Pabco's use as a "fill-in" at San Francisco Bay Area shipyards where ships he manned were repaired.

DISCUSSION

We look no further than established California law and long-standing tort principles to resolve the single issue put to us: was there evidence of sufficient substantiality to support a jury finding that asbestos supplied by respondent Plant was a cause of appellants' injuries?

A. Causation as an Element of Negligence

Actionable negligence requires a showing that the defendant owed the plaintiff a legal duty of care, that the defendant breached that duty, and that the breach caused plaintiff injury. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207.) Here, we are concerned with the element of causation and, in particular, the cause in fact component of that element. Causation, as an element of negligence, includes both cause in fact and proximate-legal causation: "the former reflects the necessity of a sufficient factual nexus between the negligent conduct and the injury while the latter represents the legal determination encompassing all the ill-defined considerations of policy which go to limit liability once cause in fact has been established." (Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 515, fn. 17, 238 Cal.Rptr. 436.)

B. The Substantial Factor Test

The "substantial factor" standard is used for cause in fact determinations. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1044, fn. 2, 1052, fn. 7, 1 Cal.Rptr.2d 913, 819 P.2d 872.) Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury. (Id., at pp. 1052-1053, 1 Cal.Rptr.2d 913, 819 P.2d 872; Rest.2d Torts, § 431, subd. (a), p. 428; BAJI No. 3.76 (8th ed. 1994 bound vol.).) The substantial factor standard generally produces the same results in cases as does the "but for" rule of causation which states that a defendant's conduct is a cause of the injury if the injury would not have occurred but for that conduct. (Mitchell, supra, at p. 1053, 1 Cal.Rptr.2d 913, 819 P.2d 872; Prosser & Keeton on Torts (5th ed. 1984) § 41, p. 266.) The substantial factor standard has gained favor as a clearer rule of causation and one which subsumes the "but for" test while reaching beyond it to address other situations, such as independent or concurrent causes. (Mitchell, supra, at pp. 1052-1053, 1 Cal.Rptr.2d 913, 819 P.2d 872; Prosser & Keeton on Torts, supra, § 41, pp. 266-268.)

"Substantial factor" has not been judicially defined, and some think it "neither possible nor desirable to reduce it to any lower terms." (Prosser & Keeton on Torts, supra, § 41, p. 267.) However, it has been suggested that a force which plays only an "infinitesimal" or "theoretical" part is not a substantial factor. (People v. Caldwell (1984) 36 Cal.3d 210, 220, 203 Cal.Rptr. 433, 681 P.2d 274.) But the word "substantial" should not be weighted too heavily. The substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the "but for" test, now has been embraced by defendants where their conduct is a "but for" cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the injury. (Prosser & Keeton on Torts (5th ed., 1988 supp.) § 41, pp. 43-44.) Misused in this way, the substantial factor test "undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby." (Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1053, 1 Cal.Rptr.2d 913, 819 P.2d 872.)

C. Components to Proving Causation

Generally, it falls to a plaintiff to establish causation. (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 597, 163 Cal.Rptr. 132, 607 P.2d 924, cert. den. (1980) 449 U.S. 912, 101 S.Ct. 285, 286, 66 L.Ed.2d 140.) In the context of asbestos litigation, a plaintiff must demonstrate exposure to a defendant's product and biological processes from the exposure which result in disease. The concurring opinion proposes shifting the burden of proving causation as to this second element alone, with the plaintiff still expected to prove exposure as a "threshold issue," but then seems to conflate the causation elements of exposure and biological causality when it suggests that the plaintiff must prove exposure "extensive enough to produce substantial harm." (Conc. opn., pp. 911, 914.) We agree that a plaintiff rightly bears the burden of proving exposure to a particular defendant's product. ¹ However, we conclude that the proper analysis is to ask whether the plaintiff has proven exposure to a defendant's product, of whatever duration, so that exposure is a possible factor in causing the disease and then to evaluate whether the exposure was a substantial factor.

D. Proving Asbestos Exposure to be a Substantial Factor in Causing...