Filed 10/28/15 Marteney v. Union Carbide Corp. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B252711c/wB253265
MARIE MARTENEY, (Los Angeles County
Super. Ct. No. BC489395)
Plaintiff and Respondent,
v.
UNION CARBIDE CORPORATION et
al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
John J. Kralik, Judge. Affirmed.
Mayer Brown and Michele Odorizzi and Polsinelli and David K. Schultz for
Defendant and Appellant Union Carbide Corporation.
Armstrong & Associates and William H. Armstrong for Defendant and
Appellant Elementis Chemicals Inc.
Weitz & Luxenberg, Benno Ashrafi, Cindy Saxey and Josiah Parker for
Plaintiff and Respondent Marie Marteney.
Marty and Marie Marteney asserted claims for negligence, strict liability,
and loss of consortium against appellants Union Carbide Corporation (UCC) and
Elementis Chemicals, Inc. (Elementis), alleging that asbestos they marketed
caused Marty Marteney’s mesothelioma. After the jury returned special verdicts
in the Marteneys’ favor on their claim for strict liability, appellants filed
unsuccessful motions for judgment notwithstanding the verdict, and a judgment
was entered awarding the Marteneys compensatory damages. Appellants
challenge the denial of their motions for judgment notwithstanding the verdict.
We reject their contentions, and affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Beginning in or about 1963, UCC sold asbestos to various manufacturers,
some of which made joint compounds used in the construction of walls. Elementis
is the successor-in-interest of Harrisons & Crosfield (Pacific), Inc. and certain
related entities (HCP), which distributed UCC asbestos. In 1958, Marty Marteney
began working for an architectural firm as “job captain,” and became a project
architect. He also engaged in remodeling projects on his home, and worked as a
volunteer on remodeling projects involving churches. In the course of his
employment and other activities, he handled joint compounds. In April 2012, he
was diagnosed as suffering from mesothelioma, which is a cancer of the lung’s
lining.
On August 1, 2012, the Marteneys filed their complaint for negligence,
breach of warranties, strict liability, and loss of consortium against 21 defendants
involved in the manufacture and marketing of asbestos-containing products,
including joint compounds. The complaint alleged that Marty Marteney’s
2
mesothelioma resulted from his exposure to asbestos from the defendants’
products. The Marteneys sought compensatory and punitive damages.
Prior to trial, the Marteneys entered into settlements with several
defendants. As a result of the settlements and other dispositions, on June 17,
2013, at the commencement of jury selection, UCC and Elementis were the sole
remaining defendants in the action. At trial, the key issues concerned the extent to
which Marty Marteney was exposed to UCC asbestos through contact with three
brands of joint compound -- Gold Bond, Paco Quick Set, and Georgia Pacific --
and the extent, if any, to which Elementis distributed the UCC asbestos to which
he was so exposed.
The jury was instructed to return special verdicts regarding three theories of
liability -- namely, negligence, strict liability based on a design defect, and strict
liability based on a failure to warn -- and other issues. The jury returned special
verdicts in favor of the Marteneys solely on their claim for strict liability based on
a design defect. The jury also found that the Marteneys suffered non-economic
damages totaling $1,175,000, but rejected their request for punitive damages. The
jury allocated UCC a five percent share of comparative fault, and Elementis a
three percent share of comparative fault.
UCC filed a motion for judgment notwithstanding the verdict, contending,
inter alia, that the Marteneys had failed to show that exposure to UCC asbestos
was a substantial factor in the causation of Marty Marteney’s mesothelioma, under
the standard stated in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953
(Rutherford). Elementis also submitted a motion for judgment notwithstanding
the verdict, asserting there was no evidence that the asbestos it distributed was
incorporated into any joint compound handled by Marty Marteney. After denying
the motions, on October 10, 2013, the trial court entered a judgment awarding the
3
Marteneys damages totaling $56,250 against UCC, and damages totaling $33,750
against Elementis. On December 30, 2013, the judgment was amended to reflect
an award of costs. UCC and Elementis noticed appeals from the judgments, which
were consolidated.1
DISCUSSION
Appellants present overlapping contentions regarding the denials of their
motions for judgment notwithstanding the verdict. UCC contends (1) that the
testimony from the Marteneys’ experts regarding the causation of Marty
Marteney’s mesothelioma did not satisfy the Rutherford standard, (2) that there is
insufficient evidence that Marty Marteney was exposed to its asbestos, (3) that the
jury’s special verdicts regarding the adequacy of UCC’s product warnings
shielded it from liability under a theory of strict liability based on a design defect,
and (4) that the “design defect” theory fails under O’Neil v. Crane Co. (2012) 53
Cal.4th 335 (O’Neil). In addition to joining in those contentions, Elementis
contends there is insufficient evidence that it distributed the asbestos to which
Marty Marteney may have been exposed. For the reasons discussed below, we
reject their contentions.
A. Standard of Review
As motions for judgment notwithstanding the verdict potentially conclude
litigation on a complaint, the rules governing them are “strict” (Fountain Valley
Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67
1 During the pendency of this consolidated appeal, Marty Marteney died. For
purposes of the appeal, Marie Marteney has been designated his successor in interest.
4
Cal.App.4th 743, 750), and “[t]he trial court’s discretion in granting a motion for
judgment notwithstanding the verdict is severely limited” (Teitel v. First Los
Angeles Bank (1991) 231 Cal.App.3d 1593, 1603). Generally, “‘“[i]f the evidence
is conflicting or if several reasonable inferences may be drawn, the motion for
judgment notwithstanding the verdict should be denied. [Citations.] ‘A motion
for judgment notwithstanding the verdict of a jury may properly be granted only if
it appears from the evidence, viewed in the light most favorable to the party
securing the verdict, that there is no substantial evidence to support the verdict. If
there is any substantial evidence, or reasonable inferences to be drawn therefrom,
in support of the verdict, the motion should be denied.’ [Citation.]”’” (Id. at
p. 1603, quoting Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-
878 (Clemmer).) In reviewing the trial court’s ruling, we also examine the record
for substantial evidence to support the verdict. (OCM Principal Opportunities
Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.)
B. Causation
We begin by examining appellants’ contentions regarding the sufficiency of
the evidence to support the special verdicts regarding their role in the causation of
Marty Marteney’s mesothelioma. The jury found that he was exposed to UCC
asbestos from three brands of joint compound, that Elementis distributed that UCC
asbestos, that the “design” of the asbestos was a substantial factor in causing harm,
and that appellants were responsible for a non-zero share of comparable fault for
the Marteneys’ injuries. Appellants maintain there is insufficient evidence that
UCC asbestos was a substantial factor in the causation of Marty Marteney’s
mesothelioma. In addition, Elementis contends there is insufficient evidence that
5
its activities as a distributor of UCC asbestos support the imposition of strict
liability for Marty Marteney’s mesothelioma. As explained below, we disagree.
1. Governing Principles
In cases “presenting complicated and possibly esoteric medical causation
issues,” the plaintiff is obliged to establish “‘“a reasonable medical probability
based upon competent expert testimony that the defendant’s conduct contributed
to [the] plaintiff’s injury.”’” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th
71, 79, quoting Rutherford, supra, 16 Cal.4th at p. 976, fn. 11.) As explained in
Rutherford, California applies the substantial factor test to so-called “cause in
fact” determinations. (Rutherford, supra, at p. 969.) “Under that standard, a cause
in fact is something that is a substantial factor in bringing about the injury.
[Citations.] The substantial factor standard generally produces the same results as
does the ‘but for’ rule of causation which states that a defendant’s conduct is a
cause of the injury if the injury would not have occurred ‘but for’ that conduct.
[Citations.] The substantial factor standard, however, has been embraced as a
clearer rule of causation -- one which subsumes the ‘but for’ test while reaching
beyond it to satisfactorily address other situations, such as those involving
independent or concurrent causes in fact. [Citations.]” (Id. at pp. 968-969.)
Although the term “substantial factor” has no authoritative definition, a force that
“plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury” is not a
substantial factor. (Id. at p. 969.)
Rutherford examined the relationship between the plaintiff’s burden of
proof and the substantial factor test in a specific context, namely, when the
asbestos alleged to have caused the plaintiff’s injuries potentially has multiple
sources. There, the wife and daughter of a deceased metal worker sued numerous
6
manufacturers and distributors of asbestos-laden products, alleging that the metal
worker’s exposure to their products caused his fatal lung cancer. (Rutherford,
supra, 16 Cal.4th at pp. 958-959.) Following the first phase of a bifurcated trial,
after a jury found that the decedent’s inhalation of asbestos fibers caused his
cancer, all but one manufacturer settled with the plaintiffs. (Id. at p. 960.) During
the second phase of trial, the jury heard testimony that the metal worker labored in
confined areas of ships containing the manufacturer’s asbestos-laden insulation.
(Id. at p. 961.) The parties also presented expert testimony regarding asbestos-
related cancers. (Ibid.) After receiving a burden-shifting instruction that the
manufacturer had the burden of showing that its product did not cause the
decedent’s cancer, the jury allocated the manufacturer a 1.2 percent share of
comparative fault. (Id. at pp. 961-962.) On appeal, the manufacturer challenged
the instruction. (Id. at pp. 962-963.)
Our Supreme Court concluded that the case fell outside the special
circumstances in which a burden-shifting instruction on causation is appropriate,
notwithstanding the “‘scientifically unknown details of carcinogenesis’” and the
impossibility of identifying the “‘specific fibers’” that caused an individual’s
cancer.2 (Rutherford, supra, 16 Cal.4th at p. 976.) The court determined that the
burden of proof remained on the plaintiff, subject to a specific quantum of proof.
(Id. at p. 969-982.) Under that quantum of proof, plaintiffs may establish
causation on the basis of expert testimony regarding the size of the “dose” or the
enhancement of risk attributable to exposure to asbestos from the defendant’s
products. (Id. at p. 976, fn. 11.)
2 As appellants do not suggest that the special circumstances are present here, they
have forfeited any contention that the burden of proving causation is properly imposed
upon respondents.
7
To “‘bridge th[e] gap in the humanly knowable,’” the court adopted the
following standard of proof: “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. In an asbestos-related cancer case, the plaintiff need not prove
that fibers from the defendant’s product were the ones, or among the ones, that
actually began the process of malignant cellular growth. Instead, the plaintiff may
meet the burden of proving that exposure to [the] 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, supra, 16 Cal.4th at pp. 976, 982, fn.
omitted, italics deleted.)
The court further held that juries should be so instructed. (Rutherford,
supra, 16 Cal.4th at p. 976.) Turning to the case before it, however, the court
found no prejudice from the instructional error. (Id. at pp. 983-985.)
2. Evidence at Trial
a. Marteneys’ Evidence
i. UCC and HCP
Beginning in the early 1960’s, UCC mined asbestos in King City,
California, and shipped it to product manufacturers. The asbestos was “a high
purity . . . chrysotile type,” and was marketed under the name, “Calidria.” UCC
marketed several grades of Calidria asbestos, including a grade known as “SG-
210” for use in joint compounds. Joint compounds are used to cover the joints
8
between dry wall and wall board construction materials, and include ready-mix
and dry powder products.
From the mid-1960’s to 1986, HCP distributed Calidria to the west coast of
the United States. UCC collaborated with HCP’s manager located in San
Francisco in distributing Calidria. Although UCC sometimes shipped Calidria
directly, HCP participated in the profits from UCC’s activities under an “exclusive
distribution agreement.”
In 1965, National Gypsum began making joint compounds -- marketed
under the name “Gold Bond” -- in a factory in Long Beach, California. National
Gypsum also made those products in plants located in Illinois, Maryland, and
Louisiana. The Long Beach plant distributed its joint compounds to the states on
the west coast of the United States, including California. In 1969, National
Gypsum began making Gold Bond products using formulas “built around” UCC’s
SG-210, which National Gypsum viewed as superior to its prior asbestos
ingredient. As of March 1970, UCC’s SG-210 was the sole asbestos incorporated
into the Gold Bond joint compounds made in Long Beach. Until the mid-1970’s,
the Long Beach plant relied on versions of the formulas adopted in and after 1969
in manufacturing Gold Bond products.
There was also evidence that during the pertinent period, Georgia Pacific
and Kelly-Moore used Calidria in their joint compounds.3 From late 1969 to mid-
1977, Georgia Pacific incorporated Calidria in some of its joint compounds, which
3 As explained below (see pt. B.3.b., post), the principal evidence concerning Marty
Marteney’s exposure to UCC asbestos relies on his contact with Gold Bond joint
compound, although he also encountered the Georgia Pacific and Paco Quick Set joint
compounds.
9
were manufactured in plants located in Texas, Illinois, Georgia, New York, and
Virginia. Only the Texas plant supplied joint compound products to California.
From 1963 to 1978, the Paco division of Kelly-Moore manufactured an
asbestos-containing joint compound sold as “Quick Set.” In addition, from 1968
to 1971, pursuant to an agreement, Kelly-Moore manufactured joint compound
products for Georgia Pacific in California, where Kelly-Moore had plants in San
Carlos and Ontario. In view of the agreement, Kelly-Moore made all Georgia
Pacific asbestos-containing joint compounds sold in California. After 1971, some
Georgia Pacific branches continued to sell Kelly-Moore products under the
Georgia Pacific label. The products that Kelly-Moore made for Georgia Pacific in
California were identical to its own product, and were distributed in California.
From 1971 to 1973 and for a 15-month period after August 1975, UCC supplied
Calidria to Kelly-Moore’s San Carlos plant.4
ii. Marty Marteney
Marty Marteney was born in 1931. At the age of nine, he began working
regularly in his father’s garage, where he replaced asbestos-containing brake
linings on trucks. He also helped his father renovate car dealerships by installing
asbestos sheets.
In 1956, after military service, Marteney moved to Los Angeles. From the
late 1950’s until 1971 or 1972, he worked for Levitt, an architectural firm.
Initially employed as a “job captain,” he was promoted to “project architect” after
two and a half years, and eventually became a certified architect.
4 In addition, appellants’ evidence showed that from 1968 to 1978, UCC supplied 8
percent of the asbestos fiber that Kelly-Moore used, most of which was shipped to its
California plants.
10
While employed by Levitt, Marteney worked “hands-on,” visiting job sites.
As a job captain, he spent 50 percent of his time in the field, and continued to
spend 20 percent of his time in the field after becoming a project architect. He
demonstrated how to mix construction materials, including joint compounds, and
participated in applying the joint compounds. He recalled using Gold Bond,
Georgia Pacific, and Paco Quick Set joint compounds, and was around other
workers who used them. The work sites were dusty and dirty, and he was
sometimes present when workers cleaned up after using joint compounds.
After leaving Levitt, Marteney secured employment with Ficus, another
architectural firm. Sometime after 1972, he spent time at the site of a large
hospital project, where workers used joint compounds. He recalled seeing bags
labeled “Gold Bond” and “Georgia Pacific.”
From 1965 to the mid-1970’s, Marteney also remodeled his home, and
volunteered to remodel many churches. In working on his home, he engaged in
drywall work, and used “big bags” of Gold Bond, as well as Paco Quick Set. He
also used Paco Quick Set in remodeling the churches.
iii. Expert Testimony
Dr. Allan Smith, an epidemiologist, testified that the inhalation of asbestos
dust is the major cause of mesothelioma. According to Smith, mesothelioma is a
“dose response disease,” that is, workers who have inhaled more asbestos or had a
higher dose face a higher risk of developing mesothelioma. He further testified
that chrysotile asbestos, the type of asbestos most used in the United States, causes
mesothelioma. Responding to hypothetical questions, Smith opined that if a
person with Marty Marteney’s personal history suffered from mesothelioma,
exposure to asbestos caused the disease. He further opined that each exposure to
11
asbestos would have contributed to the person’s overall risk of acquiring the
disease, stating that “every part of a causal dose that caused [the] cancer is
important.”
Dr. James Dahlgren, an expert in toxicology and occupational diseases,
testified that by 1960, medical science had confirmed that asbestos exposure
causes mesothelioma. Although all the main types of asbestos can cause
mesothelioma, exposure to chrysotile asbestos is the “overwhelming cause” of the
disease, as 95 to 99 percent of the asbestos used worldwide is of that type.
Generally, mesothelioma is subject to a “dose response curve.” Even very low
levels of exposure to asbestos -- including short term exposures -- greatly
increased the risk of mesothelioma. According to Dahlgren, workers exposed to
.05 “fiber years” of asbestos -- one-half of the OSHA limit set in the late 1970’s --
face a “statistically significant[] increase[]” in lung cancer and mesothelioma. He
stated: “[T]here’s no threshold, that is[,] no level below which there would be no
effect.”5
Responding to hypothetical questions, Dr. Dahlgren opined that exposure to
asbestos would have caused the mesothelioma suffered by a person with Marty
Marteney’s personal history. He further opined that if the person’s history
included one or two exposures to joint compound products containing UCC
asbestos, he would not exclude “those exposures as being causative for [the]
5 Dr. Dahlgren explained that a “fiber year[]” is a measure of the amount of asbestos
fibers to which a person is exposed. An exposure of .1 fiber years -- the OSHA standard
in the late 1970’s -- is equivalent to exposure to air containing .1 fibers per cubic
centimeter throughout an average working day for a one-year period. Dahlgren stated that
the OSHA standard reflected the fact that in the late 1970’s, available microscopes could
not detect airborne fiber concentrations of less than .1 fibers per cubic centimeter.
12
mesothelioma.” Dahlgren stated: “All those asbestos fibers . . . contributed to the
risk.”
b. UCC’s Evidence
William Dyson, an industrial hygienist, testified there is little data regarding
the risk of mesothelioma at very low levels of exposure to asbestos. He opined
that there was no increased risk from exposure to chrysotile from doses below the
range of 15 to 25 fiber years.6 Responding to hypothetical questions, Dyson
opined that if a person worked with a joint compound containing UCC asbestos on
ten two-hour occasions, that person’s level of exposure would be approximately
.02 fiber years, which Dyson characterized as “very, very low.”
In addition, UCC submitted evidence that aside from trial batches, no Paco
Quick Set joint compound was manufactured in California. According to that
evidence, Paco Quick Set was made in Kelly-Moore’s plants in Texas, although
UCC supplied some asbestos to those plants in the early 1970’s.
c. Elementis’s Evidence
Robert Mann, who testified as the person most knowledgeable regarding
HCP, denied that HCP received a commission or credit for UCC’s direct sales of
Calidria. He further stated that there were several grades of Calidria asbestos,
only one of which -- SG-210 -- was used in joint compounds, and that HCP
distributed SG-210 to joint compound manufacturers only from 1973 to 1977.
6 Although Dyson relied on a unit measurement of exposure he called a “fiber year
per cubic centimeter,” he noted that the unit is often called a “fiber year[],” and his
testimony establishes that he was relying on the unit measurement that Dr. Dahlgren also
used. For simplicity, we use the term “fiber year.”
13
3. Sufficiency of Evidence Regarding the Role of UCC’s Asbestos in
Causing Marteney’s Mesothelioma
We begin with UCC’s challenges to the special verdicts regarding the role
of UCC’s asbestos in causing Marty Marteney’s mesothelioma. As explained
above (see pt. B.2, ante), under Rutherford, at trial the Marteneys had the burden
of proof with respect to two facts. They were obliged to establish (1) that Marty
Marteney was exposed to UCC’s asbestos, and (2) that “in reasonable medical
probability,” his exposure was a substantial factor in bringing about his
mesothelioma. (Rutherford, supra, 16 Cal.4th at p. 982.) Regarding the second
fact, the Marteneys could carry their burden by showing “in reasonable medical
probability,” that the exposure “was a substantial factor contributing to
[Marteney’s] risk of developing cancer.” (Id. at pp. 982-983, italics deleted.)
UCC maintains the Marteneys failed to carry their burden regarding each
fact. UCC argues that Rutherford imposed substantive requirements on testimony
offered to show the second fact that the Marteneys’ experts failed to satisfy. UCC
further argues there is no evidence regarding the extent to which Marty Marteney
was exposed to UCC asbestos. As explained below, we reject UCC’s contentions
because the record -- including the expert testimony, viewed collectively -- was
sufficient to show that Marteney’s exposure to UCC asbestos “was a substantial
factor contributing to [his] risk of developing cancer.” (Id. at p. 982.)
a. Adequacy of Expert Testimony
UCC maintains that Rutherford imposed certain requirements on the
showing required of plaintiffs to establish the second fact. As noted above (see pt.
A.2., ante), in explaining the “substantial factor” test, the court stated: “Although
the term ‘substantial factor’ has no authoritative definition, a force that ‘plays only
14
an “infinitesimal” or “theoretical” part in bringing about injury’ is not a substantial
factor.” (Rutherford, supra, 16 Cal.4th at p. 969.) Furthermore, while discussing
the propriety of burden-shifting instructions on causation, the court suggested that
the length, frequency, and intensity of an individual’s exposure to an asbestos-
containing product may be relevant to showing the causation of cancer.7 UCC
argues that those remarks oblige plaintiffs seeking to carry their burden of proof
under Rutherford to “show, at a minimum, [that] exposure to the defendant’s
product was ‘sufficiently lengthy, intense, and frequent’ to warrant treating it as ‘a
substantial factor contributing to the risk of cancer.’”
UCC further contends the Marteneys’ experts provided no testimony
satisfying those requirements, arguing that the experts made only the “tautological
claim that any asbestos exposure . . . ‘contributes’ to the risk.” As noted above
(see pt. B.2.iii, ante), Dr. Smith opined that when a person’s exposure to asbestos
causes mesothelioma, “every part of a causal dose that caused [the] cancer is
important,” and Dr. Dahlgren stated that there is “no threshold” below which
exposures to asbestos have “no effect.” UCC maintains that under their testimony,
“any exposure to asbestos, however small, would always be sufficient to prove
medical causation,” and that nothing in their opinions “showed that the
7 In describing the scientific uncertainties attending the causation of cancer, the
court asked rhetorically: “Taking into account the length, frequency, proximity and
intensity of exposure, the peculiar properties of the individual product, any other potential
causes to which the disease could be attributed (e.g., other asbestos products, cigarette
smoking), and perhaps other factors affecting the assessment of comparative risk, should
inhalation of fibers from the particular product be deemed a ‘substantial factor’ in causing
the cancer?” (Rutherford, supra, 16 Cal.4th at p. 975.) Later, the court observed a
burden-shifting instruction on causation might be appropriate in special circumstances,
namely, “after the plaintiff had proven . . . [a] sufficiently lengthy, intense and frequent
exposure as to render the defendant’s product a substantial factor contributing to the risk
of cancer.” (Id. at p. 979.)
15
contribution of UCC’s asbestos to . . . Marteney’s risk of developing
mesothelioma was more than ‘negligible’ or ‘theoretical.’”
UCC’s contention fails, as it relies on a defective rationale. Our inquiry
concerns the existence of substantial evidence to support the judgment, not the
Marteneys’ burden of proof. The holding in Rutherford regarding the burden of
proof does not dictate that in reviewing the denial of UCC’s motion for judgment
notwithstanding the verdict, we must focus exclusively on the testimony from the
Marteneys’ experts to determine whether the Marteneys demonstrated the second
fact. Generally, the burden of proof is “the obligation of a party to establish by
evidence a requisite degree of belief concerning a fact in the mind of the trier of
fact or the court.” (Evid. Code, § 115.) However, although the burden of proof
imposes an obligation on a specific party, that obligation “is ‘satisfied when the
requisite evidence has been introduced . . . , and . . . it is of no consequence
whether the evidence was introduced by one party rather than the other[.]’”
(People v. Belton (1979) 23 Cal.3d 516, 524; quoting Morgan, Basic Problems of
State and Federal Evidence (Weinstein rev. ed. 1976) p. 14.) Accordingly, in
examining the record for substantial evidence, we may look at the entire record to
determine whether there was sufficient “‘competent expert testimony’” regarding
whether a particular exposure “was a substantial factor contributing to
[Marteney’s] risk of developing cancer.” (Rutherford, supra, 16 Cal.4th at pp.
977, fn. 11, 982-983, italics deleted.)
The record, viewed as a whole, discloses adequate expert testimony
regarding the length, intensity, and frequency of exposures to asbestos fibers from
joint compounds containing UCC asbestos to support a finding that Marty
Marteney’s exposures were a substantial factor contributing to the risk of his
cancer. Although the Marteneys’ experts agreed that even small exposures to
16
asbestos are potentially material to the causation of mesothelioma, Dr. Dahlgren
identified a specific level of exposure to asbestos -- namely, .05 fiber years --
associated with a “statistically significant[] increase[]” in lung cancer and
mesothelioma. UCC’s expert Dyson maintained that significant increments in risk
arise only at higher exposure levels, but also testified regarding the exposures
experienced by individuals working with joint compounds containing UCC
asbestos. He stated that working with dry mix joint compounds involved four
activities: mixing, applying the compound, sanding, and cleanup. The
concentrations of airborne fibers per cubic centimeter from those activities were,
respectively, 12.7, 0, 3.8, and 10.7. He further noted that although the “time-
weighted average” of the concentrations arising from the activities -- as they
would occur in the workplace -- is 2 fibers per cubic centimeter, the average
concentration increases to 6 fibers per cubic centimeters if one focuses on the
dust-producing activities.
Relying on those estimates, Dyson stated if a person worked with a joint
compound containing UCC asbestos on 10 two-hour occasions, that person’s level
of exposure would be approximately .02 fiber years, based on the time-weighted
average of 2 fibers per cubic centimeter for the four activities described above. He
further testified that the exposure level of an observer watching the activities
diminished as the observer’s distance from them increased: at 4 feet, the
observer’s exposure was 50 percent of the worker’s exposure, and at 10 feet, 10
percent of the worker’s exposure.
Dyson’s testimony supports reasonable inferences regarding the encounters
with an asbestos-containing joint compound necessary for an exposure level of .05
fiber years, which Dr. Dahlgren described as presenting a statistically significant
risk of cancer. Under Dyson’s testimony, a person who worked with the joint
17
compound on 25 two-hour occasions -- that is, 50 hours -- would experience that
level of exposure, based on the time-weighted average concentration of airborne
fibers for all four activities (2 fibers per cubic centimeter). Furthermore, a person
engaged solely in the dust-creating activities would experience that level of
exposure in far less time, as the average concentration of airborne air fibers arising
from those activities is three times greater than the time-weighted average for all
four activities, and the average concentrations of air fibers arising from the
dustiest activities -- mixing and cleanup -- are more than five times greater than
that average.
Dyson’s testimony thus supports the reasonable inference that a person
engaged in the dust-producing activities -- and thereby creating the average
concentration of airborne air fibers arising from those activities (6 fibers per cubic
centimeter) -- would experience an exposure level of .05 fiber years in
approximately 17 hours (one-third of 50 hours), based on the average
concentration of airborne air fibers arising from those activities (6 fibers per cubic
centimeter). His testimony also supports the reasonable inference that an observer
standing within 10 feet of those activities would experience that exposure level in
less than 170 hours. Moreover, even shorter periods would result in that exposure
level if one focuses on the dustiest activities, namely, mixing and cleanup.
Viewed collectively, the expert testimony supports the reasonable inference
that an exposure level of .05 fiber years would constitute “a substantial factor
contributing to [a person’s] risk of developing cancer” (Rutherford, supra, 16
Cal.4th at p. 982), as well as reasonable inferences regarding the length,
frequency, and intensity of encounters with joint compounds necessary to create
that level of exposure. Furthermore, the jury was free to make those inferences.
In cases requiring expert testimony to establish the causation of a disease, the jury
18
may rejected even uncontradicted expert testimony, absent special circumstances
not present here. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.)
Furthermore, as a general rule, the jury may in suitable circumstances accept a
portion of an expert’s testimony while rejecting other aspects of it. (See Liberty
Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 93-94; San Gabriel
Valley Water Co. City of Montebello (1978) 84 Cal.App.3d 757, 765.) Thus, the
jury could properly credit Dyson’s testimony regarding the levels of asbestos
exposure from activities involving joint compounds, while rejecting his view
regarding the level at which such exposures presented a significant risk of cancer
in favor of Dr. Dahlgren’s. Accordingly, we reject UCC’s contention there is
insufficient expert testimony to satisfy Rutherford.8
b. Marteney’s Exposure to UCC Asbestos
UCC contends there is insufficient evidence regarding the extent to which
Marty Marteney was exposed to UCC asbestos. As explained below, we disagree.
The record supports the reasonable inference that from 1969 to the mid-
1970‘s, UCC supplied SG-210 to National Gypsum’s Long Beach plant for use in
its joint compounds, including Gold Bond. Indeed, as of March 1970, UCC’s SG-
210 was the sole asbestos incorporated into the Gold Bond joint compounds made
in Long Beach. Generally, the joint compounds made at the Long Beach plant
were distributed within California and other west coast states. In addition, there
was evidence that Georgia Pacific arranged for Kelly-Moore to make joint
compounds for it in California because shipping costs rendered the products that
8 As there is sufficient evidence to satisfy the requirements that UCC asserts are
mandated in Rutherford, it is unnecessary for us to decide whether Rutherford, in fact,
imposes those standards.
19
Georgia Pacific manufactured in other states uncompetitive in California. The
jury thus reasonably could have inferred that the Gold Bond containing UCC
asbestos made in Long Beach from 1969 to the mid-1970’s was sold in Los
Angeles, where Marteney lived. In addition, the jury heard evidence suggesting
that during that period, some Georgia Pacific and Paco Quick Set containing UCC
asbestos was made in California.
The record further establishes that from 1969 to 1975, Marteney
encountered Gold Bond and the other joint compounds at work and at home.
From 1969 to 1971 or 1972, he worked as a project architect for Levitt, and spent
20 percent of his time at work sites. According to Marteney, he was a “hands-on”
employee at the job sites. He demonstrated how to mix joint compounds,
participated in applying them, and was sometimes present during the clean up. He
worked with Gold Bond, Georgia Pacific, and Paco Quick Set, and was around
others who used them. The worksites themselves were dirty and dusty. After
1972, while working for Ficus, he was involved in a large hospital project, where
workers used joint compounds, including Gold Bond and Georgia Pacific. In
addition, from 1969 to the mid-1970’s, Marteney also remodeled his home, and
worked as a volunteer on a remodeling project involving a church. In working on
his home, he used “big bags” of Gold Bond, as well as Paco Quick Set.
In our view, the evidence is sufficient to show that Marteney’s contact with
Gold Bond containing UCC asbestos created an exposure level of .05 fiber years. 9
As explained above (see pt. B.3.a), a person engaged in dust-producing activities
with joint compounds -- such as mixing and cleaning -- would experience that
9 For that reason, it is unnecessary to decide whether the evidence regarding
Marteney’s contact with the Georgia Pacific or Paco Quick Set joint compounds is also
sufficient to support that conclusion.
20
exposure level in 17 hours or less, and a close observer of those activities would
experience that exposure level in 170 hours or less. According to Marteney, while
at Levitt, he spent 20 percent of his work week -- that is, approximately 400 hours
per year, based on a 40-hour work week for 50 weeks -- at job sites, where he
supervised workers using Gold Bond and participated in its use.10 Furthermore,
while at Ficus, he supervised workers using Gold Bond, and employed it in the
remodeling of his home. In view of this evidence, the jury could reasonably infer
that Marteney had encounters with Gold Bond sufficient for an exposure of .05
fiber years.11 (See Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 973-
974 [under Rutherford standard, plaintiff adequately showed exposure to
defendant’s asbestos on basis of evidence that from mid- to late-1970’s, while
supervising workers, he frequently encountered dust from joint compound
10 According to Dyson, for purposes of the “fiber year” unit of measurement, a year
is 2000 hours, based on a 40-hour work week for 50 weeks.
11 Pointing to certain apparent conflicts in Marteney’s testimony, UCC maintains that
it is insufficient to support the special verdicts. We disagree. As our Supreme Court
explained, even internally inconsistent testimony from a single witness may support a
judgment. “It is for the trier of fact to consider internal inconsistencies in testimony, to
resolve them if this is possible, and to determine what weight should be given to such
testimony.” (Clemmer, supra, at p. 878.) Furthermore, “[t]he testimony of a single
witness is sufficient to uphold a judgment even if it is contradicted by other evidence,
inconsistent or false as to other portions. [Citations.]” (In re Frederick G. (1979) 96
Cal.App.3d 353, 366.) We reject the statements of a witness that the factfinder has
believed only if they are “‘inherently improbable,’” that is, “physically impossible or
obviously false without resorting to inference or deduction.” (Watson v. Department of
Rehabilitation (1989) 212 Cal.App.3d 1271, 1293; see Daly v. Wallace (1965) 234
Cal.App.2d 689, 692.) Here, Marteney’s testimony was neither physically impossible nor
obviously false on its face.
UCC suggests that during the trial, the Marteneys assumed that Marty Marteney
was exposed to joint compounds containing UCC asbestos only once or twice. That
contention fails, as the record discloses only that their counsel asserted in closing
arguments that one such exposure sufficed to establish causation.
21
incorporating defendant’s asbestos].) In sum, there is sufficient evidence that
UCC asbestos was a substantial factor in the causation of Marty Marteney’s
mesothelioma.12
4. Sufficiency of the Evidence Regarding Elementis’s Liability for
the Marteneys’ Injuries
Elementis challenges the sufficiency of the evidence to support the special
verdicts regarding its liability for the Marteneys’ injuries arguing that
“[a]bsolutely no evidence supports an inference that HCP distributed some SG-
210 that became dust [Marty] Marteney inhaled.” For the reasons discussed
below, we reject Elementis’s contention.
12 For the first time on appeal, UCC’s reply brief argues that under Rutherford, the
record must contain sufficient evidence for the jury to estimate Marty Marteney’s “overall
exposure” to asbestos. As no such contention was raised in the opening brief, it has been
forfeited. (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 138-139; 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 701, pp. 769-771.)
In a supplemental letter brief, UCC also directs our attention to Shiffer v. CBS
Corp. (2015) 240 Cal.App.4th 246.) There, the plaintiff asserted products liability claims
against a turbine manufacturer, alleging that his contact with asbestos-containing
materials in a turbine made by the defendant caused his mesothelioma. (Ibid.) In
opposing the defendant’s motion for summary judgment on the claims, the plaintiff
submitted declarations from three experts, who opined that the plaintiff’s exposure to
asbestos during the turbine’s installation was significant, and constituted a substantial
contributing factor to the plaintiff’s aggregate dose of asbestos. (Id. at p. 250.)
Affirming the grant of summary judgment, the appellate court concluded that the experts’
opinions lacked a sufficient foundational basis, as the plaintiff had supplied the experts
with no evidence that he had any exposure to asbestos. (Id. at p. 256.) Here, in contrast,
the evidence regarding Marty Marteney’s exposure to UCC asbestos and the testimony of
appellants’ and respondent’s experts sufficed to show that UCC asbestos was a
substantial factor in increasing his risk of mesothelioma.
22
a. Governing Principles
At trial, the Marteneys maintained that Elementis was liable for their
injuries because it was UCC’s exclusive distributor of Calidria on the west coast
during the pertinent period, and pursuant to an agreement, Elementis received a
five or ten percent commission for a sale when UCC shipped the asbestos directly
to the customer. As explained in Bay Summit Community Assn. v. Shell Oil Co.
(1996) 51 Cal.App.4th 762, 773 (Bay Summit), the strict liability doctrine “extends
to nonmanufacturing parties, outside the vertical chain of distribution of a product,
which play an integral role in the ‘producing and marketing enterprise’ of a
defective product and profit from placing the product into the stream of
commerce.” There, the plaintiffs asserted products liability claims against the
manufacturers of a plastic plumbing system and a supplier of plastic resin, alleging
that the fittings in the plumbing system were defective. (Id. at pp. 767-769.) At
trial, the evidence showed that the supplier’s resin was used in the system’s plastic
pipes, but the plaintiffs submitted no evidence that the resin was used in the
defective fittings or that the resin itself was defective. (Ibid.) The plaintiffs’
theory at trial was that the supplier was strictly liable for the defective plumbing
system not as a resin supplier, but as a participant in the marketing and distribution
of the system. (Id. at p. 771.)
In affirming the judgment in favor of the plaintiffs, the appellate court
examined the principles under which entities may be subject to strict liability for
playing a role in the marketing of a product. (Bay Summit, supra, 51 Cal.App.4th
at p. 773.) Generally, the doctrine of strict liability is intended to ensure that
parties that play an integral role in the manufacture, marketing, and distribution of
a defective product bear the costs of injuries arising from the product. (Id. at
pp. 772-773.) Thus, liability is properly imposed on nonmanufacturers of a
23
defective product involved in the “vertical distribution” of the product. (Ibid.)
Furthermore, in suitable circumstances, liability may also be imposed on an entity
that is neither the product’s manufacturer nor within the product’s “vertical chain
of distribution . . . .” (Id. at pp. 773.) In such cases, “the mere fact that an entity
‘promotes’ or ‘endorses’ or ‘advertises’ a product does not automatically render
that entity strictly liable for a defect in the product.” (Id. at pp. 775-776.) Rather,
“[t]he imposition of strict liability depends on whether the facts establish a
sufficient causative relationship or connection between the defendant and the
product so as to establish that the policies underlying the strict liability doctrine
are satisfied.” (Id. at p. 776.) Based on an examination of then-existing case
authority, the court concluded that a defendant involved in the
marketing/distribution process may be held strictly liable “if three factors are
present: (1) the defendant received a direct financial benefit from its activities and
from the sale of the product; (2) the defendant’s role was integral to the business
enterprise such that the defendant’s conduct was a necessary factor in bringing the
product to the initial consumer market; and (3) the defendant had control over, or a
substantial ability to influence, the manufacturing or distribution process. (Id. at
p. 776.)
Applying those principles to the case presented on appeal, the court
determined that there was sufficient evidence to support the imposition of strict
liability on the resin supplier. (Bay Summit, supra, 51 Cal.App.4th at p. 776.)
Aside from supplying the resin for the pipes, the supplier had provided marketing
assistance to pipe manufacturers, arranged for its employees to assist in the
advertising and sales of pipes made with its resin, and directly promoted the
plumbing system. (Id. at pp. 769-771.) The court thus concluded that the factors
described above were present. (Ibid.)
24
b. Evidence At Trial
Regarding Elementis’s role in the distribution of UCC asbestos, the
Marteneys relied primarily on deposition testimony from Robert Mann, who had
been designated to testify on behalf of Elementis. In the course of that deposition,
Mann recounted deposition testimony from Leon Persson, who had previously
been designated to testify on behalf of Elementis. Leon Persson was employed by
HCP and its successors from 1958 to 1991. He was a branch manager in San
Francisco, and became a regional vice president.
According to Mann’s deposition testimony, in prior depositions, Persson
provided the following account of HCP’s relationship with UCC: HCP distributed
UCC’s Calidria from 1968 to 1986. It sold only UCC’s Calidria, and it was the
sole distributor of Calidria on the west coast. Persson was unable to recall,
however, which grades of Calidria HCP distributed. Although Persson was
personally responsible for overseeing HCP’s distribution of Calidria, he worked
closely with UCC in distributing that asbestos. In “nearly 100 percent” of
customer contacts, he and a UCC representative made a joint visit. Although HCP
delivered Calidria to customers, UCC also delivered Calidria directly to some
customers. However, when a customer received Calidria directly from UCC, HCP
received a commission or share of the profit pursuant to an exclusive distribution
agreement that Persson had seen.13
In the deposition, Mann denied that HCP had an agreement with UCC of the
type described by Persson. He had seen no such agreement, and none had been
produced by Elementis. He acknowledged, however, that Steven Gripp, who had
13 The Marteneys also presented evidence that UCC directly shipped large orders of
asbestos to manufacturers on the west coast of the United States, and otherwise relied
exclusively on HCP to ship smaller quantities of asbestos.
25
been designated to testify on Elementis’s behalf on previous occasions, had stated
in 1998 that the agreement existed. He further acknowledged that Elementis later
“cull[ed]” its records, and following that event, Gripp stated that the agreement
could not be located.
Mann also testified at trial on behalf of Elementis. He stated that during his
career, he had encountered hundreds of distributor contracts, and never had seen
one of the type described by Persson. He also stated HCP distributed UCC’s SG-
210 to joint compound manufacturers only from 1973 to 1977.
c. Analysis
We conclude that the trial evidence, viewed in the light most favorable to
the Marteneys, establishes that liability was properly imposed on Elementis. As
explained above (see pt.B.3., ante), there was sufficient evidence that Marty
Marteney’s exposure to the Gold Bond made in Long Beach plan, which
incorporated SG-210 from UCC, was a substantial factor in the causation of his
mesothelioma. The evidence further shows that during Marteney’s period of
exposure to that joint compound, HCP was the exclusive distributor of UCC’s
Calidria on the west coast. Under the agreement between HCP and UCC, HCP
received a commission for any Calidria that UCC supplied directly to a customer.
The evidence further showed that HCP and UCC worked closely in distributing
the asbestos, as their representatives met jointly with customers.
In our view, the record discloses evidence sufficient for the imposition of
liability under the principles set forth in Bay Summit. That evidence
unequivocally established that HCP was in the vertical chain of distribution
regarding Calidria. Furthermore, to the extent that UCC, rather than HCP, directly
shipped Calidria to customers, HCP is properly subject to liability for those
26
shipments, in view of the factors identified in Bay Summit. Although HCP did not
create the initial consumer market for asbestos-containing products, it derived
profits from UCC’s direct sales, worked jointly with UCC to sell Calidria, and had
sufficient influence with UCC to negotiate an unusually favorable distribution
agreement, namely, one containing the profit-sharing term noted above.
Elementis maintains there is insufficient evidence to support the imposition
of liability, placing special emphasis on the lack of evidence that it shipped any
UCC SG-210 to the Long Beach plant during Marteney’s relevant period of
exposure to Gold Bond, and the evidence questioning the existence of the
distribution agreement. In so arguing, however, Elementis “‘misapprehends our
role as an appellate court. Review for substantial evidence is not trial de novo.
[Citation.]’ [Citation.] When there is substantial evidence to support the jury’s
actual conclusion, ‘it is of no consequence that the [jury,] believing other
evidence, or drawing other reasonable inferences, might have reached a contrary
conclusion.’ [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th
1270, 1301.) As explained above, there is sufficient evidence that the agreement
in question existed. In view of that agreement, Elementis was properly subject to
liability for the distribution of UCC’s SG-210 to National Gypsum’s Long Beach
plant, which made the Gold Bond that Marty Marteney encountered. In sum, the
record discloses evidence adequate to support the imposition of strict liability on
Elementis for the Marteneys’ injuries.
C. Warnings
Appellants contend the jury’s special verdicts regarding the Marteneys’
warning-related theories of liability shield them from liability under the
Marteneys’ “defective design” theory of strict liability. They argue that the latter
27
theory fails as a matter of law, in light of the jury’s special verdicts rejecting the
Marteneys’ claims insofar as they were predicated on theories of negligence and
“defective warning” strict liability. As explained below, we disagree.
1. Marteneys’ Claims and Jury’s Special Verdicts
The Marteneys submitted three theories of liability to the jury: strict liability
predicated on a design defect; strict liability predicated on a failure to warn; and
negligence predicated, inter alia, on a failure to warn. The “design defect” theory
of strict liability relied on the so-called “consumer expectations” test for defects.
Under that test, a product is defective in design if it “fail[s] to perform as safely as
an ordinary consumer would expect.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 562 (Soule).) In connection with the theory, the jury was instructed
that it could consider “the product as a whole, including its warnings.”
The jury was instructed that the “defective warning” theory of strict liability
required a determination that appellants had failed to provide adequate warnings
of potential risk that were scientifically known or knowable when the product was
distributed. In connection with such a theory, our Supreme Court has explained:
“Generally speaking, manufacturers have a duty to warn consumers about the
hazards inherent in their products. [Citation.] The requirement’s purpose is to
inform consumers about a product’s hazards and faults of which they are unaware,
so that they can refrain from using the product altogether or evade the danger by
careful use.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) A
product that is otherwise flawless in its design and manufacture “‘may nonetheless
possess such risks to the user without a suitable warning that it becomes
“defective” simply by the absence of a warning.’” (Finn v. G. D. Searle & Co.
(1984) 35 Cal.3d 691, 699.)
28
The jury was instructed that the negligence theory relied in part on an
allegation that appellants failed to exercise reasonable care in providing warnings.
Under that theory, liability hinges on the reasonableness of the failure to warn,
rather than on whether, in fact, the defendant failed to issue warnings regarding
known or knowable hazards. (Carlin v. Superior Court (1996) 13 Cal.4th 1104,
1113 (Carlin).) “‘Thus, the fact that a manufacturer acted as a reasonably prudent
manufacturer in deciding not to warn, while perhaps absolving the manufacturer of
liability under the negligence theory, will not preclude liability under strict
liability principles if the trier of fact concludes that, based on the information
scientifically available to the manufacturer, the manufacturer’s failure to warn
rendered the product unsafe to its users.’” (Ibid., quoting Anderson v. Owens-
Corning Fiberglas Corp. (1993) 53 Cal.3d 987, 1003.)
The jury returned special verdicts that appellants were not negligent, and
that their product warnings adequately addressed the “potential risks that were
known or knowable risks in light of the scientific and medical knowledge that was
generally accepted in the scientific community at the time of sale or distribution.”
The jury nonetheless found that UCC asbestos was defective under the consumer
expectations test.
2. Analysis
Appellants contend the special verdicts regarding the adequacy of the
product warning mandated the contrary finding. As explained below, that
contention fails, as the special verdicts regarding the “failure to warn” theories did
not, as a matter of law, shield appellants from liability under a “defective design”
theory relying on the consumer expectations test.
29
Under “defective warning” theories, defendants may avoid liability by
showing that they acted reasonably in providing warnings (thus nullifying
negligence), and that their warnings adequately addressed all known or knowable
hazards (thus nullifying strict liability). Nonetheless, they may still be subject to
liability under the “design defect” theory because their product “fail[s] to perform
as safely as an ordinary consumer would expect.” (Soule, supra, 8 Cal.4th at
p. 562.) (See Carlin, supra, 13 Cal.4th at p. 1117 [“[U]nlike strict liability for
design defects, strict liability for failure to warn does not potentially subject drug
manufacturers to liability for flaws in their products that they have not, and could
not have, discovered. Drug manufacturers need only warn of risks that are
actually known or reasonably scientifically knowable.”]; Boeken v. Phillip Morris,
Inc. (2005) 127 Cal.App.4th 1640, 1669 [“Product liability under a failure-to-warn
theory is a distinct cause of action from one under the consumer expectations
test.”].)
Nor did the trial evidence mandate that UCC’s asbestos was nondefective
under the consumer expectations test. As explained in Arena v. Owens-Corning
Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1185 (Arena), that test “applies in
‘cases in which the everyday experience of the product’s users permits a
conclusion that the product’s design violated minimum safety assumptions, and is
thus defective regardless of expert opinion about the merits of the design.’
[Citation.] A plaintiff may show the objective condition of the product, and the
fact finder may use its own ‘“sense of whether the product meets ordinary
expectations as to its safety under the circumstances presented by the evidence.”’
[Citation.]”
In Arena, the plaintiff asserted an “defective design” products liability claim
against a supplier of raw asbestos and a manufacturer of asbestos-containing
30
products, alleging that exposure to asbestos fibers from the products containing
the supplier’s asbestos caused his cancer. (Arena, supra, 63 Cal.App.4th at
p. 1183.) Although the appellate court reversed a judgment in favor of the
plaintiff for a redetermination of damages, it concluded that the consumer
expectations test was properly applied to establish a “design defect” theory of
strict liability against the supplier. (Id. at pp. 1186-1190.) The court stated: “To
the extent that the term ‘design’ merely means a preconceived plan, even raw
asbestos has a design, in that the miner’s subjective plan of blasting it out of the
ground, pounding and separating the fibers, and marketing them for various uses,
constitutes a design. . . .[] [W]hen that design violates minimum safety
assumptions, it is defective. [Citation.]” (Id. at pp. 1185-1186-1188, fn. omitted.)
The court further noted certain principles restricting the imposition of liability on
suppliers of component parts and raw materials to manufacturers whose products
cause injury -- including the so-called “component parts” doctrine, which we
discuss below -- but determined that they were inapplicable, because the plaintiff’s
injuries arose from dust containing asbestos fibers which had not been altered in
the manufacturing process. (Id. at pp. 1186-1191.)
Although Arena did not address a “defective warning” claim, it establishes
the propriety of applying the consumer expectations test to the Marteneys’ “defect
design” claims. Under that test, we examine the ordinary expectations of
consumers regarding the safety of joint compounds during the pertinent period of
Marty Marteney’s exposure to those asbestos-containing products. At trial, the
evidence showed that as of 1968, appellants provided information describing the
risks of asbestos to joint compound manufacturers, but there was no evidence that
31
those warnings were passed onto to users such as Marteney.14 The evidence
otherwise shows only that Marteney and the workers he oversaw at jobsites used
asbestos-containing joint compounds with no awareness of their hazards or the
need for precautions. In addition, John Walsh, who testified on behalf of UCC,
acknowledged that as late as 1978, “do-it-yourselfers” generally lacked knowledge
regarding the hazards of asbestos in joint compounds.
Relying on Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444 (Groll) and
Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669 (Walker), appellants
contend the consumer expectations test is inapplicable to UCC’s asbestos in view
of UCC’s warnings to appellants’ customers. In Groll, a fuel manufacturer sold
lantern fuel in bulk to a distributor, and provided the distributor warnings
regarding the fuel’s hazards. (Groll, supra, 148 Cal.App.3d at pp. 446-447.) In
turn, the distributor repackaged the fuel and marketed it to the public with similar
warnings. (Ibid.) The plaintiff asserted products liability claims against the fuel
manufacturer and the distributor predicated on negligence and a failure to warn,
alleging that he suffered injuries from an explosion when he used the fuel to light
14 The trial evidence showed that in 1964, UCC prepared an internal asbestos
toxicology report reflecting that exposure to asbestos had been associated with cancer,
including some cancerous lung tumors. In 1968, UCC created a brochure to inform joint
compound manufacturers regarding asbestos-related hazards, attached a warning label to
its products stating that “‘[b]reathing dust may be harmful,’” and provided a test report
linking asbestos to mesothelioma. In 1972, after the federal Occupational Health and
Safety Administration (OSHA) imposed asbestos regulations in 1972, UCC forwarded
them to its customers; in addition, UCC described asbestos-related hazards -- including
the risk of mesothelioma -- in material safety data sheets accompanying its asbestos, and
gave other information regarding those hazards to its customers. The trial evidence
further showed that Elementis, as UCC’s distributor, “passed on” any information that
UCC provided. However, as of 1984, the bags in which UCC shipped Calidria did not
carry a warning identifying mesothelioma as an asbestos-related hazard.
32
his fireplace. (Ibid.) The appellate court affirmed a grant of nonsuit on the
plaintiff’s “defective warning” claims against the fuel manufacturer, stating that
“[s]ince [it] manufactured and sold [the fuel] in bulk, its responsibility must be
absolved at such time as it provides adequate warnings to the distributor who
subsequently packages, labels and markets the product.” (Id. at p. 449-450.)
Groll is distinguishable, as it confronted only “defective warning” claims,
and examined the propriety of imposing liability on a supplier that provided its
product with adequate warnings to an intermediary, which passed those warnings
along to the product’s end user. As explained above, under the consumer
expectations test, the key inquiry focuses on the expectations of the ultimate
consumer. The evidence in the record supports the reasonable inference that
appellants’ warnings had no effect on average joint compound consumers.15
Walker is also distinguishable, as it represents an application of the so-
called “component parts” doctrine. Under that doctrine, suppliers of component
parts or raw materials integrated into an “end product” are ordinarily not liable for
defects in the end product, provided that their own parts or material were
nondefective, and they did not exercise control over the end product. (Artiglio v.
General Electric. Co. (1998) 61 Cal.App.4th 830, 838-840.) In Walker, the
appellate court concluded only that a supplier of acid was not liable for injuries
from drain cleanser containing acid as component, as the acid was substantially
15 Regarding the potential relevance of Groll, appellants purport to find support from
Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651, 658-662, in which the
appellate court agreed with Arena regarding the application of the consumer expectations
test to “defective design” claims against suppliers of raw asbestos. In so concluding, the
court distinguished Groll on the grounds that in the case before it, the supplier of raw
asbestos gave no warnings to its customers. (Id. at pp. 661-662.) Garza thus provides no
guidance on the issue before us.
33
changed during the process of making the cleanser, over which the supplier had no
control. (Id. at p. 672.) That rationale is inapplicable here for the reasons
discussed in Arena, namely, Marty Marteney’s injuries arose from asbestos fibers
not materially altered by the manufacturing process. In sum, the jury’s special
verdicts regarding the adequacy of appellants’ warnings did not shield them from
liability under a “defective design” theory of strict liability. 16
D. Liability of Suppliers of Raw Materials
Appellants contend they are not subject to strict liability under a “design
defect” theory, arguing that in O’Neil, supra, 53 Cal.4th 335, our Supreme Court
adopted section 5 of the Restatement Third of Torts, including the doctrine set
forth in comment c. That comment addresses sand, gravel, and other materials
when they take the form of “basic raw material[s],” and sets forth limitations on
their suppliers’ liability for design and warning defects when they are integrated
into end products. The comment further states that such basic raw materials
“cannot” suffer from design defects. (Rest.3d Torts, Products Liability, § 5, com.
16 The remaining decisions upon which appellants rely are inapposite, as they merely
establish that the existence of direct warnings to the end user of a product may preclude
the imposition of strict liability on a manufacturer (Oakes v. E. I. Du Pont Nemours &
Co., Inc. (1969) 272 Cal.App.2d 645, 649), and are relevant to the expectations of end
users, for purposes of the consumer expectations test (Dinsio v. Occidental Chem. Corp.
(1998) 126 Ohio App.3d 292, 295-298 [710 N.E.2d 326, 329]; McCathern v. Toyota
Motor Corp. (1999) 160 Ore.App. 201, 228 [985 P.2d 804, 820]; Tillman v. R.J. Reynolds
Co. Tobacco (Ala. 2003) 871 So.2d 28, 34; Adkins v. GAF Corp. (6th Cir. 1991) 923 F.2d
1225, 1228; Graves v. Church & Dwight Co. Inc. (1993) 267 N.J.Super. 445, 467-468
[631 A.2d 1248, 1259-1260].) Here, there is no evidence that warnings accompanied the
joint compounds that Marty Marteney encountered.
34
c., p. 134.)17 Appellants argue that O’Neil must be regarded as having adopted
comment (c), and that its doctrine necessarily safeguards them from “design
defect” liability. We disagree.
O’Neil cannot reasonably be regarded as having adopted the doctrine in
comment (c). There the family of a deceased U.S. Navy seaman asserted claims
for negligence and strict liability against manufacturers of pumps and valves used
on warships, alleging that the serviceman’s exposure to asbestos dust from
asbestos-containing materials used in connection with the pumps and valves
caused his fatal mesothelioma. (O’Neil, supra, 53 Cal.4th at pp. 342-347.) The
court rejected the claims, concluding that “a product manufacturer may not be held
liable in strict liability or negligence for harm caused by another manufacturer’s
product unless the defendant’s own product contributed substantially to the harm,
or the defendant participated substantially in creating a harmful combined use of
the products.” (Id. at p. 342.)
In so concluding, the court discussed the component parts doctrine, which it
characterized as shielding a component part manufacturer from liability for
17 Comment c states: “Product components include raw materials. . . . Regarding the
seller’s exposure to liability for defective design, a basic raw material such as sand,
gravel, or kerosene cannot be defectively designed. Inappropriate decisions regarding the
use of such materials are not attributable to the supplier of the raw materials but rather to
the fabricator that puts them to improper use. The manufacturer of the integrated product
has a significant comparative advantage regarding selection of materials to be used.
Accordingly, raw-materials sellers are not subject to liability for harm caused by defective
design of the end-product. The same considerations apply to failure-to-warn claims
against sellers of raw materials. To impose a duty to warn would require the seller to
develop expertise regarding a multitude of different end-products and to investigate the
actual use of raw materials by manufacturers over whom the supplier has no control.
Courts uniformly refuse to impose such an onerous duty to warn.” (Rest.3d, Torts,
Products Liability, § 5, com. c., p. 134.)
35
injuries arising from a finished product that integrated the component “unless the
component itself was defective and caused harm.” (O’Neil, supra, 53 Cal.4th at
p. 355.) As support for that exception, the court pointed to subdivision (a) of
section 5 of the Restatement Third of Torts, which states: “One engaged in the
business of selling or otherwise distributing product components who sells or
distributes a component is subject to liability for harm to persons or property
caused by a product into which the component is integrated if: [¶] (a) the
component is defective in itself, . . . and the defect causes the harm . . . .” (O’Neil,
supra, at p. 355.) O’Neil otherwise contains no reference to comment (c), and
does not discuss the doctrine stated in it.
Nothing in O’Neil supports the reasonable inference that the court adopted
the entirety of section 5 of the Restatement Third of Torts, including the doctrine
stated in comment (c). The court’s acceptance of a portion of that section did not,
by itself carry a commitment to the entire section. (See Cronin v. J.B.E. Olson
Corp. (1972) 8 Cal.3d 121, 130-135 [rejecting portion of section 402A of the
Restatement Second of Torts while approving other portions of that section].)
Furthermore, as the court did not discuss the doctrine set forth in comment (c), it
cannot be viewed as having accepted it. (Ginns v. Savage (1964) 61 Cal.2d 520,
524 (“Language used in any opinion is . . . to be understood in the light of the facts
and the issue then before the court, and an opinion is not authority for a
proposition not therein considered.”].)
Furthermore, we conclude that the doctrine in comment (c) is inapplicable
to appellants. As explained in Arena, the doctrine does not encompass raw
asbestos: “‘[A]sbestos is not a component material that is usually innocuous, such
as sand, gravel, nuts or screws. . . . [I]t is the asbestos itself that produces the
harmful dust.’” (Arena, supra, 63 Cal.App.4th at p. 1191.) Accordingly,
36
appellants are properly subject to liability under a “defective design” theory of
strict liability.
///
///
///
37
DISPOSITION
The judgment is affirmed. Respondent is awarded her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
38