Wheeler v. Raybestos-Manhattan

• Citation: 11 Cal.Rptr.2d 109,8 Cal.App.4th 1152
• Decision Date: 28 July 1992
• Docket Number: RAYBESTOS-MANHATTAN,No. A054969,A054969
• Court: California Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 13,473 Richard WHEELER, et al., Plaintiffs and Appellants, v., et al., Defendants and Respondents.

Page 109

11 Cal.Rptr.2d 109

8 Cal.App.4th 1152, Prod.Liab.Rep. (CCH) P 13,473

Richard WHEELER, et al., Plaintiffs and Appellants, v. RAYBESTOS-MANHATTAN, et al., Defendants and Respondents.

No. A054969.

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

July 28, 1992.

Rehearing Denied Aug. 25, 1992.

Review Denied Oct. 16, 1992.

Harry F. Wartnick, Steven Harowitz, Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, San Francisco, Daniel U. Smith, Law Office of Daniel U. Smith, Kentfield, for plaintiffs and appellants.

William G. Hoback, Sally R. Waid, Erickson, Arbuthnot, Brown, Kilduff & Day, Inc., Walnut Creek, for defendant-respondent Bridgestone/Firestone.

Timothy J. Minor, Jared R. Smith, Gilles, Nicora, Minor & Sullivan, Oakland, for defendant-respondent Morton Intern.

Peter R. Boutin, Eric R. Swett, Julie L. Somerville, Keesal, Young & Logan, San Francisco, for defendant-respondent Lear Siegler.

Michael T. Lucey, Norman J. Hamill, Gordon & Rees, San Francisco, for amicus curiae Allied Signal, Inc.

Robert E. Paterson, Hilary N. Rowen, Sullivan, Roche & Johnson, San Francisco, for amicus curiae Abex Corp.

POCHE, Acting Presiding Justice.

Plaintiffs Richard Wheeler, Earnest Hayes, Herman Kirktendoll, Juliga Woods and Preston Bartice appeal from a judgment entered after the trial court granted defendants' motion for nonsuit as to each of their complaints. The five complaints which were consolidated for the purpose of trial all allege personal injuries suffered from exposure to asbestos. Each of the defendants, Morton International, Lear Siegler Diversified Holdings, and Firestone Tire and Rubber, manufactures, or is arguably a successor in interest to a manufacturer of, brake products. ¹ These cases, like all asbestos cases in San Francisco Superior Court, are subject to a series of general orders. General Order 21 provides that the theory of market share liability articulated in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 is inapplicable to the asbestos cases. When the trial court here indicated that it was bound to comply with the general order, plaintiffs were permitted to make an offer of proof. At the conclusion of the offer of proof the court granted defendants' motion for nonsuit.

Thus, the matter before us is purely a question of law: Did plaintiffs state facts sufficient to establish a prima facie case of market share liability as defined in Sindell against defendant manufacturers of brake products?

Discussion

Code of Civil Procedure section 581c ² specifically permits a motion for nonsuit at the close of a plaintiff's opening statement. (§ 581c, subd. (a).) In this instance plaintiffs made an offer of proof in lieu of an opening statement, and we shall treat that offer as the equivalent of an opening statement. When the court grants nonsuit after an opening statement it must assume that plaintiff can prove all the favorable facts alleged. (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272, 219 Cal.Rptr. 836.) A nonsuit is properly granted after the opening statement only if the court concludes there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. (Willis v. Gordon (1978) 20 Cal.3d 629, 633, 143 Cal.Rptr. 723, 574 P.2d 794.) On appeal we apply the same standard used by the trial court in ruling on the motion. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839, 206 Cal.Rptr. 136, 686 P.2d 656.)

In Sindell our Supreme Court adopted a theory of liability for use where "fungible goods" which cause harm to consumers "cannot be traced to any specific producer." (Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, 610, 163 Cal.Rptr. 132, 607 P.2d 924.) The product in question was the drug diethylstilbesterol (DES) which was marketed as a miscarriage preventative but which caused cancerous conditions many years later in the offspring of the pregnant women who took it. All the DES which was sold was manufactured to an identical formula. (Id. at p. 611, 163 Cal.Rptr. 132, 607 P.2d 924.) Because of the circumstances of the drug's use and the lapse of time, plaintiff Sindell was unable to identify the maker or makers of the drug which caused her injury. (Id. at pp. 600-601, 163 Cal.Rptr. 132, 607 P.2d 924.) From Sindell came a new theory of market share liability only available against the makers of a "fungible" product "which cannot be traced to a specific producer" and only applicable if plaintiff joins a "substantial share" of the makers of the product.

By General Order 21 the Sindell theory of liability was rejected by the San Francisco Superior Court in asbestos cases for a variety of sound reasons. As an initial matter the court found that "asbestos litigation does not involve an inability of the plaintiffs to identify the manufacturers/suppliers" and thus does not involve the deprivation of a remedy. Secondly, the court noted that many of the asbestos defendants had been exposed to a variety of products in various industries and therefore the difficulties of determining market share would be tremendous.

This court itself came to much the same conclusion in a case involving exposure to asbestos contained in products used in home construction. (Mullen v. Armstrong World Industries, Inc. (1988) 200 Cal.App.3d 250, 246 Cal.Rptr. 32.) We noted there that asbestos, unlike DES, was not a single product but merely a generic name for an ingredient in a variety of products each of which posed a different risk of harm. (Id. at pp. 255-257, 246 Cal.Rptr. 32.) Accordingly, we concluded that the plaintiffs, owners of homes built between 1912 and 1978 which contained friable asbestos and materials containing friable asbestos, had failed to state a cause of action under a theory of market share liability. (Id. at pp. 252, 257, 246 Cal.Rptr. 32.)

In this case plaintiffs made an offer of proof in which they asserted that each of them had been exposed to asbestos fibers in brake products as well as non brake products. However, they sought to proceed on a market share theory only as to the makers of brake products. They asserted that their inability to identify the makers of the brake products was because their primary exposure to asbestos fiber from brake pads came during inspection or replacement of worn pads when dust containing asbestos which had been generated by the friction on the pads during braking was blown out of the brake drums. At the time of such exposure these worn brake pads could no longer be identified by brand.

On the issue of fungibility plaintiffs offered to prove that the brake pads were fungible to the extent that a pad of a given size, regardless of who made it, could be used on a variety of different vehicles. Furthermore, they note that the pads manufactured by defendants were all composed solely of chrysotile asbestos fiber. Finally, the brake pads all contained between 40 and 60 percent asbestos by weight.

Plaintiffs asserted, without specifying an exact percentage, that they had joined "a substantial share of the manufacturers of defective friction products" and that they were prepared to establish the market share of each defendant who remained in the action. ³

Webster's defines fungible as "[o]f such a kind or nature that one specimen or part may be used in place of another specimen or equal part in the satisfaction of an obligation" or "[i]nterchangeable." (Webster's New Collegiate Dict. (7th ed. 1969) p. 338.) Defendants raise several objections to viewing brake pads as fungible goods. They argue that chrysotile fibers can come from various geographic sources, that not all pads were manufactured with the same bonding agents, and finally that because pads come in many different shapes and compositions designed to suit the needs of particular vehicles, the pads cannot be viewed as a fungible item.

They are correct that brake pads are not manufactured from one single chemical formula like DES. It is irrelevant, of course, that pads come in various sizes and shapes. A single type of asbestos fiber, chrysotile, was used in all the pads, and the amount of asbestos by weight in the pads varied within a limited range. While brake pads are not absolutely interchangeable each for one another and hence are not fungible from the standpoint of an auto mechanic, they are fungible for the purposes of Sindell by virtue of containing roughly comparable quantities of the single asbestos fiber, chrysotile.

This case is readily distinguishable from an Ohio case in which a single asbestos containing product was found inappropriate for market share liability. In Goldman v. Johns-Manville Sales Corp. (1987) 33 Ohio St.3d 40, 514 N.E.2d 691 the product was duct tape. However, there was evidence that the tape made by the various defendants varied in its asbestos content by weight from 15 to 100 percent. (Id. 514 N.E.2d at p. 697.) Thus exposure to the tape consisting 100 percent of asbestos carried a very different risk of harm than exposure to tape containing only 15 percent asbestos. (Id., 514 N.E.2d at p. 701.) In this case the asbestos content of the brake pads is not identical, but it varies in a much more restricted range. Therefore the risk of harm posed by the products of each manufacturer is more nearly equivalent.

Defendants also argue that these plaintiffs are not absolutely unable to identify any of the makers of the brake pads with which they may...