Court of Appeals of Washington, Division One, February 22, 2022
The plaintiffs, Raymond Budd and his wife, sued Kaiser Gypsum Company, Inc. (Kaiser) and others for damages, alleging that Kaiser’s joint compound product caused Mr. Budd’s mesothelioma. The plaintiffs sued Kaiser for negligence and strict liability, premised upon failure to warn and defective design theories. The jury returned a verdict in favor of the plaintiffs and awarded them nearly $13.5 million. Kaiser appealed, raising nine claims, including the following: (1) lack of proximate causation, (2) lack of medical causation, (3) improper admission of post-exposure evidence, (4) improper exclusion of regulatory provisions, and (5) a failure to link its product to Budd’s disease. The court affirmed the trial court’s decision in favor of the plaintiffs.
Kaiser alleged the plaintiffs failed to prove proximate cause, specifically cause in fact, for the failure to warn claims. Kaiser contended that there was no evidence of what a sufficient warning would have looked like and no “substantial evidence” that Budd would have complied with such a warning had it been given. The court found that the plaintiffs, through their expert, Dr. Edwin Holstein, provided evidence of what an adequate warning would have contained. While the court acknowledged Kaiser’s argument that Dr. Holstein was not qualified to offer such testimony, it noted that Kaiser failed to note its objection before the trial court. The court further found that an inference that Budd would have followed the warning was reasonable given that he followed joint compound instructions. As to medical causation, the court found that the plaintiffs “offered evidence explaining the lack of epidemiological studies assessing an increased risk of disease among drywall workers using chrysotile joint compound … [and] also offered evidence that epidemiological studies show that chrysotile causes mesothelioma.”
Kaiser also challenged the trial court’s admission of post-exposure evidence related to asbestos hazards. Specifically, Kaiser filed a motion in limine to exclude evidence including internal Kaiser memoranda that were dated after Budd’s exposure to Kaiser’s joint compound from 1962 to 1972. However, because Kaiser advanced a position at trial that its product was not only safe when sold but also today, the court found that Kaiser opened the door to contradictory evidence.
Kaiser alleged the trial court erred by excluding evidence of regulatory standards that were in place during the period of Budd’s alleged exposure. Kaiser sought to have its expert industrial hygienist testify about statutory provisions that governed worksite dust concentrations. The court found that these provisions were properly excluded because although they “governed how employers run their worksites, they did not regulate Kaiser’s actions at issue—namely its failure to provide warnings on a product it manufactured and sold.” The court further held that the regulatory standards were not disclosed as reliance material of Kaiser’s expert until the evening before she testified.
Lastly, Kaiser claimed the plaintiffs failed to prove that Budd was exposed to a Kaiser product. The court found the evidence to be sufficient to sustain the jury’s verdict. Namely, Budd testified that he used joint compound manufactured by Kaiser for approximately ten years. Although his description of the packaging differed from a Kaiser inter-office memorandum, “the jury reasonably rejected that as a basis for questioning Budd’s credibility.” Furthermore, Kaiser acknowledged that its joint compound was sold to the location where Budd worked during the relevant time period.