Hamilton v. Asbestos Corp., Ltd.Hamilton v. Asbestos Corp., Ltd.
Lead Opinion
Opinion
In this case we determine primarily whether a special statute limitations for injury or illness caused by exposure to asbestos (
Facts
For two decades beginning in the early 1940’s, plaintiffs’ decedent Arthur Mitchell was employed in
Mitchell I
Mitchell’s shortness of breath, however, gradually grew worse. On October 13,
The Mitchell I complaint primarily alleged that Mitchell’s exposure to asbestos caused him to suffer “breathing difficulties, asbestosis, and/or other lung damage.”
Mitchell II
In December 1995, before trial began in Mitchell /, Mitchell began to experience abdominal pain. A month later—in January 1996—exploratory surgery became necessary, and it revealed a cancerous growth throughout Mitchell’s abdominal cavity. The growth was diagnosed as a malignant peritoneal mesothelioma, a rare and inevitably fatal cancer primarily triggered by exposure to asbestos. Again within a month—on February 3, 1996—Mitchell filed another action in the San Francisco Superior Court (case No. 975884, hereafter Mitchell II) against Asbestos Corporation and other defendants involved in making, selling, or using asbestos products. The complaint was served on Asbestos Corporation and several other named defendants.
The Mitchell II complaint primarily alleged that Mitchell’s exposure to asbestos caused him to suffer “lung and/or other cancer, mesothelioma.” The complaint then specifically alleged that “Plaintiff was diagnosed with mesothelioma on or about January 30, 1996 and with asbestosis and asbestos-related pleural disease on or about 1979.” The complaint again prayed for compensatory and punitive damages.
Consolidation and Trial
On April 12, 1996—the day after Asbestos Corporation filed its answer— Mitchell moved for an order to consolidate his two actions (
Because of pretrial settlements the case went to trial against Asbestos Corporation alone.
The alveoli are the numerous microscopic air sacs in the lung where the vital process of gas exchange takes place, i.e., where oxygen is absorbed into the bloodstream from the inhaled air and carbon dioxide is diffused out of the bloodstream into the air to be exhaled. For gas exchange to occur, the molecules of oxygen and carbon dioxide must pass through the interstitium or connective tissue, a thin, elastic membrane that connects, among other organs, the alveoli and the capillaries that surround them.
The witnesses described the mechanism by which asbestos causes asbestosis. Airborne asbestos fibers are inhaled into the
The result is fibrosis or scarring, a gradual but irreversible thickening and stiffening of the connective tissue.
The scarring process makes the connective tissue increasingly resistant to gas exchange, and the affected alveoli eventually cease to function. If enough alveoli are thus affected, a characteristic symptom of asbestosis appears: increasing shortness of breath under exertion. The latency period of a disease is the period between the time of exposure to the disease-causing agent and the time when the disease has progressed to the point at which it can be diagnosed; the average latency period of asbestosis is 20 years. Although the disease can drastically restrict the activities of its victims and may lead to a higher risk of other diseases such as cardiorespiratory complications and cancer, “Asbestosis is neither malignant nor necessarily fatal.” (1 Encyclopedia of Human Biology (1991) p. 420.) Indeed, as the case at bar illustrates, a person can live for decades after a diagnosis of asbestosis.
The medical witnesses also described mesothelioma. The mesothelium is a layer of specialized cells forming a thin membrane that lines certain body cavities: where it covers the lungs and the inner surfaces of the chest wall, it is called the pleura; where it covers the organs of the abdominal cavity and the inner surfaces of that cavity, it is called the peritoneum. Mesothelioma is a form of cancer that starts to grow in such lining: the most common form starts in the lining of the chest cavity and is therefore called pleural mesothelioma; less common is the form that starts in the lining of the abdomen, called peritoneal mesothelioma.
Observation has established a strong linkage between mesothelioma and exposure to asbestos fibers. As explained above, inhaled asbestos fibers enter the bloodstream through the connective tissue of the lung. But while some fibers remain embedded in that tissue and cause asbestosis, others migrate to different parts of the body. Some fibers are carried in the bloodstream; others move through the lymphatic system; still others are swallowed with mucus and enter the body through the digestive system. However they enter the body, asbestos fibers may ultimately lodge in the pleura or the peritoneum.
Whatever its precise etiology, the general characteristics of mesothelioma are well known. The witnesses agreed that malignant mesothelioma is a very rare cancer, even among persons exposed to asbestos; no one can predict whether or when such a person will develop mesothelioma. Among the population at large, malignant mesothelioma strikes only two or three persons per million each year. Yet it takes far less asbestos exposure to cause mesothelioma than to cause asbestosis, and mesothelioma can even be caused by exposure to a few substances other than asbestos.
Mesothelioma is often difficult to diagnose: in the form of the disease from which Mitchell suffered—peritoneal mesothelioma—the tumor first grows as a spreading mass in the abdominal cavity of the victim, and its early signs are such nonspecific symptoms as stomach pain, nausea, vomiting, and weight loss. Mesothelial tumors initially grow very slowly; the disease has an average latency period of 30 to 40 years. But by the time the cancer is diagnosed, it is often in an advanced stage and is rapidly metastasizing. It is also inevitably fatal: there is no known cure for any form of malignant mesothelioma. As will appear, in the case at bar Mitchell died 17 months after the diagnosis of mesothelioma; the average survival time is less than a year.
In sum, the medical testimony established without contradiction that the asbestosis found in Mitchell’s lungs in 1979 and the malignant mesothelioma found in his abdomen in 1996 were two separate and distinct diseases. Except for the likelihood that both were initially triggered by Mitchell’s occupational exposure to asbestos, the two were unrelated in all respects: one did not cause or evolve into the other, they developed by means of wholly different mechanisms and at widely different rates, affected different tissue and organs, manifested themselves at different times and by different symptoms, and carried very different outcomes. As one of the medical experts explained, we deal here with “two different diseases, asbestosis, which is scar tissue formation . . . and mesothelioma, which is cancer ”
The Judgment
On August 15, 1996, after both sides rested, Asbestos Corporation moved to dismiss the portion of the action seeking damages for Mitchell’s mesothelioma. The sole ground of the motion was that Mitchell II was barred by the statute of limitations set forth in Code of Civil Procedure
The case went to the jury on theories of negligence and liability for defective design and failure to warn. The jury returned a special verdict finding Asbestos Corporation liable on both theories and awarded compensatory damages, making separate noneconomic damage awards for asbestosis and for mesothelioma. The jury also found that Mitchell suffered appreciable
The Appeal
Asbestos Corporation appealed from the judgment. On June 30, 1997, while the appeal was pending, Mitchell died from the mesothelioma.
The Court of Appeal reversed the judgment in its entirety. The court first held that Mitchell II was time-barred by
Second, the Court of Appeal held the trial court lacked personal jurisdiction over Asbestos Corporation in Mitchell I because it had not been served in that action. The Court of Appeal found that Asbestos Corporation had not made a general appearance in the asbestosis action sufficient to constitute the equivalent of personal service. (
We granted review.
I
The first issue is whether the Court of Appeal was correct in holding that Mitchell II was time-barred by
“(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following:
“(1) Within one year after the date the plaintiff first suffered disability.
“(2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.
“(b) ‘Disability’ as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee’s regular occupation.” (Italics added.)
Because a plaintiff cannot discover that his disability was caused by asbestos exposure before he suffers that disability, the disability must in all cases either precede or accompany its discovery. The two paragraphs of subdivision (a) of
In the case at bar there is no doubt Mitchell II was governed by
Although this is the first time we have considered
A subsequent decision stressed the remedial purpose of
Among other reasoning, the Court of Appeal in Nelson, supra,
In Nelson, supra,
The Court of Appeal reversed the judgment, holding that Duty had not suffered “disability” within the meaning of
The court then held, however, that the special definition of “disability” provided in subdivision (b) of
In Uram v. Abex Corp. (1990)
The Court of Appeal affirmed the judgment, holding that Uram suffered “disability” within the meaning of
Finally, in Williamson v. Plant Insulation Co. (1994)
The jury found inter alia that Williamson’s claim for damages from asbestosis was timely (no issue was raised as to the timeliness of Ms cancer claim). The trial court entered judgment for Williamson for both economic and noneconomic damages.
The Court of Appeal reversed the judgment for noneconomic and future economic damages on the ground they did not survive Williamson’s death. On the statute of limitations issue, however, the Court of Appeal upheld the finding of timeliness. The court cited Puckett, supra,
Applying these principles, the Court of Appeal held there was substantial evidence that Williamson was not disabled within the meaning of
In the case at bar Mitchell II was timely under the foregoing decisions construing
The Court of Appeal, however, held to the contrary, relying primarily on the reasoning of Darden, supra,
Darden was occupationally exposed to asbestos from 1946 to 1970. In 1970 he retired from his job as a sheet metal worker at Mare Island Naval Shipyard. In 1974 he began working as a repairman for a real estate company, but was laid off in 1982. In 1986 he was diagnosed with pulmonary fibrosis and asbestos-related pleural disease—noncancerous lung diseases like asbestosis. In 1987 he filed an action for personal injuries due to asbestos exposure against General Motors and other defendants (Darden I). He did not serve General Motors. In 1990 he settled his claims against certain defendants and dismissed the action against them with prejudice; at the same time, however, he dismissed the action against General Motors and the remaining defendants without prejudice.
In 1991 Darden served and filed a virtually identical complaint against General Motors and the other defendants (Darden IT). In pretrial and posttrial motions General Motors argued unsuccessfully that Darden II was time-barred by
For one ground, the court seems to have applied
Assuming the Court of Appeal was correct in concluding that the jury erred in finding Darden was not disabled in 1982 within the meaning of
The court based its second ground on the fact that Darden had filed two successive actions for injuries arising from the same asbestos exposure: Darden I in 1987 and Darden II in 1991. The court apparently recognized that both actions were timely within the plain meaning of
As one purported justification, the court reasoned that “
The quoted reasoning, however, mistakenly equated the accrual of a cause of action for asbestos-related injury with the beginning of the limitations period prescribed by
The Darden court’s other justification for declining to give effect to the plain wording of
In addition to relying on the reasoning of Darden, supra,
Although the opinion of the Court of Appeal in the case at bar is silent on the point, the court appears to have assumed that Mitchell had only a single cause of action for both his asbestosis and his mesothelioma. Having assumed its premise, the court proceeded directly to inquire whether the case fell within an exception to the rule, and found none. Thus the court stated that the rule bars splitting a single cause of action “except where exceptional circumstances might justify a departure from the rule to avoid harsh results [citation].” The court recognized that to apply “an ordinary statute of limitations,” even when ameliorated by the discovery rule, could indeed lead to harsh results in cases of asbestos-related diseases. But the court asserted that in California such potential harshness “has been all but eliminated through the enactment of
We need not reach the question whether Mitchell had a separate primary right to be free from each of the two diseases resulting from his asbestos exposure. Even if we were to assume for purposes of argument that the filing of Mitchell II violated the rule against splitting a cause of action, it would not follow that the Court of Appeal correctly concluded that Mitchell II was time-barred. The court appears to have confused the rule against splitting a cause of action with the statute of limitations. The rule against splitting a cause of action is neither an aspect, nor a restatement, of the statute of limitations; rather, it is in part a rule of abatement and in part a rule of res judicata. As we further explained in Crowley, supra,
We conclude that the Court of Appeal erred in holding that Mitchell II was time-barred by section 340.2. To the extent they are inconsistent with our analysis, we disapprove Darden v. General Motors Corp., supra,
II
The second issue presented in the petition for review is whether the Court of Appeal was correct in holding that the trial court lacked personal jurisdiction over Asbestos Corporation in Mitchell I because it had not been served in that action. We conclude the trial court did not lack jurisdiction.
“A general appearance by a party is equivalent to personal service of summons on such party.” (
The issue is thus fact-specific, and in the case at bar two paramount facts appear: the trial court ordered Mitchell’s two actions to be consolidated for all purposes, and Asbestos Corporation fully participated without objection in the consolidated action. It thereby made a general appearance.
Code of Civil Procedure section 1048, subdivision (a), authorizes the trial court, when appropriate, to “order a joint hearing or trial” or to “order all the actions consolidated.” Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment. (Sanchez, supra,
Here the Court of Appeal read the record to mean that Mitchell’s two actions were consolidated for trial only, and found nothing beyond Asbestos Corporation’s “bare participation in the consolidated trial” to suggest that it recognized the authority of the court with regard to Mitchell I. We read the record otherwise.
As noted above, on the day after Asbestos Corporation filed its answer in
More important, the court’s order granting the motion was not limited to a consolidation for trial: rather the court declared that “It Is Ordered that Action[s] Nos. 955576 and 975884 are consolidated as Action No. 955576.” (Italics added.) In addition, Mitchell had simultaneously moved for trial-setting preference because of his terminal illness (
As would be expected after a consolidation for all purposes, all further filings by Mitchell bore only the Mitchell I title and the single case number, No. 955576. When the case was called for trial, the clerk announced it as a consolidated action under the same single case number. Throughout trial, the clerk’s minutes designated the proceeding by its Mitchell I title and case number, adding for identification only, “consol, w/ 975884.” Finally, there was only one verdict and one judgment, and each was numbered in the same way as the clerk’s minutes.
Any possible ambiguity remaining after the foregoing consistently titled and numbered filings was removed by the trial court itself at the hearing on defense motions for judgment notwithstanding the verdict and for new trial. As part of its ruling denying those motions, the court declared: “A motion to consolidate the two cases for all purposes and advance the consolidated action for trial was made. [Asbestos Corporation] was served with that motion but did not oppose it. The motion was granted and the two cases were consolidated for all purposes and an early trial date was ordered.” (Italics added.) Consolidation under Code of Civil Procedure section 1048 is permissive, and it is for the trial court to determine whether the consolidation is for all purposes or for trial only. (See Committee for Responsible Planning v. City of Indian Wells (1990)
Asbestos Corporation, moreover, fully participated in this consolidated action from beginning to end. First, as the trial court noted, Mitchell served his motion to consolidate on Asbestos Corporation, but Asbestos Corporation made no objection to it. At the start of trial Mitchell inquired if Asbestos Corporation objected to his proving the latter’s liability for both his asbestosis and mesothelioma, and counsel for Asbestos Corporation replied, “I don’t think I can object as to how you want to proceed. I can only prove that you didn’t prove it.” Counsel for Asbestos Corporation subsequently signed and filed an affidavit (concerning a notice of deposition) bearing only the title and case number of Mitchell I, and later signed a stipulation (concerning trial exhibits) that also bore only the title and case number of Mitchell I. As noted above, Asbestos Corporation was the sole defendant at trial and actively defended itself on the merits of all the claims litigated by Mitchell— claims arising from both asbestosis and mesothelioma.
We conclude the record supports the trial court’s determination that Mitchell I and Mitchell II were consolidated for all purposes as Mitchell I, case No. 955576, and that Asbestos Corporation made a general appearance in that action. The Court of Appeal erred in holding to the contrary.
III
In its opening brief in the Court of Appeal Asbestos Corporation raised four additional issues that the Court of Appeal did not reach because of its holdings discussed herein.
The judgment of the Court of Appeal is reversed with directions to resolve the remaining issues raised in appellant’s opening brief in that court.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.
Notes
The complaint also alleged that Mitchell suffered “increased risk and fear of developing mesothelioma” and other cancers. After Mitchell I was filed, however, we adopted the general rule that damages for fear of cancer may be recovered only if it was more likely than not that the cancer would occur. (Potter v. Firestone Tire & Rubber Co. (1993)
Mitchell’s trial theory was that Asbestos Corporation supplied asbestos fibers to a company that made an insulating cement used by one of Mitchell’s former employers.
One micron is one-thousandth of a millimeter.
In asbestosis, the scarring occurs on the middle and lower portions of the lung; scarring in the lining of the lung on both sides is pleural plaque; scarring throughout the lining of the lung is diffuse pleural fibrosis; and scarring that has been present long enough to calcify is pleural calcification. Mitchell suffered from each of these conditions.
For a more detailed explanation of the scarring process, see Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co. (1996)
Where the mesothelium constitutes the sac that surrounds the heart, it is called the pericardium. Pericardial mesothelioma is by far the least common form.
In a legally different but factually similar case, the Court of Appeal upheld an award of death benefits based on uncontradicted medical testimony that peritoneal mesothelioma does not develop from asbestosis but rather is “an entirely separate and distinct disease process resulting in an entirely separate and distinct injury and disability.” (Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1990)
The Court of Appeal ordered Mitchell’s adult daughters, Linda Hamilton and Janet lorio, to be substituted as his successors in interest. (
A similar statute is in fact phrased in the conjunctive: Labor Code section 5412 provides, “The date of injury in cases of occupational diseases ... is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.” (Italics added.)
The court invited the Legislature to revisit section 340.2 if it disagreed with the court’s construction of the statute: “It is not for us to determine whether the Legislature acted wisely in defining so narrowly the term ‘disability.’ We reiterate our observation in Blakey v. Superior Court, supra,
In the 11 years since the court issued that invitation, other courts have construed the statute in the same way but the Legislature has not seen fit to amend it.
The court did not publish the portion of its opinion justifying its conclusion on this issue.
It is true that the motion also recited that the actions “involve common questions of law and fact” and consolidation “will avoid unnecessary costs and delay,” but these grounds will support a consolidation of either type.
Indeed, Asbestos Corporation did not even raise this issue in its appeal from the judgment—the Court of Appeal raised it on its own motion. When Mitchell objected, in a petition for rehearing, that the Court of Appeal had thereby violated Government Code section 68081, the court ordered a rehearing. Ninety days later, without supplemental briefing or argument, the Court of Appeal filed the opinion now under review, reiterating its reasoning and holding on the issue.
Asbestos Corporation contended that (1) a supplier of raw asbestos for use in manufacturing by others should not be subject to strict liability to the consumer of the finished product; (2) Mitchell’s evidence of causation—i.e., that he was exposed to asbestos supplied by Asbestos Corporation—was speculative and insufficient as a matter of law; (3) certain deposition testimony on the preceding issue of causation was inadmissible hearsay; and (4) the trial court erred in ruling Proposition 51 inapplicable in the circumstances of this case.
Concurrence Opinion
I concur with the majority’s ultimate disposition and reluctantly agree with its interpretation of Code of Civil Procedure section 340.2.
First, Dardén and Barr are distinguishable. In Darden, the plaintiff filed a second lawsuit with the same defendant and virtually the sanie allegations as the first lawsuit he filed almost four years earlier. Consequently, the Court of Appeal held that the plaintiff’s second action was time-barred because the filing of the first action triggered the running of the one-year statute of limitations period. (Darden, supra,
Unlike the plaintiffs in Darden and Barr, plaintiff in this case did not allege the same causes of action in his two lawsuits. Plaintiff’s first action sought recovery for asbestosis. In contrast, his second action sought recovery for mesothelioma, a different and unrelated disease caused by asbestos exposure. Thus, the causes of action in the second complaint were separate and distinct from those in the first complaint, and the filing of the first action did not trigger the one-year statute of limitations for the causes of action in the second action.
Second, I believe Darden properly harmonizes sections 312, 340.2 and 350. Section 350 states that the filing of a complaint commences a civil action. Section 312 then explains that a plaintiff can only commence a civil action “within the periods prescribed in this title, after the cause of action shall have accrued.” (Italics added.) Viewed together, these two statutes establish that a plaintiff, by filing a complaint, admits that the causes of action asserted in that complaint have accrued and fall within the applicable limitation period contained in title 2 of the Code of Civil Procedure. In doing so, the plaintiff necessarily admits that the limitation period has started running. Otherwise, the asserted causes of action could not fall within that limitation period.
These admissions, however, arguably conflict with section 340.2, which states that the statute of limitations for asbestos-related illnesses begins to run when the plaintiff suffers a “disability.” Because we must harmonize, potentially conflicting statutes whenever possible (Broughton v. Cigna Healthplans (1999)
Such a conclusion comports with the legislative intent behind section 340.2. In enacting section 340.2, the Legislature intended to extend the limitation period for asbestos-related illnesses because these illnesses often develop slowly and become symptomatic long before they become disabling. (See Blakey v. Superior Court (1984)
Of course, Darden would be superfluous if the language of section 340.2 was less cumbersome and confusing. Indeed, the awkward wording of the statute creates several anomalous results. For example, section 340.2 eliminates the statute of limitations for plaintiffs unemployed due to non-asbestos-related reasons but maintains
Appellant’s petition for a rehearing was denied July 19, 2000. Brown, J., was of the opinion that the petition should be granted.
All further statutory references are to the Code of Civil Procedure.
Most other jurisdictions have reached the same conclusion. (See, e.g., Wilson v. Johns-Manville Sales Corp. (D.C. Cir. 1982)