Lopez v. The Hillshire Brands Co.

         CERTIFIED FOR PARTIAL PUBLICATION^[*]

          Superior Court of Alameda County, No. RG14721622, Honorable Brad Seligman Judge.

          Kaiser Gornick; Jeffrey Alan Kaiser, Lawrence J. Gornick, David Markevitch; The Arkin Law Firm; Sharon Joellen Arkin for Plaintiffs.

          Sidley Austin; David R. Carpenter, Mark Edmonde Haddad, Jean-Claude Andre, Andrew B. Talai; Buty & Curliano; Jason John Curliano & Michael C. Guasco for Defendants.

          NEEDHAM, J.

         Mark Lopez was diagnosed with epithelioid mesothelioma with a deciduoid pattern at the age of 59. He died from his disease at the age of 61. The physician who diagnosed him believed his mesothelioma was caused by exposure to asbestos.

         In this survivor action, Lopez's widow Lannette Louise Lopez and his children Pilar Elan Nabb and Seth Vincent Lopez, who were 20 years old and 15 years old, respectively, at the time of diagnosis, sued The Hillshire Brands Company (Hillshire) and others.^[1] The case proceeded to jury trial against Hillshire alone, on the theory that Lopez had been exposed to asbestos as a child in three ways when his father worked at a sugar refinery owned by Hillshire's predecessor-in-interest: (1) he visited his father and grandfather at the refinery itself several times; (2) he lived from 1954 to 1964 in a company-owned town, where asbestos drifted from the refinery; and (3) his father inadvertently brought asbestos from the refinery into the family home. The jury awarded plaintiffs $1, 958, 461 in economic damages and a total of $11 million in noneconomic damages.

         In its appeal, Hillshire raises several challenges to the sufficiency of the evidence, the jury instructions given, and the failure of the jury to apportion any fault to the companies that manufactured asbestos used in the refinery. Plaintiffs, on cross-appeal, argue the court erred in granting Hillshire's motion for summary adjudication of their punitive damages claim. We affirm the judgment in its entirety.

         I. FACTUAL BACKGROUND

         Since the 1920s, health and safety professionals have known that work with asbestos-containing products can cause asbestosis, a non-malignant scarring of the lung. In 1955, a link between asbestos and cancer was identified. California's safety orders were first promulgated in 1936 and applied to all places of employment in the state. At the times relevant to this case, they required employers to substitute substances creating harmful dust (including asbestos dust) when practicable, to control harmful exposures through ventilation and exhaust systems, to provide respirators as an emergency protection against brief exposures, to use water and other substances to prevent harmful exposures, to isolate dusty operations when their harmful effect could not be controlled by other means, to clean buildings and equipment that contribute to a hazard, and to provide showers and clothing storage for workers. (Former Cal. Admin. Code, tit. 8, §§ 4100, 4102, 4103, 4104, 4105, 4106, 4107, 4108, Register 18, No.8 (Dec. 19, 1949) pp. 432.145-432.150.) Asbestos concentration levels in the air could not exceed five million particles per cubic foot. (Former Cal. Admin. Code, tit. 8, § 4101(1).)

         In the early 1970s, Congress enacted the Occupational Safety and Health Act (Fed/OSHA), which provides for the adoption of minimum national health and safety standards. (29 U.S.C. § 651.) In 1972, OSHA promulgated its first permanent asbestos regulations and recognized that concentrations that “may be safe with regard to asbestosis are not safe with regard to mesothelioma.” The Federal Register stated, “No one has disputed that exposure to asbestos of high enough intensity and long enough duration is causally related to asbestosis and cancers.” (37 Fed. Reg. 11318 (June 7, 1972).) Asbestos concentration levels would be limited to a weighted average of five particles per cubic centimeter with a never-to-be-exceeded standard of ten particles per cubic centimeter; effective July 1, 1976, these levels would be reduced to two fibers per cubic centimeter, with a ceiling value of ten fibers per cubic centimeter. (Ibid.)^[2]

         By 1913, it was recognized that workers could take home toxic substances to which they were exposed. In 1960, a link between asbestos and mesothelioma was established for people who lived with an asbestos worker.

         In the 1890s, the Union Sugar Company established a sugar refinery in Betteravia, California on the state's Central Coast. Hillshire is the successor-in-interest to Consolidated Foods Corporation, which acquired the Union Sugar Company in 1951. The sugar refinery was an enclosed building, measuring 50 by 130 feet, with no mechanical ventilation. The entrance to the machine shop was through two sliding doors that were eight to ten feet wide and eight to ten feet tall and opened into the main area of the refinery. Hillshire owned the surrounding “company town” of Betteravia, which had houses that Hillshire rented to its workers. The town also had an open air dump used by the refinery.

         Hillshire used a great deal of asbestos insulation on miles of pipe located throughout the refinery, including a location just outside the machine shop. Asbestos was also used on thousands of valves, gaskets, packing materials and various pieces of equipment. The pipe insulation contained 15 to 20 percent asbestos and the gaskets and packing materials contained 70 to 80 percent asbestos.

         Twice a year, for a combined total of three to five months, the refinery was shut down for repairs that included the inspection, repair and replacement of valves throughout the refinery. This work required the removal of large amounts of insulation and the replacement of packing and gaskets, and created visible dust. Ed Kealm, a longtime worker, recalled removing the insulation with a claw hammer in a way that produced “clouds of dust.” The doors to the machine shop were almost always open during shutdowns. Asbestos scrap was put into the open air dump. It was also put through an electric grinder outside the refinery.

         Lopez's grandfather began working in the machine shop of the refinery in the 1920s and his father worked in the machine shop of the refinery beginning in the 1940s. Lopez was born in 1954 and lived with his family in Betteravia in a total of three different houses near the refinery. The family moved to nearby Santa Maria at the end of 1964, when the town closed down, but Lopez's father continued to work in the refinery. Lopez lived in the family home in Santa Maria until he moved out at the end of 1972.

         Hillshire workers often used compressed air to clean up debris and remove dust from their clothes. Lopez's father always wore his work clothes home and they were sometimes dusty. He sometimes did not change his clothes right away after returning home. Lopez routinely helped his mother launder his father's work clothes because she had a damaged hand due to childhood polio. After the family moved to Santa Maria, Lopez's father would drive to work in one of the family cars, which had cloth seats and in which Lopez frequently rode.

         When he lived in Betteravia, Lopez played outside in the area, including in the open-air dump and on the dirt roads. He routinely met his father and grandfather as they walked home from work in their work clothes. Beginning at age seven (1961) he also sometimes visited his father and grandfather in the machine shop, primarily during shutdowns when it was easier to move about the refinery. Lopez recalled that the refinery was a “very dusty environment” with “dust everywhere.” Lopez visited his father and grandfather about three to four times per week during shutdowns and the doors to the machine shop were almost always open to the main part of the refinery. Lopez never wore a respirator and never saw any employee wearing one.

         Lopez worked for United Parcel Service (UPS) from 1972 (when he moved out of the family home) until 1988. From 1988 until 2004 or 2005, he owned his own Snap-On Tool franchise. Then he went to work for Santa Maria Tire selling tires for heavy equipment. He did not work with asbestos products in any of these jobs. He did not do any vehicle maintenance in any of these jobs, though when he worked for UPS he washed trucks on one side of a 120 by 80 foot warehouse where repairs were being done, including brake repairs. He recalled seeing brake dust but did not recall how often he saw it. He did not know how often brakes were changed on the trucks, and after 1975 he spent most of his time outside of the warehouse as a driver. Before leaving the family home at age 18, Lopez assisted his father or grandfather in replacing brake shoes on vehicles about 20 times. He does not recall there being dust because they applied some type of liquid to keep dust to a minimum.

         In 1992, Lopez married Lannette Lopez and the couple had two children, Pilar and Seth. They were a very close family and Lopez participated in coaching, 4-H and leadership programs with his children. Lopez smoked socially in his 20s.

         Lopez was diagnosed with mesothelioma in 2013 and was told his condition was terminal. He was given chemotherapy in the form of infusions to prolong his life for a couple of years. He stopped working and discontinued sports activities because he found it difficult to breathe. Mesothelioma can be linked to asbestos exposure about 70 percent of the time.

         John Templin, plaintiffs' industrial hygiene expert, was asked about Hillshire's practices at the sugar refinery during Lopez's childhood. He testified that the use of compressed air spread asbestos throughout the sugar refinery and it would have migrated into the machine shop. The practice of grinding the asbestos insulation into powder was extremely hazardous and should not have been done, an opinion with which Hillshire's corporate representative agreed. Templin opined that the asbestos released during the grinding procedure went everywhere in Betteravia, including the dirt road in front of the refinery, the ball field and the houses.

         According to Templin, visible dust signified asbestos in a concentration of over five million particles per cubic foot and as much as 100 million particles per cubic foot. Templin also believed that refinery workers such as Lopez's father would have gotten asbestos on their clothes and contaminated their homes. People who handle the worker's clothes have more asbestos exposure than others in the home.

         Templin testified that during the 1950s it was recognized that only the complete elimination of asbestos would prevent the cancer it caused. Responsible companies at that time reduced exposure to asbestos to a level as low as was reasonably achievable. Between 1954 and 1973, Hillshire took no precautions at the refinery.

         The defense, essentially, was that the dangerousness of asbestos and its proclivity to cause cancer was not fully appreciated until after Lopez had moved from the family home and the period where he was potentially exposed had ended, that Hillshire complied with the law in existence at the time, and that Lopez had not in any event proven he was ever exposed to asbestos under the various theories.

         II. DISCUSSION

         A. Substantial Evidence of Exposure

         Hillshire argues the evidence was insufficient to prove either that Lopez was exposed to asbestos or that it caused him to be foreseeably at risk of harm. It cites the rule that “ ‘[m]ere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure.' ” (Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 288 (Petitpas), citing Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 252.) We disagree. Plaintiffs established more than ...