Plaintiffs assert five contentions on appeal. First, they argue that the trial court erred by granting summary adjudication in favor of Exxon as to strict product liability and secondary, or "take home," exposure. Second, they contend that the trial court erred by granting nonsuit for Rossmoor as to both direct and secondary exposure. Third, plaintiffs maintain that the trial court failed to properly instruct the jury regarding design defect issues involving Ford. Fourth, plaintiffs argue that the trial court erred by granting summary adjudication in favor of Ford as to plaintiffs' punitive damages claims. Finally, plaintiffs assert that the jury verdict in favor of Exxon was not supported by the evidence.
We affirm on all challenged grounds. First, summary adjudication for Exxon appropriately was granted because the evidence did not show that Exxon was within
Plaintiffs filed a complaint against more than 30 defendants alleging that Marline developed mesothelioma as a result of exposure to asbestos-containing products. Against all defendants, plaintiffs alleged causes of action for negligence and strict liability based on alleged exposure to the defendants' products. Plaintiffs also asserted premises liability claims against Exxon, Rossmoor, and others, alleging that Joseph worked on premises owned by those defendants, where "he was exposed to asbestos products and dust from asbestos products and consequently exposed" Marline. Joseph also alleged loss of consortium.
Marline's alleged exposure to asbestos stemmed from many sources and spanned several years. The evidence presented in pretrial motions and at trial is discussed in detail below. In short, plaintiffs allege that Marline suffered from both direct exposure and secondary exposure to asbestos-containing dust. They assert that the direct exposures occurred when Marline visited Joseph while he worked at an Enco service station owned by Exxon, from Joseph's work on Ford vehicles at the Enco station and at home while Marline was present, from exposure to dust when Marline visited a Rossmoor construction site, and from drywall compound and stucco in two of plaintiffs' homes built by defendant Shea Homes, which is not a party to this appeal. As for secondary exposure, plaintiffs allege that Marline was exposed to asbestos-containing dust that collected on Joseph's clothing while Joseph worked at the Enco station, as he worked on Ford vehicles at home, and when he visited construction sites as part of his work as an architectural drafter at Rossmoor.
A. Summary adjudication in favor of Exxon
1. Motion, opposition, and trial court ruling
Joseph and Marline testified in their depositions that they met while Joseph was working at an Enco service station in Pomona. Exxon's predecessor, Humble Oil, owned the Enco service station at the relevant time. Marline visited Joseph at work in 1966 and 1967, while Joseph worked on automotive friction products: brakes, clutches, and gaskets. Marline was present when Joseph used compressed air to clean brake drums, and as he swept the service bays before closing. Occasionally, Marline was present when a mobile brake service van was on site preparing brakes for installation. Plaintiffs alleged that these activities directly exposed Marline to airborne asbestos. Joseph said in his deposition that auto parts used at the Enco station came from independent auto parts suppliers or the mobile brake service.
Joseph briefly worked at a different Enco service station in Ontario in 1968,
Exxon argued that summary adjudication should be granted on two separate bases that plaintiffs challenge on appeal. First, Exxon argued that it could not be liable under plaintiffs' strict product liability theory because plaintiffs "have no evidence, and cannot reasonably obtain evidence, that Mrs. Petitpas was indirectly or secondarily exposed to asbestos from an asbestos-containing product manufactured, distributed, or sold by Exxon." Exxon submitted undisputed evidence showing that at the Pomona Enco station, asbestos-containing replacement clutches and gaskets came from an independent auto parts store, and asbestos-containing replacement brakes were supplied by the mobile brake service. None of these products was manufactured by Exxon. Exxon argued that because it supplied these parts only through the provision of automotive services, not as a seller or retailer of parts, it could not be strictly liable because it was not within the stream of commerce.
Second, Exxon argued that it did not have a duty to protect Marline from secondary exposure from "allegedly tоxic materials that are carried off the premises on the clothing of an employee." Citing Rowland v. Christian (1968)
After Exxon's motion was filed, the Court of Appeal decided Campbell v. Ford Motor Co . (2012)
Plaintiffs opposed Exxon's motion. They argued Exxon knew in the 1930's that asbestos exposure was hazardous, and it took steps to minimize refinery
Plaintiffs also argued that Exxon failed to shift the burden on the product liability causes of action because it did not present evidence showing that the Enco station did not sell asbestos-containing auto parts. Automotive repair and maintenance facilities
At the hearing on the motion, after argument from the parties, the court granted Exxon's motion for summary adjudication as to strict product liability and secondary exposure. On appeal, plaintiffs assert that the trial cоurt erred in granting on both bases. We address each below.
2. Standard of review
On appeal following a motion for summary adjudication, " '[w]e review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' [Citation.]" "We liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party." ( Yanowitz v. L'Oreal USA, Inc . (2005)
"A defendant moving for summary judgment or summary adjudication need not conclusively negate an element of the plaintiff's cause of action. ( Code Civ. Proc., § 437c, subd. (f)(2) ; Aguilar [v. Atlantic Richfield Co . (2001)
3. Summary adjudication of strict product liability claims against Exxon
As an initial matter, plaintiffs argue that summary adjudication should have been denied. Plaintiffs contend that Exxon failed to meet its summary adjudication burden because the evidence Exxon submitted with its motion was insufficient to prove that Exxon did not supply asbestos-containing vehicle parts. "[T]he party moving for summary [adjudication] bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." ( Aguilar, supra,
California cases have found that a defendant involved in the marketing/distribution process may be held strictly liable
Exxon met its summary adjudication burden here. Exxon stated in its separate statement that Joseph "replaced brakes, clutches and head gaskets at the Pomona Enco station," and that "the replacement clutches and gaskets
Plaintiffs also assert that even if the summary adjudication burden had been shifted, the motion should have been denied because there was a triable issue of fact as to whether Exxon played a role in the stream of commerce for these parts, and therefore summary adjudication on strict product liability was unwarranted. Plaintiffs assert that Exxon's evidence did not constitute "actual proof" that the brake service company, rather than Exxon, was the supplier or seller of the brakes. Plaintiffs also argue there was no evidence "that Exxon did not sell [replacement] parts but merely included them as part of the cost of the services provided." Plaintiffs point to Joseph's deposition, in which he said the Enco station displayed motor oil, windshield wipers, dust rags, transmission fluid, brake fluid, and perhaps tires and fan belts. Plaintiffs argue that this "evidence demonstrates that the Exxon station was in the business of selling vehicle parts and supplies and frequently supplied its customers with replacement brakes, clutches and engine gaskets."
Because this case involves strict liability for products causing exposure to asbestos,
In Hernandezcueva , the evidence presented at trial showed that "E.F. Brady was a large drywall installation firm whose relevant contracts always involved the provision of drywall and related materials." ( Hernandezcueva, supra ,
Exxon argues that the holding in Hernandezcueva reinforces earlier strict liability cases, and supports its argument that summary adjudication of plaintiffs' strict liability claims was appropriate. Exxon also contends that none of the factors supporting a finding of strict liability in Hernandezcueva
The evidence here does not indicate that supplying asbestos-containing gaskets, clutches, and brakes was a central part of the Pomona Enco station's business. Joseph's testimony showed that the Enco station did not supply brake parts. Instead, a mobile brake service came to the Enco station, supplied brake parts, and performed services relating to those parts such as turning brake drums and arcing brake linings. In addition, Joseph's testimony demonstrated that providing gaskets and clutches was not a significant portion of the Pomona Enco station's business. Joseph said that in the year he worked at the Pomona Enco station, clutch replacements were done rarely, less than once per month. In that year, he and the other mechanics performed two to three engine rebuilds involving gaskets. Joseph rebuilt carburetors using gaskets about once per month. This evidence of sporadic work with asbestos-containing parts does not support a finding that supplying asbestos-containing parts was a primary aspect of the Enco station's business.
Moreover, Joseph testified that the Enco station obtained gaskets and clutch parts from local auto parts stores. There is no suggestion in the record that the Enco station managers or Exxon had any direct relationship with the parts manufacturers. As previous cases have noted, a relationship between the defendant and the manufacturer is a significant consideration in a strict liability analysis. In Hernandezcueva , for example, E.F. Brady had an ongoing relationship with the drywall manufacturer that was significant enough to exert pressure on the manufacturer to influence product safety. ( Hernandezcueva, supra ,
This case is more like Monte Vista Development Corp. v. Superior Court (1991)
Similarly, in Endicott v. Nissan Motor Corp . (1977)
Here, the Enco station was in a similar situation. If a customer needed a clutch facing or gasket, the Enco station needed to purchase one that fit the particular make and model of the vehicle. There is no suggestion in the record that Joseph, other Enco station workers, or Exxon had any control over which clutch parts or gaskets could be used to complete these repairs or whether those parts were made with asbestos. The evidence therefore shows that the Enco station was a "provider of services" rather than a seller or distributor of asbestos-containing vehicle parts.
In sum, the evidence submitted with Exxon's motion for summary adjudication was sufficient to shift the burden to plaintiffs under Aguilar . Plaintiffs' evidence does not support a finding that there was a triable issue of fact as to whether the Enco station or Exxon was within the stream of commerce for asbestos-containing vehicle parts to the extent that strict liability is warranted. Summary adjudication on plaintiffs' strict liability claims against Exxon was properly granted.
Plaintiffs also argue that the court erred by granting summary adjudication of their claims against Exxon based on Marline's secondary exposure to asbestos. The trial court granted summary adjudication based on the reasoning of Campbell , which held that "a property owner has no duty to protect family members of workers on its premises from secondаry exposure to asbestos used during the course of the property owner's business." ( Campbell , supra ,
While this appeal was pending, the Supreme Court disapproved Campbell and Oddone in Kesner v. Superior Court (2016)
We asked the parties for further briefing to address the effect of Kesner on plaintiffs' assertions that summary adjudication in favor of Exxon on the issue of secondary exposure should be reversed. Plaintiffs acknowledge in their supplemental briefing that "Marline and Joseph were not married and did not live together at the time Joseph worked at the Exxon station and thus technically were not members of the same household." Plaintiffs ask us to hold that Exxon had a duty to Marline nevertheless, contending that "Marline's status is close to that of a household member"
We decline to expand Kesner 's duty to apply to a non-household member. The Kesner Court was very specific in limiting the duty to non-employees "only to members of a worker's household, i.e., persons who live with the worker." ( Kesner , supra , 1 Cal.5th at pp. 1154-1155,
Because Marline was not a member of Joseph's household when Joseph worked at the Enco station in Pomona, Exxon did
II.
Trial began against defendants Union Carbide, Shea Homes, Rossmoor, Ford, and Exxon. Union Carbide and Shea Homes settled with plaintiffs during the course of the trial, the trial court granted nonsuit for Rossmoor, and Ford and Exxon proceeded to verdict. The evidence summarized below was presented at trial.
A. Enco service station and Joseph's work on Ford cars
Joseph and Marline both testified at trial. Joseph testified that he worked at an Enco gas and service station, operated by Exxon,
The cars that came into the Enco station in that time period were mostly American-made cars: about 40 percent General Motors models, 40 percent Ford models, and the rest other makes. Joseph did a variety of work on Ford cars, including brake inspections and replacements. He did brake inspections two or three times a day, and brake replacements two or three times a week. About 40 percent of these inspections and replacements were on Ford cars.
Joseph used an air compressor to blow dust out of wheel assemblies to check or change brakes. Marline estimated that she watched Joseph do brake work on a total of seven to ten cars at the Enco station, and she could not identify the make or model of any of those cars. Marline observed that when Joseph did brake work, it created dust, and she breathed that dust. Marline also watched Joseph clean up at the end of the day, which involved blowing or sweeping the floor, which created dust, and Marline breathed the dust.
A mobile brake service came to the Enco station once or twice a week to turn brake drums and arc brake linings.
Joseph wore a uniform shirt to work, and the service station provided a cleaning service for the uniform shirts; once a week Joseph brought his shirts in and the company had them cleaned. Joseph usually wore his uniform shirt when he went out with Marline after wоrk. Marline did not wash Joseph's clothing when they were dating.
Joseph testified that he also worked on his family's cars at home after 1972. He did a brake inspection on their 1964 Ford Falcon Ranchero in their home garage. Joseph did two or three brake changes on their 1976 Ford Ranchero, and a 1984 Ford van. Joseph also did brake inspections on his father's 1977 Ford Thunderbird. Sometimes Marline was in the home garage working on crafts or doing laundry as Joseph worked on the cars, and she testified that she breathed dust that arose from Joseph's work. Marline also testified that during this period she did Joseph's laundry after he worked on vehicles, and she breathed the dust that was on his shirts.
Joseph used Raybestos and Bendix replacement brakes on these cars. Plaintiffs presented part of a 1989 deposition transcript of Arnold Anderson, a Ford engineer, who testified that Ford did not make the brake linings that were in Ford cars. Instead, Ford would "buy brakes, brake assemblies from the brake system suppliers who buy the linings from lining vendors." Anderson testified that he tested the brake linings supplied to Ford by different vendors, and all brands of brake linings he tested contained chrysotile asbestos.
Plaintiffs also presented an interrogatory response from Ford, stating that some Ford vehicles prior to the 1980's included asbestos-containing brake linings, brake pads, and clutch facings, and that these component parts were purchased from third-party suppliers. In addition, the interrogatory response said that Ford sold asbestos-containing replacement parts under the Ford brand, although those parts were purchased from non-Ford suppliers.
B. Joseph's work at Rossmoor
Before nonsuit was granted as to Rossmoor, the following evidence was presented at trial. In 1971, Joseph began working at Rossmoor as an architectural drafter, drawing plans for construction projects. At the time, Rossmoor was building Leisure World, a large retirement community consisting of houses, condominiums, and high-rise buildings. As a drafter, Joseph worked primarily in an office. After he had been at Rossmoor for six months to a year, he began visiting the construction site as part of his work. He usually left the office first thing in the morning to visit the construction sites, where he answered questions and responded to building inspectors. He typically spent half an hour to an hour and a half at the site, and spent the rest of the day in his office. At first he drove to the site in his own car, and later he used a company car available for that purpose. Joseph testified that the
Joseph testified that before he left a construction site he might stomp his feet or brush off his pants if he was dusty, but it was "very possible" that dust from the construction site might be on his lower pants at the end of the day. Plaintiff's counsel asked Hatfield whether Marline could be exposed to asbestos if Joseph had been at a construction site and he could "see like white powder, I don't know, six inches or a foot up his leg," and he brushed it off in Marline's presence. Hatfield testified that exposure could occur in that manner. Plaintiffs' counsel also asked Hatfield whether exposure could оccur if Joseph was at a dusty work site and got dust on his shirt and pants, then Marline "comes to pick him up, she drives onto the site," and Joseph hugged Marline. Again Hatfield said that scenario could expose Marline to asbestos. On cross-examination, Hatfield said that if Joseph picked up dust on his clothes at the construction site in the morning and then worked the rest of the day at his office, there was no way to say with any scientific certainty whether Joseph exposed Marline to asbestos.
Joseph testified that during this time period Marline washed some of Joseph's shirts, socks, and underclothes; Joseph's slacks and ties were dry cleaned. Hatfield said that if Marline were to shake visible dust out of Joseph's clothing when she laundered it, that could result in exposure. Neither Joseph nor Marline testified that Marline shook visible dust out of the clothing Joseph wore to work at Rossmoor.
Joseph occasionally showed Marline the partially completed buildings when the work had finished for the day and "nobody was around." When Marline visited the construction sites, no active construction work was being done. Joseph testified, "I wouldn't say she was there during the day when that action [construction] was going on ... but after, late in the afternoon or when she picked me up, we'd swing out there maybe on a Saturday. So yes, those activities were going on, but not at that moment." Marline agreed that she
C. Marline's other exposures to asbestos-containing materials
Union Carbide and Shea Homes also were defendants at the start of the trial.
Joseph and Marline bought a new home in 1972 in Mission Viejo from the predecessor to defendant Shea Homes. They first purchased a lot in a tract of homes, and visited the house as it was being built. They went to the construction site in the evenings and cleaned up after the construction crew, sweeping up drywall dust and throwing away trash. They also were present when construction was occurring. The construction created visible dust which they breathed. Joseph testified that defendant Hamilton made the joint compound used in the construction of the home. It created dust when it was sanded. Hatfield testified that a neighboring home built at the same time with the same materials was later tested for the presence of asbestos, and its stucco, acoustical ceilings, and joint compound were found to contain asbestos.
Plaintiffs also built some block walls at the Mission Viejo house, using Merlex stucco to cover the walls. The stucco came as a powder, which they poured into a wheelbarrow and mixed with water. Joseph also drilled into the stucco on the house to hang gates and build a patio roof; Marline was with him as he did this and helped him. Joseph testified that because Marline was an artist, they hung her art around the house by making holes in the drywall. Hatfield testified that these activities could result in exposure to asbestos dust.
In 1977, plaintiffs bought a new home in Lake Forest, California. As with the Mission Viejo house, plaintiffs purchased this home before it was built and visited the site as construction was being completed. They were present as the drywall was being installed and after it had been sanded, and Joseph
Joseph testified that in 1972 they bought a Chevrolet Monte Carlo, and he did brake inspections and brake changes on the car at home. As noted above, Joseph testified that when he worked on cars at home Marline was sometimes nearby, and she laundered his clothing afterward.
Marline testified that she initially told her doctors that the only asbestos to which she had been exposed was in dental tape she used while employed by an orthodontist. She worked with the asbestos dental tape two to three times in the 1980s, for a few minutes at a time.
Counsel introduced pretrial discovery responses in which Marline stated that she was exposed to asbestos in locations including the Enco service station in Pomona, a Chevron service station where Joseph worked briefly, various homes in California and Colorado, and the orthodontist's office. The discovery responses stated that Marline laundered Joseph's clothing when he worked at the Pomona Enco station, the Chevron station, Rossmoor, and one additional company, although Joseph testified at trial that Marline did not do his laundry while he was working at the Pomona Enco station.
In addition, the discovery responses stated that Marline was exposed to asbestos-containing automobile products supplied or sold by Borg Warner; Morse Tec., Inc.; Dana Companies LLC, formerly known as Spicer Manufacturing Company; El Toro Auto Supply, Inc.; Exxon Mobil Corporation; Ford Motor Company; Genuine Parts Company; Honeywell International, Inc.; Bendix Brakes; Metropolitan Life Insurance Company; National Automotive Parts Association; and Pneumo
D. Causation evidence
Plaintiffs presented the expert testimony of pulmonologist Barry Horn, M.D. Dr. Horn testified about numerous studies connecting asbestos and lung disease.
Plaintiffs presented the testimony of Barry Castleman, Sc.D., a public health expert. Dr. Castleman testified that the health hazards relating to the inhalation of asbestos dust were known by 1929. In the 1930's, industrial hygienists published articles indicating that "asbestosis," or lung scarring disease, "was widespread in manufacturing plants where asbestos was used to make brake linings, and grinding of asbestos brake linings was particularly emphasized in some of these articles." Dr. Castleman also testified that a Dr. Wilhelm Hueper published data in 1965 relating to health hazards of brakes and "brake work."
On cross-examination, Dr. Castleman agreed that much of the asbestos-related research through the 1940's and 1950's was "being done in factories that worked directly with asbestos." Dr. Castleman testified that he was not aware of any epidemiological studies prior to 1968 showing an increased risk of mesothelioma in mechanics, and by 1969, "there was nothing in print on the measurement of exposure of brake mechanics to asbestos." Counsel for Exxon read to the jury a portion of Dr. Castleman's deposition testimony in which Dr. Castleman stated that to this day, there are no studies "that have any statistical power ... that speak of the mesothelioma risk of mechanics that do brake repair work."
Plaintiffs presented the 2004 deposition testimony of Dr. Neill Weaver, a cardiologist and former Exxon employee. Dr. Weaver's testimony is discussed more fully below, but in short he tеstified that he worked at a refinery owned by an Exxon predecessor in Baton Rouge from 1951 to 1964, and later became an associate medical director with "primary responsibility for all refining and petrochemical manufacturing" at Exxon and its related companies at the time. Industrial hygiene practices with respect to asbestos were already in place before he began working at Exxon, showing that Exxon knew of the dangers of asbestos exposure. Exxon objected to this testimony because it related to refineries instead of service stations; the court overruled the objections.
Defense expert pathologist Victor Roggli, M.D., testified that forsterite "has no disease-producing potential at all." Dr. Roggli also testified that that mesothelioma and other asbestos diseases depend on a dose-response relationship: "The higher the dose, the more likely you are to get the disease." He said that since the 1980's, no study has shown that career brake or auto mechanics are at an increased risk of developing mesothelioma. On cross-examination, Dr. Roggli agreed that he could not rule out exposure to asbestos as a cause of Marline's mesothelioma. He also admitted that there were documented cases of mesothelioma in people whose only known exposure to asbestos was through automotive brake inspection and repair.
William Dyson, Ph.D., a defense industrial hygiene expert, also testified about the dose-response relationship with asbestos. Dr. Dyson testified that "it takes a lot of chrysotile exposure to present a risk of asbestos-related mesothelioma," and Marline's exposure to asbestos at the Enco station was "trivial, inconsequential," because it was "well less than the lowest exposure dose at which we've observed risk in the most sensitive person in the population for exposure to chrysotile and risk of mesothelioma." Dr. Dyson also opined that Joseph's work on vehicles in the family's home garage was insignificant and did not increase the risk to Marline.
E. Verdict
Before closing arguments, plaintiffs and Shea Homes reached a settlement, and Shea Homes was dismissed from the case. The case against Exxon and
The jury answered the questions on the verdict form as discussed below. The jury was polled afterward, and the poll numbers are included with the verdict findings:
"Section 1, as to defendant Exxon Mobil Corporation.
"Question No. 1: Did Exxon Mobil Corporation operate or control an Enco service station where Mr. Petitpas worked during the 1960s?
"Answer: Yes. [10-2]
"Question No. 2: Was Mrs. Petitpas exposed to asbestos dust at the Enco service station?
"Answer: Yes. [10-2]
"Question No. 3: Was Mrs. Petitpas' exposure to asbestos dust at the Enco service station a substantial factor in contributing to her risk of developing mesothelioma ?
"Answer: Yes. [9-3]
"Question No. 4: Did Exxon Mobil Corporation know or through the exercise of reasonable care should have known that there was a condition at the Enco station that created an unreasonable risk to Mrs. Petitpas of exposure to asbestos dust?
"Answer: No. [12-0]
"[¶....¶]
"Section 2, as to defendant Ford Motor Company.
"Question No. 7: Was Mrs. Petitpas exposed to asbestos dust from Ford original equipment brakes, gaskets or clutches?
"Answer: Yes. [11-1]
"Question No. 8: Was Mrs. Petitpas' exposure to asbestos dust from Ford original equipment brakes, gaskets or clutches a substantial factor in contributing to her risk of developing mesothelioma ?
"Answer: No. [10-2]"
III.
Plaintiffs assert separate errors relating to Rossmoor, Exxon, and Ford. We discuss each in turn below.
A. Rossmoor
1. Rossmoor's nonsuit motion
After plaintiffs rested, Rossmoor moved for nonsuit on several different grounds.
Rossmoor also argued that there was no evidence that Marline was directly exposed to asbestos at the Rossmoor construction site: "[T]here's no testimony that they were at the house at the time that the construction work was going on and/or that they were even on the premises at the time that construction work was going on where there was any potential release of asbestos fibers." The court noted, "They said they were not there during construction." Rossmoor's counsel agreed, and said, "Mrs. Petitpas specifically testified that, when she walked into the house, she didn't see any dust."
The court asked plaintiffs' counsel what evidence there was of exposure, in light of the fact that Marline testified that she did not see any airborne dust at the construction sites. Plaintiffs' counsel responded that expert testimony showed "that the nature of respirable asbestos fibers are, in fact, microscopic and invisible to the naked eye." As a result, only specialized testing can demonstrate if there are asbestos fibers in the air. Because the houses were
Rossmoor also asserted that plaintiffs failed to establish medical causation because they had not presented "evidence that Mrs. Petitpas was actually
The court granted the motion "on all the grounds raised in the written motion and the oral motion that I've heard." When the jury returned to the courtroom, the judge informed the jury that Rossmoor was no longer in the case.
On appeal, plaintiffs contend that nonsuit in favor of Rossmoor should be reversed on two different grounds. First, plaintiffs argue that the court's nonsuit as to secondary exposure should be reversed under Kesner, supra . Second, plaintiffs assert that nonsuit as to Marline's direct exposure should be reversed because they presented sufficient evidence to warrant sending the case to the jury. We address each of these arguments below.
2. Standard of review
In reviewing a judgment of nonsuit, "we must view the facts in the light most favorable to the plaintiff. '[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant's motion for nonsuit if plaintiff's evidence would support a jury verdict in plaintiff's favor. [Citations.] [¶] In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor...." ' [Citation.] The same rule applies on appeal from the grant of a nonsuit. [Citation.]" ( Castaneda v. Olsher (2007)
3. Nonsuit for secondary exposure
The trial court granted Rossmoor's nonsuit for secondary exposure under the reasoning of Campbell . As discussed above, Campbell was recently disapproved in Kesner . In their supplemental briefing plaintiffs argue, "Because the trial court granted non-suit in favor of Rossmoor as to Marline's 'take-home' exposures based on its determination that Rossmoor did not owe
Rossmoor argues that reversal is not required because although the trial court stated that it granted nonsuit for secondary exposure based on the reasoning of Campbell , the court also said, "I'm going to grant the motion for non-suit as to Rossmoor on all the grounds raised in the written motion and the oral motion that I've heard." One basis for nonsuit in Rossmoor's motion was insufficient evidence
Plaintiffs reply that "[e]xpert testimony confirmed that those exposures [from Joseph's clothes and in the family car] were sufficient to increase her risk of exposure [sic ]." They cite pages from the testimony of Dr. Horn, who testified that every asbestos exposure increases the risk of mesothelioma.
"In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant's defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a 'legal cause' of his injury, i.e., a substantial factor in bringing about the injury.... [T]he plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it contributed to the plaintiff or decedent's risk of developing cancer." ( Rutherford, supra,
Here, the evidence showed that Joseph worked mostly in an office, and sometimes got dust on the legs of his pants when he visited construction sites.
Hatfield testified that if Joseph got dust on his clothes at the work sites in the morning and Marline picked him up at his office at the end of the day, there was no telling with a scientific certainty whether Marline was exposed as a result. Although Hatfield testified that shaking visible dust out of clothing before laundering could contribute to exposure that can cause mesothelioma, there was no testimony that Joseph had visible dust on his clothing when he came home, or that Marline shook any such dust from his clothing.
The evidence therefore suggested it was possible that Marline was exposed to asbestos from dust on Joseph's
In responding to questions about hypothetical scenarios, Hatfield testified that exposure could have occurred if Marline shook visible dust from Joseph's clothing or if Joseph brushed dust off his pants in her presence. However, no one testified that these factual scenarios happened. "[A]n expert's opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist in the case before the jury, does not provide assistance to the jury because the jury
Plaintiffs argue that Dr. Horn testified that every exposure to asbestos can contribute to the risk of mesothelioma. But "[i]f there has been no exposure, there is no causation." ( McGonnell v. Kaiser Gypsum Co., Inc . (2002)
4. Nonsuit for direct exposure
Plaintiffs also argue that nonsuit for Rossmoor should be reversed because even though Marline was never on the Rossmoor premises while construction was occurring, she nevertheless may have been exposed to asbestos there. They do not dispute that there was no visible dust when Marline visited the Rossmoor construction site, but contend that "the fact that you do not see dust does not mean that you are not being exposed." Plaintiffs point to Dr. Roggli's testimony that asbestos fibers are invisible when they are suspended in the air and separated from one another. Plaintiffs also argue that asbestos fibers "can remain in the air for 15 minutes or more" once disturbed.
There are two problems with plaintiffs' argument. First, the cited evidence does not support it. Plaintiffs cite Hatfield's testimony in which he discussed testing of "exposures generated from a particular activity." He testified that "most of these activities did take place for-in the range of 10, 15 minutes, which people do label as
Second, even assuming Hatfield's testimony supported plaintiffs' statement, plaintiffs do not point to any evidence that Joseph and Marline visited construction sites within 15 minutes of asbestos dust-producing construction work. Plaintiffs also have not pointed to any evidence indicating that asbestos fibers would have become airborne and respirable as Joseph and Marline walked around the site. As we noted above, mere presence at a location where asbestos is present is insufficient to establish exposure. Indulging every
B. Ford
Plaintiffs assert two errors relating to Ford. First, they argue the trial court erred in instructing the jury that Ford could not be held liable for asbestos exposure from vehicle parts not originally installed by Ford. Second, plaintiffs argue that if we reverse the judgment as to Ford, we also should reverse the court's summary adjudication of plaintiffs' punitive damages claims against Ford. We address each of these arguments below.
1. Jury instructions at trial
When discussing jury instructions, the court said CACI Nos. 430 and 435 should be given. CACI No. 430, relating to the substantial factor test, states, "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the оnly cause of the harm." The use notes for CACI No. 430 say, "In asbestos-related cancer cases, Rutherford v. Owens-Illinois, Inc .[, supra ,] 16 Cal.4th [at p.] 977 [
CACI No. 435 states, "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It does not have to be the only cause of the harm. [¶] [Name of plaintiff] may prove that exposure to asbestos from [name of defendant]'s product was a substantial factor causing [his/her/[name of decedent]'s] illness by showing, through expert testimony, that there is a reasonable medical probability that the exposure was a substantial factor contributing to [his/her] risk of developing cancer." The use notes for CACI No. 435 state, "Unless there are other defendants who are not asbestos manufacturers or suppliers, do not give CACI No. 430, Causation: Substantial Factor."
Plaintiffs' counsel argued, "[F]or the record, ... I don't think 430 ought to be given," but suggested that the issue already had been discussed off the record. Exxon's counsel argued that because Exxon was a premises liability defendant with no products claims pending against it, CACI No. 430 was the
The court also gave Ford's Special Instruction No. 2: "Ford Motor Company is not liable for Marline Petitpas' exposure to asbestos that comes from other companies' brakes, clutches or gasket products installed on Ford vehicles by parties other than Ford." This instruction was based on O'Neil, supra,
Plaintiffs filed a written objection to this instruction, arguing that O'Neil applies to failure-to-warn allegations only. After the court read the instruction, while the jury was out of the courtroom, plaintiffs' counsel stated again, "[W]e object to that special instruction at all for the reasons that we previously stated." Plaintiffs argued that the design of Ford cars was defective because "it is a Ford design that called for the installation and inclusion of asbestos-containing brake products whether or not they were made by Ford or anyone else." Ford disagreed that plaintiffs' argument correctly reflected the law.
In closing arguments, plaintiffs' counsel told the jury to focus on the definition of substantial factor in the jury instructions. Counsel then read part of CACI No. 430 : " 'A substantial factor in causing harm ... is a factor that a reasonable person would consider to have contributed to harm.' That's it." Shortly thereafter, plaintiffs' counsel also read a portion of CACI No. 435 to the jury. Plaintiffs' counsel read question 8 on the verdict form, which asked whether Marline's "exposure to asbestos dust from Ford original equipment
In its closing, counsel for Exxon also discussed CACI Nos. 430 and 435. Counsel for Ford argued that the evidence did not support a finding that Marline was present at the Enco station when Joseph was working on any Ford cars. Counsel also referred to Special Instruction No. 2, stating that Ford could not be held liable for other parties' products. "[T]he law says basically that if the exposure that she had, whatever it might have been, was not a Ford brake, clutch or gasket installed on a Ford vehicle by Ford, that's not our responsibility." Counsel also emphasized that the defense epidemiologists made clear that the available studies and literature
As discussed above, the jury found that Marline was exposed to asbestos from Ford original brakes, gaskets, or clutches, but that the exposure was not a substantial factor in contributing to her risk of mesothelioma.
2. Plaintiffs' contentions on appeal
Plaintiffs assert that Special Instruction No. 2, stating that Ford was not liable for parts that were not originally installed by Ford, was incorrect. Plaintiffs argue that by giving this instruction and also giving CACI No. 430, the trial court incorrectly limited the jury's consideration of asbestos exposure resulting from design defects. We review the legal adequacy of jury instructions de novo. ( Davis v. Honeywell International Inc . (2016)
Plaintiffs argue that because Ford cars were designed with braking systems intended to be used with asbestos brake linings, Ford is liable for any injuries caused by Marline's exposure to asbestos replacement parts.
Plaintiffs' theory is not supported by the law or the evidence in this case. In O'Neil , the decedent was exposed to asbestos on a naval ship from
The plaintiffs in O'Neil argued that the "defendants' products were defective because they were 'designed to be used' with asbestos-containing components." ( O'Neil , supra ,
Plaintiffs point to O'Neil 's footnote 6: "A stronger argument for liability might be made in the case of a product that required the use of a defective part in order to operate. In such a case, the finished
The plaintiff in Johnson also pointed to footnote 6 in O'Neil , and argued that the "brake assemblies specified and required use of asbestos-containing brake linings." ( Johnson, supra ,
The same reasoning applies here. Plaintiffs did not present any evidence to show that cars originally equipped with asbestos-containing brakes were unable to use non-asbestos brake parts. No evidence suggested that Ford-designed brake drums or disks were incompatible with lining materials that did not contain asbestos. Although the evidence indicated that in the 1960's
In plaintiffs' reply brief, they cite to O'Neil 's duty-to-warn analysis to support their contention that Ford cars were defectively designed because they incorporated asbestos-containing brake parts. However, a duty to warn is not relevant to the design defect analysis here. California recognizes three different types of product defеcts under strict liability-manufacturing defects, design defects, and warning defects. ( Anderson v. Owens-Corning Fiberglas Corp . (1991)
Moreover, even if O'Neil 's failure-to-warn analysis were applicable here, it does not support plaintiffs' argument. In the portion of its decision addressing a duty to
The O'Neil Court distinguished Tellez-Cordova from the case before it in two ways. First, the Court noted that according to the complaint, "the power tools in Tellez-Cordova could only be used in a potentially injury-producing manner. Their sole purpose was to grind metals in a process that inevitably produced harmful dust. In contrast, the normal operation of defendants' pumps and valves did not inevitably cause the release of asbestos dust. This is true even if 'normal operation' is defined broadly to include the dusty activities of routine repair and maintenance, because the evidence did not establish that defendants' products needed asbestos-containing components or insulation to function properly." ( O'Neil, supra ,
Several cases have followed Tellez-Cordova in finding that liability may arise from the use of brake lining arcing machines. As Joseph and Marline testified in this case, the work of arcing brake linings can create airborne dust. In cases specific to arcing machines, as in Tellez-Cordova , plaintiffs alleged that the arcing machine's sole purpose was to grind brake linings, at the relevant time all brake linings contained asbestos, and grinding the brake linings on the machine created hazardous airborne dust. Courts have found that the arcing machines therefore were "intended to be used with another product for the very activity that created a hazardous situation ." ( Bettencourt v. Hennessy Industries, Inc . (2012)
This case is more like O'Neil than Tellez-Cordova and the arcing machine cases. A car is not like a brake lining arcing machine, in which the intended use of the machine is the very activity that creates a hazardous situation-respirable airborne dust. There was no evidence presented that using a car's brakes created airborne dust that exposed the user to respirable asbestos fibers. To the contrary, the testimony indicated that brake dust collected in the brake drum, rather than being released into the air. And even if we were to define the "normal operation" of a vehicle to include routine repair and maintenance, as the Court did in O'Neil , liability still would not attach. Only the manner in which Joseph or others chose to clean the brake drums-by blowing the dust out with compressed air or tapping the dust out onto the ground-released the dust into the air. Had Joseph or others chosen to clean brake drums in some other manner, such as vacuuming brake dust out of the drums or wiping the drums with wet rags, presumably the existence of airborne dust would have been minimized. This implicates a critical issue in product liability jurisprudence: "It is fundamental that the imposition of liability requires a showing that the plaintiff's injuries were caused by an act of the defendant or an instrumentality under the defendant's control." ( O'Neil , supra ,
We therefore decline to find an exception to O'Neil in this case. That Ford vehicles were compatible with other manufacturers' asbestos-containing brakes available at the time did not make Ford liable under a design defect theory of liability for Marline's exposure to asbestos from replacement brakes placed into the stream of commerce by other manufacturers. Special Instruction No. 2 correctly stated the law under O'Neil .
Plaintiffs argue that the O'Neil instruction error in Ford's Special Instruction No. 2 "was exacerbated when the court read CACI 430 to the jury" because it imposed a higher burden on plaintiffs. CACI No. 430, as given, stated, "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm."
Plaintiffs argue that the inclusion of CACI No. 430 exacerbated the error of giving Ford's Special Instruction No. 2. As explained above, however, we find that Special Instruction No. 2 was correct. The use of CACI No. 430 therefore could not have exacerbated any such error.
Plaintiffs also argue that the directions for use for CACI No. 430 state that it should not be given in asbestos cases. Plaintiffs argue that the instruction required
Ford points out that CACI No. 430 was requested by Exxon, which was a premises liability defendant and not a product liability defendant. Ford also argues that directions for use of CACI No. 435 state, "Unless there are other defendants who are not asbestos manufacturers or suppliers, do not give CACI No. 430, Causation: Substantial Factor." Here, Ford argues, Exxon was not an asbestos manufacturer or supplier, and therefore the inclusion of CACI No. 430 was appropriate.
Causation specific to asbestos cases was discussed in Rutherford, supra,
In the time since Rutherford was decided in 1997, CACI instructions have been implemented, including CACI No. 435, specific to asbestos causation. The directions for use for CACI No. 430 now state, "In asbestos-related cancer cases, Rutherford [supra ] requires a different instruction regarding exposure to a particular product. Give CACI No. 435, Causation for Asbestos-Related Cancer Claims, and do not give this instruction." ( CACI No. 430, directions for use.) The directions for use in CACI No. 435 say, "Unless there are other defendants who are not asbestos manufacturers or suppliers, do not give CACI No. 430, Causation: Substantial Factor."
Other than the Use Notes, plaintiffs have presented us with no authority supporting their argument that CACI No. 430 should not be given in an asbestos case that includes a defendant that is not a manufacturer or supplier. "Pattern jury instructions ... while designed to accurately reflect the law, are not the law itself." ( Christian Research Institute v. Alnor (2007)
Here, there was not a large degree of conflict about general causation. Experts from both sides agreed that there is a certain amount of "ambient" or "background" asbestos in the air, and excessive exposure to asbestos can cause disease. There was some conflict in the evidence about the extent to which brake dust might contribute to a risk of developing mesothelioma. Plaintiffs presented evidence that cleaning brake drums with compressed air created airborne asbestos levels that exceeded OSHA requirements; defendants presented evidence that brake dust was largely harmless forsterite and auto workers did not experience an increased risk of asbestos-related disease. No evidence was presented to show that bystanders near automotive workers had an increased risk of disease.
As for specific causation, there was no dispute about Marline's presence at the Enco station, and no dispute that about 40 percent of the cars serviced at the Enco station were Ford vehicles. The experts' opinions differed regarding whether the alleged exposures contributed to Marline's risk of developing mesothelioma. Therefore, there were conflicts in the evidence as to whether exposure to Ford's asbestos-containing auto parts at the Enco station could have been a substantial factor in causing Marline's mesothelioma.
It does not appeаr that defendants' arguments contributed to any misleading effect of CACI No. 430. Before defense
Plaintiffs argue that Exxon's comments were prejudicial because the Judicial Council Advisory Committee on Civil Jury Instructions "expressly and specifically found that the 'trivial' language from CACI 430 should not be given in an asbestos case." In fact, the Advisory Committee considered whether an instruction about "trivial" exposures must be given or could be omitted, and ultimately decided that "the issue is appropriate for legal argument, to be decided by the trial judge." (Report of the Advisory Committee on Civil Jury Instructions, Oct. 12, 2007, p. 6, available at www.courts.ca.gov/documents/120707item4.pdf.) The Advisory Committee noted Rutherford 's statement that "a force [that] plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor." (Id . at p. 5, quoting Rutherford, supra ,
The third factor relating to prejudice is whether the jury requested a rereading of an erroneous instruction or related evidence. Here, the jury did not request such information. The fourth factor is the closeness of the jury's verdict. Here, on the substantial factor question relating to Ford, the jury found in favor of Ford ten to two.
The fifth factor is the effect of other instructions in remedying the error. Here, even if CACI No. 430 is insufficiently detailed to accurately reflect substantial factor causation in an asbestos case, the court also read CACI No. 435, which is specific to asbestos cases. The question on the verdict form
Plaintiffs have not shown that the inclusion of CACI No. 430 was erroneous, nor that they were prejudiced by the use of CACI No. 430.
4. Ford's motion for summary adjudication of plaintiffs' punitive damages claim
Ford moved for summary adjudication of plaintiffs' punitive damages claims before trial. The court granted the motion, stating, "[T]here is not a showing of factual issues of conscious disregard towards a bystander or a showing that there was a duty owed to her relative to the-that they had a conscious disregard toward a bystander that would justify punitives."
On aрpeal, plaintiffs' arguments as to Ford's motion are relevant only if we were to find a basis for reversing the verdict in favor of Ford. Plaintiffs state in their opening brief, "Assuming that the judgment in Ford's favor is reversed, reversal of the summary adjudication is also required so that plaintiffs can seek recovery of punitive damages at retrial." In their reply, they state, "Upon reversal, the trial court must be directed to reverse its grant of summary adjudication as to the punitive damage issues."
As stated above, we find no basis to reverse the verdict as to Ford. Plaintiffs' arguments as to Ford's motion for summary adjudication are therefore moot.
C. Verdict in favor of Exxon
The jury returned a verdict in favor of Exxon. Plaintiffs argue that the evidence did not support the verdict.
When the trier of fact has expressly or implicitly concluded that the party with the burden of proof failed to carry that burden and that party appeals, the substantial evidence test does not apply. Instead, "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." ( Shaw v. County of Santa Cruz (2008)
Here, the jury found that Exxon controlled the Enco station, that Marline was exposed to asbestos there, and that Marline's exposure at the Enco station was a substantial factor in contributing to her risk of developing mesothelioma. However, when asked if "Exxon [knew], or through the exercise of reasonable care should have known, that there was a condition at the Enco station that created an unreasonable risk to Mrs. Petitpas of exposure to asbestos dust," the jury unanimously answered "no." Plaintiffs argue that this answer "is not legally supportable in light of the uncontradicted evidence that Exxon actually knew about the danger."
The evidence presented at trial arguably shows that Exxon knew about potential dangers of asbestos exposure to refinery
Plaintiffs argue that Exxon "not only knew about the general risks associated with asbestos exposure, but knew about the risks associated with asbestos released from [the] inspection and repair of brakes," and "Exxon had actual knowledge that terminal disease was associated with exposure of automotive mechanics to work on asbestos-containing brakes." The cited evidence does not support these statements. Plaintiffs point to the testimony of their expert, Dr. Weaver, who was formerly employed as a physician addressing issues of worker health at oil refineries for Exxon predecessors. Before Dr. Weaver's testimony was read to the jury, the court gave a limiting instruction: "Dr. Weaver was appearing at this deposition as an expert witness, not as a corporate representative of Exxon Mobil corporation. [¶] None of the products identified in this deposition are brakes, gaskets, or clutches; none of the locations identified are service stations. The only locations are refineries." Dr. Weaver's testimony addressed working conditions at refineries and generally available knowledge that asbestos can cause disease, but he said nothing about knowledge of hazards involving brake or automotive work. Dr. Weaver's testimony therefore does not support a finding that Exxon knew or should have known that bystanders at service stations might be at risk for hazardous asbestos exposure.
Plaintiffs argue that under agency theory, knowledge can be imputed from a principal to an agent. Plaintiffs contend that because the principal-Exxon management-knew about the hazards of asbestos exposure to refinery workers, we may assume that agents-subsidiary service stations-also knew. Plaintiffs also assert that "Exxon presented no evidence at all demonstrating that its refineries were operated independently of its retail service stations." This theory is not well taken.
As noted above, the trial court correctly granted summary adjudication of plaintiffs' product liability claims against Exxon. Plaintiffs therefore proceeded to trial against Exxon on premises liability claims. The jury was asked whether Exxon knew or should have known "that there was a condition at the Enco station that created an unreasonable risk" to Marline (italics added). Evidence suggesting there were
Moreover, even if the evidence plaintiffs rely upon supported their argument, it would not compel reversal. As discussed above, reversal under these circumstances requires "uncontradicted and unimpeached" evidence that is "of such a character and weight as to leave no room for a judicial determination that it was insufficient to suрport a finding." Here, however, the evidence was contradicted. As noted above, several witnesses testified that brake dust was almost exclusively non-hazardous forsterite, not asbestos. Defense expert Dr. Roggli testified that forsterite "has no disease-producing potential at all." Dr. Castleman testified that by 1969, "there was nothing in print on the measurement of exposure of brake mechanics to asbestos." Counsel for
Contrary to plaintiffs' arguments, therefore, Exxon's knowledge about asbestos hazards for vehicle mechanics-and bystanders at service stations-was far from uncontroverted. Plaintiffs have not met the high threshold of showing that they were entitled to a verdict against Exxon as a matter of law.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
We concur:
EPSTEIN, P.J.
WILLHITE, J.
Notes
Because plaintiffs share a last name, we refer to them individually by their first names for clarity and intend no disrespect. Marline passed away while this appeal was pending. We granted the unopposed motion seeking to substitute Joseph as Marline's successor-in-interest in this action. We refer to Joseph in both his individual and representative capacity as plaintiffs.
Rossmoor Corporation has been dissolved, and therefore Fireman's Fund Insurance Company intervened below and is a respondent in this appeal. We refer to this party as "Rossmoor."
The parties agreed that the Pomona Enco station was the only one relevant to plaintiffs' product liability claims.
Exxon correctly points out that plaintiffs failed to cite legal authority in their opening brief supporting their arguments as to strict product liability against Exxon. Every appellate brief must "support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B).) When an appellant asserts an argument but fails to support it with reasoned argument and citations to authority, we may treat the point as waived. (Badie v. Bank of America (1998)
Plaintiffs do not argue that Exxon should be liable under Kesner for take-home exposure relating to Joseph's work at the Enco station in Pleasanton after plaintiffs were married. We therefore do not consider Kesner' s effect on this alleged exposure.
At trial the parties stipulated that defendant Exxon was known or did business as Enco and Humble Oil.
Joseph testified that this work was done when brake drums became warped from use, or to fit brake linings better within a brake drum to ensure a smooth braking surface.
Hatfield's specific area of expertise is unclear from the record, but he testified that he is a geologist, microscopist, and "know[s] a lot about the industrial hygiene of asbestos."
At one point Marline testified that she would shake out the clothing Joseph wore while working on Ford cars, but none of the parties have pointed us to any evidence that Marline shook dust from the clothing Joseph wore while working at Rossmoor.
Because these defendants were dismissed before trial was completed, some of the evidence pertaining to these exposures, related causation, and defenses was not fully developed. Nonetheless, the jury heard some information about Marline's exposures to asbestos from these sources. Because the jury's causation finding is at issue on appeal, we include a brief summary of this evidence here.
Anderson also testified that his studies showed that with use, almost all of the asbestos in brake linings was converted to non-fiber forsterite. The record does not make clear if Anderson and Taylor were discussing results of the same tests. The portion of Anderson's testimony read into the record at trial also was not clear regarding the time pеriod in which Anderson tested brake linings containing asbestos. Anderson's deposition testimony that was read at trial said that "99.87 plus percent" of the chrysotile was converted to forsterite, and that "approximately .03% or less" was fiber bundles. These numbers do not add up to 100 percent and do not match Taylor's numbers, which suggests either an error or that Anderson and Taylor were discussing different tests.
Rossmoor also moved for nonsuit after plaintiffs' opening statements.
Plaintiffs suggest that asbestos may have contaminated the family car, but they have not pointed us to any testimony suggesting that asbestos-containing dust was in the car and that Marline was exposed to asbestos when she breathed dust in the car.
Although the instruction and verdict form referenced brakes, clutches, and gasket products, plaintiffs' argument on appeal discusses replacement brakes only, and includes record citations to evidence relating to brake parts. We therefore focus our analysis on brake parts.
Plaintiffs argued below that O'Neil "does not apply with respect to design defect liability." This is incorrect; the O'Neil Court expressly addressed that theory, holding that design defect liability was not available under the circumstances: "We conclude that defendants were not strictly liable for O'Neil's injuries because (a) any design defect in defendants' products was not a legal cause of injury to O'Neil, and (b) defendants had no duty to warn of risks arising from other manufacturers' products." (O'Neil, supra,
Plaintiffs presented evidence that Ford knew that cleaning brake dust from brake drums with compressed air could cause the release of respirable asbestos fibers. While such evidence might have been relevant to a duty to warn, which plaintiffs do not assert here, without more it was not relevant to the design defect claim plaintiffs assert.
Ford argues that plaintiffs forfeited this argument by suggesting to the trial court that both instructions should be read to the jury. However, this occurred only after plaintiffs' counsel already objected to the inclusion of CACI No. 430, however. Plaintiffs' objection therefore was preserved.
Since there was no evidence suggesting that Marline visited Joseph at any Enco stations after 1968, Exxon's knowledge on that point after 1968 is irrelevant.