Court of Appeal of California, Second Appellate District, Division Two, March 25, 2021
In this asbestos action, plaintiff Arthur Putt replaced brake pads manufactured and supplied by several different entities in connection with cars manufactured by three different companies in two California gas stations from 1966 until 1970. The plaintiff was diagnosed with mesothelioma in 2018 and testified that 40 percent of his brake work involved Ford vehicles, and 40 percent of his total work with Ford vehicles involved removing the factory-installed brake pads. The new brake pads were supplied by third-party manufacturers, and not from Ford. The record showed that “all brake pads manufactured and used in the United States contained approximately forty to sixty percent asbestos by weight” in the 1960s and 1970s. All of the defendants settled before trial, with the exception of Ford.
After a three week trial against Ford, the special verdict form given to the jury “listed three groups of potentially responsible nonparties: (1) his employers (Standard Oil, Chevron, and Exxon), (2) other automakers (Chevrolet, Chrysler), and (3) manufacturers or suppliers of replacement brakes (NAPA and Pep Boys, as sellers of Bendix, Pneumo Abex products.” The jury found for the plaintiff and apportioned 100 percent of fault to Ford. The jury also awarded $8.5 million dollars in compensatory damages, as well as $25.5 million dollars in punitive damages. Thereafter, Ford moved for a new trial and for judgment notwithstanding the verdict. The trial court upheld the jury’s apportionment of liability and rejected Ford’s challenge to the jury instructions. However, the trial court reduced the punitive damages award to approximately $8.785 million dollars. Ford appealed the trial court’s post-trial findings and the plaintiff filed a cross-appeal.
With regard to the apportionment issue, Ford argued that the jury’s finding that no fault should be apportioned to other entities is not supported by substantial evidence. The Appeals Court agreed with Ford with respect to apportionment of fault as to the other brake pad manufacturers, suppliers, and users. The Appeals Court noted that the jury’s finding that Ford’s brakes were defective should apply with equal force to the other respective manufacturers, suppliers, and users of brake pads since the record showed that the other brake pads had the same asbestos content as Ford’s brakes. As such, the jury’s finding that Ford’s brakes substantially contributed to the plaintiff’s disease should also apply with equal force to the other brake pad manufacturers, suppliers, and users. Therefore, the Appeals Court found that “this evidence compels a finding that ‘some nonzero percentage of fault is properly attributed’ to the other automakers and the brake pad manufacturers and suppliers.”
The Appeals Court rejected the plaintiff’s arguments in opposition. First, the plaintiff argued that the jury’s finding against Ford did not compel the same finding against the other brake pad manufacturers, suppliers, and users as Ford did not submit expert evidence that dust from brake pads other than Fords were a substantial factor in his development of mesothelioma. The court noted that defendants are permitted to rely on plaintiff’s witnesses for apportionment purposes. Further, since the record showed that all of the brake pads had the same asbestos content, the court found that the experts’ opinions regarding the causal link between Ford’s brake pads and plaintiff’s mesothelioma should “apply with equal force” to the other brake pad manufacturers, suppliers, and users. Importantly, the court stated that “although this link turns in part on the notion that every exposure to asbestos dust was a ‘substantial factor’ contributing to plaintiff’s risk, that was the notion that formed the very basis for every expert opinion plaintiff offered; plaintiff cannot now disclaim that basis in order to avoid its effect on apportionment.”
The Appeals Court also rejected the plaintiff’s contention that Ford had to prove the precise percentage of fault attributable to each other entity in order to overturn a verdict which apportioned all fault against it. Instead, the court noted that “it would be manifestly inequitable … to saddle a defendant with 100 percent of the fault for a plaintiff’s injury when the record compels a finding that it was not 100 percent at fault merely because it did not assign specific percentages … to others who are otherwise shown by the evidence to share the fault.” In addition, the plaintiff argued that the jury’s apportionment of fault was supported by substantial evidence. However, the court pointed to the undisputed evidence that the plaintiff was exposed to dust generated by the other entities brake pads. Further, the parties also agreed for the trial court to instruct the jury to not take into consideration the plaintiff’s exposure to asbestos from his work on a military and in construction. The court noted that this agreement showed that Ford did not “abandon the issue of allocation of fault to the other automakers and the brake pad manufacturers and suppliers.” Since the evidence showed that the plaintiff’s work with brake pads in Ford vehicles constituted at most eight percent of his work as a mechanic, the court held that “substantial evidence does not support the jury’s verdict apportioning no fault to the other automakers and to the manufacturers and suppliers of asbestos-containing brake pads.”
Therefore, the Appeals Court allowed the jury’s verdict as to liability and to the total amount of compensatory damages to stand. However, they reversed and remanded for a new trial on apportionment among Ford and the other brake pad manufacturers, suppliers, and users. The Appeals Court also reversed and remanded for a new trial on punitive damages given “the potential for a jury to find that Ford’s violation is of a substantially smaller magnitude counsels in favor of letting the jury on retrial evaluate the opprobrium of Ford’s conduct in light of Ford’s proportionate fault for plaintiff’s injury.”
Read the full decision here.