Mullen v. Armstrong World Industries, Inc.

• Decision Date: 30 March 1988
• Docket Number: No. A036661,A036661
• Citation: 246 Cal.Rptr. 32,200 Cal.App.3d 250
• Court: California Court of Appeals Court of Appeals
• Parties: , 56 USLW 2632, Prod.Liab.Rep. (CCH) P 11,806 Evelyn MULLEN, et al., Plaintiffs and Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants and Respondents.

Page 32

246 Cal.Rptr. 32

200 Cal.App.3d 250, 56 USLW 2632, Prod.Liab.Rep. (CCH) P 11,806

Evelyn MULLEN, et al., Plaintiffs and Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants and Respondents.

No. A036661.

Court of Appeal, First District, Division 4, California.

March 30, 1988.

Certified for Partial Publication ¹

A. Curtis Sawyer, Jr., Mark F. Anderson, San Francisco, for plaintiffs and appellants

Richard M. Sanford, San Francisco, Stevens & Drummond, Walnut Creek, Knox, Ricksen, Snook, Anthony & Robbins, Mullally, Cederborg & Scanlon, Kincaid, Gianunzio, Caudle & Hubert, Oakland, Richard H. Borow, Los Angeles, Ericksen, Arbuthnot, Walsh, Paynter & Brown, Inc., Oakland, Popelka, Allard, McCowan & Jones, San Jose, James Balish, San Francisco, Crosby, Heafey, Roach & May, Oakland, Mark Rosenthal, Philip Bass, Aaron Adler, Robert Daggett, McCutcheon, Doyle, Brown & Enerson, Marron, Reid & Sheehy, San Francisco, Schell & Delamer, Los Angeles, Linda Wayne, Walnut Creek, David J. Armstrong, Pittsburg, Pa., John Briscoe, Richard S. Bishop, Fisher & Hurst, San Francisco, Melinda W. Ebelhar, Los Angeles, Ken Wachtel, San Francisco, Gibson, Dunn & Crutcher, San Jose, John J. Murry, Redwood City, Richard L. Reynolds, Oakland, Craig S. Mielke, Aurora, Ill., Cooley, Godward, Castro, Huddleson & Tatum, San Francisco, Kenneth Wright, Los Angeles, John F. Wells, Oakland, David Beers, Washington, D.C., Richards, O'Neil & Allegaert, New York City, for defendants and respondents.

POCHE, Associate Justice.

This appeal is from a judgment dismissing an amended complaint entered following the sustaining of a general demurrer without leave to amend. The question presented is whether a cause of action has been stated according to the "market share" theory of liability adopted in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, for the removal of asbestos products from residential housing throughout the state. We hold that no such cause of action has been alleged.

BACKGROUND

Measured against the familiar rules governing our review (see Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 621, 230 Cal.Rptr. 42), these are the salient allegations of the amended complaint:

Plaintiffs Evelyn Mullen, Robert Doherty, and John M. Korn are the owners of homes located in San Francisco, Marin, and Contra Costa counties, respectively. On behalf of a class consisting of all natural persons who own "homes" built from 1912 through 1978 which contain "friable asbestos, friable asbestos materials, or friable asbestos-containing products mined, manufactured, sold or distributed by defendants," Plaintiffs alleged that "asbestos is a known human carcinogen" and causative agent for numerous other ailments. When it deteriorates into the "friable" condition, "asbestos in homes results in the present and continuing contamination of persons and property as well as creating a serious risk of harm to persons ... as well as ... rendering plaintiffs' property unsafe and reasonably dangerous." "Asbestos is but a single ingredient in various insulation, fireproofing and decorative materials applied in plaintiffs' homes. Asbestos has contaminated, among other things, the remainder of the insulator fireproofing and decorative materials, the curtains, drapes, walls, floors, carpets, ceilings furniture, clothing and food of the occupants of the homes.... Asbestos cannot be effectively removed from said materials and ... ordinary cleaning merely ... worsens the contamination." These conditions have significantly reduced the value of plaintiffs' homes.

they commenced this action against more than 40 companies "which have been and/or are now engaged in the mining, manufacturing or supplying of friable asbestos, friable-asbestos containing materials, or friable asbestos-containing products." ²

Plaintiffs further alleged that defendants knew of these dangers but intentionally suppressed public disclosure, failed to label their products, and failed to warn of the dangers "on the relationship between asbestos exposure and disease" when asbestos products were "placed into the stream of commerce." In addition, "[t]he asbestos products of [some of] the defendants were functionally interchangeable with the asbestos products of the remaining defendants" and "[t]here are no adequate testing or sampling procedures available to identify which defendant made a particular asbestos containing product." It would for these reasons "be impossible for plaintiffs and the class to identify which of the defendants is responsible for the mining, milling, fabricating, manufacturing or selling of the friable asbestos or materials and the asbestos-containing products used in their homes." ³ "The present harm and threat to health and safety posed by friable asbestos, friable asbestos materials, and friable asbestos-containing products does not vary significantly as between such asbestos materials or products produced by the different defendants. The materials and products are fungible in this regard, among others."

Based upon these allegations, plaintiffs purported to state causes of action for negligence, strict liability, nuisance, breach of implied warranty, civil conspiracy, "failure to warn," and "concert of action." The primary feature of plaintiffs' prayer was their request for "recovery of the general and special compensatory damages for the costs of inspection, estimation of damages, analysis, containment, removal, replacement, and abatement of friable asbestos-containing materials and friable asbestos-containing products in plaintiffs' homes and to pay for alternative living accommodations A salvo of general demurrers were interposed to each count of the amended complaint. ⁵ A common theme developed by defendants was that their respective products were capable of being individually identified, thus defeating application of the Sindell approach. After conducting extensive hearings on the demurrers, the trial court sustained them without leave to amend. A judgment of dismissal ensued which is the subject of this timely appeal.

                while their homes are being repaired and the asbestos abated (their homes being uninhabitable and dangerous during such repair and abatement work) in an amount to be determined, but estimated to be in excess of $1,000,000,000." 4  They also sought prejudgment interest, exemplary damages in an undetermined amount, attorneys' fees, costs, and general relief
                

REVIEW

I

Sindell v. Abbott Laboratories involved a class action by women who developed or were likely to develop cancer caused by their mothers' prenatal ingestion of the drug diethylstilbesterol (DES). Their complaint was dismissed after the manufacturers successfully demurred on the ground that the plaintiffs could not identify which of the manufacturers had produced the DES administered to each plaintiff's mother. The Supreme Court reversed the judgment of dismissal. The essential holding of Sindell has been summarized in these terms: "[T]he likelihood that any one of several manufacturers of a generic drug, marketed and promoted for a use which proved to produce harmful effects in the yet unborn daughters of the women to whom it was administered, supplied the product that allegedly injured the plaintiff[s] may be measured by the percentage which the product sold by each such manufacturer bears to the entire production of the drug sold by all for that purpose." (Sheffield v. Eli Lilly & Co. (1983) 144 Cal.App.3d 583, 593, 192 Cal.Rptr. 870.) ⁶

One of the predicates for Sindell liability is the absence of discernible distinguishing features or characteristics of the instrumentalities produced by the industry defendants. The court took pains to establish that it was dealing with "fungible goods"--specifically, a drug produced "from an identical formula." ( Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588 at pp. 610-611, 163 Cal.Rptr. 132, 607 P.2d 924.) Plaintiffs' argument that market share liability should be extended from the DES field of Sindell to the asbestos industry proceeds on the premise that DES and asbestos are simple equivalents. This is far from being the case.

"The word 'asbestos' is derived from the Greek word meaning 'inextinguishable' and the origin of its name reflects one of its principal characteristics: fire resistance. But asbestos has many other qualities which enhance its commercial utility, among them tensile strength, durability, flexibility, and resistance to heat, wear, and corrosion." (1 Report of the Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario (1984) 75 [fn. omitted].) "Over 3,000 separate uses of asbestos have been identified.... [T]hese uses depend principally upon the physical and chemical properties of asbestos fibres and the particular characteristics of individual fibre types." (Id. at p. 89.) It has figured in commercial production for more than a century. (See Borel v. Fibreboard Paper Products Corporation (5th Cir.1973) 493 F.2d 1076, 1083, fn. 3.)

The briefest consideration demonstrates numerous inherent differences between DES and asbestos. We quote from the Florida Supreme Court's treatment of this problem:

"DES was produced by hundreds of companies pursuant to one formula. As a result, all DES had identical physical properties and chemical compositions and, consequently, all DES prescribed to pregnant women created the same risk of harm....

"Asbestos products, on the other hand, have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others. [Citations.] This divergence is caused by a combination of factors, including: the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product. There are six different asbestos silicates used in industrial applications and each presents a...