APPEAL from a judgment of the Superior Court of Los Angeles County. Robert H. O'Brien, Judge. (Retired Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed. (Los Angeles County Super. Ct. No. BC342363).
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
Plaintiffs appeal from a judgment in favor of defendants Bondex International, Inc. (Bondex),*fn1 RPM, Inc. and Crown Cork & Seal Company, Inc. (Crown) in their action for wrongful death. Plaintiffs' decedent William Saller died of mesothelioma, an asbestos-related disease, in February 2006. Mr. Saller asserted two sources of exposure to asbestos: his employment at Standard Oil where he was exposed to pipe insulation containing asbestos manufactured by Crown, and his personal use of joint compound manufactured by Bondex for home repair. At trial, the court refused to give plaintiffs' requested jury instructions on the consumer expectations test and failure to warn. We reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
William Saller was diagnosed with mesothelioma in June 2005, and died in February 2006.*fn2 Mr. Saller was born in 1937, and joined the Marines in 1954. In August 1959, he went to work for Standard Oil at its El Segundo refinery. He worked there for seven and a half years, and worked for the Los Angeles County Sanitation District from 1967 until 1993. Although Saller did not work with asbestos-containing products at his employment, he worked in close proximity with those who did.
In June 2005 he began to experience shortness of breath, and pain in his left arm and elbow. He went to his family doctor, believing he was having heart problems. Saller had a CAT scan, which disclosed fluid in his lungs. He underwent a lung biopsy and was diagnosed with mesothelioma. A doctor at UCLA told Saller he was a good candidate for lung surgery because he was in otherwise good health. In September 2005, doctors removed a large tumor from his lungs. After his surgery, Saller had radiation treatment, which he completed in December 2005.
Saller believed he was exposed to asbestos when he worked at Standard Oil and from his use of home repair products containing asbestos.*fn3
1. Saller's Work at Standard Oil, 1959-1967
Saller believed he was exposed to asbestos in three different locations at Standard Oil: the barrel reconditioning plant, the filling plant, and the warehouse. When Saller went to work at Standard Oil in 1959, Saller was assigned to the barrel reconditioning plant, where they would clean and paint used oil barrels for reuse. They would use caustic solution to remove the old paint from the barrel, and then they would steam clean the barrels. The work was very hot and dirty. After the barrels were cleaned, Saller would work on removing excess moisture, rust and dents from the barrels. There were steam pipes running through the barrel reconditioning plant. He worked in barrel reconditioning for about five months.
Saller then went to work in the filling plant. The filling plant was not as dirty as the barrel reconditioning plant, but there was a "lot of oil around," and pipes and manifolds "running everyplace." Oil running through the pipes had to be heated to keep it flowing. The filling plant was very old, and parts of it had been built before 1920. He was in the filling plant about 18 months, and after that worked in the warehouse, where he worked a forklift to load products on trucks or railroad cars. Even while at the warehouse, he went to the filling plant several times a day to pick up items. Saller worked in the warehouse about five and a half years.
Saller believed he was exposed to asbestos during the time he worked in the warehouse because asbestos was contained in pipe coverings, which is insulation wrapped around a pipe to keep the heat in. He recalled that "Mundet" was a brand name on the insulation, and remembered it because it came in a package with a bright yellow "M" on it.*fn4 Mundet Corporation, which was acquired by Crown in 1966, manufactured asbestos-containing insulation products during the early 1960's, and sold its insulation to oil refineries.
Saller did not work personally with pipe covering, but observed other workers use it in the barrel reconditioning plant and in the filling plant. He saw other workers applying the Mundet insulation to pipes, and also saw them applying it to pumps and valves. About once a week he was 10 feet or less from where Mundet insulation was being applied in the barrel reconditioning plant, and in the filling plant he was closer than 10 feet from the insulation more than once a week.
During installation of the asbestos insulation, workers often cut the pipe covering to fit the pipes, pumps and valves. They would use a saw, utility knife or a power tool with a brush which would create a gray dust. Chunks and scraps of insulation and powder would be on the floor after the installation procedure, and there would be a lot of dust. At times, Saller would clean up the debris using a broom and shovel. Sometimes it took half an hour to clean up. Workers cut the pipe insulation about once at week in the barrel reconditioning plant, and several times a week in the filling plant. Saller believed he inhaled the dust because he would have particles on his face and back that were like "itchy powder." He did not wear any breathing protection; none was offered and he did not ask for any. In addition, workers in the barrel reconditioning plant would make a "mud" from a dusty powder and water that they would place around the valves. When they poured the powder into a bucket to mix it with water, it created a lot of dust.
During the time he worked at Standard Oil, Saller never received any warning about health risks associated with Mundet pipe insulation.
2. Saller's Complaint and Operative Second Amended Complaint
On November 1, 2005, Saller and his wife Donna Saller filed a complaint for personal injuries based upon Saller's exposure to asbestos-containing products manufactured by Crown and eighteen other defendants, including Bondex. After Mr. Saller's death, on July 19, 2006, Donna Saller, individually and as representative of Saller's estate, and his daughters Lori Saller and Shari Jocis filed the operative second amended complaint alleging claims for wrongful death based on theories of negligence, strict liability, false representation, and intentional failure to warn.
B. Trial, Jury Instructions, Jury Verdict
Trial commenced on December 4, 2007 against defendants Crown, Bondex and RPM, Inc.
Robert Cameron, M.D., who performed plaintiff's September 2005 surgery, testified that mesothelioma is a tumor that grows in the space around the lungs, and is very diffuse. It is difficult to treat and there is no cure. Mesothelioma is caused by asbestos exposure, and exposure to asbestos caused Mr. Saller's disease. Barry Horn, M.D., who is board certified in pulmonary diseases, testified that with asbestos, it can be decades between exposure and the development of disease. Mesothelioma is a rare disease; there are only 3000 cases per year in the United States, and in his opinion, plaintiff's disease was caused by exposure to asbestos. Arnold R. Brody, a cell ...