The plaintiff in this case was diagnosed with mesothelioma and filed claims for negligence, strict liability, and loss of consortium against, among others, Union Carbide and Elementis Chemicals, as successor-in-interest of Harrison & Crosfield, Pacific, Inc., and certain related entities. The plaintiff submitted three theories of liability: strict liability (design defect under the consumer expectations test); strict liability (failure to warn); and negligence (failure to warn). The jury returned special verdicts in favor of the plaintiff on the strict liability claim in that Union Carbide asbestos was defective under the consumer expectations test and awarded compensatory, but not punitive, damages. The jury also found that the defendants were not negligent, and that their product warnings were adequate. The defendants filed motions for judgment notwithstanding the verdict, asserting that the plaintiff failed to show that exposure to Union Carbide asbestos was a substantial factor in causing their injuries; Elementis argued there was no evidence that the asbestos it distributed was incorporated into any joint compound handled by the plaintiff. These motions were denied and the appellate court affirmed.
The plaintiff handled joint compounds in the course of his employment at an architectural firm and also used the compounds in remodeling projects. Union Carbide sold asbestos to various manufacturers of joint compounds, and Elementis distributed this asbestos. At the outset, the court noted that rules governing motions for judgment notwithstanding the verdict are strict, and the trial court’s discretion in granting such motions is severely limited. If there is any substantial evidence, or reasonable inferences to be drawn from such evidence, the motion should be denied. The court cited California law in examining the situation where asbestos exposure alleged to cause injuries has potentially multiple sources; in such situations, plaintiffs may establish causation on the basis of expert testimony regarding the size of the dose or the enhancement of risk attributable to exposure from defendant’s products. Per the California Supreme Court: “… the plaintiff may meet the burden of proving that exposure to [the] 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.”
The opinion contained an extensive summary of the facts and evidence in this case, including the historical production of joint compound, the plaintiff’s work history with the compound, the testimony of the plaintiffs’ two experts, and the evidence presented by Union Carbide and Elementis. The court stated: “Our inquiry concerns the existence of substantial evidence to support the judgment, not the [plaintiffs’] burden of proof…” and looked at the entire record, not just the testimony of the plaintiff’s experts, to determine the sufficiency of expert testimony regarding whether a particular exposure was a substantial factor. The record, viewed as a whole, disclosed adequate expert testimony regarding the length, intensity, and frequency of exposures to asbestos fibers from joint compounds containing Union Carbide asbestos to support a finding that such exposures were a substantial factor in contributing to the plaintiff’s risk of cancer. Further, the jury was free to create inferences and even reject un-contradicted expert testimony.
The plaintiffs argued that Elementis was liable because it was Union Carbide’s exclusive distributor on the west coast. Again, the opinion included an extensive summary of facts in finding that liability was proper under California law. In California, strict liability is properly imposed on non-manufacturers of defective products involved in the “vertical distribution” of the product, and may be imposed on an entity that is neither the manufacturer nor within the products vertical chain of distribution. In California: “…a defendant involved in the marketing/distribution process may be held strictly liable ‘if three factors are present: (1) the defendant received a direct financial benefit from its activities and from the sale of the product; (2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.’” Here, the evidence showed that Elementis was in the vertical chain of distribution of Union Carbide asbestos; it derived profits from Union Carbide sales, worked with Union Carbide to sell it, and had sufficient influence to negotiate an unusually favorable distribution agreement.
The defendants also argued that the jury’s special verdicts regarding the plaintiff’s warning-related theories of liability shielded them from liability under the plaintiff’s defective design theory. Under such theories, defendants may avoid negligence and strict liability by showing that they acted reasonably in providing warnings and that their warnings adequately addressed all known or knowable hazards. However, they may still be liable under the “design defect” theory because their product fails to perform as safely as an ordinary consumer would expect. The consumer expectations test applied in cases in which the everyday experience of the product’s users permits a conclusion that the design violates minimum safety assumptions. The court cited California case law in support that even raw asbestos has a design for use, and if the design violates minimum safety assumptions it is defective. Here, the evidence showed that the defendants provided information regarding the risks of asbestos to joint compound manufacturers, but there was no evidence that these warnings were passed on to users such as the plaintiff. Union Carbide cited California law in support of its argument that the consumer expectations test was inapplicable to its asbestos because it did warn customers. The case cited by Union Carbide was distinguishable in that it examined the propriety of imposing liability on a supplier that provided warnings to an intermediary; the consumer expectations test focused on the expectations of the ultimate consumer, and the evidence here supported the reasonable inference that the warnings had no effect on the end user.
Finally, the defendants argued they were not subject to strict liability, design defect, because the California Supreme Court, in comments to the Restatement Third of Torts, set forth limitations for suppliers’ liability regarding raw materials. The appellate court dismissed this argument because California did not adopt the doctrine described in these comments.