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Izell v. Union Carbide Corp.

California Court of Appeals, Second District, Third Division

October 22, 2014

BOBBIE IZELL et al., Plaintiffs and Respondents,
UNION CARBIDE CORPORATION, Defendant and Appellant.

APPEAL from judgment of the Superior Court of Los Angeles County, No. BC469931 Steven J. Kleifeld, Judge.

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Mayer Brown, Michele Odorizzi; McKenna, Long & Aldridge and David K. Schultz for Defendant and Appellant.

Baron & Budd, John Langdoc, Denyse Clancy and Christine Tamer for Plaintiffs and Respondents.




Union Carbide Corporation appeals from a judgment entered in favor of Plaintiffs Bobbie Izell and Helen Izell (Plaintiffs) on claims for personal injuries and loss of consortium stemming from Mr. Izell’s alleged exposure to Union Carbide asbestos and subsequent diagnosis with mesothelioma. After a four-week trial the jury returned special verdicts finding Union Carbide 65 percent comparatively at fault for Plaintiffs’ injuries and awarding Plaintiffs $30 million in compensatory damages plus $18 million in punitive damages against Union Carbide. By remittitur, which Plaintiffs accepted, the trial court reduced the compensatory damage award to $6 million, but declined to disturb the punitive damages.

On appeal, Union Carbide contends the evidence was insufficient to support the liability finding, apportionment of comparative fault, and the remitted compensatory damage award. Union Carbide also challenges the punitive damage award as excessive. We conclude the evidence was sufficient to support the verdict, as well as the compensatory and punitive damage awards. Accordingly, we affirm.


Union Carbide purchased an asbestos mine near Coalinga, California in 1963. Until 1985, Union Carbide supplied asbestos to companies that manufactured and marketed products for the construction industry.

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Mr. Izell owned a construction business that built approximately 200 homes in southern California from 1964 until 1994. Mr. Izell did not work as a laborer or supervisor on these projects, but he regularly visited and walked through the construction jobsites. All the homes were constructed with drywall interiors. Mr. Izell’s workers applied various brands of premixed joint compound to cover nail heads, fill the seams between drywall boards, and fill corner sections of drywall. Once the joint compound dried, the workers sanded it one to three times, usually with sandpaper on a long pole, then by hand. Mr. Izell often was present when his workers sanded the joint compound. He described the resulting dust as a “little fog in the air.” He also recalled breathing dust that was disturbed when his workers swept the excess joint compound from the floor.

Mr. Izell’s workers also used gun plastic cement to apply stucco to the homes’ exterior. Mr. Izell was present when his workers tore open bags of gun plastic cement, and he breathed the dust from those products as well.

Mr. Izell recalled seeing four different brands of joint compound on his jobsites and two brands of gun plastic cement. Of the joint compound brands, Mr. Izell believed Georgia Pacific was the most common brand because it was the “dominate seller in those days, ” followed by Hamilton Red Dot, Kaiser Gypsum, and Kelly-Moore’s Paco brand. Mr. Izell also saw his workers use Riverside and Colton gun plastic cement. At varying times from 1970 to 1978, Union Carbide supplied asbestos to each of the four joint compound manufacturers and to Riverside for use in its gun plastic cement.

In July 2011, at the age of 85, Mr. Izell was diagnosed with mesothelioma. Initially, Plaintiffs sued more than 20 defendants who were allegedly responsible for the asbestos-containing products to which he claimed he was exposed. By trial, only five defendants remained, including Union Carbide, one joint compound manufacturer (Kaiser Gypsum), one stucco manufacturer (La Habra) and two gun plastic cement manufacturers (Colton and Riverside).

After hearing percipient witness and expert medical and scientific testimony, the jury returned a special verdict finding all defendants liable on all theories of strict product liability and negligence. The jury awarded Plaintiffs a total of $30 million in compensatory damages, consisting of $5 million in past and $10 million in future non-economic damages to Mr. Izell and $5 million in past and $10 million in future loss of consortium damages to Mrs. Izell.

The special verdict form also asked the jury to apportion comparative fault among the defendants, Mr. Izell, and six other entities, consisting of three joint compound manufacturers (Georgia Pacific, Hamilton, and Kelly-Moore),

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two asbestos suppliers (Carey Canadian and Johns-Manville), and an unnamed asbestos-cement pipe manufacturer. The jury apportioned 95 percent of the fault to the five defendants, assigning 65 percent to Union Carbide, 20 percent to Kaiser Gypsum, and a total of 10 percent to the three stucco and gun plastic cement manufacturers. The jury allocated the remaining 5 percent to the non-defendant joint compound manufacturers and asbestos suppliers, finding each responsible for a 1 percent share of the comparative fault. No fault was apportioned to Mr. Izell or the asbestos-cement pipe manufacturer.

The jury also found Union Carbide and Kaiser Gypsum acted with “malice, oppression or fraud.” (Boldface omitted.) Kaiser Gypsum settled before the jury was asked to decide the amount of punitive damages.

For the punitive damage phase, Union Carbide stipulated that it had a present net worth of $4.2 billion. The court instructed the jury that it should consider a variety of factors in deciding the amount, if any, of punitive damages to award, including a “reasonable relationship between the amount of punitive damages” and the harm to Mr. Izell. The jury also was instructed that it could consider evidence of harm caused to others for purposes of assessing reprehensibility, but not for purposes of “punishing the defendant directly for harm caused to others.”

In his argument to the jury, Plaintiffs’ counsel commented there was probably no amount of money that could deter Union Carbide, given its $4.2 billion net worth. Thus, counsel suggested the jury award something in the range of $8.6 million ($100, 000 for each year of Mr. Izell’s life) and $18 million ($1 million for each year Union Carbide sold asbestos after it knew its product caused cancer). The jury returned a verdict awarding Plaintiffs $18 million in punitive damages.

Union Carbide moved for judgment notwithstanding the verdict (JNOV) and a new trial on all issues, including punitive damages. The trial court denied the JNOV motion, but conditionally granted a new trial “on the ground of excessive compensatory damages only, ” unless Plaintiffs consented to a remittitur reducing the compensatory damage award from $30 million to $6 million. The court declined to disturb the punitive damage award, concluding Union Carbide’s stipulated $4.2 billion net worth and the evidence concerning the reprehensibility of its conduct supported the amount of the award, notwithstanding the substantial reduction in compensatory damages. Plaintiffs accepted the remittitur and the court entered judgment against Union Carbide.

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1. Substantial Evidence Supports the Jury’s Causation Finding

“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 was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982-983 [67 Cal.Rptr.2d 16, 941 P.2d 1203], fn. omitted (Rutherford).) We review a jury’s causation finding for substantial evidence. (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 997-999 [35 Cal.Rptr.3d 144].)

Union Carbide contends the jury necessarily speculated in finding Mr. Izell was exposed to Union Carbide asbestos and that the exposure contributed to his risk of developing mesothelioma. We conclude the evidence of causation was sufficient.

a. Substantial evidence supports the finding that Mr. Izell was exposed to asbestos supplied by Union Carbide

“A threshold issue in asbestos litigation is exposure to the defendant’s product.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103 [120 Cal.Rptr.2d 23] (McGonnell); see Rutherford, supra, 16 Cal.4th at p. 982.) It is axiomatic that, “[i]f there has been no exposure, there is no causation.” (McGonnell, at p. 1103.) Further, “[t]he mere ‘possibility’ of exposure” is insufficient to establish causation. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108 [41 Cal.Rptr.3d 229]; see Dumin v. Owens–Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 654-656 [33 Cal.Rptr.2d 702] (Dumin).) “[P]roof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain [the plaintiff’s] burden” of persuasion. (Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104-105 [23 Cal.Rptr. 631].)

In McGonnell, the court affirmed summary judgment in favor of the defendant, concluding the plaintiffs’ limited circumstantial evidence was insufficient to establish more than the mere possibility that the decedent had been exposed to the defendant’s asbestos-containing joint compound. In opposing summary judgment, the plaintiffs in McGonnell offered “invoices

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showing the sale of [the defendant’s] joint compound to a contractor in 1972, ” which indicated the materials were purchased for a project at the decedent’s workplace. (McGonnell, supra, 98 Cal.App.4th at p. 1105.) Based on this evidence, the McGonnell court acknowledged it was “at least within the realm of possibility” that the decedent “encountered a wall with [the defendant’s] [asbestos-containing] joint compound during his 24 years of employment.” (Ibid.) However, the court held this possibility alone was insufficient to create a triable issue of fact, because a finding of exposure would necessarily require “speculation that at some time [the decedent] might have cut into a wall that might have contained [the defendant’s] joint compound that might have contained asbestos.” (Ibid.) The McGonnell court concluded the evidence, viewed in the light most favorable to the plaintiffs, “create[d] only ‘a dwindling stream of probabilities that narrow into conjecture, ’ ” and thus summary judgment was properly granted. (Ibid.; accord Dumin, supra, 28 Cal.App.4th at p. 656 [affirming directed verdict where defendant’s product “was only one of many asbestos insulation products used at the shipyard, ” such that a conclusion that plaintiff was exposed to defendant’s product “would require a stream of conjecture and surmise”]; Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1094 [109 Cal.Rptr.3d 371] [evidence that defendant specified asbestos insulation at plant in the 1950’s was insufficient to create triable issue where plaintiffs submitted no evidence that “the asbestos-containing materials installed in the early 1950’s were more likely than not still present when [decedent] was employed there” in 1961].)

Union Carbide contends the evidence in this case, as in McGonnell, established only the mere possibility that Mr. Izell was exposed to Union Carbide asbestos at some unspecified time during the 20-year period in question. In support of this contention, Union Carbide cites evidence indicating there were multiple asbestos suppliers for the joint compound and gun plastic cement products that Mr. Izell remembers encountering at his jobsites. Thus, while Union Carbide concedes it supplied asbestos that could have been in one or all of these products, it argues the jury necessarily speculated in concluding Mr. Izell was more likely than not exposed to Union Carbide asbestos, as opposed to asbestos from one of the other suppliers.

As we shall explain, though we agree the evidence allowed only speculation with respect to the products manufactured by Kelly-Moore, Georgia Pacific, Kaiser Gypsum and Riverside, with respect to the Hamilton joint compound, we conclude the evidence was sufficient to permit a reasonable inference that Mr. Izell was exposed to Union Carbide asbestos.

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(i) Kelly-Moore

At trial, Plaintiffs presented a collection of invoices showing Union Carbide supplied Kelly-Moore’s San Carlos, California plant with several hundred thousand pounds of raw asbestos from 1971 to 1976. However, the uncontradicted evidence established that Kelly-Moore had multiple asbestos suppliers during this time period, of which Union Carbide was only a minor supplier. Specifically, a former Kelly-Moore employee offered undisputed testimony that Union Carbide supplied only 8 percent of the asbestos Kelly-Moore purchased for its Paco Textures division—the division that manufactured the company’s asbestos containing products—while Carey Canadian supplied 72 percent and Johns-Manville supplied 20 percent.[1]

Because the invoices show Union Carbide supplied asbestos to Kelly-Moore’s San Carlos, California plant, Plaintiffs argue a reasonable inference, beyond speculation, can be drawn that joint compound containing Union Carbide asbestos made its way to one of the southern California jobsites where Mr. Izell inhaled dust from a Kelly-Moore product. We disagree. In view of the uncontested evidence that Kelly-Moore had multiple asbestos suppliers during the relevant time period, the fact that Union Carbide supplied asbestos to a plant in California does not remove the issue from the realm of speculation. As Union Carbide points out, Plaintiffs failed to show what percentage of the asbestos supplied to Kelly-Moore’s San Carlos plant came from Union Carbide, as opposed to some other supplier, let alone that Kelly-Moore’s Paco Textures division had other plants outside of San Carlos, California. Moreover, even if supplying Kelly-Moore’s San Carlos plant enhanced the possibility that Union Carbide asbestos made its way to one of Mr. Izell’s jobsites, this still leaves speculation about whether Mr. Izell was present when his workers sanded joint compound that might have contained Union Carbide asbestos, as opposed to asbestos from one of Kelly-Moore’s other suppliers. (McGonnell, supra, 98 Cal.App.4th at p. 1105.)

(ii) Georgia Pacific

Mr. Izell testified that he inhaled dust from Georgia Pacific Ready-Mix joint compound on jobsites in Southern California during the mid to late 1970’s. He identified the Georgia Pacific joint compound as “a pasty thing”—i.e., the premixed compound—that came in five gallon buckets weighing 62.5

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pounds. Plaintiffs contend the jury could have reasonably inferred that Mr. Izell was more likely than not exposed to Union Carbide asbestos from Georgia Pacific joint compound because the evidence showed that all Ready-Mix manufactured at Georgia Pacific’s Acme, Texas plant between September 1971 and May 1977 contained Union Carbide asbestos. This assertion would have merit if the joint compound from the Texas plant had been the only premixed product that Georgia Pacific sold in California under the Ready-Mix brand during the relevant time period. The undisputed evidence established it was not.

Because Ready-Mix was “33 percent water” and “the freight on the water would make it uncompetitive” for Georgia Pacific to ship the product from Texas to California, the undisputed evidence showed that from 1968 to 1971, Georgia Pacific had a “formal rebranding agreement in which a Paco [Kelly-Moore] facility in California made... joint compounds and cements at their facility and put them in Georgia Pacific containers.” After the rebranding agreement expired in 1971, Georgia Pacific’s “individual distribution centers” in California were allowed to “purchase [rebranded Ready-Mix] from anybody they wanted, ” including Kelly-Moore. According to the uncontested testimony of a former Georgia Pacific employee, the reason for this distribution arrangement was the same as had motivated the former rebranding agreement—Georgia Pacific “couldn’t get the product economically to California.”

Plaintiffs argue the evidence was in conflict as to whether Ready-Mix joint compound from Georgia Pacific’s Texas plant made its way to the Southern California market. They stress that, on appeal, this conflict must be resolved in favor of the jury’s verdict.[2] However, even if we assume a genuine conflict exists, when viewed in the light most favorable to the judgment, the evidence still required the jury to speculate as to whether Mr. Izell might have inhaled dust from Ready-Mix joint compound manufactured at Georgia Pacific’s Texas plant (where Union Carbide asbestos was used), or ...

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