not know of, and should not have suspected or been on inquiry as to, their damage and its wrongful cause. The bulk of plaintiffs' evidence was directed to the issue of whether they knew of their damage prior to April 21, 1986. However, plaintiffs were unable to overcome the compelling evidence that they should have suspected and actually were "on inquiry" as to their alleged damage and its wrongful cause prior to April 21, 1986. Indeed, the evidence produced by plaintiffs almost uniformly supported this conclusion.
First, the uncontroverted evidence established that prior to April 21, 1986 plaintiffs knew that their buildings had asbestos-containing fireproofing. Sixteen years prior to the commencement of this action, Jay Cahill learned that 425 California Street and Fox Plaza had asbestos-containing fireproofing. (RT at 541:22-542:13; 544:6-16). In 1985, Peter Cahill had bulk samples tested from both buildings. Those tests confirmed that asbestos was present in the fireproofing. (RT at 676:2-683:5).
Second, the uncontroverted evidence established that prior to April 21, 1986 plaintiffs knew that asbestos fireproofing was alleged to be a health hazard when it was disturbed during remodeling or maintenance; and they knew that such remodeling and maintenance work had been and would continue to be performed in their buildings. Between 1971 and 1974 Jay Cahill was involved in meetings and received correspondence that discussed the alleged health hazards of asbestos fireproofing. (See Def. Exhs. 15-29). Jay Cahill admitted at trial that in 1973 he was aware of allegations that asbestos products were hazardous. And he read specifically in an article in the Bay Guardian Newspaper that the health of office and maintenance workers was at risk when the fireproofing in his buildings was disturbed. (Pl. Exh. 177). Jay Cahill confirmed his understanding of the alleged health hazards resulting from the disturbance of fireproofing when, in November 1972, he wrote that subcontractors at the Tishman building "who scrap away fireproofing and allow it to fall on the floor are creating a health hazard and a sliding hazard." (Def. Exh. 19).
Prior to April 21, 1986, Gerald Cahill was also intimately familiar with the theory that forms the basis for this lawsuit: that contamination occurs during remodeling and routine maintenance activities. He had read the EPA "Purple Book," which stated that "when building maintenance, repair, renovation, or other activities disturb ACM, or if it is damaged, asbestos fibers are released creating a potential hazard to building occupants." (Def. Exh. 46, at pg. S-1.; RT at 341:15-342:11). The Cahills knew that maintenance and renovation work had been and would be performed in the plenums on a regular basis. (RT 1001:16-1003:24). Moreover, Gerald acknowledged that he was "concerned" after reading the "Purple Book," and that he thereafter "felt we absolutely needed to do a survey" of the buildings. (RT at 220:7-8). The "Purple Book" together with the other facts known to the plaintiffs alerted the plaintiffs to the necessity for investigation. But there was more. Assertions similar to those made in the "Purple Book" were made at a seminar attended by Gerald Cahill in early February 1986. Most notably, a slide presented there identified "Remodeling/Renovation" among "Activities that release asbestos." (See Def. Exh. 106; RT at 885:24-25; 896:23-897:1; see also Def. Exh. 107 (Gerald's seminar notes listing "routine renovation" as an activity during which you must "Control  the risk")).
Finally, the uncontroverted evidence established that prior to April 21, 1986, plaintiffs suspected their injury and its wrongful cause, and in fact began an investigation based on their suspicions. It was undisputed at trial that prior to April 21, 1986 plaintiffs began to investigate the allegations that the fireproofing in their buildings was a health hazard. In April 1985, Peter Cahill had bulk samples taken from the fireproofing at 425 California Street. Similar samples were taken from Fox Plaza in September 1985. Peter had these samples tested and received the test results showing the presence of asbestos. (RT at 676:2-683:15).
In December 1985 Gerald Cahill spoke with realtors concerning the sale of Fox Plaza. (RT at 350:5-9). The realtors told Gerald that lenders and buyers would want to know if Fox Plaza contained asbestos. (RT at 215:14-21). After these conversations Gerald "went to the EPA and . . . obtained the Purple Book." (RT at 216:18-19). The "Purple Book" instructed Mr. Cahill that it was important to conduct a complete survey of the building.
After I digested the information in the Purple Book I was concerned and I felt we absolutely needed to do a survey, so we would have the information for the brokers and I discussed this with Richard Cahill and he suggested that I write up what I learned about it and we could have a short meeting to discuss what I was recommending.
(RT at 220:7-12).
On January 10, 1986, Gerald wrote a memo
to the family partnerships stating his and Richard's recommendation to proceed with "formal air-testing and [a] building inspection with an A.C.M. testing agency." (P. Exh. 17). By this date, Gerald had already acquired a significant amount of knowledge. In the memo, Gerald writes: (1) that he was "reasonably certain" that the buildings had "friable" asbestos fireproofing; (2) that the fireproofing was "capable of being a hazard to occupants and/or construction workers-maintenance staff;" (3) that the "federal government will no longer lease space in buildings containing any asbestos;" and (4) that institutional investors were shying away from property containing asbestos products which "will impact the sales values of our properties;" and (5) that "removal of A.C.M. is extremely expensive." (Id.).
Bill Cahill responded to Gerald's memo by recommending that the investigation be cloaked under the "attorney/client privilege." (Def. Exh. 101). Attorneys were thereafter retained to assist in the investigation. (RT at 235:9-25). The Cahills' investigation continued in February 1986 when Gerald attended a seminar entitled "Asbestos Update." (RT at 229:8-230:22).
The evidence adduced at trial established in no uncertain terms that plaintiffs suspected, and should have suspected, their injury and its wrongful cause no later than January 1986. Indeed, a jury could not have properly found otherwise. In short, the Court concludes that no reasonable jury, based on the evidence and a rational application of the Court's instructions, could have reached the conclusion which the jury in this case reached. And judgment notwithstanding the verdict is appropriate here, where "the evidence, viewed in a light most favorable to the non-moving party, permits only one reasonable conclusion with respect to the verdict." Locricchio v. Legal Services Corp., 833 F.2d 1352, 1356 (9th Cir. 1987).
The Court acknowledges now that it erred in its denial of defendants' request for a directed verdict at the close of all the evidence. Whatever the Court's inclinations may have been at the time of its ruling on defendants' request, upon a judicious review of all the evidence in the trial record in light of the controlling California cases, the Court is able to say now with utmost confidence that no reasonable jury could have decided that plaintiffs were not "on inquiry" prior to April 1986. Accordingly, the Court will grant defendants' request for judgment notwithstanding the verdict.
For the reasons set forth above, the Court hereby GRANTS defendants' motion for judgment notwithstanding the verdict and holds that plaintiffs' claims are time barred. Accordingly, a trial on the merits will not be necessary. This case is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
DATED: April 19, 1993.
EUGENE F. LYNCH
United States District Judge
To: John E. Cahill Partnership
Richard F. Cahill Partnership
J. Peter Cahill Partnership
Vivico c/o Bill Cahill
Of our buildings, Fox Place and 425 California Street are most likely to have friable asbestos containing material capable of being a hazard to occupants and/or construction workers-maintenance staff. We are reasonably certain that the fireproofing contains friable asbestos as well as pipe lagging, plastic ceilings, and some simulated accoustic ceilings. However, without on-site air-testing and a thorough inspection of the buildings, we cannot determine if the asbestos containing material (A.C.M.) is hazardous. 350 Sansome, 550 Kearney, and 155 Montgomery probably have some A.C.M. in lesser amounts. The following points should be considered:
1) Our insurance programs do not cover asbestos contamination - either liability or costs of removal & restoration.
2) The federal government will no longer lease space in buildings containing any asbestos (whether hazardous or not). This rule could trickle down to other public agencies and to the private sector, especially as liability insurance coverage becomes more limited, severely impacting our rental market.