Lopez v. The Hillshire Brands Co.

         [CERTIFIED FOR PARTIAL PUBLICATION^[*]]

         [254 Cal.Rptr.3d 378] Superior Court of Alameda County, Honorable Brad Seligman, Judge. (Alameda County Super. Ct. No. RG14721622)

Page 680

         COUNSEL

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

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

         OPINION

         NEEDHAM, J.

Page 681

         [254 Cal.Rptr.3d 379] 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

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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(l).)

         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 ...