Opinion
A152887
10-30-2019
Lannette Louise LOPEZ et al., Plaintiffs and Appellants, v. The HILLSHIRE BRANDS COMPANY, Defendant and Appellant.
Kaiser Gornick; Jeffrey Alan Kaiser, Lawrence J. Gornick, David Markevitch, San Francisco; The Arkin Law Firm; Sharon Joellen Arkin for Plaintiffs. Sidley Austin; David R. Carpenter, Los Angeles, Mark Edmonde Haddad, Jean-Claude Andre, Andrew B. Talai, Los Angeles; Buty & Curliano; Jason John Curliano, Oakland, & Michael C. Guasco, San Rafael, for Defendants.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts A, B, C, E and F of the Discussion.
Kaiser Gornick; Jeffrey Alan Kaiser, Lawrence J. Gornick, David Markevitch, San Francisco; The Arkin Law Firm; Sharon Joellen Arkin for Plaintiffs.
Sidley Austin; David R. Carpenter, Los Angeles, Mark Edmonde Haddad, Jean-Claude Andre, Andrew B. Talai, Los Angeles; Buty & Curliano; Jason John Curliano, Oakland, & Michael C. Guasco, San Rafael, for Defendants.
NEEDHAM, J.
Mark Lopez was diagnosed with epithelioid mesothelioma with a deciduoid pattern at the age of 59. He died from his disease at the age of 61. The physician who diagnosed him believed his mesothelioma was caused by exposure to asbestos.
In this survivor action, Lopez’s widow Lannette Louise Lopez and his children Pilar Elan Nabb and Seth Vincent Lopez, who were 20 years old and 15 years old, respectively, at the time of diagnosis, sued The Hillshire Brands Company (Hillshire) and others. The case proceeded to jury trial against Hillshire alone, on the theory that Lopez had been exposed to asbestos as a child in three ways when his father worked at a sugar refinery owned by Hillshire’s predecessor-in-interest: (1) he visited his father and grandfather at the refinery itself several times; (2) he lived from 1954 to 1964 in a company-owned town, where asbestos drifted from the refinery; and (3) his father inadvertently brought asbestos from the refinery into the family home. The jury awarded plaintiffs $1,958,461 in economic damages and a total of $11 million in noneconomic damages.
This action was originally filed by Lopez before his death and proceeded as a survivor action after his death.
In its appeal, Hillshire raises several challenges to the sufficiency of the evidence, the jury instructions given, and the failure of the jury to apportion any fault to the companies that manufactured asbestos used in the refinery. Plaintiffs, on cross-appeal, argue the court erred in granting Hillshire’s motion for summary adjudication of their punitive damages claim. We affirm the judgment in its entirety.
I. FACTUAL BACKGROUND
Since the 1920s, health and safety professionals have known that work with asbestos-containing products can cause asbestosis, a non-malignant scarring of the lung. In 1955, a link between asbestos and cancer was identified. California’s safety orders were first promulgated in 1936 and applied to all places of employment in the state. At the times relevant to this case, they required employers to substitute substances creating harmful dust (including asbestos dust) when practicable, to control harmful exposures through ventilation and exhaust systems, to provide respirators as an emergency protection against brief exposures, to use water and other substances to prevent harmful exposures, to isolate dusty operations when their harmful effect could not be controlled by other means, to clean buildings and equipment that contribute to a hazard, and to provide showers and clothing storage for workers. (Former Cal. Admin. Code, tit. 8, §§ 4100, 4102, 4103, 4104, 4105, 4106, 4107, 4108, Register 18, No.8 (Dec. 19, 1949) pp. 432.145–432.150.) Asbestos concentration levels in the air could not exceed five million particles per cubic foot. (Former Cal. Admin. Code, tit. 8, § 4101(l).)
In the early 1970s, Congress enacted the Occupational Safety and Health Act (Fed/OSHA), which provides for the adoption of minimum national health and safety standards. ( 29 U.S.C. § 651.) In 1972, OSHA promulgated its first permanent asbestos regulations and recognized that concentrations that "may be safe with regard to asbestosis are not safe with regard to mesothelioma." The Federal Register stated, "No one has disputed that exposure to asbestos of high enough intensity and long enough duration is causally related to asbestosis and cancers." ( 37 Fed. Reg. 11318 (June 7, 1972).) Asbestos concentration levels would be limited to a weighted average of five particles per cubic centimeter with a never-to-be-exceeded standard of ten particles per cubic centimeter; effective July 1, 1976, these levels would be reduced to two fibers per cubic centimeter, with a ceiling value of ten fibers per cubic centimeter. (Ibid .)
There are two different methods of measuring asbestos in the air, particles per cubic foot of air (the Impinger method) and fibers per cubic centimeter of air (the membrane filter method).
By 1913, it was recognized that workers could take home toxic substances to which they were exposed. In 1960, a link between asbestos and mesothelioma was established for people who lived with an asbestos worker.
In the 1890s, the Union Sugar Company established a sugar refinery in Betteravia, California on the state’s Central Coast. Hillshire is the successor-in-interest to Consolidated Foods Corporation, which acquired the Union Sugar Company in 1951. The sugar refinery was an enclosed building, measuring 50 by 130 feet, with no mechanical ventilation. The entrance to the machine shop was through two sliding doors that were eight to ten feet wide and eight to ten feet tall and opened into the main area of the refinery. Hillshire owned the surrounding "company town" of Betteravia, which had houses that Hillshire rented to its workers. The town also had an open air dump used by the refinery.
Hillshire used a great deal of asbestos insulation on miles of pipe located throughout the refinery, including a location just outside the machine shop. Asbestos was also used on thousands of valves, gaskets, packing materials and various pieces of equipment. The pipe insulation contained 15 to 20 percent asbestos and the gaskets and packing materials contained 70 to 80 percent asbestos.
Twice a year, for a combined total of three to five months, the refinery was shut down for repairs that included the inspection, repair and replacement of valves throughout the refinery. This work required the removal of large amounts of insulation and the replacement of packing and gaskets, and created visible dust. Ed Kealm, a longtime worker, recalled removing the insulation with a claw hammer in a way that produced "clouds of dust." The doors to the machine shop were almost always open during shutdowns. Asbestos scrap was put into the open air dump. It was also put through an electric grinder outside the refinery. Lopez’s grandfather began working in the machine shop of the refinery in the 1920s and his father worked in the machine shop of the refinery beginning in the 1940s. Lopez was born in 1954 and lived with his family in Betteravia in a total of three different houses near the refinery. The family moved to nearby Santa Maria at the end of 1964, when the town closed down, but Lopez’s father continued to work in the refinery. Lopez lived in the family home in Santa Maria until he moved out at the end of 1972.
Hillshire workers often used compressed air to clean up debris and remove dust from their clothes. Lopez’s father always wore his work clothes home and they were sometimes dusty. He sometimes did not change his clothes right away after returning home. Lopez routinely helped his mother launder his father’s work clothes because she had a damaged hand due to childhood polio. After the family moved to Santa Maria, Lopez’s father would drive to work in one of the family cars, which had cloth seats and in which Lopez frequently rode.
When he lived in Betteravia, Lopez played outside in the area, including in the open-air dump and on the dirt roads. He routinely met his father and grandfather as they walked home from work in their work clothes. Beginning at age seven (1961) he also sometimes visited his father and grandfather in the machine shop, primarily during shutdowns when it was easier to move about the refinery. Lopez recalled that the refinery was a "very dusty environment" with "dust everywhere." Lopez visited his father and grandfather about three to four times per week during shutdowns and the doors to the machine shop were almost always open to the main part of the refinery. Lopez never wore a respirator and never saw any employee wearing one.
Lopez worked for United Parcel Service (UPS) from 1972 (when he moved out of the family home) until 1988. From 1988 until 2004 or 2005, he owned his own Snap-On Tool franchise. Then he went to work for Santa Maria Tire selling tires for heavy equipment. He did not work with asbestos products in any of these jobs. He did not do any vehicle maintenance in any of these jobs, though when he worked for UPS he washed trucks on one side of a 120 by 80 foot warehouse where repairs were being done, including brake repairs. He recalled seeing brake dust but did not recall how often he saw it. He did not know how often brakes were changed on the trucks, and after 1975 he spent most of his time outside of the warehouse as a driver. Before leaving the family home at age 18, Lopez assisted his father or grandfather in replacing brake shoes on vehicles about 20 times. He does not recall there being dust because they applied some type of liquid to keep dust to a minimum. In 1992, Lopez married Lannette Lopez and the couple had two children, Pilar and Seth. They were a very close family and Lopez participated in coaching, 4-H and leadership programs with his children. Lopez smoked socially in his 20s.
Lopez was diagnosed with mesothelioma in 2013 and was told his condition was terminal. He was given chemotherapy in the form of infusions to prolong his life for a couple of years. He stopped working and discontinued sports activities because he found it difficult to breathe. Mesothelioma can be linked to asbestos exposure about 70 percent of the time.
John Templin, plaintiffs’ industrial hygiene expert, was asked about Hillshire’s practices at the sugar refinery during Lopez’s childhood. He testified that the use of compressed air spread asbestos throughout the sugar refinery and it would have migrated into the machine shop. The practice of grinding the asbestos insulation into powder was extremely hazardous and should not have been done, an opinion with which Hillshire’s corporate representative agreed. Templin opined that the asbestos released during the grinding procedure went everywhere in Betteravia, including the dirt road in front of the refinery, the ball field and the houses.
According to Templin, visible dust signified asbestos in a concentration of over five million particles per cubic foot and as much as 100 million particles per cubic foot. Templin also believed that refinery workers such as Lopez’s father would have gotten asbestos on their clothes and contaminated their homes. People who handle the worker’s clothes have more asbestos exposure than others in the home. Templin testified that during the 1950s it was recognized that only the complete elimination of asbestos would prevent the cancer it caused. Responsible companies at that time reduced exposure to asbestos to a level as low as was reasonably achievable. Between 1954 and 1973, Hillshire took no precautions at the refinery.
The defense, essentially, was that the dangerousness of asbestos and its proclivity to cause cancer was not fully appreciated until after Lopez had moved from the family home and the period where he was potentially exposed had ended, that Hillshire complied with the law in existence at the time, and that Lopez had not in any event proven he was ever exposed to asbestos under the various theories. II. DISCUSSION
See footnote *, ante .
D. CACI No. 435
The trial court gave a modified version of CACI No. 435 regarding causation: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It does not have to be the only cause of the harm. [¶] Plaintiffs may prove that exposure to asbestos from The Hillshire Brands Company’s property or operation was a substantial factor causing Mark Lopez’s illness by showing, through expert testimony, that there is a reasonable medical probability that the exposure was a substantial factor contributing to his risk of developing cancer."
Hillshire contends the court should have instructed the jury with CACI No. 430, the more general instruction on substantial-factor causation: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." Hillshire argues that CACI No. 435 was intended to apply only when a negligence claim is asserted against a manufacturer or supplier, and contends CACI No. 430 remains the appropriate instruction when the defendant is an employer/premises owner rather than a manufacturer or supplier. We disagree.
Plaintiffs argue that Hillshire invited any error in failing to give the last, bracketed paragraph of CACI No. 430 because although it included the complete instruction in its request for instructions filed March 27, 2017, it filed a trial brief on August 14, 2017, in which it requested that both CACI No. 430 and CACI No. 435 be given and quoted CACI No. 430 ’s first paragraph only. We agree with Hillshire that the trial brief was quoting CACI No. 430 simply for reference. We find no invited error or waiver of its claim that the last, bracketed paragraph of CACI No. 430 should have been given.
Both CACI No. 430 and CACI No. 435 define causation using the "substantial factor" test and specify that the question to ask is whether a "reasonable person" would consider that factor as having contributed to the harm. Both instructions clarify that a substantial factor does not have to be the only cause of the harm. The primary difference between the two instructions is (1) CACI No. 430 specifies that a substantial factor must be more than "remote or trivial;" (2) CACI No. 430 ’s final, bracketed paragraph states the so-called "but-for" test, under which conduct is not a substantial factor if the same harm would have occurred without it; and (3) CACI No. 435 specifies that asbestos exposure will be deemed a substantial factor in causing an illness when there is a reasonable probability the exposure was a substantial factor contributing to the risk of developing cancer, consistent with the rule set forth by our Supreme Court that it is not necessary to prove that "fibers from the defendant’s product were the ones, or among the ones, that actually began the process of malignant cellular growth." ( Rutherford v. Owens-Illinois, Inc. , (1997) supra , 16 Cal.4th 953, 982, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)
CACI No. 435 is based on the court’s decision in Rutherford , supra , 16 Cal.4th at pages 982 to 983, 67 Cal.Rptr.2d 16, 941 P.2d 1203, and "is to be given in a case in which the plaintiff’s claim is that he or she contracted an asbestos-related disease from exposure to the defendant’s asbestos-containing product." ( CACI No. 435, Directions for Use.) The Directions for Use note for CACI No. 435 states, "Whether the same causation standards from Rutherford would apply to defendants who are alleged to have created exposure to asbestos but are not manufacturers or suppliers of asbestos-containing products is not settled." In Petitpas v. Ford Motor Co. , (2017) supra , 13 Cal.App.5th 261, pages 299 to 300, 220 Cal.Rptr.3d 185, the court approved the causation instructions (or alternatively found any error harmless) when the trial court in an asbestos case involving both manufacturers/suppliers and premises owners/employers gave both CACI No. 430 and 435. But the version of CACI No. 430 given in Petitpas did not contain the final, bracketed paragraph setting forth the "but-for" standard and the court in that case did not decide whether it would be error to give CACI No. 435 alone; the question was whether it was error to give CACI No. 430 in addition to CACI No. 435. ( Id. at pp. 298–299, 220 Cal.Rptr.3d 185.) Squarely faced with the issue of CACI No. 435 ’s correctness for a non-manufacturer/non-supplier, we conclude that CACI No. 435 applied to plaintiffs’ asbestos-related claim, even though Hillshire is not a manufacturer or supplier of asbestos.
CACI No. 435 was developed to address the special considerations that apply when the injury was allegedly caused by asbestos exposure. These include the long latency period, the occupational settings that often expose workers to multiple forms and brands of asbestos, and, in a case of exposure to asbestos from multiple sources, the difficulty of proving that a plaintiff’s or decedent’s illness was caused by particular asbestos fibers traceable to the defendant. (See Major v. R.J. Reynolds Tobacco Co. (2017) 14 Cal.App.5th 1179, 1196, 222 Cal.Rptr.3d 563 ( Major ).) These considerations are similar whether the defendant was a manufacturer/supplier or otherwise created the exposure to asbestos. Additionally, giving CACI No. 430, which states that a factor is not substantial when it is "remote or trivial," could be misleading in an asbestos case, where the long latency period necessitates exposures will have been several years earlier. Jury instructions therefore should not suggest that a long latency period, in which the exposure was temporally "remote," precludes an otherwise sufficient asbestos claim. " ‘Remote’ often connotes a time limitation. Nothing in Rutherford suggests such a limitation; indeed, asbestos cases are brought long after exposure due to the long-term latent nature of asbestos-related diseases." ( CACI No. 430, Directions for Use (2019 ed.) p. 284.) It was not error for the court to give CACI No. 435 alone instead of CACI No. 430.
Giving CACI No. 430 in its entirety also would have meant instructing the jury on the principle of "but-for" causation. Although generally subsumed within the substantial factor test, "the but-for test is inappropriate in cases when two forces are actively operating and each is sufficient to bring about the harm." ( Major , supra , 14 Cal.App.5th at p. 1196, 222 Cal.Rptr.3d 563, citing Viner v. Sweet (2003) 30 Cal.4th 1232, 1235, 135 Cal.Rptr.2d 629, 70 P.3d 1046.) "If a plaintiff [or decedent] has developed a disease after having been exposed to multiple defendants’ asbestos products, medical science [is] unable to determine which defendant’s product included the specific fibers that caused the plaintiff’s [or decedent’s] disease." ( Major at p. 1196, 222 Cal.Rptr.3d 563.) A "but-for" instruction is therefore inappropriate in the asbestos context, at least when there are multiple sources of exposure. (See Jones v. John Crane, Inc. (2005), supra,. 132 Cal.App.4th 990, 998, fn. 3, 35 Cal.Rptr.3d 144.) Although Hillshire was the only defendant in this case, there was evidence that Lopez had been exposed to asbestos at other junctures in his life, and it would be inaccurate to tell the jury that Hillshire was absolved of liability if one of these other exposures was also a cause of his mesothelioma.
Hillshire argues that an instruction on but-for causation was required in this case because the jury received an instruction on negligence per se based on Hillshire’s alleged violation of the applicable safety orders. Hillshire reasons the "but-for" test was "especially critical" because the negligence per se doctrine does not apply if compliance with the law at issue would not have prevented the harm (i.e., the harm would have occurred regardless of compliance with the law). (See Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 353–355, 224 Cal.Rptr. 326 [when driver violated parking ordinance by remaining in loading zone too long, bicyclist who was injured when she swerved into traffic to avoid parked car was not entitled to negligence per se instruction because among other things, length of time car was parked in yellow zone had no causal connection to accident].)
We have previously found no error in giving a negligence per se instruction. And regardless of the propriety of that instruction, it did not render CACI No. 430 rather than CACI No. 435 the proper instruction on the issue of causation. The negligence per se instruction in this case was a version of CACI No. 418, and advised the jury in relevant part, "California’s General Safety Orders required from at least 1954 through 1964 that employers prevent harmful exposure to asbestos in places of employment. [¶] ... [¶] If you decide [¶] 1. That The Hillshire Brands Company violated any of these laws and [¶] 2. That the violation(s) was(were) a substantial factor in bringing about the harm to Mark Lopez, then you must find that The Hillshire Brands Company was negligent. [¶] If you find that The Hillshire Brands Company did not violate these laws or that the violation(s) was(were) not a substantial factor in bringing about the harm, then you must still decide whether The Hillshire Brands Company was negligent in light of the other instructions." The jury would have understood that the negligence per se instruction did not apply if the violation of the safety orders did not cause the harm—if, in other words, that the harm would have occurred even without the violation.
Hillshire argues that CACI No. 435 combined with the negligence per se instruction allowed the plaintiffs to proceed on a "disconnected" theory, allowing them to prove negligence by showing Hillshire was negligent toward people other than Lopez. (See Capolungo , supra , 179 Cal.App.3d at p. 350, 224 Cal.Rptr. 326 [person must be of the class for whose protection the ordinance was adopted].) Nothing in the causation instruction relieved plaintiffs of their burden of proving Hillshire was negligent toward Lopez; if the violation of the ordinance was not a substantial factor in causing Lopez’s injuries, negligence per se would not apply.
Hillshire also complains that CACI No. 435 did not specify that conduct must be negligent to be a substantial factor in causing harm. But CACI No. 435 was a causation instruction; the jury was elsewhere instructed on negligence principles.
See footnote *, ante .
III. DISPOSITION
The judgment is affirmed. Because each party prevailed in defending the aspect of the judgment in its favor against the other party, it is in the interests of justice that the parties shall bear their own costs. ( Cal. Rules of Court, rule 8.278(a)(5).)
We concur.
SIMONS, Acting P. J.
BURNS, J.