California Court of Appeals, First District, Fifth Division
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
...