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Natalia Hernandez v. Amcord

April 18, 2013

NATALIA HERNANDEZ, PLAINTIFF AND APPELLANT,
v.
AMCORD, INC., DEFENDANT AND RESPONDENT.



(Los Angeles County Super. Ct. No. BC402779) APPEAL from a judgment of the Superior Court of Los Angeles County. Mary Ann Murphy, Judge.

The opinion of the court was delivered by: Chavez J.

CERTIFIED FOR PUBLICATION

Reversed.

Natalia Hernandez (appellant), individually and as successor in interest to Arnulfo Hernandez, deceased (Mr. Hernandez or decedent), appeals from a judgment of non-suit in favor of respondent Amcord, Inc. (respondent).*fn1 Appellant and Mr. Hernandez brought suit against respondent and other defendants for negligence and strict liability after Mr. Hernandez was diagnosed with mesothelioma in 2008, at the age of 62. At the start of trial, respondent was the only remaining defendant in the case.*fn2 Non-suit was granted in favor of respondent after the appellant's presentation of evidence, on the ground that appellant failed to present evidence that respondent's product, Riverside's asbestos-containing gun plastic cement, was a substantial factor in causing Mr. Hernandez's mesothelioma to a reasonable degree of medical probability. The trial court cited Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford), and Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078 (Whitmire), in support of its decision.

We find that the evidence presented by appellant at trial, evaluated in a light most favorable to appellant, meets the standard set forth in Rutherford and its progeny. Therefore we reverse the judgment of non-suit. We further find that the trial court erred in excluding evidence of respondent's lobbying activities under the Noerr-Pennington doctrine. The evidentiary ruling was based on a misapplication of law and therefore constituted an abuse of discretion. The evidentiary ruling is also reversed.

CONTENTIONS

Appellant contends that the trial court erred in granting non-suit because appellant presented sufficient evidence to meet the Rutherford standard for proving causation in asbestos cases.

Appellant further contends that the trial court erred in excluding evidence of respondent's lobbying activities under the Noerr-Pennington doctrine.

FACTUAL BACKGROUND

Mr. Hernandez was diagnosed with malignant mesothelioma in 2008, when he was 62 years old. He died one year later. He left behind his wife of 37 years, three daughters and two sons.

Mesothelioma is a fatal cancer that develops in the lining of the lungs. It occurs when asbestos fibers get into the pleural area and cause irritation. As the cancer spreads, it grows thicker and ultimately pushes in the lung, causing it to collapse, which in turn ruins the capacity of the lung to exchange carbon dioxide with oxygen. The victim ultimately suffocates from the tumor. The latency period between exposure to asbestos and mesothelioma is usually 30 to 35 years or longer.

Mr. Hernandez was exposed to asbestos while working as a carpenter and construction worker in southern California during the 1960's through 1980's. Alfredo Hernandez (Alfredo), Mr. Hernandez's younger brother, worked with Mr. Hernandez for about 10 to 12 years beginning in 1969. They did not constantly work together; they worked apart during the week but worked together on the weekends to earn extra money. During this time period, the brothers worked together on about 20 houses and a few apartment buildings. They never built houses from the ground up, only additions on existing homes. They also worked together on commercial construction sites.

The majority of the brothers' work during this time was interior, as opposed to exterior work. However, they did perform some work on the outside of houses. Alfredo described the work as "stucco[ing] the houses." Riverside gun plastic cement was one of the stucco products the brothers used on the exterior of homes during the time period from 1969 through the 1970's. While there were other products available, Riverside gun plastic cement held better and was easier to apply. Although it cost a few dollars more, Alfredo and the decedent would buy Riverside gun plastic cement because it would make the job "faster and easier" and they could move on to a different job more quickly. They applied Riverside gun plastic cement "all the time" or about 75 percent of the time.

Riverside gun plastic cement was packaged in 94-pound bags. In order to open a bag of Riverside gun plastic cement, Mr. Hernandez would cut the bag in the middle, which created visible dust around his face and clothing. Mr. Hernandez would then dump the bag of Riverside gun plastic cement into a mixer, which also created "a little bit" of dust that got on his face and clothing. Mr. Hernandez did not apply the Riverside gun plastic cement with a gun, because it was too expensive. Alfredo was not able to come up with an approximate number of times that Mr. Hernandez used Riverside gun plastic cement, however, when asked how often the brothers worked with Riverside gun plastic cement, Alfredo replied: "A lot of times."

Riverside gun plastic cement was manufactured from 1959 to 1979. It contained a small amount of asbestos. There was no warning on the Riverside gun plastic cement that it could cause cancer. Riverside gun plastic cement was the only product manufactured by respondent which contained asbestos. Respondent was in full compliance with the regulations and requirements with respect to asbestos-containing products.

PROCEDURAL HISTORY

The pleadings

Appellant and Mr. Hernandez brought suit against respondent and 11 other defendants on November 26, 2008, alleging negligence, strict liability, and related claims. Respondent filed an answer on January 26, 2009.

Mr. Hernandez died on April 18, 2009. In October 2009, appellant filed a second amended complaint for wrongful death and survival, naming respondent and several other defendants. After the trial court granted an omnibus motion to strike in favor of respondent and other defendants, appellant filed a third amended complaint on April 15, 2010. The third amended complaint alleged causes of action for negligence and strict liability against respondent and others.

Trial

Trial commenced on November 14, 2011, with respondent the only remaining defendant.

Testimony of Richard Lemen, Ph.D.

At trial, appellant presented Richard Lemen, Ph.D., an epidemiologist, former Assistant Surgeon General of the United States, and former deputy director of the National Institute of Occupational Safety and Health (NIOSH). Dr. Lemen described epidemiology as "a field of medicine that is the study of disease patterns and populations." He explained that an epidemiologist studies what causes diseases, and then uses that information to implement disease prevention. Dr. Lemen explained that his testimony would concern "the health effects and our knowledge of those health effects as they relate to risks from exposure to asbestos."

Dr. Lemen studied asbestos since 1970. As part of his research, he wrote a position paper which was adopted as the official position of the World Health Organization. The paper took the position that asbestos caused lung cancer, mesothelioma, and several other types of cancers, and that all forms of asbestos were carcinogenic. He also wrote the NIOSH criteria document with respect to asbestos, which concluded that there was no safe level that could be identified for exposure to asbestos that would eliminate the risk of developing cancer. Dr. Lemen testified that mesothelioma is a cancer specifically associated with asbestos exposure, and that the major cause of mesothelioma is exposure to asbestos.

Dr. Lemen opined that if a worker poured a 94-pound bag of Riverside gun plastic cement containing asbestos, the worker would be at increased risk for developing mesothelioma as long as the asbestos fibers were respirable and airborne. Dr. Lemen also opined that if a worker were exposed to many different asbestos-containing products, each of those products would contribute to an increased risk of asbestos-related disease, as long as the asbestos was inhaled and retained in the worker's body.

Dr. Lemen is not a medical doctor. He did not diagnose Mr. Hernandez, and was not his treating physician. He could not testify as to the specific cause of Mr. Hernandez's mesothelioma. Dr. Lemen did not review any case-specific information or any of Mr. Hernandez's medical records, and he was not asked to give any specific opinions about Mr. Hernandez.

Testimony of Richard Kradin, M.D.

Dr. Richard Kradin is a medical doctor, the Director of Pulmonary Immunology and Molecular Biology and a pulmonary pathologist at Massachusetts General Hospital, as well as a professor at Harvard Medical School. He is board certified in anatomic pathology, pulmonary medicine, and internal medicine.

Dr. Kradin reviewed the medical records, work history, and histological materials of Mr. Hernandez.*fn3 Pursuant to a stipulation between the parties, Dr. Kradin did not appear live. Instead, his report was read into evidence.

Dr. Kradin confirmed that Mr. Hernandez had malignant mesothelioma of the pleura. As to Mr. Hernandez's exposure, Dr. Kradin stated:

"Mr. Hernandez was repeatedly exposed to asbestos while working as a carpenter, construction worker, and production worker from 1963 through the 1990's at various sites. He worked directly with asbestos-containing materials and in proximity to other tradesmen who cut, sawed, mixed, applied, sanded, and swept-up asbestos containing materials."

Dr. Kradin stated: "It is my opinion, to a reasonable degree of medical probability, that his malignant ...


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