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Behshid v. Bondex International, Inc.

California Court of Appeals, Second District, Third Division
Jul 22, 2008
No. B194789 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC343104, Ricardo A. Torres, Judge.

Horvitz & Levy, Curt Cutting and Julie L. Woods; Walsworth, Franklin, Bevins & McCall, Stephen M. Nichols and Eileen Spadoni, for Defendant and Appellant.

Waters & Kraus, Paul C. Cook and Michael B. Gurien, for Plaintiff and Respondent.


ALDRICH, J.

I.

INTRODUCTION

Plaintiff and respondent Saeed Behshid, Ph.D. (Dr. Behshid), sued defendant and appellant Bondex International, Inc. (Bondex Inc.) for personal injuries as the result of exposure to asbestos while using Bondex, a joint compound manufactured by Bondex Inc. to seal cracks between drywall.

On appeal from the jury verdict in favor of Dr. Behshid, Bondex Inc contends: (1) Dr. Behshid failed to prove that his injuries were caused by Bondex Inc.’s product; (2) the trial court erroneously precluded the jury from assigning fault to “others;” and (3) the trial court erred in granting Dr. Behshid’s motion in limine to exclude Dr. Behshid’s responses to requests for admissions. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Preliminary facts

In 1961, at age 26 or 27, Dr. Behshid moved from Iran to the United States. In 1963, he settled in California. In 1980, Dr. Behshid received a doctorate degree in psychology. For a while thereafter, he worked as a psychologist for the California Youth Authority.

In 1965, he bought his first home. From that time until the late 1970’s, Dr. Behshid remodeled about a dozen homes, including the one he bought in 1965. This work was done on evenings and weekends.

The home remodeling entailed all aspects of construction. However, the bulk of the work involved the installation of drywall during which Dr. Behshid used joint compound. The compound was employed to cover the seams between different sheets of drywall and to cover up holes and nail marks so the surface would be smooth. He did this hundreds of times.

The compound was prepared by mixing in a bucket dry powder with water. Because the compound was a fine powder, billows of dust would linger in the air as it was being poured into the bucket and thereafter mixed into a paste. After the compound was mixed, it was applied to the drywall, allowed to dry, and then sanded so the surface would be smooth. This multiple step process was repeated multiple times. It was a very dusty operation. Dust would be all over the place. After the process was completed Dr. Behshid engaged in other dusty activities related to the use of the compound when the walls were wiped down and the area was cleaned and swept.

Dr. Behshid was assisted with these remodeling projects by his son (Michael Summers) and his two brothers (Amir Behshid and Masood Behshid). When they used the joint compound, all of them would be surrounded by dust, which they would breathe in as they worked without masks. Dr. Behshid’s son and two brothers introduced the evidence of the use of Bondex because Dr. Behshid was too ill to testify.

Dr. Behshid used a number of different drywall compounds, including those made by Bondex Inc., Dowman, Georgia-Pacific, Paco and Hamilton. The compound made by Bondex Inc. was called “Bondex.” Bondex, and that made by Bondex Inc.’s predecessor (Reardon), contained chrysotile asbestos. The joint compound manufactured by Bondex Inc. contained 4.8 to 5.0 percent chrysotile asbestos until 1977, at which time manufacturing of the product stopped.

There are three types of common asbestos: crocidolite, amosite and chrysotile. Crocidolite is more powerful than amosite, which is more powerful than chrysotile in causing mesothelioma.

B. Dr. Behshid’s diagnosis and medical condition

In December 2004, Dr. Behshid was diagnosed with mesothelioma. Mesothelioma is a cancer of the lining of the chest wall and cavity. It is difficult to control surgically, or otherwise, and the average person with the disease does not live very long.

Asbestos has been shown to cause mesothelioma. The latency period for developing mesothelioma is between 20 and 50 years after exposure. Chrysolite asbestos causes mesothelioma and almost all causes of mesothelioma are associated with asbestos.

On March 17, 2005, Robert Brian Cameron, M.D., chief of thoracic surgery at the University of California at Los Angeles Hospital, performed a “pleurectomy and decortification” on Dr. Behshid. This surgical procedure was not a cure, but was done to permit Dr. Behshid to live a little bit longer, and with fewer symptoms. It was understood that Dr. Behshid faced a terminal illness. Initially, Dr. Behshid had a good response to the surgery, but soon thereafter he developed problems requiring he be placed on a breathing machine and undergo a tracheostomy. Dr. Behshid’s quality of life was very poor and he was not a candidate for future therapy. Thus, his treating physician Dr. Cameron was “watching and waiting for the tumor to grow enough again to basically kill him.” At the time of trial, Dr. Behshid needed constant care as he could only take a few steps and needed help to suction out his airway so he could breathe.

C. The lawsuit

Dr. Behshid filed a lawsuit against Bondex Inc. and 12 other companies for personal injuries based upon negligence and strict liability causes of action.

1. The expert testimony with regard to causation

Three expert witnesses testified for Dr. Behshid that the asbestos from Bondex Inc.’s joint compound was a substantial factor in contributing to Dr. Behshid’s mesothelioma.

a. Dr. Cameron

Dr. Cameron, Dr. Behshid’s treating physician, testified to the following:

It was generally accepted in the medical community that chrysotile caused mesothelioma. Dr. Behshid’s mesothelioma was “absolutely” caused by exposure to asbestos. The more asbestos a person was exposed to, the more likely it was that the person would develop an asbestos-related disease. Thus, each and every exposure to asbestos contributed to the development of the disease. Dr. Behshid’s exposure to asbestos while using asbestos-containing joint compounds to remodel homes over a 10 to 12 year period in the 1960’s and 1970’s would have been a significant contributing factor in the development of Dr. Behshid’s mesothelioma.

b. Dr. Holstein

Edwin Cosby Holstein, M.D. was certified in occupational and preventive medicine. He focused on the study of the health effects of occupational exposure to asbestos.

Dr. Holstein testified to the following:

Mesothelioma is a “signature disease” of asbestos exposure because “[m]esothelioma almost is nonexistent where there has not been asbestos exposure.” Mesothelioma is rare to occur when there has been no exposure to asbestos. There is a broad consensus in the scientific community, and among the major health and cancer organizations, that chrysotile asbestos causes mesothelioma and this includes the chrysotile in joint compound. All exposures to asbestos contribute to the development of asbestos-related disease, except for trivial or de minimis exposures. In comparison to asbestosis, a person can get “mesothelioma with very, very low exposures to asbestos . . . .” It takes 5 to 15 times the amount of asbestos that occurs in the natural environment to constitute a substantial factor likely to cause illness.

The most frequent way home remodelers in the 1960’s and 1970’s came into contact with asbestos was from using joint compound. Exposures occurred multiple times as a person used the compound: (1) when the dry compound was mixed with water to make a paste; (2) when the paste was applied; (3) when the dried paste was sanded; and (4) when those working with the product were cleaning-up after the job was completed.

In the 1950’s, 1960’s, and 1970’s, most joint compounds contained chrysotile asbestos. Because these compounds released substantial amounts of asbestos capable of causing cancer, they were banned in late 1977. Mixing asbestos joint compound resulted in exposure levels ranging from 1 fiber to 10 or 15 fibers per cubic centimeter of air; sanding the dried compound resulted in exposure levels ranging from 2 or 3 fibers to 20 or 30 fibers per cubic centimeter of air; and sweeping up dust containing the compound resulted in exposure levels of asbestos ranging from 5 fibers per cubic centimeter up to 30 or 40 fibers per cubic centimeter of air. These levels exceeded the permissible asbestos exposure levels established by the Occupational Safety and Health Administration (OSHA) in the 1970’s. In 1971, OSHA’s permissible exposure level of asbestos was 12 asbestos fibers per cubic centimeter of air, in 1972. Thereafter, OSHA reduced the permissible exposure level to 10 fibers per cubic centimeter of air, and then to 5 fibers per cubic centimeter of air. In 1976, OSHA reduced the permissible exposure level to 2 fibers per cubic centimeter. Currently, OSHA limits the content of asbestos in joint compound to a maximum of 0.1 fibers per cubic centimeter of air. The current standard is 120 times lower than when OSHA first established permissible exposure standards.

OSHA sets work place safety rules.

Based on the exposure levels associated with mixing and sanding asbestos-containing joint compound and from cleaning up afterwards, a person’s exposure from these activities would be a substantial factor in contributing to that person’s development of mesothelioma, as long as the person did this work “repetitively not just once or twice in their whole life.”

Dr. Holstein agreed with the results of a 1975 article that persons doing home repair work using joint compounds were subject to asbestos levels sufficient to cause disease. He also testified that there was “no way” to mix and apply joint compound, and then sweep up after it was used “without exceeding the OSHA peak levels of 10 fibers per cc.”

He reviewed various materials related to the case, including Dr. Behshid’s medical records and depositions. Based upon these materials, which discussed Dr. Behshid’s exposures to the joint compound products, Dr. Behshid had pleural mesothelioma caused by exposure to asbestos during the course of home remodeling work.

Additionally, Dr. Holstein testified that the joint compounds, including the one manufactured by Bondex Inc., was a substantial contributing factor in the development of Dr. Behshid’s illness.

The following question was posed to Dr. Holstein: “Do you have an opinion as to whether joint compound products, including a product manufactured by Dowmans, a product manufactured by Bondex Inc., a product manufactured by Georgia-Pacific, and by Kelly-Moore, whether those products were all also substantial contributing factors to the development of this man’s illness?”

c. Dr. Brody

Arnold R. Brody, Ph.D. held a doctorate in cell biology and taught at the Tulane University Medical School. He specialized in the study of lung cells and lung diseases, with a focus on asbestos-related diseases. He testified to the following:

In 1960, a seminal paper showed that asbestos caused mesothelioma. The only known cause of mesothelioma in North America is asbestos exposure and that if a person “was exposed to asbestos, then you know the cause of this person’s mesothelioma.”

All types of asbestos, including chrysotile, cause mesothelioma. Additionally, all “asbestos-related diseases are dose-dependent.” Thus, the more one is exposed to asbestos, the more likely the person will develop the disease. Mesothelioma is a cumulative disease, i.e., all exposures increase the risk of mesothelioma and there is no known safe level of exposure. Because the disease results from cumulative exposure, the exposure that actually produces the malignancy cannot be determined.

Some persons are more susceptible to mesothelioma than others. The exposure necessary to cause the disease is different for each person. Some studies have shown that some persons are at high risk to develop mesothelioma from even a brief exposure.

Dr. Brody was given a hypothetical that included the facts that Dr. Behshid used asbestos-containing joint compounds to remodel 10 to 12 homes from 1965 to the late 1970’s, during which time Dr. Behshid breathed dust from mixing, applying, and sanding joint compound and cleaning up afterwards. Based on this hypothetical, Dr. Brody opined that with a reasonable medical probability, the joint compounds were a substantial contributing factor to Dr. Behshid’s mesothelioma.

2. The verdict

By the time the case went to trial, only six defendants remained: Georgia-Pacific Corporation, Kelly-Moore Paint Company, Inc., Hamilton Materials, Inc., Dowman Products, Inc., Bondex, Inc., and Certainteed Corporation.

When Bondex Inc. was incorporated in 1972, it was a wholly-owned subsidiary of RPM, International, Inc. In 1972, Bondex Inc. acquired the assets and liabilities of the Reardon Company.

During trial, Dr. Behshid settled with Georgia-Pacific, Kelly-Moore, and Certainteed. However, all six defendants remained on the jury form for purposes of apportionment of fault. Bondex Inc. rested without presenting a single witness.

It does not appear that Hamilton was represented at trial and the parties do not discuss this named defendant.

The jury found in favor of Dr. Behshid on his causes of action for strict liability and negligence against Bondex Inc. and the five other defendants listed on the jury form. The jury found that the joint compound manufactured by Dowman Products, Inc. was defective and that Dowman was negligent, but it did not find causation against Dowman.

The jury made the following allocation of fault:

20% 20%

Bondex International, Inc.

20%

Dowman Products, Inc.

0%

Certainteed Corporation

Georgia-Pacific Corporation

Hamilton Materials, Inc.

20%

Kelly-Moore Paint Company, Inc.

20%

The jury awarded Dr. Behshid $600,000 in economic damages (as stipulated to by the parties) and $12,000,000 in non-economic damages, for a total of $12,600,000.

The trial court entered judgment against Bondex Inc. in the amount of $2,911,904.76, after accounting for settlements and calculating the proper Proposition 51 offsets.

Bondex Inc. appealed from the judgment.

III.

DISCUSSION

A. There was substantial evidence that Bondex Inc.’s compound was a substantial factor in causing Dr. Behshid’s disease.

Bondex Inc. contends that there was no substantial evidence to support the jury’s findings that Bondex Inc.’s compound was a substantial factor in causing Dr. Behshid’s mesothelioma. This contention is not persuasive.

1. Causation in asbestos cases

In Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford), the Supreme Court held that the trial court erred in instructing the jury with an instruction that shifted the burden of proof in an asbestos case to the defendant, but that the error was harmless. (Id. at pp. 957-958.) In addressing the issue before it, Rutherford delineated the causation test to be used in asbestos cases as follows:

“In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant’s product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.” (Rutherford, supra, 16 Cal.4th at pp. 982-983, fn. omitted.)

Said another way, “[plaintiffs] ‘are not required to identify the manufacturer of specific fibers’ that caused the cancer. . . . [P]laintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.” (Rutherford, supra, 16 Cal.4th at pp. 976-977, fn. omitted.)

In reaching its formulation of the burden of proof in asbestos cases on the issue of causation, Rutherford relied on Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409. Lineaweaver stated in part that, “[m]any factors are relevant in assessing the medical probability that an exposure contributed to plaintiff’s asbestos disease. Frequency of exposure, regularity of exposure, and proximity of the asbestos product to plaintiff are certainly relevant, although these considerations should not be determinative in every case. [Citation.] Additional factors may also be significant in individual cases, such as the type of asbestos product to which plaintiff was exposed, the type of injury suffered by plaintiff, and other possible sources of plaintiff's injury. [Citations.] ‘Ultimately, the sufficiency of the evidence of causation will depend on the unique circumstances of each case.’ [Citation.]” (Id. at pp. 1416-1417.)

Rutherford also discussed substantial factor: “The term ‘substantial factor’ has not been judicially defined with specificity, and indeed it has been observed that it is ‘neither possible nor desirable to reduce it to any lower terms.’ [Citation.] This court has suggested that a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor. [Citation.] Undue emphasis should not be placed on the term ‘substantial.’ For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s injury but is nevertheless urged as an insubstantial contribution to the injury. [Citation.] Misused in this way, the substantial factor test ‘undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.’ [Citation.]” (Rutherford, supra, 16 Cal.4th at p. 969.)

2. There was substantial evidence of causation.

Dr. Behshid did not have to prove that fibers from Bondex Inc.’s joint compound were the ones, or among the ones, that actually began the process of malignant cellular growth. Rather, Dr. Behshid met his burden of proving by demonstrating that exposure to Bondex Inc.’s joint compound was a substantial factor causing Dr. Behshid’s mesothelioma and that to a reasonable medical probability it contributed to Dr. Behshid’s risk of developing cancer.

Dr. Behshid’s two brothers and son all testified that Dr. Behshid used Bondex Inc.’s joint compound in remodeling 10 to 12 homes in the 1960’s and 1970’s. There was testimony that using joint compound is a very dusty process. Bondex Inc. admitted that its compound, which was used by Dr. Behshid, contained chrysotile asbestos until 1977. Expert testimony showed that there was broad consensus in the scientific community that chrysotile asbestos caused mesothelioma. Three experts all testified that Dr. Behshid’s repeated exposure to joint compound while remodeling 10 to 12 homes in the 1960’s and 1970’s, was a substantial factor in causing Dr. Behshid’s mesothelioma. Dr. Holstein testified that the exposure to Bondex was a substantial contributing factor to Dr. Behshid’s illness. This evidence met Dr. Behshid’s burden of proof.

Bondex Inc. argues that there was a failure of proof because Dr. Behshid did not prove the frequency of exposure, regularity of exposure, and proximity of asbestos coming directly from the use of Bondex. For this proposition, Bondex Inc. borrows a test used in other jurisdictions and cites an opinion from a Texas Court of Appeal (Georgia-Pacific Corp. v. Stephens (Tex.App. 2007) 239 S.W.3d 304). However, as explained in Rutherford, this test is not applied in California. California does not require a specific link to a specific product demonstrating that a plaintiff used that product for a specific period of time. While the evidence with regard to the frequency of exposure, regularity of exposure, and proximity of asbestos coming directly from the use of Bondex was relevant, it was not mandated. (Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th at pp. 1416-1417.)

B. The design of the special verdict form does not require a new trial on the apportionment of fault.

The special verdict posed a number of questions. Questions Nos. 1, 2, 3, 4, 5, 13, and 14 related to Dr. Behshid’s allegations that Bondex was a defective product and Bondex Inc. was negligent. Questions Nos. 6, 7, 8, 9, 10, 11, and 12 related to Dr. Behshid’s allegations that the joint compound manufactured by Dowman was a defective product and Dowman was negligent. Question No. 15 asked the jury to assess economic and non-economic damages.

The last question, Question No. 16, reads: “If 100% represents the total fault that was the cause of Plaintiff’s injury, what percentage of this 100% was due to the fault of the defendants and others listed below?

“ANSWER:

“To Defendant BONDEX INTERNATIONAL, INC.

____ %

“To Defendant DOWMAN PRODUCTS, INC.

____ %

“To CERTAINTEED CORPORATION

____ %

“To GEORGIA-PACIFIC CORPORATION

____ %

“To HAMILTON MATERIALS, INC.

____ %

“To KELLY-MOORE PAINT COMPANY, INC.

____ %

“TOTAL:

100 %”

Bondex Inc. contends that the form of the verdict was improper. Specifically, it argues that in question No. 16 on the special verdict form there should have been a space for “others” that would have permitted the jury to find that others contributed to Dr. Behshid’s disease. In raising this argument, Bondex Inc. asserts that there were three causes of Dr. Behshid’s mesothelioma in addition to the use of joint compound and cement pipes. (See fn. 3.). Bondex Inc. contends Dr. Behshid’s illness was caused partially by his asbestos exposure from: (1) cutting and using roofing felt; (2) cutting asbestos-lined shingles; and (3) sanding asbestos tiles in Iran.

We acknowledge that when the facts warrant, jury verdict forms may be designed by trial courts to permit juries to apportion fault to specifically named entities and persons, as well as to “others.” (Rutherford, supra, 16 Cal.4th at p. 958 [“And although a defendant cannot escape liability simply because it cannot be determined with medical exactitude the precise contribution that exposure to fibers from defendant’s products made to plaintiff’s ultimate contraction of asbestos-related disease, all joint tortfeasors found liable as named defendants will remain entitled to limit damages ultimately assessed against them in accordance with established comparative fault and apportionment principles.”]; e.g., Gutierrez v. Cassiar Mining Corp. (1998) 64 Cal.App.4th 148, 151-152 [in asbestos case the jury assigns percentages of comparative fault to the supplier and manufacturer of the asbestos, and 23 percent to “all others”]; cf. CACI No. VF-402 (2006).)

Bondex Inc. had the burden to prove that “others” were non-party tortfeasors whose defective products were a cause of Dr. Behshid’s disease. As stated in the jury instruction, “[i]n asbestos-related lawsuits a defendant bares the burden of establishing all elements of legal liability against another before damages can be allocated to it.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369; Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1321 [defendant has burden to apportion damages].) A defendant in an asbestos case has the “burden to establish concurrent or alternate causes by proving: that [plaintiff] was exposed to defective asbestos-containing products of other companies; that the defective designs of the other companies’ products were legal causes of the plaintiffs’ injuries; and the percentage of legal cause attributable to the other companies. [Citations.]” (Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 478.) Thus, there can be no apportionment of fault unless Bondex Inc. introduced substantial evidence that a nonparty tortfeasor’s product was defective and contributed to Dr. Behshid’s disease. (Wilson v. Ritto, supra, at p. 367 [unless there is substantial evidence that an individual is at fault, there can be no apportionment of fault].)

Because Bondex Inc. did not meet its burden of proof, we find unpersuasive Bondex Inc.’s contention that the form of the verdict form was incorrect.

(1) Bondex Inc. did not introduce substantial evidence to warrant an instruction relating to Dr. Behshid’s asbestos exposure from cutting and using felt roofing paper.

Masood Behshid, Amir Behshid, and Michael Summers testified that Dr. Behshid cut felt roofing paper, which he applied to the roofing shingles with staples. Michael Summers testified that he saw his father, Dr. Behshid, use roofing felt at least 12 times. Bondex Inc. suggests that this evidence, along with the evidence that cutting roofing paper released asbestos into the air, was sufficient to warrant an instruction that there might be “others” who contributed to Dr. Behshid’s disease.

Bondex Inc. points to the testimony related to the release of asbestos from cutting of cement pipe. However, this testimony was specific to cement pipes.

However, Bondex Inc. failed to introduce any evidence that the shingles were defectively designed. Further, there was explicit evidence that the shingles could not have been a cause of Dr. Behshid’s disease. The only evidence on causation as it related to roofing felt was presented by Dr. Holstein. Dr. Holstein was asked if Dr. Behshid’s exposure to asbestos from roofing felt could have contributed to his illness and disease. Dr. Holstein replied, “[R]oofing felt often contained asbestos, and under some circumstances, that asbestos could be released into the air for people to breathe. But it is a gummy, [and] gooey kind of substance, sticky substance, and as his use of it was described -- as Dr. Behshid’s use of it was described, I just didn’t think it added up to a significant exposure. [¶] . . . [¶] . . . Although it’s a potential source for some people under some working conditions, I just didn’t think it was the case for him.” Thus, although roofing felt could be a “potential” source of asbestos, it could not have been a cause of Dr. Behshid’s disease.

Bondex Inc. did not meet its burden of proof to warrant an instruction that would allocate fault to Dr. Behshid’s use of roofing felt. Likewise, this evidence was insufficient under the consumer expectation test used in design defect cases. (See, Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1001-1004.)

(2) Bondex Inc. did not introduce substantial evidence to warrant an instruction relating to Dr. Behshid’s cutting asbestos-lined shingles.

There was information in Dr. Behshid’s medical history that he had reported cutting asbestos-lined shingles over 35 years ago. A May 4, 1998, medical report reflected the Dr. Behshid reported that activity. Dr. Holstein testified that cutting asbestos lined shingles would result in asbestos exposure. However, when asked about whether this exposure could constitute a substantial contributing factor to Dr. Behshid’s disease. Dr. Holstein testified that he did not have sufficient information to make an evaluation. Dr. Holstein testified, “[t]here’s not enough information there.” Further, Bondex Inc. did not introduce substantial evidence to prove that the asbestos-lined shingles were defectively designed.

Thus, Bondex Inc. did not meet its burden of proof to warrant an instruction that would allocate fault to Dr. Behshid’s use of asbestos-lined shingles. Likewise, this evidence was insufficient under the consumer expectation test. (See, Jones v. John Crane, Inc., supra, 132 Cal.App.4th at pp. 1001-1004.)

Bondex Inc. also notes that Massood Behshid testified that he saw Dr. Behshid cut Johns-Manville roofing shingles. However, Bondex Inc. does not direct us to any citation in the record to prove that these shingles contained asbestos. Even assuming the Johns-Manville shingles contained asbestos, there is no evidence as to causation with regard to these shingles.

(3) Bondex Inc. did not introduce substantial evidence to warrant an instruction with regard to Dr. Behshid’s asbestos exposure from sanding asbestos tiles.

Dr. Behshid consulted one time with Irawan Susanto, M.D. In a report, Dr. Susanto stated that Dr. Behshid “was exposed to significant asbestos during his younger days in Iran several decades ago in which he would be sanding . . . asbestos tiles for a number of years with daily exposure.” Dr. Susanto testified he had no reason to believe that his medical record was incorrect in any way and that he used the word “significant” to reflect an exposure that was other than “fleeting.” All three of Dr. Behshid’s experts testified that if this were true, the exposure would have been a significant contributing factor to Dr. Behshid’s development of mesothelioma.

For purposes of discussion, we have assumed that Dr. Susanto’s report accurately recorded information given to him by Dr. Behshid and that the information relayed was accurate. We note, however, that these conclusions were repeatedly questioned in trial. For example, Dr. Behshid’s experts explained that when a person was diagnosed as having an asbestos-related disease, they often go back into their life history to provide an explanation for the disease, and that often such explanations and reports are not accurate.

However, even if there was evidence of causation, Bondex Inc. did not introduce substantial evidence to prove that the asbestos tiles were defectively designed. There was no evidence as to the composition of the tiles, what type of asbestos was in the tiles, how much exposure Dr. Behshid would have had to asbestos from the tiles, or what process Dr. Behshid used in sanding the tiles. Also, there was no evidence of a general nature. There was no evidence as to what type of tiles would have been used in Iran 35 years ago. There was no evidence as to the methods used in Iran at that time to sand tiles. This lack of evidence can be contrasted with the evidence introduced by Dr. Behshid to prove Bondex Inc.’s liability. Dr. Behshid introduced extensive testimony as to how much chrysotile asbestos was contained in Bondex. Dr. Behshid introduced extensive evidence as to how a person using Bondex and other joint compounds would be exposed to chrysotile asbestos when the joint compound was mixed into paste, the paste was applied, when it was sanded after it was dried, and when those working with the product cleaned-up after the job was completed. There was evidence as to the exposure levels for each step of the process, the exposure levels permitted by OSHA, and that there was “no way” to mix joint compound without exceeding OSHA limits. Dr. Behshid’s relatives testified as to how many times Dr. Behshid remodeled homes, how often he used joint compound, and what they did when using the compound. The experts testified that if Dr. Behshid used joint compounds to remodel 10 to 12 homes from 1965 through the 1970’s, that the use of the compounds would have been a substantial factor in causing Dr. Behshid’s disease.

Thus, although all exposures to asbestos contribute to the development of asbestos-related diseases, in order for the jury to have attributed some of Dr. Behshid’s disease to exposure from sanding tiles, Bondex Inc. was required to introduce substantial evidence from which a jury could conclude that the tiles were defective and were a cause of Dr. Behshid’s disease. Simply providing proof that Dr. Behshid had been exposed to asbestos from the tiles was not substantial evidence. Furthermore, a jury verdict form directing the jury to consider liability to “others” on the facts of this case would have been asking this jury to engage in mere speculation.

Thus, there was insufficient evidence from which a jury could conclude that Dr. Behshid’s exposure to asbestos from sanding of asbestos tiles was a contributing cause of his disease. Likewise, this evidence was insufficient under the consumer expectation test. (See, Jones v. John Crane, Inc., supra, 132 Cal.App.4th at pp. 1001-1004.)

3. The trial court did not err in granting Dr. Behshid’s motion in limine.

Bondex Inc. contends the trial court erred in granting Dr. Behshid’s motion in limine with regard to the use at trial of certain requests for admission. We hold that this contention is not persuasive.

Prior to trial, Dr. Behshid made a motion in limine to preclude Bondex Inc. from “using [his] Responses to Requests for Admissions for any improper purpose, including using [his] Responses to Requests for Admissions for the purpose of apportioning liability to other defendants or entities.” In the moving papers, Dr. Behshid stated that “[d]efendants propounded on Plaintiff requests for admissions regarding Plaintiff’s exposure to other products, their role in causing [his] injury, and their defective nature. . . . [¶] The use of Plaintiff’s responses to requests for admission for the purpose of proving the proportionate share of liability of other defendants is a fundamental misuse of this discovery tool. A party propounding RFAs is not entitled to use the responding party’s admissions against anyone other than the responding party.” The trial court granted the motion, holding “Each defendant can use the RFA as to themselves. Defendant has the burden of proof as to any other party for purposes of [Proposition] 51. And so if you have an RFA in regards to you, you can use it but you can’t use it as against any other parties and bring it in.”

On appeal, Bondex Inc. has the obligation to provide us with a sufficient record from which we can evaluate its contentions. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Bondex Inc. has not provided copies of the requests for admissions so we cannot evaluate its argument that the trial court’s ruling was error.

Additionally, Bondex Inc. must show that the trial court’s ruling was prejudicial. (Cal. Const., art. VI, § 13.) Bondex Inc. simply states that “[t]he prejudice from the trial court’s error is readily apparent. . . . [P]laintiff identified during discovery numerous defendants and nonparties that distributed asbestos-containing products. . . . Once plaintiff’s admissions established his exposure to other company’s products, Bondex [Inc.] could then present the remaining evidence to support its burden under Proposition 51.” However, without knowing the content of the admissions, we cannot evaluate this argument. Further, Bondex Inc. has not explained why it could not, or did not, introduce other evidence in lieu of Dr. Behshid’s responses to the request for admissions.

IV.

DISPOSITION

The judgment is affirmed. Bondex Inc. is to pay all costs on appeal.

We concur: CROSKEY, Acting P. J., KITCHING, J.

Dr. Holstein responded: “I believe that they all were, yes, sir.”

Dr. Behshid claimed that his use of Certainteed’s asbestos cement pipe was a cause of his illness. Plaintiff’s experts also testified that exposure to the asbestos from the pipes was a substantial contributing factor to the development of Dr. Behshid’s illness.


Summaries of

Behshid v. Bondex International, Inc.

California Court of Appeals, Second District, Third Division
Jul 22, 2008
No. B194789 (Cal. Ct. App. Jul. 22, 2008)
Case details for

Behshid v. Bondex International, Inc.

Case Details

Full title:SAEED BEHSHID, Plaintiff and Respondent, v. BONDEX INTERNATIONAL, INC.…

Court:California Court of Appeals, Second District, Third Division

Date published: Jul 22, 2008

Citations

No. B194789 (Cal. Ct. App. Jul. 22, 2008)