Vermeulen v. Superior Court, Nos. A037335

CourtCalifornia Court of Appeals
Writing for the CourtHANING; LOW, P.J., and KING
Citation204 Cal.App.3d 1192,251 Cal.Rptr. 805
Parties, 57 USLW 2264 James VERMEULEN et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent; ARMSTRONG WORLD INDUSTRIES, INC., et al., Real Parties in Interest. ARMSTRONG WORLD INDUSTRIES, INC., et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent; James VERMEULEN et al., Real Parties in Interest.
Decision Date29 September 1988
Docket NumberA037462,Nos. A037335

Page 805

251 Cal.Rptr. 805
204 Cal.App.3d 1192, 57 USLW 2264
James VERMEULEN et al., Petitioners,
v.
The SUPERIOR COURT of Alameda County, Respondent;
ARMSTRONG WORLD INDUSTRIES, INC., et al., Real Parties in Interest.
ARMSTRONG WORLD INDUSTRIES, INC., et al., Petitioners,
v.
The SUPERIOR COURT of Alameda County, Respondent;
James VERMEULEN et al., Real Parties in Interest.
Nos. A037335, A037462.
Court of Appeal, First District, Division 5, California.
Sept. 29, 1988.

[204 Cal.App.3d 1195]

Page 806

Burton Danziger, Oakland, Bryce C. Anderson, Concord, Christopher Grell, George A. Cumming, Jr., San Francisco, for petitioners.

Burton Danziger, Oakland, Bryce C. Anderson, Concord, Christopher Grell, James N. Penrod, Stephen M. Snyder, Eliot S. Jubelirer, San Francisco, for real parties in interest.

HANING, Associate Justice.

These consolidated petitions for writ of mandate seek review of pretrial evidentiary rulings made in the Alameda County Complex Asbestos Litigation cases. 1 The challenged evidentiary rulings consist of [204 Cal.App.3d 1196] three general orders issued pursuant to section 19 of the Standards of Judicial Administration, 2 and are generally applicable to approximately 2,000 cases wherein the plaintiffs are seeking damages for personal injuries or wrongful death resulting from use of or exposure to asbestos products.

We initially denied both petitions, primarily because of the state of the record. By agreement of counsel, normal motion procedure was not followed in the proceedings which resulted in the orders under review. There are no reporters' transcripts of the hearings on the motions underlying the orders. The exact scope of the motions is also uncertain. The record contains no factual statement, and is typical of those situations where everyone concerned presumably understands the factual predicate, but the parties fail to provide a sufficient record for review. 3 As a consequence, we have no way of knowing what types of asbestos products, product applications, use of or exposure to asbestos are involved in the hundreds of cases concerned.

The Supreme Court granted review of defendants' petition and transferred back both petitions with directions to issue an alternative writ. The Supreme Court's

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transfer order states that "the purpose of Standard 19 of the Standards of Judicial Administration, and of management of this litigation under that standard as 'complex litigation,' would best be served by pretrial review of the orders...."

We preliminarily note that our review in this particular complex litigation matter does not signal that writ review will generally lie to resolve issues of admissibility of evidence. (See, e.g., People v. Municipal Court (Ahnemann) (1974) 12 Cal.3d 658, 660, 117 Cal.Rptr. 20, 527 P.2d 372; California Civil Writs (Cont.Ed.Bar 1987) § 10.66, p. 434.) The general orders under review herein are applicable to over 2,000 individual cases pending trial in Alameda County which have been designated by the superior court as complex litigation under standard 19, and consolidated for pretrial purposes. Complex litigation under standard 19 is designed to facilitate pretrial resolution of evidentiary and other issues, and to minimize the time and expense of lengthy and/or multiple trials. The parties agree that these cases contain common issues of law and fact and, in many instances, common [204 Cal.App.3d 1197] defendants. Consequently, insofar as the present record permits, our pretrial review of these orders is consistent with standard 19. 4

The orders under review apply to those cases and causes of action based on the doctrine of strict liability, which was established in California by the historic case of Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897. "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 purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves" (id., at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897; Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133, 104 Cal.Rptr. 433, 501 P.2d 1153), and "to relieve an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action." (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 573 P.2d 443; Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 119, 184 Cal.Rptr. 891, 649 P.2d 224; Cronin, supra, 8 Cal.3d at p. 133, 104 Cal.Rptr. 433, 501 P.2d 1153.) "From its inception, however, strict liability has never been, and is not now, absolute liability. As has been repeatedly expressed, under strict liability the manufacturer does not thereby become the insurer of the safety of the product's user. [Citations.]" (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733, 144 Cal.Rptr. 380, 575 P.2d 1162.)

The concept of defects in a strict liability case encompasses design defects as well as manufacturing defects, and it is the concept of design defect within which the parties frame their issues and respective positions. 5 Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 sets forth the tests for design defects in product liability cases: "[A] product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an [204 Cal.App.3d 1198] intended or reasonably foreseeable

Page 808

manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design." (Id., at p. 432, 143 Cal.Rptr. 225, 573 P.2d 443.)

The first Barker test is commonly referred to as the "consumer expectation" test, and the alternative as the "risk-benefit" test. The consumer expectation test "reflects a warranty analysis and is based on the theory that when a manufacturer places a product on the market, a representation is impliedly made that the product is safe for the tasks it was designed to accomplish. [Citation.]" (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 118, 184 Cal.Rptr. 891, 649 P.2d 224.) "[I]f a plaintiff proceeds under the first prong of Barker, in addition to establishing a prima facie case regarding causation, the plaintiff must also produce evidence that the product failed to satisfy ordinary consumer expectations as to safety. [Citation.]" (Id., at p. 126, 184 Cal.Rptr. 891, 649 P.2d 224.)

Within these general parameters we commence our review.

I

Defendants challenge General Order 7.01, which states: "In any case in which plaintiff relies exclusively on the consumer expectation theory of liability as set forth in Barker v. Lull [Engineering Co., supra,] 20 Cal 3d 413 [143 Cal.Rptr. 225, 573 P.2d 443] (i.e. not upon the risk-benefit theory) and the issue of punitive damages is not before the jury, evidence as to state of the art is irrelevant and inadmissible. Similarly, in such a case, evidence of compliance with government specifications is irrelevant and inadmissible. In any case involving alleged exposure to asbestos by a plaintiff while on active military duty, evidence of compliance with government specifications may be admissible in support of a government contractor defense."

Defendants contend that Barker 's consumer expectation theory of design defect cannot be utilized by any of the plaintiffs in these cases. In light of the record we can resolve this contention rather summarily. We assume that the hundreds of asbestos cases herein may involve numerous products and uses within a variety of industries and occupations under differing circumstances and conditions. 6 It is appellant's burden to demonstrate error by an [204 Cal.App.3d 1199] adequate record (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 418), and without an adequate record we must assume facts in support of the trial court's order. General Order 7.01 does not define the sort of case or factual situation to which the consumer expectation theory will apply, nor does it limit or mandate its application. Rather, it limits the sort of evidence which is admissible in those causes of action in which the plaintiff is entitled to and does rely solely upon such theory. However, defendants challenge plaintiffs' use of the consumer expectation theory under any and all circumstances. On the basis of this record, we cannot impose such broad prohibitions. A determination of the applicability of the consumer expectation theory requires

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more of a factual record than we possess.

Defendants also challenge that portion of General Order 7.01 which excludes "state of the art" evidence under the consumer expectation theory. Neither plaintiffs nor the record define the term "state of the art." It is not a legal term of art. As one observer has noted: "And what about 'state of the art'? 'State of the art' is a chameleon-like term, referring to everything from ordinary customs of the trade to the objective existence of technological information to economic feasibility. Its meanings are so diverse and so easily confused that the wise course of action, I think, is to eschew its use completely." (Wade, On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing (1983)...

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31 practice notes
  • Altman v. HO Sports Co., No. 1:09–cv–1000 AWI JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 18, 2011
    ...v. General Motors Corp., 234 Cal.App.3d 1609, 1612 n. 2, 286 Cal.Rptr. 402 (1991) (risk benefits test); Vermeulen v. Superior Court, 204 Cal.App.3d 1192, 1198, 251 Cal.Rptr. 805 (1988) (consumer expectations test). To establish a prima facie case of causation, the plaintiff must adduce evid......
  • Rutherford v. Owens-Illinois, Inc., OWENS-ILLINOI
    • United States
    • United States State Supreme Court (California)
    • August 28, 1997
    ...evidentiary and other issues, and to minimize the time and expense of lengthy or multiple trials. (Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 1195-1196 [251 Cal.Rptr. 805].)" (Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 14, 267 Cal.Rptr. The San Francisco......
  • Carlin v. Superior Court, No. S045912
    • United States
    • United States State Supreme Court (California)
    • August 30, 1996
    ...other than prescription drug cases." (Id. at p. 1000, 281 Cal.Rptr. 528, 810 P.2d 549; see also Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 1206, 251 Cal.Rptr. 805 ["We ... do not interpret Brown 's analysis of the failure to warn issue to necessarily be limited to prescription ......
  • Carley v. Coach, No. 92-7208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 16, 1993
    ...Wis. 1992) (Boyle defense applies to procurement contract for mail delivery vehicle); Vermeulen v. Superior Court, Alameda County, 204 Cal. App. 3d 1192, 251 Cal. Rptr. 805 (1st Dist. 1988) (Boyle defense applies equally to military and nonmilitary government contracts). I believe that the ......
  • Request a trial to view additional results
31 cases
  • Altman v. HO Sports Co., No. 1:09–cv–1000 AWI JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 18, 2011
    ...v. General Motors Corp., 234 Cal.App.3d 1609, 1612 n. 2, 286 Cal.Rptr. 402 (1991) (risk benefits test); Vermeulen v. Superior Court, 204 Cal.App.3d 1192, 1198, 251 Cal.Rptr. 805 (1988) (consumer expectations test). To establish a prima facie case of causation, the plaintiff must adduce evid......
  • Rutherford v. Owens-Illinois, Inc., OWENS-ILLINOI
    • United States
    • United States State Supreme Court (California)
    • August 28, 1997
    ...evidentiary and other issues, and to minimize the time and expense of lengthy or multiple trials. (Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 1195-1196 [251 Cal.Rptr. 805].)" (Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 14, 267 Cal.Rptr. The San Francisco......
  • Carlin v. Superior Court, No. S045912
    • United States
    • United States State Supreme Court (California)
    • August 30, 1996
    ...other than prescription drug cases." (Id. at p. 1000, 281 Cal.Rptr. 528, 810 P.2d 549; see also Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 1206, 251 Cal.Rptr. 805 ["We ... do not interpret Brown 's analysis of the failure to warn issue to necessarily be limited to prescription ......
  • Carley v. Coach, No. 92-7208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 16, 1993
    ...Wis. 1992) (Boyle defense applies to procurement contract for mail delivery vehicle); Vermeulen v. Superior Court, Alameda County, 204 Cal. App. 3d 1192, 251 Cal. Rptr. 805 (1st Dist. 1988) (Boyle defense applies equally to military and nonmilitary government contracts). I believe that the ......
  • Request a trial to view additional results

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