Mitchell v. Asbestos Corp.

• Decision Date: 17 March 1998
• Docket Number: No. A076593,A076593
• Citation: 62 Cal.App.4th 200,73 Cal.Rptr.2d 11
• Parties: Previously published at 62 Cal.App.4th 200 62 Cal.App.4th 200, 98 Cal. Daily Op. Serv. 1918, 98 Daily Journal D.A.R. 2648 Arthur MITCHELL, Plaintiff and Respondent, v. ASBESTOS CORPORATION, LTD., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 11

73 Cal.Rptr.2d 11

Previously published at 62 Cal.App.4th 200

62 Cal.App.4th 200, 98 Cal. Daily Op. Serv. 1918,

98 Daily Journal D.A.R. 2648

Arthur MITCHELL, Plaintiff and Respondent, v. ASBESTOS CORPORATION, LTD., Defendant and Appellant.

No. A076593.

Court of Appeal, First District, Division 2, California.

March 17, 1998.

Review Granted June 17, 1998.

Parker & Bonis, LLP James C. Parker, San Francisco, Stevens, Drummond & Gifford, Gary T. Drummond, Walnut Creek, for Defendant and Appellant.

Brayton Harley Curtis, Philip A. Harley, Novato, James L. Oberman, Hercules, for Plaintiff and Respondent.

LAMBDEN, Associate Justice.

This asbestos action by Arthur Mitchell went to jury trial against one defendant, Asbestos Corporation, Ltd. (ACL), a Quebec mining company which supplied asbestos fibers to various manufacturers. Mitchell's trial theory was that ACL supplied Eagle-Picher Industries, Inc. (EPI), a Midwestern company which manufactured an insulating cement called Eagle 66 or Super 66. Mitchell contracted asbestosis and mesothelioma. He claimed asbestos exposure, partly from EPI cement, while working for three to six months in 1942 or 1943 as a tack welder at Moore Dry Dock in Oakland. He relied in particular on deposition testimony from Robert Bockstahler, a one-time EPI employee, who testified, based on copies of EPI records, that ACL had been EPI's exclusive supplier of asbestos fibers during the relevant time period.

The case went to the jury on theories of strict liability and negligence. By special verdict, the jury found: asbestos bore a defect in design or failure to warn when it left ACL's possession; this caused Mitchell's injury Judgment was for the principal sum of $835,119, and ACL appeals.

and was reasonably foreseeable; ACL also negligently caused injury; Mitchell first suffered appreciable harm before January 4, 1986 (the effective date of Proposition 51); and ACL was a substantial factor in causing the exposure and was 10 percent liable. The jury made separate noneconomic damage awards for asbestosis and mesothelioma.

ACL seeks reversal on several grounds, most of them raised in its unsuccessful posttrial motions for judgment notwithstanding the verdict and new trial. It argues: (1) merely supplying raw asbestos for use in manufacturing by others cannot support strict liability; (2) the statute of limitations bars recovery; (3) the evidence is insufficient to support causation between Mitchell's injuries and any asbestos ACL supplied; (4) the Bockstahler deposition was erroneously admitted; and (5) Proposition 51 should have been applied to reduce noneconomic damages to ACL's 10-percent proportional fault. Post-briefing authority would seem to resolve the last point in ACL's favor (Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71), but we find that and other issues moot. Error in applying the statute of limitations compels a complete reversal.

DISCUSSION

The statute of limitations problem has several component parts, which we address separately. Their common factual and procedural predicate is as follows.

Mitchell filed several asbestos-related lawsuits, two of them San Francisco Superior Court actions naming ACL as a defendant. The verdict and judgment here are after these two actions were ordered consolidated on Mitchell's motion. The first action No. 955576)(Mitchell), filed in October 1993, alleged Mitchell suffered injuries which included "breathing difficulties, asbestosis, and/or other lung damage," suffered increased risk and fear of developing various cancers, and had been diagnosed on or about 1979 with "asbestosis and asbestos-related pleural disease." ACL was never served in that action.

The second action Mitchell v. Asbestos Corp., Ltd. (Super Ct. S.F. County, No. 975884)(Mitchell), filed in February 1996, added allegations Mitchell suffered from "lung and/or other cancer, mesothelioma," and had been diagnosed the month before with mesothelioma. ACL was served in this action in February and answered on April 11, raising an affirmative defense of the statute of limitations found in section 340.2 of the Code of Civil Procedure (all unspecified further section references are to that code). Citing his terminal illness, Mitchell moved on April 12 for an order consolidating the actions and granting trial preference. His motion was granted on April 30, without objection from ACL, and trial was set for July 8, discovery to remain open. Several defendants were served with the motion, but settlements obviously followed, for trial began on July 31 against ACL as the sole remaining defendant.

ACL raised the issue of the statute of limitations near the close of evidence and raised it again in its posttrial motions. Relying on Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 47 Cal.Rptr.2d 580 (Darden ), it maintained Mitchell II was time-barred because Mitchell I had started the one-year statute (§ 340.2) running. Tardy cognizance of this issue, ACL explained in its posttrial motions, was from not having realized, until a chance remark by the court in chambers, that this was a consolidated case. Only afterwards did ACL discover it had been named in Mitchell I. It was stipulated at the motion made during trial that Mitchell's answers to standard interrogatories had revealed the prior lawsuit and listed the defendants involved but had not listed ACL.

The court denied the posttrial motions, reasoning aloud: (1) the first action was without dispute timely filed; (2) Mitchell had promptly filed and served ACL with the second action after learning he had mesothelioma; (3) the matters had been consolidated "for all purposes" and an early trial date set; (4) trial then proceeded with ACL "the only remaining defendant" and the court clerk announcing on the first day the case was being tried as a consolidated action; and (5)

                ACL made no claim during Mitchell's presentation of evidence that "either asbestosis or mesothelioma was outside the proper scope of the issues."   The court concluded:  (6) ACL had "made a general appearance" in both cases;  (7) all evidence had been properly admitted for both cases;  (8) the matter was distinguish-able from Darden;  and (9) the judgment was "not defective" based on the statute.  When ACL's counsel asked to clarify for the record that "the consolidation was not for all purposes, but rather just for trial," the court said the record would "speak for [62 Cal.App.4th 207] itself" and read aloud the consolidation order, which merely stated in part  " ... Action Nos. 955576 and 975884 are consolidated as Action No. 955576."   In denying the motion when first raised, at trial, the court had said it found Mitchell was misled by lack of earlier objection "either under the doctrine of waiver [,] estoppel or la[c]hes any or all of them...."
                

I. Statute of limitations (Darden)

Section 340.2 provides in part: "(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following: [p] (1) Within one year after the date the plaintiff first suffered disability. [p] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure. [p] (b) 'Disability' as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation."

This special statute, enacted in recognition of the long period of time which may elapse before serious asbestos-related disease develops, allows a plaintiff who knows of his or her asbestos-related illness to nevertheless delay bringing an action until disability from work occurs (Darden, supra, 40 Cal.App.4th 349, 354, 47 Cal.Rptr.2d 580) or, in the case of a plaintiff who has retired before the onset of what would have been a disability, for an indefinite period of time (ibid.; Duty v. Abex Corp. (1989) 214 Cal.App.3d 742, 749-751, 263 Cal.Rptr. 13).

Darden decided, on facts remarkably like those here, that this unusual freedom to delay bringing an action nevertheless does not mean a plaintiff, once having elected to bring suit, can bring successive actions without violating the one-year limitation period. The plaintiff in Darden brought a 1987 action based on asbestos exposure, naming but never serving defendant General Motors Corporation (GM). After reaching settlements with some defendants, he dismissed the action without prejudice as to others, including GM. Then in 1991, he filed a virtually identical complaint against GM and others. (Darden, supra, 40 Cal.App.4th at p. 351, 47 Cal.Rptr.2d 580.)

Division Four of this court held the second action time-barred under the one-year statute: "Although plaintiff claimed the statute never began to run against him because he did not suffer a disability within the meaning of section 340.2, unquestionably with the commencement of [his first action] he was on record that he knew and believed his cause of action had accrued for asbestos-related illness...." (Darden, supra, 40 Cal.App.4th at p. 352, 47 Cal.Rptr.2d 580.) "Holding fast under these circumstances to the literal definition of 'disability' would endorse a rule that encourages plaintiffs who have already elected to litigate their asbestos-related personal injury claim to avoid the normal consequences of civil procedure with a second, otherwise untimely, lawsuit. These consequences include the bar of the statute of limitations as well as mandatory dismissal for failure to serve (§ 583.210 et seq.) or prosecute (§ 583.310 et seq.). Such a result would subvert the general policy informing statutes of limitations and, on the other hand, would fail to serve the specific remedial policy which spurred the passage of section 340.2." (Id. at p. 355, 47 Cal.Rptr.2d 580.)

Th...