Opinion
This appeal requires us to consider the vitality of the idea of “group” or “collective” legal accountability in the products liability context. For well over a quarter century, courts across the nation have struggled with a variety of novel theories under which manufacturers of a defective product could assertedly be held liable in damages to plaintiffs injured by use of or exposure to it. Litigation involving asbestos, tobacco, and DES are prominent examples. Owing to circumstances, the plaintiffs in such cases often were unable to identify the specific manufacturer of the product that allegedly produced their injuries. The rule at common law, of course, placed tort litigants under an un waivable requirement of proving not only a compensable injury but also the identity of the offending manufacturer whose acts caused the plaintiff’s injury. Proof of causation, in other words, is an essential condition for liability in tort.
In the struggle to adjust traditional notions of tort liability to the changing realities of national business practices, five more or less distinct theories have arisen. Under all of them, product manufacturers can be held collectively—and jointly and severally—liable in tort without proof of “causation” as conventionally understood in tort law. These doctrines, going under such names as “alternative liability,” “industry-wide (or ‘enterprise’) liability,” “market share liability,” “concert of action” and “conspiracy,” have received a mixed reception in American courts. We consider here whether respondent, formerly a manufacturer of friction brake products containing asbestos, can be held liable in tort to plaintiffs husband and wife for injuries caused by asbestos inhalation where, plaintiffs conceded, they possessed no evidence husband had been exposed to products manufactured by defendant. Plaintiffs contend defendant manufacturer was liable to them in strict liability and for negligence on theories of civil conspiracy and concert of action, and that the trial court erred when it refused to instruct the jury on those issues. Having concluded both instructions proffered by plaintiffs were inappropriate as a matter of law and that the trial court thus did not err in declining to give them, we will affirm.
Factual Background
With his wife Mary as coplaintiff, Bernie Chavers, who worked for several years as an automobile and truck mechanic repairing friction brakes, filed a complaint for damages for injuries allegedly caused by prolonged inhalation of asbestos-laden particles.
1
Brake work of the type Chavers performed required that brake shoes—composed in part of asbestos because it resists the extreme heat generated by stopping a multi-ton vehicle—be sanded with high-speed machines, a process that gives off dust particles which, unless the operator wears a mask or other appropriate protection, are
inhaled into the lungs. The theory underlying plaintiffs’ complaint was that while working around automotive brakes, Mr. Chavers contracted a form of pulmonary cancer—mesothelioma—caused by the inhalation of asbestos particles. The Chaverses’ complaint joined as defendants scores of manufacturers, suppliers, and distributors of friction brake products containing asbestos—59 named defendants and 800 “Doe” defendants—asserting, in the fourteenth cause of action, that all were jointly and severally liable for plaintiffs’ injuries under two theories of group liability. Prior to trial,
A jury trial of the Chaverses’ tort claims against these two remaining defendants began in January 2000. Before trial commenced, plaintiffs conceded they possessed no evidence establishing that Bemie Chavers had used or worked around brake shoes manufactured by Gatke, that is, plaintiffs admitted they were unable to prove that Gatke-manufactured brake shoes had “caused” Mr. Chavers’ injuries. In a liability wrinkle that has produced this appeal, however, the Chaverses’ attorneys contended Gatke could be held liable in tort without proof that its friction products played any role in the causal chain that led to Mr. Chavers’ illness. Specifically, during the course of the trial, plaintiffs presented testimony from an expert witness, David Egilman, M.D., that beginning around 1936 a number of manufacturers whose products contained asbestos had contributed financing to the Saranac Laboratory, a private research facility at Saranac Lake, New York, for the purpose of investigating the health effects of asbestos on those who used or worked around it. According to plaintiffs’ theory of Gatke’s tort liability, purportedly supported by Dr. Egilman’s trial testimony, a decade passed before the director of the Saranac Laboratory reported to those financing the investigation that findings made by the researchers pointed to asbestos as having seriously harmful effects on the health of those exposed to it, including cancer.
At the behest of some of the members of the consortium funding the Saranac Laboratory research, plaintiffs contended through Dr. Egilman’s testimony, all references to cancer were deleted from the report before it was released for publication. Only years later did the public leam what those who financed the Saranac Laboratory research had long known—asbestos can cause serious, even fatal, harm to those exposed to it. To complete the description of plaintiffs’ theory of group tort liability, they asserted the suppression of the adverse Saranac Laboratory findings by those manufacturers responsible for funding the research amounted to a tortious failure to warn potential users of asbestos-laden products of their adverse health effects. As a result, thousands of Americans continued to use and work around asbestos for decades to come, unaware of what Gatke and other manufacturers who had supported the Saranac Laboratory research already knew—that exposure to asbestos can cause cancer.
At the instructions conference before the trial judge, plaintiffs’ counsel requested the court include in its charge to the jury special instructions embodying two of the theories of group tort liability—civil conspiracy and concert of action. Following considerable discussion between the trial judge and counsel for the parties, the court refused to include plaintiffs’ special instructions in its charge to the jury. After retiring and deliberating, the jury returned with a verdict in favor of defendant. Specifically, the jury answered “no” to the following questions on the special verdict form: “Was there in existence at any time [a] conspiracy involving defendant Gatke Corporation committing concealment or intentional misrepresentation as defined in these instructions?” and “Were Gatke Corporation and Owens-Illinois, Inc. in the same conspiracy?”
This timely appeal by plaintiffs from a final judgment in favor of Gatke followed.
1. The trial court did not err in declining to give the jury a civil conspiracy instruction on plaintiffs ’ negligence and strict liability tort claims.
As noted, plaintiffs asked the trial court to read to the jury instructions offered by them permitting a finding of tort liability for negligence or strict liability based on a theory of civil conspiracy. Following discussion with counsel, Judge James J. McBride refused to give the instruction proffered by plaintiffs, giving instead a conspiracy instruction involving concealment and intentional misrepresentation. Plaintiffs contend the trial court’s instructional omission constituted reversible error.
Resolution of this issue, we decide, is straightforward. The following statement appears in our high court’s
Applied Equipment
opinion
(Applied Equipment Corp.
v.
Litton Saudi Arabia Ltd.
(1994)
In seeking to fix the operative implications of the
Applied Equipment
holding, it is helpful to go back in time to see what provoked it. That was Justice Sullivan’s opinion for the Court of Appeal in
Wise v. Southern Pacific Co.
(1963)
As a matter of unqualified logic, it is not difficult to see how the
Wise
court reached its conclusion. It is the essence of common law conspiracy doctrine that the coconspirators are liable in the same way and to the same extent as the principal who actually commits the harmful or outlawed act. The agreement of all and the overt act of one is sufficient to impose the same liability on all for the act of the one. (See, e.g.,
Mox Incorporated v. Woods
(1927)
The erosion of the analysis and result in
Wise, supra,
The limitation on conspiracy liability announced by the court in
Gruenberg
was endorsed and its rationale explicated somewhat by the Supreme Court in
Doctors' Co. v. Superior Court
(1989)
The
Gruenberg-Doctors' Co.
line of authority may have reached a zenith of sorts with the high court’s opinion in
Applied Equipment, supra,
Our Supreme Court reversed that judgment. Reviewing the accumulated case law on civil conspiracy, including its own precedents, the court said a plaintiffs invocation of a conspiracy claim “allows tort recovery only against a party who
already owes the duty
and is not immune from liability based on applicable substantive
As we read
Applied Equipment
and the antecedent case authorities on which it builds, in California a civil conspiracy to commit tortious acts can, as a matter of law,
only
be formed by parties who are already under a duty to the plaintiff, the breach of which will support a cause of action against them—individually and not as conspirators—in tort.
(Applied Equipment, supra,
We recognize the foregoing proposition may be challenged as lacking an impeccable logic but, as was famously written, the “life of the law has not been logic: it has been experience.” (Holmes, The Common Law (1881) p. 1.)
2
And we think it is the distillation of experience that has produced the black-letter principle of
Applied Equipment.
Moreover, we are obliged to content ourselves with the law as our Supreme Court has fashioned it.
3
(Auto Equity Sales, Inc.
v.
Superior Court
(1962)
2. On this record, the trial court did not err in refusing to give the jury a concert of action instruction with respect to defendant Gatke.
Plaintiffs also contend the trial court erred when, in charging the jury, it declined
In a theory of group tort liability that bears several similarities to plaintiffs’ concert of action theory in this case, Judith Sindell alleged that while she was in útero, her mother, along with thousands of other pregnant American women between 1941 and 1971, was given a synthetic compound of the female hormone estrogen known as diethylstilbestrol or DES, as a miscarriage preventative. It was later determined that DES could cause cancerous vaginal and cervical growths in women exposed to it before birth if their mothers took the drug during their pregnancies. The plaintiff in time developed a malignancy of the bladder and related afflictions allegedly caused by her mother’s ingestion of DES. Asserting DES was produced from a common and mutually agreed upon formula “as a fungible drug interchangeable with other brands of the same product,” and that the drug’s manufacturers “collaborated in marketing, promoting and testing the drug, relied upon each other’s tests, and adhered to an industry-wide safety standard,” the plaintiff contended the defendant companies were each jointly and severally liable “because they acted in concert, on the basis of express and implied agreements, and in reliance upon and ratification and exploitation of each other’s testing and marketing methods.” (Sindell, supra, 26 Cal.3d at pp. 594-595.)
As indicated, although a majority of the California Supreme Court approved a burden-shifting approach requiring the defendant manufacturers to prove they did not produce the DES the plaintiffs mother had ingested or be liable to the plaintiff in proportion to their shares of the DES market (the so-called “market share” theory), the majority also rejected the plaintiffs concert of action theory of liability on the merits in these circumstances. As we explain, we agree with the analysis underlying the Sindell court’s rejection of a concert of action theory of liability in the comparable circumstances present here. 4
The joint liability rules applied in the cases just cited (among others) have been codified in section 876 of the Restatement Second of Torts, titled Persons Acting in Concert. The comment to clause (b) of section 876—the only clause imposing liability on an actor who did not personally cause the harm to the plaintiff
5
—explains that “[a]dvice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act.”
6
(Rest.2d Torts, § 876, com. d, p. 317.) These black-letter rules, and the case authorities upholding them, support the reasons given by the
Sindell
opinion for rejecting a concert of action theory of liability there and, by a parity of reasoning, sustain our rejection of it here. Applying a concert of action theory of collective liability in such industrywide circumstances “would expand the [concert of action] doctrine far beyond its intended scope and would render
Our conclusion that a concert of action jury instruction would have been inappropriate in this case is fortified by an opinion from the federal Court of Appeals for the Third Circuit, declining to apply—on First Amendment associational grounds—concert of action principles of tort liability in circumstances analogous to those presented by this record. In
In re Asbestos School Litigation
(3d Cir. 1994)
The Third Circuit granted a writ of mandamus vacating the trial court’s ruling.
(In re Asbestos School Litigation, supra,
We are skeptical that the record here satisfies such an exacting constitutional standard, requiring as it would evidence that Gatke, a minor player contributing about $250 a year to the Saranac Laboratory
Conclusion
The judgment of the superior court is affirmed.
Kay, P. J., and Rivera, J., concurred.
On April 25, 2003, the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied June 11, 2003.
Notes
The trial record also indicates Mr. Chavers worked around asbestos and was thus exposed to it while serving in the United States Navy from 1958 to 1962.
That illustrious statement continues: “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” (Holmes, The Common Law, supra, at p. 1.)
In their reply brief, plaintiffs cite and rely on an opinion from the Second
District—Kidron v. Movie Acquisition Corp.
(1995)
From our review of the trial record, it appears a genuine
Sindell
market share theory of liability was abandoned by plaintiffs (and may have been rejected by the trial court) after the defense argued the brake shoes manufactured by Gatke were not fungible with friction products manufactured by other defendants. (Cf.
Wheeler
v.
Raybestos-Manhattan
(1992)
As pertinent here, section 876 of the Restatement Second of Torts provides: “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he [10 • • • [10 (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself. . . .”
Illustration 6 to clause (b) of section 876 given by the Restatement Second reporter appears to rely on the facts of
Summers
v.
Tice, supra,
But compare
Hymowitz
v.
Eli Lilly & Co.
(1989)