Petitpas v. Ford Motor Co.

Filed 7/5/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

B245037
JOSEPH PETITPAS,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC473216
JCCP4674)
v.

FORD MOTOR COMPANY et al.

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Emilie Elias and Richard Fruin, Judges.
Affirmed.
The Arkin Law Firm, Sharon J. Arkin; Farrise Firm;
Simona A. Farrise for Plaintiff and Appellant.
Dykema Gossett, John M. Thomas, Jill M. Wheaton and
Tamara A. Bush for Defendant and Respondent Ford Motor
Company.
McKenna Long & Aldridge, Jayme C. Long, Frederic W.
Norris and David K. Schultz; Theodore J. Boutrous for Defendant
and Respondent Exxon Mobil Corporation.
 Selman Breitman, Brad D. Bleichner, Jerry C. Popovich
and Dennis M. Alexander for Defendant, Respondent and
Intervenor Fireman’s Fund Insurance Company.

Plaintiffs Marline Petitpas1 and Joseph Petitpas sued Ford
Motor Company, Exxon Mobil Corporation, Rossmoor
Corporation,2 and others, alleging that exposure to asbestos
caused by these defendants resulted in Marline’s mesothelioma.
Motions for summary adjudication were granted before trial,
narrowing the claims against Exxon and Ford. During trial, the
court granted nonsuit for Rossmoor. The jury returned defense
verdicts for Exxon and Ford.
Plaintiffs assert five contentions on appeal. First, they
argue that the trial court erred by granting summary
adjudication in favor of Exxon as to strict product liability and
secondary, or “take home,” exposure. Second, they contend that
the trial court erred by granting nonsuit for Rossmoor as to both
direct and secondary exposure. Third, plaintiffs maintain that
the trial court failed to properly instruct the jury regarding
design defect issues involving Ford. Fourth, plaintiffs argue that

1 . Because plaintiffs share a last name, we refer to them
individually by their first names for clarity and intend no
disrespect. Marline passed away while this appeal was pending.
We granted the unopposed motion seeking to substitute Joseph
as Marline’s successor-in-interest in this action. We refer to
Joseph in both his individual and representative capacity as
plaintiffs.

2Rossmoor Corporation has been dissolved, and therefore
Fireman’s Fund Insurance Company intervened below and is a
respondent in this appeal. We refer to this party as “Rossmoor.”

2
the trial court erred by granting summary adjudication in favor
of Ford as to plaintiffs’ punitive damages claims. Finally,
plaintiffs assert that the jury verdict in favor of Exxon was not
supported by the evidence.
We affirm on all challenged grounds. First, summary
adjudication for Exxon appropriately was granted because the
evidence did not show that Exxon was within the stream of
commerce for any asbestos-containing products, and Exxon did
not have a duty to Marline regarding secondary exposure because
Marline was not a member of Joseph’s household at the relevant
time. Second, nonsuit as to Rossmoor was appropriate because
the causation evidence against Rossmoor presented at trial was
insufficient to support a verdict for plaintiffs. Third, jury
instructions relating to Ford accurately reflected the law, and
Ford was not liable under a design defect theory for products it
did not manufacture or supply. Fourth, because we affirm the
defense verdict in favor of Ford, plaintiffs’ challenge to the
summary adjudication of punitive damages claims against Ford
is moot. Finally, since plaintiffs have not demonstrated that they
were entitled to a verdict in their favor as to Exxon as a matter of
law, there is no basis for reversing the defense verdict in favor of
Exxon.
I.
Plaintiffs filed a complaint against more than 30
defendants alleging that Marline developed mesothelioma as a
result of exposure to asbestos-containing products. Against all
defendants, plaintiffs alleged causes of action for negligence and
strict liability based on alleged exposure to the defendants’
products. Plaintiffs also asserted premises liability claims
against Exxon, Rossmoor, and others, alleging that Joseph

3
worked on premises owned by those defendants, where “he was
exposed to asbestos products and dust from asbestos products
and consequently exposed” Marline. Joseph also alleged loss of
consortium.
Marline’s alleged exposure to asbestos stemmed from many
sources and spanned several years. The evidence presented in
pretrial motions and at trial is discussed in detail below. In
short, plaintiffs allege that Marline suffered from both direct
exposure and secondary exposure to asbestos-containing dust.
They assert that the direct exposures occurred when Marline
visited Joseph while he worked at an Enco service station owned
by Exxon, from Joseph’s work on Ford vehicles at the Enco
station and at home while Marline was present, from exposure to
dust when Marline visited a Rossmoor construction site, and from
drywall compound and stucco in two of plaintiffs’ homes built by
defendant Shea Homes, which is not a party to this appeal. As
for secondary exposure, plaintiffs allege that Marline was
exposed to asbestos-containing dust that collected on Joseph’s
clothing while Joseph worked at the Enco station, as he worked
on Ford vehicles at home, and when he visited construction sites
as part of his work as an architectural drafter at Rossmoor.
A. Summary adjudication in favor of Exxon
1. Motion, opposition, and trial court ruling
Joseph and Marline testified in their depositions that they
met while Joseph was working at an Enco service station in
Pomona. Exxon’s predecessor, Humble Oil, owned the Enco
service station at the relevant time. Marline visited Joseph at
work in 1966 and 1967, while Joseph worked on automotive
friction products: brakes, clutches, and gaskets. Marline was
present when Joseph used compressed air to clean brake drums,

4
and as he swept the service bays before closing. Occasionally,
Marline was present when a mobile brake service van was on site
preparing brakes for installation. Plaintiffs alleged that these
activities directly exposed Marline to airborne asbestos. Joseph
said in his deposition that auto parts used at the Enco station
came from independent auto parts suppliers or the mobile brake
service.
Joseph briefly worked at a different Enco service station in
Ontario in 1968, and Marline also visited him there. Joseph also
worked at an Enco service station in Pleasanton in 1970 and
1971, after he and Marline were married. In Pleasanton, Marline
laundered Joseph’s work pants and came into contact with his
clothing.3
Exxon argued that summary adjudication should be
granted on two separate bases that plaintiffs challenge on appeal.
First, Exxon argued that it could not be liable under plaintiffs’
strict product liability theory because plaintiffs “have no
evidence, and cannot reasonably obtain evidence, that Mrs.
Petitpas was indirectly or secondarily exposed to asbestos from
an asbestos-containing product manufactured, distributed, or
sold by Exxon.” Exxon submitted undisputed evidence showing
that at the Pomona Enco station, asbestos-containing
replacement clutches and gaskets came from an independent
auto parts store, and asbestos-containing replacement brakes
were supplied by the mobile brake service. None of these
products was manufactured by Exxon. Exxon argued that
because it supplied these parts only through the provision of
automotive services, not as a seller or retailer of parts, it could

3The parties agreed that the Pomona Enco station was the
only one relevant to plaintiffs’ product liability claims.

5
not be strictly liable because it was not within the stream of
commerce.
Second, Exxon argued that it did not have a duty to protect
Marline from secondary exposure from “allegedly toxic materials
that are carried off the premises on the clothing of an employee.”
Citing Rowland v. Christian (1968) 69 Cal.2d 108 and Oddone v.
Superior Court (2009) 179 Cal.App.4th 813 (Oddone), Exxon
argued that as a matter of law it did not have a duty to prevent a
non-employee’s secondary exposure to asbestos.
After Exxon’s motion was filed, the Court of Appeal decided
Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15
(Campbell). The plaintiff in Campbell alleged she developed
mesothelioma as a result of asbestos exposure from laundering
her father’s and brother’s clothing during the time they worked
as independent contractors installing asbestos insulation at a
Ford plant. (Id. at p. 19.) The Campbell court considered
“whether a premise[s] owner [Ford] has a duty to protect family
members of workers on its premises from secondary exposure to
asbestos used during the course of the property owner’s
business.” (Id. at p. 29.) The court concluded that “a property
owner has no duty to protect family members of workers on its
premises from secondary exposure to asbestos used during the
course of the property owner’s business.” (Id. at p. 34.)
Plaintiffs opposed Exxon’s motion. They argued Exxon
knew in the 1930’s that asbestos exposure was hazardous, and it
took steps to minimize refinery workers’ exposure to asbestos.
Because of this knowledge, plaintiffs argued, “a ‘reasonably
thoughtful’ employer would not only have protected its employees
from the risk of asbestos exposure, but would have protected its
employees’ household members who would be subjected to that

6
exposure from the asbestos debris taken home to the household.”
Plaintiffs contended that Campbell was wrongly decided.
Plaintiffs also argued that Exxon failed to shift the burden
on the product liability causes of action because it did not present
evidence showing that the Enco station did not sell asbestos-
containing auto parts. Automotive repair and maintenance
facilities usually charge for both parts and services, plaintiffs
asserted, and Exxon failed to provide evidence that it did not
engage in such a practice.
At the hearing on the motion, after argument from the
parties, the court granted Exxon’s motion for summary
adjudication as to strict product liability and secondary exposure.
On appeal, plaintiffs assert that the trial court erred in granting
on both bases. We address each below.
2. Standard of review
On appeal following a motion for summary adjudication,
“‘[w]e review the trial court’s decision de novo, considering all the
evidence set forth in the moving and opposing papers except that
to which objections were made and sustained.’ [Citation.]” “We
liberally construe the evidence in support of the party opposing
summary [adjudication] and resolve doubts concerning the
evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1037.)
“A defendant moving for summary judgment or summary
adjudication need not conclusively negate an element of the
plaintiff’s cause of action. (Code Civ. Proc., § 437c, subd. (f)(2);
Aguilar [v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,] 853, 107
Cal.Rptr.2d 841, 24 P.3d 493 [(Aguilar)].) Instead, the defendant
may show through factually devoid discovery responses that the
plaintiff does not possess and cannot reasonably obtain needed

7
evidence.” (Collin v. CalPortland Company (2014) 228
Cal.App.4th 582, 587-588.) “After the defendant meets its
threshold burden, the burden shifts to the plaintiff to present
evidence showing that a triable issue of one or more material
facts exists as to that cause of action or affirmative defense.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th
at p. 850, [107 Cal.Rptr.2d 841, 24 P.3d 493].) The plaintiff may
not simply rely on the allegations of its pleadings but, instead,
must set forth the specific facts showing the existence of a triable
issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A
triable issue of material fact exists if, and only if, the evidence
reasonably permits the trier of fact to find the contested fact in
favor of the plaintiff in accordance with the applicable standard
of proof. (Aguilar, supra, 25 Cal.4th at p. 850, [107 Cal.Rptr.2d
841, 24 P.3d 493].)” (Collin, supra, 228 Cal.App.4th at p. 588.)
3. Summary adjudication of strict product liability
claims against Exxon
As an initial matter, plaintiffs argue that summary
adjudication should have been denied. Plaintiffs contend that
Exxon failed to meet its summary adjudication burden because
the evidence Exxon submitted with its motion was insufficient to
prove that Exxon did not supply asbestos-containing vehicle
parts. “[T]he party moving for summary [adjudication] bears an
initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact.” (Aguilar,
supra, 25 Cal.4th at p. 850.) “When a defendant seeking
summary judgment submits the plaintiff’s . . . deposition
testimony indicating the plaintiff does not possess any evidence
to support one or more elements of the plaintiff’s claim, the
burden shifts to the plaintiff to present evidence sufficient to

8
raise a triable issue of material fact. [Citation.]” (Sweeting v.
Murat (2013) 221 Cal.App.4th 507, 514 fn. 8.)
California cases have found 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. [Citation.]”
(Bay Summit Community Assn. v. Shell Oil Co. (1996) 51
Cal.App.4th 762, 776 (Bay Summit).) In addition, “strict liability
is not imposed even if the defendant is technically a ‘link in the
chain’ in getting the product to the consumer market if the
judicially perceived policy considerations are not satisfied. Thus,
a defendant will not be held strictly liable unless doing so will
enhance product safety, maximize protection to the injured
plaintiff, and apportion costs among the defendants.” (Arriaga v.
CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527,
1537.) “The application of strict liability in any particular factual
setting is determined largely by the policies that underlie the
doctrine.” (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171
Cal.App.4th 564, 576.)
Exxon met its summary adjudication burden here. Exxon
stated in its separate statement that Joseph “replaced brakes,
clutches and head gaskets at the Pomona Enco station,” and that
“the replacement clutches and gaskets used at the Enco station
came from a local independent auto parts stores [sic].” It also
stated that replacement brakes “were obtained from a mobile

9
brake service company which not only provided brakes but also
came to the station to do brake work.” With its motion, Exxon
submitted excerpts from Joseph’s deposition to support these
statements. This evidence was sufficient to support an inference
that Enco was not primarily in the business of supplying
asbestos-containing vehicle parts. Because the Enco station was
able to complete vehicle repairs with asbestos-containing parts
only through the use of the mobile brake service or with parts
purchased from auto parts stores, defendants demonstrated that
the Enco station did not generally stock these parts for sale to
consumers. In addition, Joseph stated in his deposition that the
workers at the Enco station installed the parts as part of its
repair and maintenance services. This evidence, and the
inferences that can be drawn from it, was sufficient to meet
Exxon’s burden under Aguilar.
Plaintiffs also assert that even if the summary adjudication
burden had been shifted, the motion should have been denied
because there was a triable issue of fact as to whether Exxon
played a role in the stream of commerce for these parts, and
therefore summary adjudication on strict product liability was
unwarranted. Plaintiffs assert that Exxon’s evidence did not
constitute “actual proof” that the brake service company, rather
than Exxon, was the supplier or seller of the brakes. Plaintiffs
also argue there was no evidence “that Exxon did not sell
[replacement] parts but merely included them as part of the cost
of the services provided.” Plaintiffs point to Joseph’s deposition,
in which he said the Enco station displayed motor oil, windshield
wipers, dust rags, transmission fluid, brake fluid, and perhaps
tires and fan belts. Plaintiffs argue that this “evidence
demonstrates that the Exxon station was in the business of

10
selling vehicle parts and supplies and frequently supplied its
customers with replacement brakes, clutches and engine
gaskets.”
Because this case involves strict liability for products
causing exposure to asbestos, however, the relevant question is
not whether the Enco station sold parts such as oil and
windshield wipers to customers, but instead whether Exxon was
within the stream of commerce for automotive parts that may
have exposed Marline to asbestos. In supplemental briefing,
Plaintiffs argue that our recent decision in Hernandezcueva v.
E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249
(Hernandezcueva) supports reversal of Exxon’s motion for
summary adjudication of plaintiffs’ strict liability claims.4
Hernandezcueva, the plaintiff was a janitor at an industrial
building complex. Defendant E.F. Brady was a drywall
subcontractor that helped build the complex in the 1970’s. The
plaintiff was diagnosed with mesothelioma, and alleged that E.F.
Brady supplied and installed drywall and related products that
included asbestos. (Id. at p. 253-254.) The trial court granted a
partial nonsuit on the plaintiff’s strict liability claims, and we

4 Exxon correctly points out that plaintiffs failed to cite
legal authority in their opening brief supporting their arguments
as to strict product liability against Exxon. Every appellate brief
must “support each point by argument and, if possible, by citation
of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) When an
appellant asserts an argument but fails to support it with
reasoned argument and citations to authority, we may treat the
point as waived. (Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785.) We nonetheless exercise our
discretion to consider plaintiffs’ arguments about the effect of our
recent decision in Hernandezcueva, supra.

11
reversed. We discussed the stream-of-commerce theory of strict
product liability (see id. at pp. 257-258), and noted that
“‘[s]ervices, even when provided commercially, are not products.’”
(Id. at p. 259, quoting Rest. 3d Torts, § 19, subd. (b).) We said,
“[W]hen injury arises from a component integrated in another
product, the imposition of strict liability on a party hinges on its
role in the relevant transaction. Generally, manufacturers and
suppliers of a component to be integrated into a final product
may be subject to strict liability when the component itself causes
harm.” (Id. at p. 259.) On the other hand, “parties involved in
passing a defective component to the ultimate user or consumer
are not subject to strict products liability when their sole
contribution to the pertinent transaction was a service, namely,
the installation of the component into the pertinent final
product.” (Ibid.) Therefore, “[t]he propriety of imposing strict
liability on a party that both supplies and installs a defective
component hinges on the circumstances of the transaction.” (Id.
at p. 260.)
In Hernandezcueva, the evidence presented at trial showed
that “E.F. Brady was a large drywall installation firm whose
relevant contracts always involved the provision of drywall and
related materials.” (Hernandezcueva, supra, 243 Cal.App.4th at
p. 263.) In other words, providing drywall to customers
constituted a substantial portion of E.F. Brady’s business. E.F.
Brady also had significant, ongoing relationships with two
different drywall manufacturers, which were “sufficient to
command the personal attention of” both companies’
representatives when E.F. Brady had some problems with one
brand of drywall compound while working on the job at issue.
(Id. at p. 263.) This type of relationship is relevant in a strict

12
liability context, because it speaks to the defendant’s “position to
enhance product safety or exert pressure on the manufacturer to
promote” a product. (Id. at p. 262.) Based on this evidence, “a
jury could reasonably find that E.F. Brady was more than an
‘occasional seller’ of drywall and joint compounds.” (Id. at pp.
262-263.)
Exxon argues that the holding in Hernandezcueva
reinforces earlier strict liability cases, and supports its argument
that summary adjudication of plaintiffs’ strict liability claims was
appropriate. Exxon also contends that none of the factors
supporting a finding of strict liability in Hernandezcueva exist in
this case. We agree that the evidence here is dissimilar to that in
Hernandezcueva and that reversal is not warranted.
The evidence here does not indicate that supplying
asbestos-containing gaskets, clutches, and brakes was a central
part of the Pomona Enco station’s business. Joseph’s testimony
showed that the Enco station did not supply brake parts. Instead,
a mobile brake service came to the Enco station, supplied brake
parts, and performed services relating to those parts such as
turning brake drums and arcing brake linings. In addition,
Joseph’s testimony demonstrated that providing gaskets and
clutches was not a significant portion of the Pomona Enco
station’s business. Joseph said that in the year he worked at the
Pomona Enco station, clutch replacements were done rarely, less
than once per month. In that year, he and the other mechanics
performed two to three engine rebuilds involving gaskets. Joseph
rebuilt carburetors using gaskets about once per month. This
evidence of sporadic work with asbestos-containing parts does not
support a finding that supplying asbestos-containing parts was a
primary aspect of the Enco station’s business.

13
 Moreover, Joseph testified that the Enco station obtained
gaskets and clutch parts from local auto parts stores. There is no
suggestion in the record that the Enco station managers or Exxon
had any direct relationship with the parts manufacturers. As
previous cases have noted, a relationship between the defendant
and the manufacturer is a significant consideration in a strict
liability analysis. In Hernandezcueva, for example, E.F. Brady
had an ongoing relationship with the drywall manufacturer that
was significant enough to exert pressure on the manufacturer to
influence product safety. (Hernandezcueva, supra, 243
Cal.App.4th at p. 263.) In Kasel v. Remington Arms Co. (1972) 24
Cal.App.3d 711, 725, the court noted that an “individual
defendant’s control over the cause of defect in the product” is not
determinative, but is a “significant factor” in a strict liability
analysis. And the court in Bay Summit, supra, 51 Cal.App.4th at
p. 776, said that strict liability may be appropriate where “the
defendant had control over, or a substantial ability to influence,
the manufacturing or distribution process.” The evidence here
offers no suggestion that such a relationship existed between
Enco or Exxon and the manufacturers of asbestos-containing auto
parts.
This case is more like Monte Vista Development Corp. v.
Superior Court (1991) 226 Cal.App.3d 1681, in which the plaintiff
alleged that a ceramic soap dish installed with her home’s
bathtub tile was defective and broke, causing a severe laceration.
Defendant Willey Tile was a subcontractor that installed the tile
and soap dishes in the plaintiff’s home and other homes in that
development. Willey Tile selected and purchased the soap dish in
bulk from a supplier. The trial court granted summary
adjudication on plaintiff’s strict liability claims against Willey

14
Tile, and the Court of Appeal affirmed. The appellate court said,
“The focus of our analysis is . . . whether the tile company came
within the chain of commerce as a supplier of the soap dish to the
extent that it became strictly liable if the item was defective. We
conclude liability should not be extended under these
circumstances.” (Monte Vista, supra, 226 Cal.App.3d at p. 1687.)
The court explained, “Willey Tile was not in the business of
selling soap dishes or any other fixtures. It purchased the soap
dish that injured plaintiff, as well as other fixtures, in order to
complete its subcontract with Monte Vista [the developer].
Obviously, it mattered not to Willey Tile whether Monte Vista or
someone else supplied the tile fixtures.” (Ibid.)
Similarly, in Endicott v. Nissan Motor Corp. (1977) 73
Cal.App.3d 917, the Court of Appeal affirmed nonsuit for a seat
belt installer who was not in the stream of commerce. The
plaintiff alleged that his seat belt failed in a car accident,
contributing to injuries. (Endicott, supra, 73 Cal.App.3d at p.
923-924.) An independent contractor installed the seat belts:
“When a vehicle arrived in California, its belts were already in
the trunk of the vehicle, and the locations for their installation
were marked. Installer’s employees took the belts out of the
trunk and attached them to the vehicle according to the
manufacturer’s directions. The manufacturer supplied all
materials for attaching the belts.” (Id. at p. 925.) The Court of
Appeal held that nonsuit for the installer was appropriate. “[W]e
find no evidence that Installer was an integral part of the overall
marketing enterprise that produces Datsun automobiles or that it
played any significant role in placing Datsun’s product in the
stream of commerce that could render Installer liable in tort for
defects in Datsun’s automobiles. [Citation.] As a mere provider

15
of services Installer is not liable for defects in the product.” (Id.
at p. 930.)
Here, the Enco station was in a similar situation. If a
customer needed a clutch facing or gasket, the Enco station
needed to purchase one that fit the particular make and model of
the vehicle. There is no suggestion in the record that Joseph,
other Enco station workers, or Exxon had any control over which
clutch parts or gaskets could be used to complete these repairs or
whether those parts were made with asbestos. The evidence
therefore shows that the Enco station was a “provider of services”
rather than a seller or distributor of asbestos-containing vehicle
parts.
In sum, the evidence submitted with Exxon’s motion for
summary adjudication was sufficient to shift the burden to
plaintiffs under Aguilar. Plaintiffs’ evidence does not support a
finding that there was a triable issue of fact as to whether the
Enco station or Exxon was within the stream of commerce for
asbestos-containing vehicle parts to the extent that strict liability
is warranted. Summary adjudication on plaintiffs’ strict liability
claims against Exxon was properly granted.
4. Summary adjudication of secondary exposure claims
relating to Exxon
Plaintiffs also argue that the court erred by granting
summary adjudication of their claims against Exxon based on
Marline’s secondary exposure to asbestos. The trial court
granted summary adjudication based on the reasoning of
Campbell, which held that “a property owner has no duty to
protect family members of workers on its premises from
secondary exposure to asbestos used during the course of the

16
property owner’s business.” (Campbell, supra, 206 Cal.App.4th
at p. 34.)
While this appeal was pending, the Supreme Court
disapproved Campbell and Oddone in Kesner v. Superior Court
(2016) 1 Cal.5th 1132 (Kesner). In Kesner, the Court held, “[T]he
duty of employers and premises owners to exercise ordinary care
in their use of asbestos includes preventing exposure to asbestos
carried by the bodies and clothing of on-site workers. Where it is
reasonably foreseeable that workers, their clothing, or personal
effects will act as vectors carrying asbestos from the premises to
household members, employers have a duty to take reasonable
care to prevent this means of transmission.” (Kesner, 1 Cal.5th at
p. 1140.) The Court was very specific that this duty extended
only to members of the employee’s household: “We hold that an
employer’s or property owner’s duty to prevent take-home
exposure extends only to members of a worker’s household, i.e.,
persons who live with the worker and are thus foreseeably in
close and sustained contact with the worker over a significant
period of time.” (Id. at pp. 1154-1155.) Although other people
might regularly have contact with a worker whose clothing
carries asbestos fibers, the Court’s foreseeability analysis relied
“on the fact that a worker can be expected to return home each
work day and to have close contact with household members on a
regular basis over many years.” (Id. at p. 1155.) Limiting
liability to household members “strikes a workable balance
between ensuring that reasonably foreseeable injuries are
compensated and protecting courts and defendants from the costs
associated with litigation of disproportionately meritless claims.”
(Ibid.)

17
 We asked the parties for further briefing to address the
effect of Kesner on plaintiffs’ assertions that summary
adjudication in favor of Exxon on the issue of secondary exposure
should be reversed. Plaintiffs acknowledge in their supplemental
briefing that “Marline and Joseph were not married and did not
live together at the time Joseph worked at the Exxon station and
thus technically were not members of the same household.”
Plaintiffs ask us to hold that Exxon had a duty to Marline
nevertheless, contending that “Marline’s status is close to that of
a household member” because she and Joseph hugged, kissed,
and went places in Joseph’s car while Joseph was wearing his
work clothes. Plaintiffs thus ask us to remand for “a trial on the
issue of whether Marline’s exposures as a result of her close,
personal contact with Joseph were factually similar to the status
of a household member.”5
We decline to expand Kesner’s duty to apply to a non-
household member. The Kesner Court was very specific in
limiting the duty to non-employees “only to members of a
worker’s household, i.e., persons who live with the worker.”
(Kesner, supra, 1 Cal.5th at pp. 1154-1155.) The Court
recognized that maintaining this limitation on the scope of the
duty was important: “We are mindful that recognizing a duty to
all persons who experienced secondary exposure could invite a
mass of litigation that imposes uncertain and potentially massive
and uninsurable burdens on defendants, the courts, and society.”
(Id. at p. 1156.) Inviting a trial to determine whether a non-

5Plaintiffs do not argue that Exxon should be liable under
Kesner for take-home exposure relating to Joseph’s work at the
Enco station in Pleasanton after plaintiffs were married. We
therefore do not consider Kesner’s effect on this alleged exposure.

18
household member’s contact with the employee was “similar to
the status of a household member” appears to be exactly what the
Supreme Court was attempting to avoid with this bright-line
rule.
Because Marline was not a member of Joseph’s household
when Joseph worked at the Enco station in Pomona, Exxon did
not have a duty to Marline with respect to secondary asbestos
exposure. Summary adjudication in favor of Exxon is therefore
affirmed.
II.
Trial began against defendants Union Carbide, Shea
Homes, Rossmoor, Ford, and Exxon. Union Carbide and Shea
Homes settled with plaintiffs during the course of the trial, the
trial court granted nonsuit for Rossmoor, and Ford and Exxon
proceeded to verdict. The evidence summarized below was
presented at trial.
A. Enco service station and Joseph’s work on Ford cars
Joseph and Marline both testified at trial. Joseph testified
that he worked at an Enco gas and service station, operated by
Exxon,6 in Pomona from 1966 to 1967. Joseph and Marline met
in 1966 at the Enco station, and after they began dating, Marline
visited Joseph while he worked there several days a week. She
sat in the service bay where mechanics worked on cars. Marline
continued to visit Joseph at work for about a year and a half,
until Joseph was drafted into the Army. Marline estimated that
her visits ranged from 20 minutes to several hours.
The cars that came into the Enco station in that time
period were mostly American-made cars: about 40 percent

At trial the parties stipulated that defendant Exxon was
6

known or did business as Enco and Humble Oil.

19
General Motors models, 40 percent Ford models, and the rest
other makes. Joseph did a variety of work on Ford cars,
including brake inspections and replacements. He did brake
inspections two or three times a day, and brake replacements two
or three times a week. About 40 percent of these inspections and
replacements were on Ford cars.
Joseph used an air compressor to blow dust out of wheel
assemblies to check or change brakes. Marline estimated that
she watched Joseph do brake work on a total of seven to ten cars
at the Enco station, and she could not identify the make or model
of any of those cars. Marline observed that when Joseph did
brake work, it created dust, and she breathed that dust. Marline
also watched Joseph clean up at the end of the day, which
involved blowing or sweeping the floor, which created dust, and
Marline breathed the dust.
A mobile brake service came to the Enco station once or
twice a week to turn brake drums and arc brake linings.7 Arcing
the brake linings created airborne dust. Joseph often was in or
near the mobile brake van while this work was being done.
Marline testified that she approached the mobile brake van
either once or several times, and she testified that she breathed
the dust the work created. Some cars that went to the Enco
station had brakes stamped with “FoMoCo,” indicating original
Ford-installed brakes. The replacement brakes used by the brake
van and by Joseph when he worked at the Enco station were
Raybestos or Bendix brakes.

7 Joseph testified that this work was done when brake
drums became warped from use, or to fit brake linings better
within a brake drum to ensure a smooth braking surface.

20
 Joseph wore a uniform shirt to work, and the service
station provided a cleaning service for the uniform shirts; once a
week Joseph brought his shirts in and the company had them
cleaned. Joseph usually wore his uniform shirt when he went out
with Marline after work. Marline did not wash Joseph’s clothing
when they were dating.
Joseph was drafted into the Army in early 1968, and moved
to Fort Carson, Colorado after basic training. He and Marline
married and lived together in Fort Carson. Joseph worked part-
time at a Chevron service station in Fort Carson in 1968 and
1969, doing the same type of work he had done at the Enco
station. Joseph testified that Marline came to visit him at that
service station as well. After Marline and Joseph moved back to
California in 1970, Joseph worked part-time at another Enco
station for a year or slightly longer. Joseph did the same type of
service work there that he did at the other service stations.
During this time period, Marline washed Joseph’s clothing.
Joseph testified that he also worked on his family’s cars at
home after 1972. He did a brake inspection on their 1964 Ford
Falcon Ranchero in their home garage. Joseph did two or three
brake changes on their 1976 Ford Ranchero, and a 1984 Ford
van. Joseph also did brake inspections on his father’s 1977 Ford
Thunderbird. Sometimes Marline was in the home garage
working on crafts or doing laundry as Joseph worked on the cars,
and she testified that she breathed dust that arose from Joseph’s
work. Marline also testified that during this period she did
Joseph’s laundry after he worked on vehicles, and she breathed
the dust that was on his shirts.
Joseph used Raybestos and Bendix replacement brakes on
these cars. Plaintiffs presented part of a 1989 deposition

21
transcript of Arnold Anderson, a Ford engineer, who testified
that Ford did not make the brake linings that were in Ford cars.
Instead, Ford would “buy brakes, brake assemblies from the
brake system suppliers who buy the linings from lining vendors.”
Anderson testified that he tested the brake linings supplied to
Ford by different vendors, and all brands of brake linings he
tested contained chrysotile asbestos.
Plaintiffs also presented an interrogatory response from
Ford, stating that some Ford vehicles prior to the 1980’s included
asbestos-containing brake linings, brake pads, and clutch facings,
and that these component parts were purchased from third-party
suppliers. In addition, the interrogatory response said that Ford
sold asbestos-containing replacement parts under the Ford
brand, although those parts were purchased from non-Ford
suppliers.
B. Joseph’s work at Rossmoor
Before nonsuit was granted as to Rossmoor, the following
evidence was presented at trial. In 1971, Joseph began working
at Rossmoor as an architectural drafter, drawing plans for
construction projects. At the time, Rossmoor was building
Leisure World, a large retirement community consisting of
houses, condominiums, and high-rise buildings. As a drafter,
Joseph worked primarily in an office. After he had been at
Rossmoor for six months to a year, he began visiting the
construction site as part of his work. He usually left the office
first thing in the morning to visit the construction sites, where he
answered questions and responded to building inspectors. He
typically spent half an hour to an hour and a half at the site, and
spent the rest of the day in his office. At first he drove to the site
in his own car, and later he used a company car available for that

22
purpose. Joseph testified that the Leisure World construction
used gypsum drywall, joint compound, textured ceiling material,
and stucco. Plaintiffs’ expert Richard Hatfield testified that
these materials typically contained asbestos.8
Plaintiffs owned one car, and once or twice a week Marline
drove Joseph to work in the morning and picked him up in the
evening. When Marline picked up Joseph, they typically hugged
each other. After they bought a house nearby in 1972, Joseph
sometimes came home for lunch.
Joseph testified that before he left a construction site he
might stomp his feet or brush off his pants if he was dusty, but it
was “very possible” that dust from the construction site might be
on his lower pants at the end of the day. Plaintiff’s counsel asked
Hatfield whether Marline could be exposed to asbestos if Joseph
had been at a construction site and he could “see like white
powder, I don’t know, six inches or a foot up his leg,” and he
brushed it off in Marline’s presence. Hatfield testified that
exposure could occur in that manner. Plaintiffs’ counsel also
asked Hatfield whether exposure could occur if Joseph was at a
dusty work site and got dust on his shirt and pants, then Marline
“comes to pick him up, she drives onto the site,” and Joseph
hugged Marline. Again Hatfield said that scenario could expose
Marline to asbestos. On cross-examination, Hatfield said that if
Joseph picked up dust on his clothes at the construction site in
the morning and then worked the rest of the day at his office,
there was no way to say with any scientific certainty whether
Joseph exposed Marline to asbestos.

8 Hatfield’s specific area of expertise is unclear from the
record, but he testified that he is a geologist, microscopist, and
“know[s] a lot about the industrial hygiene of asbestos.”

23
 Joseph testified that during this time period Marline
washed some of Joseph’s shirts, socks, and underclothes; Joseph’s
slacks and ties were dry cleaned. Hatfield said that if Marline
were to shake visible dust out of Joseph’s clothing when she
laundered it, that could result in exposure. Neither Joseph nor
Marline testified that Marline shook visible dust out of the
clothing Joseph wore to work at Rossmoor.9
Joseph occasionally showed Marline the partially
completed buildings when the work had finished for the day and
“nobody was around.” When Marline visited the construction
sites, no active construction work was being done. Joseph
testified, “I wouldn’t say she was there during the day when that
action [construction] was going on . . . but after, late in the
afternoon or when she picked me up, we’d swing out there maybe
on a Saturday. So yes, those activities were going on, but not at
that moment.” Marline agreed that she was “never on any one of
the construction sites while the construction workers were there
performing construction work.” Marline occasionally saw
construction materials on the floors of these partially completed
buildings, but she could not recall seeing any dust.
C. Marline’s other exposures to asbestos-containing
materials
Union Carbide and Shea Homes also were defendants at
the start of the trial.10 Plaintiffs’ counsel explained in opening

9 At one point Marline testified that she would shake out
the clothing Joseph wore while working on Ford cars, but none of
the parties have pointed us to any evidence that Marline shook
dust from the clothing Joseph wore while working at Rossmoor.
10 Because these defendants were dismissed before trial

was completed, some of the evidence pertaining to these
exposures, related causation, and defenses was not fully

24
statements that Union Carbide supplied asbestos for a joint
compound manufactured by Hamilton Materials (Hamilton) that
was used at construction sites where Joseph worked. Union
Carbide was dismissed from the case after several days of trial.
Joseph and Marline bought a new home in 1972 in Mission
Viejo from the predecessor to defendant Shea Homes. They first
purchased a lot in a tract of homes, and visited the house as it
was being built. They went to the construction site in the
evenings and cleaned up after the construction crew, sweeping up
drywall dust and throwing away trash. They also were present
when construction was occurring. The construction created
visible dust which they breathed. Joseph testified that defendant
Hamilton made the joint compound used in the construction of
the home. It created dust when it was sanded. Hatfield testified
that a neighboring home built at the same time with the same
materials was later tested for the presence of asbestos, and its
stucco, acoustical ceilings, and joint compound were found to
contain asbestos.
Plaintiffs also built some block walls at the Mission Viejo
house, using Merlex stucco to cover the walls. The stucco came
as a powder, which they poured into a wheelbarrow and mixed
with water. Joseph also drilled into the stucco on the house to
hang gates and build a patio roof; Marline was with him as he did
this and helped him. Joseph testified that because Marline was
an artist, they hung her art around the house by making holes in

developed. Nonetheless, the jury heard some information about
Marline’s exposures to asbestos from these sources. Because the
jury’s causation finding is at issue on appeal, we include a brief
summary of this evidence here.

25
the drywall. Hatfield testified that these activities could result in
exposure to asbestos dust.
In 1977, plaintiffs bought a new home in Lake Forest,
California. As with the Mission Viejo house, plaintiffs purchased
this home before it was built and visited the site as construction
was being completed. They were present as the drywall was
being installed and after it had been sanded, and Joseph testified
that a Hamilton joint compound also was used at the Lake Forest
house. Plaintiffs built extensive walls and planters around that
home using Merlex stucco.
Joseph testified that in 1972 they bought a Chevrolet
Monte Carlo, and he did brake inspections and brake changes on
the car at home. As noted above, Joseph testified that when he
worked on cars at home Marline was sometimes nearby, and she
laundered his clothing afterward.
Marline testified that she initially told her doctors that the
only asbestos to which she had been exposed was in dental tape
she used while employed by an orthodontist. She worked with
the asbestos dental tape two to three times in the 1980s, for a few
minutes at a time.
Counsel introduced pretrial discovery responses in which
Marline stated that she was exposed to asbestos in locations
including the Enco service station in Pomona, a Chevron service
station where Joseph worked briefly, various homes in California
and Colorado, and the orthodontist’s office. The discovery
responses stated that Marline laundered Joseph’s clothing when
he worked at the Pomona Enco station, the Chevron station,
Rossmoor, and one additional company, although Joseph testified
at trial that Marline did not do his laundry while he was working
at the Pomona Enco station.

26
 In addition, the discovery responses stated that Marline
was exposed to asbestos-containing automobile products supplied
or sold by Borg Warner; Morse Tec., Inc.; Dana Companies LLC,
formerly known as Spicer Manufacturing Company; El Toro Auto
Supply, Inc.; Exxon Mobil Corporation; Ford Motor Company;
Genuine Parts Company; Honeywell International, Inc.; Bendix
Brakes; Metropolitan Life Insurance Company; National
Automotive Parts Association; and Pneumo Abex. The discovery
responses also stated that Marline was exposed to asbestos-
containing construction-related products supplied or sold by
Amcord; California Portland Cement; Dowman Products; Georgia
Pacific; Griffith Company; John K. Bice; Kaiser Gypsum; Kelly
Moore; Kentile Floors; Merlex Stucco; Metropolitan Life
Insurance; William B. March; and Union Carbide Corporation.
In addition, in responses to requests for admissions that were
read to the jury, plaintiffs admitted that Marline was exposed to
asbestos-containing products manufactured or sold by Hamilton
Materials and Merlex Stucco Incorporated, and that Marline was
exposed to asbestos on the premises of Shapell Homes
Incorporated.
D. Causation evidence
Plaintiffs presented the expert testimony of pulmonologist
Barry Horn, M.D. Dr. Horn testified about numerous studies
connecting asbestos and lung disease. He said that if there is
visible dust in the air, “[t]hat means there’s heavy exposure.” He
also testified that everyone is exposed to “background” or
“ambient” asbestos in the air, but that such exposure is very
minor and does not overwhelm the body’s defense mechanisms.
Dr. Horn testified that asbestos from joint compound, textured
ceilings, and brakes can cause disease. Dr. Horn said each

27
exposure to asbestos raised Marline’s risk of developing
mesothelioma. On cross-examination, Dr. Horn agreed that
several studies found no increased risk of mesothelioma in auto
mechanics.
Plaintiffs presented the testimony of Barry Castleman,
Sc.D., a public health expert. Dr. Castleman testified that the
health hazards relating to the inhalation of asbestos dust were
known by 1929. In the 1930’s, industrial hygienists published
articles indicating that “asbestosis,” or lung scarring disease,
“was widespread in manufacturing plants where asbestos was
used to make brake linings, and grinding of asbestos brake
linings was particularly emphasized in some of these articles.”
Dr. Castleman also testified that a Dr. Wilhelm Hueper
published data in 1965 relating to health hazards of brakes and
“brake work.”
On cross-examination, Dr. Castleman agreed that much of
the asbestos-related research through the 1940’s and 1950’s was
“being done in factories that worked directly with asbestos.” Dr.
Castleman testified that he was not aware of any epidemiological
studies prior to 1968 showing an increased risk of mesothelioma
in mechanics, and by 1969, “there was nothing in print on the
measurement of exposure of brake mechanics to asbestos.”
Counsel for Exxon read to the jury a portion of Dr. Castleman’s
deposition testimony in which Dr. Castleman stated that to this
day, there are no studies “that have any statistical power . . . that
speak of the mesothelioma risk of mechanics that do brake repair
work.”
Plaintiffs presented the 2004 deposition testimony of Dr.
Neill Weaver, a cardiologist and former Exxon employee. Dr.
Weaver’s testimony is discussed more fully below, but in short he

28
testified that he worked at a refinery owned by an Exxon
predecessor in Baton Rouge from 1951 to 1964, and later became
an associate medical director with “primary responsibility for all
refining and petrochemical manufacturing” at Exxon and its
related companies at the time. Industrial hygiene practices with
respect to asbestos were already in place before he began working
at Exxon, showing that Exxon knew of the dangers of asbestos
exposure. Exxon objected to this testimony because it related to
refineries instead of service stations; the court overruled the
objections.
A Ford company representative, Mark Taylor, testified
about a 1975 study indicating that although dust remained inside
a brake drum after use of the brakes, only .02 percent of that
dust was chrysotile asbestos because “99.98 percent of the
chrysotile asbestos is consumed in the braking . . . operation.”
Ford engineer Arnold Anderson’s 1989 deposition testimony
explained that chrysotile asbestos is in a coiled form, and when
heated to 650 degrees Celsius, it becomes glassy forsterite, which
is “the same chemistry but totally different structure than the
original chrysotile.”11 Taylor testified that in 1973, Ford tested

11 Anderson also testified that his studies showed that with
use, almost all of the asbestos in brake linings was converted to
non-fiber forsterite. The record does not make clear if Anderson
and Taylor were discussing results of the same tests. The portion
of Anderson’s testimony read into the record at trial also was not
clear regarding the time period in which Anderson tested brake
linings containing asbestos. Anderson’s deposition testimony
that was read at trial said that “99.87 plus percent” of the
chrysotile was converted to forsterite, and that “approximately
.03% or less” was fiber bundles. These numbers do not add up to
100 percent and do not match Taylor’s numbers, which suggests

29
asbestos in dust blown out of brake drums with compressed air,
and found that the asbestos level in the dust exceeded OSHA
requirements. He testified that in about 1975, Ford began
advising service mechanics not to blow out brake drums with
compressed air.
Defense expert pathologist Victor Roggli, M.D., testified
that forsterite “has no disease-producing potential at all.” Dr.
Roggli also testified that that mesothelioma and other asbestos
diseases depend on a dose-response relationship: “The higher the
dose, the more likely you are to get the disease.” He said that
since the 1980’s, no study has shown that career brake or auto
mechanics are at an increased risk of developing mesothelioma.
On cross-examination, Dr. Roggli agreed that he could not rule
out exposure to asbestos as a cause of Marline’s mesothelioma.
He also admitted that there were documented cases of
mesothelioma in people whose only known exposure to asbestos
was through automotive brake inspection and repair.
William Dyson, Ph.D., a defense industrial hygiene expert,
also testified about the dose-response relationship with asbestos.
Dr. Dyson testified that “it takes a lot of chrysotile exposure to
present a risk of asbestos-related mesothelioma,” and Marline’s
exposure to asbestos at the Enco station was “trivial,
inconsequential,” because it was “well less than the lowest
exposure dose at which we’ve observed risk in the most sensitive
person in the population for exposure to chrysotile and risk of
mesothelioma.” Dr. Dyson also opined that Joseph’s work on
vehicles in the family’s home garage was insignificant and did not
increase the risk to Marline.

either an error or that Anderson and Taylor were discussing
different tests.

30
E. Verdict
Before closing arguments, plaintiffs and Shea Homes
reached a settlement, and Shea Homes was dismissed from the
case. The case against Exxon and Ford was therefore submitted
to the jury. The jury instructions relevant to the appeal are
discussed in a separate section below.
The jury answered the questions on the verdict form as
discussed below. The jury was polled afterward, and the poll
numbers are included with the verdict findings:
“Section 1, as to defendant Exxon Mobil Corporation.
“Question No. 1: Did Exxon Mobil Corporation operate or
control an Enco service station where Mr. Petitpas worked during
the 1960s?
“Answer: Yes. [10-2]
“Question No. 2: Was Mrs. Petitpas exposed to asbestos
dust at the Enco service station?
“Answer: Yes. [10-2]
“Question No. 3: Was Mrs. Petitpas’ exposure to asbestos
dust at the Enco service station a substantial factor in
contributing to her risk of developing mesothelioma?
“Answer: Yes. [9-3]
“Question No. 4: Did Exxon Mobil Corporation know or
through the exercise of reasonable care should have known that
there was a condition at the Enco station that created an
unreasonable risk to Mrs. Petitpas of exposure to asbestos dust?
“Answer: No. [12-0]
“[¶ . . . . ¶]
“Section 2, as to defendant Ford Motor Company.
“Question No. 7: Was Mrs. Petitpas exposed to asbestos
dust from Ford original equipment brakes, gaskets or clutches?

31
 “Answer: Yes. [11-1]
“Question No. 8: Was Mrs. Petitpas’ exposure to asbestos
dust from Ford original equipment brakes, gaskets or clutches a
substantial factor in contributing to her risk of developing
mesothelioma?
“Answer: No. [10-2]”
The court entered judgment in favor of defendants, and
plaintiffs timely appealed. Marline passed away on October 21,
2013, while the appeal was pending. Joseph was appointed as
her successor-in-interest.
III.
Plaintiffs assert separate errors relating to Rossmoor,
Exxon, and Ford. We discuss each in turn below.
A. Rossmoor
1. Rossmoor’s nonsuit motion
After plaintiffs rested, Rossmoor moved for nonsuit on
several different grounds.12 Rossmoor asserted that under
Campbell, supra, 206 Cal.App.4th 15, “there is no duty to protect
family members of workers on premises.” Rossmoor argued that
it was irrelevant whether such exposures occurred “from
laundering the clothes, from riding in the same automobile as
someone who was directly exposed or giving someone a hug in the
parking lot by the office.” The court granted nonsuit on Campbell
grounds for all claims of secondary exposure.
Rossmoor also argued that there was no evidence that
Marline was directly exposed to asbestos at the Rossmoor
construction site: “[T]here’s no testimony that they were at the
house at the time that the construction work was going on and/or

12Rossmoor also moved for nonsuit after plaintiffs’ opening
statements.

32
that they were even on the premises at the time that construction
work was going on where there was any potential release of
asbestos fibers.” The court noted, “They said they were not there
during construction.” Rossmoor’s counsel agreed, and said, “Mrs.
Petitpas specifically testified that, when she walked into the
house, she didn’t see any dust.”
The court asked plaintiffs’ counsel what evidence there was
of exposure, in light of the fact that Marline testified that she did
not see any airborne dust at the construction sites. Plaintiffs’
counsel responded that expert testimony showed “that the nature
of respirable asbestos fibers are, in fact, microscopic and invisible
to the naked eye.” As a result, only specialized testing can
demonstrate if there are asbestos fibers in the air. Because the
houses were under construction at the time, “that asbestos and
asbestos dust, asbestos laden dust was in the structures. And . . .
it doesn’t go out. So there doesn’t need to be someone actively
doing work for asbestos exposures to occur.”
Rossmoor also asserted that plaintiffs failed to establish
medical causation because they had not presented “evidence that
Mrs. Petitpas was actually exposed to asbestos-containing
materials by Rossmoor Corporation with enough frequency and
regularity to show a reasonable medical probability that the
exposure was a factor in causing her injury.” Rossmoor said the
testimony of plaintiffs’ medical expert, Dr. Horn, was insufficient
to establish that any exposure from Rossmoor was a substantial
factor in causing Marline’s mesothelioma.
The court granted the motion “on all the grounds raised in
the written motion and the oral motion that I’ve heard.” When
the jury returned to the courtroom, the judge informed the jury
that Rossmoor was no longer in the case.

33
 On appeal, plaintiffs contend that nonsuit in favor of
Rossmoor should be reversed on two different grounds. First,
plaintiffs argue that the court’s nonsuit as to secondary exposure
should be reversed under Kesner, supra. Second, plaintiffs assert
that nonsuit as to Marline’s direct exposure should be reversed
because they presented sufficient evidence to warrant sending
the case to the jury. We address each of these arguments below.
2. Standard of review
In reviewing a judgment of nonsuit, “we must view the
facts in the light most favorable to the plaintiff. ‘[C]ourts
traditionally have taken a very restrictive view of the
circumstances under which nonsuit is proper. The rule is that a
trial court may not grant a defendant’s motion for nonsuit if
plaintiff’s evidence would support a jury verdict in plaintiff’s
favor. [Citations.] [¶] In determining whether plaintiff’s
evidence is sufficient, the court may not weigh the evidence or
consider the credibility of witnesses. Instead, the evidence most
favorable to plaintiff must be accepted as true and conflicting
evidence must be disregarded. The court must give “to the
plaintiff[’s] evidence all the value to which it is legally entitled, . .
. indulging every legitimate inference which may be drawn from
the evidence in plaintiff[’s] favor. . . .”’ [Citation.] The same rule
applies on appeal from the grant of a nonsuit. [Citation.]”
(Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215; see also
O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 347 (O’Neil).)
3. Nonsuit for secondary exposure
The trial court granted Rossmoor’s nonsuit for secondary
exposure under the reasoning of Campbell. As discussed above,
Campbell was recently disapproved in Kesner. In their
supplemental briefing plaintiffs argue, “Because the trial court

34
granted non-suit in favor of Rossmoor as to Marline’s ‘take-home’
exposures based on its determination that Rossmoor did not owe
her a duty as a matter of law under Campbell, and given that
Kesner disapproved Campbell on that very issue, reversal and
remand for trial against Rossmoor is required.”
Rossmoor argues that reversal is not required because
although the trial court stated that it granted nonsuit for
secondary exposure based on the reasoning of Campbell, the
court also said, “I’m going to grant the motion for non-suit as to
Rossmoor on all the grounds raised in the written motion and the
oral motion that I’ve heard.” One basis for nonsuit in Rossmoor’s
motion was insufficient evidence of causation. Rossmoor argues
that plaintiffs “presented no substantial evidence that [Marline]
was exposed to asbestos-containing products from the Rossmoor
project with such frequency, regularity, and proximity as to
satisfy the causation standard articulated in Rutherford [v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford)],
Hernandez [v. Amcord, Inc. (2013) 215 Cal.App.4th 659], and
Lineaweaver [v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409
(Lineaweaver)].”
Plaintiffs reply that “[e]xpert testimony confirmed that
those exposures [from Joseph’s clothes and in the family car]
were sufficient to increase her risk of exposure [sic].” They cite
pages from the testimony of Dr. Horn, who testified that every
asbestos exposure increases the risk of mesothelioma.
“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

35
a ‘legal cause’ of his injury, i.e., a substantial factor in bringing
about the injury. . . . [T]he plaintiff may meet the burden of
proving that exposure to defendant’s product was a substantial
factor causing the illness by showing that in reasonable medical
probability it contributed to the plaintiff or decedent’s risk of
developing cancer.” (Rutherford, supra, 16 Cal.4th at p. 982
[italics in original].) “[T]he proper analysis is to ask whether the
plaintiff has proven exposure to a defendant’s product, of
whatever duration, so that exposure is a possible factor in
causing the disease and then to evaluate whether the exposure
was a substantial factor.” (Lineaweaver, supra, 31 Cal.App.4th at
p. 1416.) “Many factors are relevant in assessing the medical
probability that an exposure contributed to plaintiff’s asbestos
disease,” including “[f]requency of exposure, regularity of
exposure, and proximity of the asbestos product to plaintiff.”
(Ibid.)
Here, the evidence showed that Joseph worked mostly in an
office, and sometimes got dust on the legs of his pants when he
visited construction sites. Plaintiffs’ expert Hatfield testified that
if Joseph was working at a construction site and Marline “drives
onto the site” to pick him up, she could be exposed as well. The
evidence showed, however, that Marline picked Joseph up from
his office, not the construction site. In the time period in which
Joseph was at the construction site daily, he was there early in
the mornings and usually drove a company car to and from the
site.13

13Plaintiffs suggest that asbestos may have contaminated
the family car, but they have not pointed us to any testimony
suggesting that asbestos-containing dust was in the car and that

36
 Hatfield testified that if Joseph got dust on his clothes at
the work sites in the morning and Marline picked him up at his
office at the end of the day, there was no telling with a scientific
certainty whether Marline was exposed as a result. Although
Hatfield testified that shaking visible dust out of clothing before
laundering could contribute to exposure that can cause
mesothelioma, there was no testimony that Joseph had visible
dust on his clothing when he came home, or that Marline shook
any such dust from his clothing.
The evidence therefore suggested it was possible that
Marline was exposed to asbestos from dust on Joseph’s clothing,
because Joseph was in the presence of dust that may have
contained asbestos, and later Marline was in the presence of
Joseph. But “[m]ere presence at a site where asbestos was
present is insufficient to establish legally significant asbestos
exposure.” (Shiffer v. CBS Corporation (2015) 240 Cal.App.4th
246, 252.) Viewing the evidence in the light most favorable to
plaintiffs, the evidence did not make the required connection
between asbestos at the Rossmoor work site and Marline’s
exposure to asbestos from Joseph’s clothing. “‘While there are
many possible causes of any injury, “‘[a] possible cause only
becomes “probable” when, in the absence of other reasonable
causal explanations, it becomes more likely than not that the
injury was a result of its action. This is the outer limit of
inference upon which an issue may be submitted to the jury.’”
[Citation.]’ [Citation.]” (Whitmire v. Ingersoll-Rand Co. (2010)
184 Cal.App.4th 1078, 1084.)

Marline was exposed to asbestos when she breathed dust in the
car.

37
 In responding to questions about hypothetical scenarios,
Hatfield testified that exposure could have occurred if Marline
shook visible dust from Joseph’s clothing or if Joseph brushed
dust off his pants in her presence. However, no one testified that
these factual scenarios happened. “[A]n expert’s opinion that
something could be true if certain assumed facts are true,
without any foundation for concluding those assumed facts exist
in the case before the jury, does not provide assistance to the jury
because the jury is charged with determining what occurred in
the case before it, not hypothetical possibilities.” (Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1117.)
Plaintiffs argue that Dr. Horn testified that every exposure
to asbestos can contribute to the risk of mesothelioma. But “[i]f
there has been no exposure, there is no causation.” (McGonnell v.
Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103.) Even
assuming Dr. Horn is correct as to the cause of mesothelioma in
general, plaintiffs had the burden to prove that exposure to
asbestos-containing materials at Rossmoor was a substantial
factor in contributing to the risk of Marline’s mesothelioma.
Because Joseph’s and Marline’s testimony did not show that
Joseph’s clothing was contaminated with asbestos fibers at the
times Joseph was in contact with Marline, plaintiffs did not
establish that asbestos from Rossmoor was a substantial factor in
causing Marline’s mesothelioma. Therefore, nonsuit relating to
secondary exposure was correctly granted.
4. Nonsuit for direct exposure
Plaintiffs also argue that nonsuit for Rossmoor should be
reversed because even though Marline was never on the
Rossmoor premises while construction was occurring, she

38
nevertheless may have been exposed to asbestos there. They do
not dispute that there was no visible dust when Marline visited
the Rossmoor construction site, but contend that “the fact that
you do not see dust does not mean that you are not being
exposed.” Plaintiffs point to Dr. Roggli’s testimony that asbestos
fibers are invisible when they are suspended in the air and
separated from one another. Plaintiffs also argue that asbestos
fibers “can remain in the air for 15 minutes or more” once
disturbed.
There are two problems with plaintiffs’ argument. First,
the cited evidence does not support it. Plaintiffs cite Hatfield’s
testimony in which he discussed testing of “exposures generated
from a particular activity.” He testified that “most of these
activities did take place for – in the range of 10, 15 minutes,
which people do label as peak exposures.” Hatfield did not testify
that invisible asbestos fibers remain airborne for 15 minutes
after activity has ceased.
Second, even assuming Hatfield’s testimony supported
plaintiffs’ statement, plaintiffs do not point to any evidence that
Joseph and Marline visited construction sites within 15 minutes
of asbestos dust-producing construction work. Plaintiffs also
have not pointed to any evidence indicating that asbestos fibers
would have become airborne and respirable as Joseph and
Marline walked around the site. As we noted above, mere
presence at a location where asbestos is present is insufficient to
establish exposure. Indulging every legitimate inference that
may be drawn from the evidence in plaintiffs’ favor, there was
insufficient evidence to support a jury verdict for plaintiffs. (See
Hernandez v. Amcord, Inc., supra, 215 Cal.App.4th at p. 669.)

39
The trial court therefore did not err in granting nonsuit to
Rossmoor on plaintiffs’ direct exposure claims.
B. Ford
Plaintiffs assert two errors relating to Ford. First, they
argue the trial court erred in instructing the jury that Ford could
not be held liable for asbestos exposure from vehicle parts not
originally installed by Ford. Second, plaintiffs argue that if we
reverse the judgment as to Ford, we also should reverse the
court’s summary adjudication of plaintiffs’ punitive damages
claims against Ford. We address each of these arguments below.
1. Jury instructions at trial
When discussing jury instructions, the court said CACI
Nos. 430 and 435 should be given. CACI No. 430, relating to the
substantial factor test, states, “A substantial factor in causing
harm is a factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or trivial
factor. It does not have to be the only cause of the harm.” The
use notes for CACI No. 430 say, “In asbestos-related cancer cases,
Rutherford v. Owens-Illinois, Inc.[, supra,] 16 Cal.4th [at p.] 977
[67 Cal.Rptr.2d 16, 941 P.2d 1203] requires a different
instruction regarding exposure to a particular product. Give
CACI No. 435, Causation for Asbestos-Related Cancer Claims,
and do not give this instruction.”
CACI No. 435 states, “A substantial factor in causing harm
is a factor that a reasonable person would consider to have
contributed to the harm. It does not have to be the only cause of
the harm. [¶] [Name of plaintiff] may prove that exposure to
asbestos from [name of defendant]’s product was a substantial
factor causing [his/her/[name of decedent]’s] illness by showing,
through expert testimony, that there is a reasonable medical

40
probability that the exposure was a substantial factor
contributing to [his/her] risk of developing cancer.” The use notes
for CACI No. 435 state, “Unless there are other defendants who
are not asbestos manufacturers or suppliers, do not give CACI
No. 430, Causation: Substantial Factor.”
Plaintiffs’ counsel argued, “[F]or the record, . . . I don’t
think 430 ought to be given,” but suggested that the issue already
had been discussed off the record. Exxon’s counsel argued that
because Exxon was a premises liability defendant with no
products claims pending against it, CACI No. 430 was the
appropriate instruction: “[C]ounsel has cited no authority that
would extend 435, which is specifically for manufacturers and
suppliers of asbestos-containing products, to a premises
defendant.” Over Exxon’s objection, the court agreed to give
CACI No. 435 as to Exxon.
The court’s instructions to the jury included the following:
“[430.] A substantial factor in causing harm is a factor that a
reasonable person would consider to have contributed to the
harm. It must be more than a remote or trivial factor. It does not
have to be the only cause of the harm. [¶] . . . . [¶] 435. A
substantial factor in causing harm is a factor that a reasonable
person would consider to have contributed to the harm. It does
not have to be the only cause of the harm. Plaintiff Marline
Petitpas must prove that exposure to asbestos from Exxon Mobil
Corporation or Ford Motor Company was a substantial factor
causing her illness by showing through expert testimony there is
a reasonable medical probability that the exposure was a
substantial factor contributing to her risk of developing
mesothelioma.”

41
 The court also gave Ford’s Special Instruction No. 2: “Ford
Motor Company is not liable for Marline Petitpas’ exposure to
asbestos that comes from other companies’ brakes, clutches or
gasket products installed on Ford vehicles by parties other than
Ford.” This instruction was based on O’Neil, supra, 53 Cal.4th at
p. 342, in which the court held 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.”
Plaintiffs filed a written objection to this instruction,
arguing that O’Neil applies to failure-to-warn allegations only.
After the court read the instruction, while the jury was out of the
courtroom, plaintiffs’ counsel stated again, “[W]e object to that
special instruction at all for the reasons that we previously
stated.” Plaintiffs argued that the design of Ford cars was
defective because “it is a Ford design that called for the
installation and inclusion of asbestos-containing brake products
whether or not they were made by Ford or anyone else.” Ford
disagreed that plaintiffs’ argument correctly reflected the law.
In closing arguments, plaintiffs’ counsel told the jury to
focus on the definition of substantial factor in the jury
instructions. Counsel then read part of CACI No. 430: “‘A
substantial factor in causing harm . . . is a factor that a
reasonable person would consider to have contributed to harm.’
That’s it.” Shortly thereafter, plaintiffs’ counsel also read a
portion of CACI No. 435 to the jury. Plaintiffs’ counsel read
question 8 on the verdict form, which asked whether Marline’s
“exposure to asbestos dust from Ford original equipment brakes,

42
gaskets, or clutches [was] a substantial factor in contributing to
her risk of developing meosthelioma.” Counsel argued, “[E]ven if
the original lining had been changed out, [it is] still a Ford drum
and assembly with the backing plate that’s holding all the dust.”
Plaintiffs’ counsel focused on the evidence presented, arguing
that it supported a finding for plaintiffs. Counsel read CACI Nos.
430 and 435 to the jury again in rebuttal arguments.
In its closing, counsel for Exxon also discussed CACI Nos.
430 and 435. Counsel for Ford argued that the evidence did not
support a finding that Marline was present at the Enco station
when Joseph was working on any Ford cars. Counsel also
referred to Special Instruction No. 2, stating that Ford could not
be held liable for other parties’ products. “[T]he law says
basically that if the exposure that she had, whatever it might
have been, was not a Ford brake, clutch or gasket installed on a
Ford vehicle by Ford, that’s not our responsibility.” Counsel also
emphasized that the defense epidemiologists made clear that the
available studies and literature showed that brake mechanics
had no increased risk of mesothelioma.
As discussed above, the jury found that Marline was
exposed to asbestos from Ford original brakes, gaskets, or
clutches, but that the exposure was not a substantial factor in
contributing to her risk of mesothelioma.
2. Plaintiffs’ contentions on appeal
Plaintiffs assert that Special Instruction No. 2, stating that
Ford was not liable for parts that were not originally installed by
Ford, was incorrect. Plaintiffs argue that by giving this
instruction and also giving CACI No. 430, the trial court
incorrectly limited the jury’s consideration of asbestos exposure
resulting from design defects. We review the legal adequacy of

43
jury instructions de novo. (Davis v. Honeywell International Inc.
(2016) 245 Cal.App.4th 477, 495.)
Plaintiffs argue that because Ford cars were designed with
braking systems intended to be used with asbestos brake linings,
Ford is liable for any injuries caused by Marline’s exposure to
asbestos replacement parts.14 Ford, on the other hand, contends
that under O’Neil, supra, 53 Cal.4th 335, a manufacturer is not
liable for exposure to asbestos from replacement parts that were
not manufactured or supplied by Ford.
Plaintiffs’ theory is not supported by the law or the
evidence in this case. In O’Neil, the decedent was exposed to
asbestos on a naval ship from insulation, gaskets, and packing
used in conjunction with pumps and valves manufactured by the
defendants. (O’Neil, supra, 53 Cal.4th at p. 342.) The Navy
replaced all of the original asbestos-containing parts before the
decedent was exposed to them, and the manufacturers of the
pumps and valves were not part of the chain of distribution for
those replacement parts. (Ibid.) The Supreme Court held that
the manufacturers of the pumps and valves could not be liable for
the decedent’s exposure: “[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.” (O’Neil, supra, 53 Cal.4th at p. 342.)

14 Although the instruction and verdict form referenced
brakes, clutches, and gasket products, plaintiffs’ argument on
appeal discusses replacement brakes only, and includes record
citations to evidence relating to brake parts. We therefore focus
our analysis on brake parts.

44
 The plaintiffs in O’Neil argued that the “defendants’
products were defective because they were ‘designed to be used’
with asbestos-containing components.” (O’Neil, supra, 53 Cal.4th
at p. 350.) The Supreme Court rejected this argument. It noted
that “strict products liability in California has always been
premised on harm caused by deficiencies in the defendant’s own
product.” (Id. at p. 348.) The court added, “It is fundamental that
the imposition of liability requires a showing that the plaintiff’s
injuries were caused by an act of the defendant or an
instrumentality under the defendant’s control.” (Id. at p. 349.)
Plaintiffs point to O’Neil’s footnote 6: “A stronger
argument for liability might be made in the case of a product that
required the use of a defective part in order to operate. In such a
case, the finished product would inevitably incorporate a defect.”
( O’Neil, supra, 53 Cal.4th at p. 350 fn. 6.) As the Court in O’Neil
pointed out, at the time the warship in that case was built,
“asbestos was the only insulating material that could withstand
the extremely high temperatures and pressures produced by a
warship’s steam propulsion system. Following mandated Navy
specifications, Crane used asbestos in its valves and packing.
However, no evidence was presented that asbestos, as opposed to
some other type of insulation material, was needed in order for
the valves to function properly.” (Id. at p. 344.) For the other
defendant, Warren, “no evidence was presented that Warren’s
pumps required the use of internal components made with
asbestos in order to operate.” (Ibid.) This did not amount to a
design defect because “[a]s alternative insulating materials
became available, the Navy could have chosen to replace worn
gaskets and seals in defendants’ products with parts that did not
contain asbestos. Apart from the Navy’s specifications, no

45
evidence showed that the design of defendants’ products required
the use of asbestos components, and their mere compatibility for
use with such components is not enough to render them
defective.” (Id. at p. 350.)
Division Five of the First Appellate District recently
followed this reasoning in Johnson v. ArvinMeritor (2017) 9
Cal.App.5th 234. In that case, the plaintiff alleged he had been
exposed to asbestos-containing parts in axle and brake
assemblies. (Id. at p. 237.) The plaintiff alleged that defendant
ArvinMeritor was liable under a design defect theory because
defendant’s brake assemblies required the use of asbestos-
containing brake linings, even if ArvinMentor did not supply
those brake linings. (Id. at pp. 245-246.) The court compared the
facts with O’Neil, and held that there was no liability for design
defect: “As with the pumps and valves in O’Neil, the Rockwell
axle and brake assemblies, as originally manufactured,
incorporated asbestos-containing material (brake linings)
supplied by a third party (Carlisle), and asbestos-containing
replacement parts, whether made by Carlisle or others, were
most likely used in aftermarket repairs. But nothing
demonstrates that the assemblies were themselves defective,
apart from the hazards presented by the third party
components.” (Id. at p. 247.)
The plaintiff in Johnson also pointed to footnote 6 in O’Neil,
and argued that the “brake assemblies specified and required use
of asbestos-containing brake linings.” (Johnson, supra, 9
Cal.App.5th at p. 247.) The court rejected this argument: “As
with the products in O’Neil, there is no evidence that the brake
assemblies required asbestos-containing materials in order to
function generally. (See O’Neil, supra, 53 Cal.4th at p. 343.)

46
There is no evidence that any alternatives to asbestos-containing
friction materials were even available for automotive use at the
relevant times. There is no evidence that, as alternative friction
materials became available, users of Rockwell’s brake assemblies
could not have chosen to replace the brake linings with parts that
did not contain asbestos. In fact, the record suggests that, as
vehicle manufacturers transitioned from use of asbestos-
containing friction materials, this is exactly what occurred.
There is no evidence Rockwell needed to redesign its brake
assemblies to accommodate asbestos-free linings.” (Id. at p. 248.)
The court found that the plaintiff’s argument would constitute an
“unprecedented” extension of liability: “Were we to accept
Johnson’s argument, by logical extension every vehicle produced
by any manufacturer during the period before nonasbestos
friction materials became generally available would be considered
a defective product simply by virtue of incorporation of, or
specification of, asbestos-containing materials in third party
component parts.” (Ibid.)
The same reasoning applies here. Plaintiffs did not present
any evidence to show that cars originally equipped with asbestos-
containing brakes were unable to use non-asbestos brake parts.
No evidence suggested that Ford-designed brake drums or disks
were incompatible with lining materials that did not contain
asbestos. Although the evidence indicated that in the 1960’s and
much of the 1970’s replaceable brake linings almost universally
contained asbestos, and therefore the available replacement
brake linings contained asbestos, mere compatibility with such
parts does not render a product defective. Other than presenting
evidence that replacement brake linings typically contained
asbestos at the time, plaintiffs presented no evidence that the

47
very design of Ford cars from that time period required brakes
that contained asbestos. Plaintiffs therefore have not
demonstrated that Ford’s design falls outside the scope of O’Neil’s
central holding that a manufacturer cannot be held liable for
harm caused by another manufacturer’s product.
In plaintiffs’ reply brief, they cite to O’Neil’s duty-to-warn
analysis to support their contention that Ford cars were
defectively designed because they incorporated asbestos-
containing brake parts. However, a duty to warn is not relevant
to the design defect analysis here. California recognizes three
different types of product defects under strict liability—
manufacturing defects, design defects, and warning defects.
(Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d
987, 995.) “[A] product is defective in design either (1) if the
product has failed to perform as safely as an ordinary consumer
would expect when used in an intended or reasonably foreseeable
manner, or (2) if . . . the benefits of the challenged design do not
outweigh the risk of danger inherent in such design.” (Barker v.
Lull Engineering Co. (1978) 20 Cal.3d 413, 418.) Strict liability
for failure to warn, on the other hand, “require[s] a plaintiff to
prove . . . that the defendant did not adequately warn of a
particular risk that was known or knowable in light of the
generally recognized and prevailing best scientific and medical
knowledge available at the time of manufacture and
distribution.” (Anderson, 53 Cal.3d at p. 1002.) Therefore, “[t]he
‘warning defect’ relates to a failure extraneous to the product
itself.” (Ibid.) The legal analysis for these types of product
defects is not interchangeable, and plaintiffs offer no argument or

48
reasoning supporting the application of a failure-to-warn analysis
to support a finding of design defect.15
Moreover, even if O’Neil’s failure-to-warn analysis were
applicable here, it does not support plaintiffs’ argument. In the
portion of its decision addressing a duty to warn, the O’Neil Court
explained that the manufacturer of a product intended to be used
with asbestos-containing parts may have a duty to warn about
potential asbestos-related hazards where “the defendant’s
product was intended to be used with another product for the
very activity that created a hazardous situation.” (O’Neil, supra,
53 Cal.4th at p. 361.) The court distinguished Tellez-Cordova v.
Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577
(Tellez-Cordova), in which the plaintiff alleged that he worked
extensively with tools designed to grind and sand metals, thus
producing respirable metallic dust that caused him to develop
pulmonary fibrosis. In reversing an order of dismissal based on
the sustaining of a demurrer, the Court of Appeal held that the
plaintiff had alleged a viable cause of action under a duty-to-
warn theory. (Ibid.)
The O’Neil Court distinguished Tellez-Cordova from the
case before it in two ways. First, the Court noted that according
to the complaint, “the power tools in Tellez-Cordova could only be

15 Plaintiffs argued below that O’Neil “does not apply with
respect to design defect liability.” This is incorrect; the O’Neil
Court expressly addressed that theory, holding that design defect
liability was not available under the circumstances: “We
conclude that defendants were not strictly liable for O’Neil’s
injuries because (a) any design defect in defendants’ products was
not a legal cause of injury to O’Neil, and (b) defendants had no
duty to warn of risks arising from other manufacturers’ products.”
(O’Neil, supra, 53 Cal.4th at p. 348.)

49
used in a potentially injury-producing manner. Their sole
purpose was to grind metals in a process that inevitably produced
harmful dust. In contrast, the normal operation of defendants’
pumps and valves did not inevitably cause the release of asbestos
dust. This is true even if ‘normal operation’ is defined broadly to
include the dusty activities of routine repair and maintenance,
because the evidence did not establish that defendants’ products
needed asbestos-containing components or insulation to function
properly.” (O’Neil, supra, 53 Cal.4th at p. 361.) Second, the
Court reasoned that “it was the action of the power tools in
Tellez-Cordova that caused the release of harmful dust, even
though the dust itself emanated from another substance. . . . The
same is not true here. The asbestos dust that injured O’Neil
came from thermal insulation and replacement gaskets and
packing made by other manufacturers. Nothing about
defendants’ pumps and valves caused or contributed to the
release of this dust.” (Ibid.) The O’Neil Court continued,
“Recognizing a duty to warn was appropriate in Tellez–Cordova
because there the defendant’s product was intended to be used
with another product for the very activity that created a
hazardous situation.” (Ibid.) The same analysis was not
applicable for valves and pumps that included asbestos-
containing gaskets and insulation, the Court said, because
“where the hazard arises entirely from another product, and the
defendant’s product does not create or contribute to that hazard,
liability is not appropriate.” (Id. at pp. 361-362.)
Several cases have followed Tellez-Cordova in finding that
liability may arise from the use of brake lining arcing machines.
As Joseph and Marline testified in this case, the work of arcing
brake linings can create airborne dust. In cases specific to arcing

50
machines, as in Tellez-Cordova, plaintiffs alleged that the arcing
machine’s sole purpose was to grind brake linings, at the relevant
time all brake linings contained asbestos, and grinding the brake
linings on the machine created hazardous airborne dust. Courts
have found that the arcing machines therefore were “intended to
be used with another product for the very activity that created a
hazardous situation.” (Bettencourt v. Hennessy Industries, Inc.
(2012) 205 Cal.App.4th 1103, 1116 [partially reversing judgment
on the pleadings]; see also Shields v. Hennessy Industries, Inc.
(2012) 205 Cal.App.4th 782, 797 [reversing judgment on the
pleadings]; Sherman v. Hennessy Industries, Inc. (2015) 237
Cal.App.4th 1133, 1147 [reversing summary judgment]; Hetzel v.
Hennessy Industries, Inc. (2016) 247 Cal.App.4th 521, 525
[reversing summary judgment]; Rondon v. Hennessy Industries,
Inc. (2016) 247 Cal.App.4th 1367, 1381 [reversing summary
judgment].)
This case is more like O’Neil than Tellez-Cordova and the
arcing machine cases. A car is not like a brake lining arcing
machine, in which the intended use of the machine is the very
activity that creates a hazardous situation—respirable airborne
dust. There was no evidence presented that using a car’s brakes
created airborne dust that exposed the user to respirable asbestos
fibers. To the contrary, the testimony indicated that brake dust
collected in the brake drum, rather than being released into the
air. And even if we were to define the “normal operation” of a
vehicle to include routine repair and maintenance, as the Court
did in O’Neil, liability still would not attach. Only the manner in
which Joseph or others chose to clean the brake drums—by
blowing the dust out with compressed air or tapping the dust out
onto the ground—released the dust into the air. Had Joseph or

51
others chosen to clean brake drums in some other manner, such
as vacuuming brake dust out of the drums or wiping the drums
with wet rags, presumably the existence of airborne dust would
have been minimized. This implicates a critical issue in product
liability jurisprudence: “It is fundamental that the imposition of
liability requires a showing that the plaintiff’s injuries were
caused by an act of the defendant or an instrumentality under
the defendant’s control.” (O’Neil, supra, 53 Cal.4th at p. 349.)
Plaintiffs did not present evidence that Ford’s design left no other
option than to blow brake dust into the air, and the manner in
which Joseph and others at the Enco station chose to clean brake
drums was not under Ford’s control.16
We therefore decline to find an exception to O’Neil in this
case. That Ford vehicles were compatible with other
manufacturers’ asbestos-containing brakes available at the time
did not make Ford liable under a design defect theory of liability
for Marline’s exposure to asbestos from replacement brakes
placed into the stream of commerce by other manufacturers.
Special Instruction No. 2 correctly stated the law under O’Neil.
3. CACI No. 430 regarding causation
Plaintiffs argue that the O’Neil instruction error in Ford’s
Special Instruction No. 2 “was exacerbated when the court read
CACI 430 to the jury” because it imposed a higher burden on
plaintiffs. CACI No. 430, as given, stated, “A substantial factor
in causing harm is a factor that a reasonable person would

16 Plaintiffs presented evidence that Ford knew that
cleaning brake dust from brake drums with compressed air could
cause the release of respirable asbestos fibers. While such
evidence might have been relevant to a duty to warn, which
plaintiffs do not assert here, without more it was not relevant to
the design defect claim plaintiffs assert.

52
consider to have contributed to the harm. It must be more than a
remote or trivial factor. It does not have to be the only cause of
the harm.”
Plaintiffs argue that the inclusion of CACI No. 430
exacerbated the error of giving Ford’s Special Instruction No. 2.
As explained above, however, we find that Special Instruction No.
2 was correct. The use of CACI No. 430 therefore could not have
exacerbated any such error.
Plaintiffs also argue that the directions for use for CACI
No. 430 state that it should not be given in asbestos cases.
Plaintiffs argue that the instruction required plaintiffs to show
that defendants’ conduct contributed to the harm, rather than
contributed to the risk of harm, as stated in CACI No. 435, the
causation instruction specific to asbestos-related cancer claims.
Plaintiffs argue that the instructions likely confused the jury and
imposed a higher burden of proof on plaintiffs.17
Ford points out that CACI No. 430 was requested by
Exxon, which was a premises liability defendant and not a
product liability defendant. Ford also argues that directions for
use of CACI No. 435 state, “Unless there are other defendants
who are not asbestos manufacturers or suppliers, do not give
CACI No. 430, Causation: Substantial Factor.” Here, Ford
argues, Exxon was not an asbestos manufacturer or supplier, and
therefore the inclusion of CACI No. 430 was appropriate.

17 Ford argues that plaintiffs forfeited this argument by
suggesting to the trial court that both instructions should be read
to the jury. However, this occurred only after plaintiffs’ counsel
already objected to the inclusion of CACI No. 430, however.
Plaintiffs’ objection therefore was preserved.

53
 Causation specific to asbestos cases was discussed in
Rutherford, supra, 16 Cal.4th 953. In that case, the Supreme
Court acknowledged that an asbestos plaintiff could not be
expected to connect a particular defendant’s asbestos fibers to the
origins of the plaintiff’s cancer. The Court therefore held that
“plaintiffs may prove causation in asbestos-related cancer cases
by demonstrating that the plaintiff’s exposure to defendant’s
asbestos-containing product in reasonable medical probability
was a substantial factor in contributing to the aggregate dose of
asbestos the plaintiff or decedent inhaled or ingested, and hence
to the risk of developing asbestos-related cancer, without the
need to demonstrate that fibers from the defendant’s particular
product were the ones, or among the ones, that actually produced
the malignant growth.” (Id. at pp. 976-977, footnote omitted.)
The Court held that the jury should be instructed that a
plaintiff’s exposure to asbestos is a substantial factor “in causing
or bringing about the disease if in reasonable medical probability
it was a substantial factor contributing to plaintiff’s or decedent’s
risk of developing cancer.” (Id. at p. 977.) The Court reiterated
its holding and pointed to related instructions, stating, “[T]he
plaintiff may meet the burden of proving that exposure to
defendant’s product was a substantial factor causing the illness
by showing that in reasonable medical probability it was a
substantial factor contributing to the plaintiff’s or decedent’s risk
of developing cancer. The jury should be so instructed. The
standard instructions on substantial factor and concurrent
causation (BAJI Nos. 3.76 and 3.77) remain correct in this context
and should also be given.” (Rutherford, supra, 16 Cal.4th at pp.
982-983, italics added.)

54
 In the time since Rutherford was decided in 1997, CACI
instructions have been implemented, including CACI No. 435,
specific to asbestos causation. The directions for use for CACI
No. 430 now state, “In asbestos-related cancer cases, Rutherford
[supra] requires a different instruction regarding exposure to a
particular product. Give CACI No. 435, Causation for Asbestos-
Related Cancer Claims, and do not give this instruction.” (CACI
No. 430, directions for use.) The directions for use in CACI No.
435 say, “Unless there are other defendants who are not asbestos
manufacturers or suppliers, do not give CACI No. 430, Causation:
Substantial Factor.” It appears, therefore, that despite
Rutherford’s statement that the standard instruction on
substantial factor remains correct and also should be given, the
CACI use notes disagree with this approach.
Other than the Use Notes, plaintiffs have presented us
with no authority supporting their argument that CACI No. 430
should not be given in an asbestos case that includes a defendant
that is not a manufacturer or supplier. “Pattern jury instructions
. . . while designed to accurately reflect the law, are not the law
itself.” (Christian Research Institute v. Alnor (2007) 148
Cal.App.4th 71, 82, citing People v. Alvarez (1996) 14 Cal.4th 155,
217.) That the Use Notes caution against giving the more
general CACI No. 430 in a mesothelioma case, when the more
specific instruction CACI No. 435 is more applicable, does not
support a conclusion that it was error to give both instructions.
CACI No. 430 is a correct statement of the law relating to
substantial factor causation, even though, as Rutherford noted,
more specific instructions also must be given in a mesothelioma
case. Because the more specific CACI No. 435 also was given, we
do not find that the trial court erred by giving both instructions.

55
 Even if giving both CACI Nos. 430 and 435 was error, it
was harmless. “A judgment may not be reversed on appeal, even
for error involving ‘misdirection of the jury,’ unless ‘after an
examination of the entire cause, including the evidence,’ it
appears the error caused a ‘miscarriage of justice.’ (Cal. Const.,
art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 574.) “In assessing prejudice from an erroneous instruction,
we consider, insofar as relevant, ‘(1) the degree of conflict in the
evidence on critical issues [citations]; (2) whether respondent’s
argument to the jury may have contributed to the instruction’s
misleading effect [citation]; (3) whether the jury requested a
rereading of the erroneous instruction [citation] or of related
evidence [citation]; (4) the closeness of the jury’s verdict
[citation]; and (5) the effect of other instructions in remedying the
error [citations].’ [Citations.]” (Id. at pp. 570-571.)
Here, there was not a large degree of conflict about general
causation. Experts from both sides agreed that there is a certain
amount of “ambient” or “background” asbestos in the air, and
excessive exposure to asbestos can cause disease. There was
some conflict in the evidence about the extent to which brake
dust might contribute to a risk of developing mesothelioma.
Plaintiffs presented evidence that cleaning brake drums with
compressed air created airborne asbestos levels that exceeded
OSHA requirements; defendants presented evidence that brake
dust was largely harmless forsterite and auto workers did not
experience an increased risk of asbestos-related disease. No
evidence was presented to show that bystanders near automotive
workers had an increased risk of disease.
As for specific causation, there was no dispute about
Marline’s presence at the Enco station, and no dispute that about

56
40 percent of the cars serviced at the Enco station were Ford
vehicles. The experts’ opinions differed regarding whether the
alleged exposures contributed to Marline’s risk of developing
mesothelioma. Therefore, there were conflicts in the evidence as
to whether exposure to Ford’s asbestos-containing auto parts at
the Enco station could have been a substantial factor in causing
Marline’s mesothelioma.
It does not appear that defendants’ arguments contributed
to any misleading effect of CACI No. 430. Before defense counsel
talked about CACI No. 430 in closing arguments, plaintiffs’
counsel stated, “A substantial factor in causing harm . . . is a
factor that a reasonable person would consider to have
contributed to harm. That’s it. Do you believe that it contributed
to the harm? . . . . That’s the question.” This language is in both
CACI Nos. 430 and 435. Plaintiffs’ counsel also read CACI No.
435, and said plaintiffs, through the testimony of Dr. Horn, had
met their burden to prove that Marline’s combined exposures to
asbestos constituted a substantial factor contributing to her risk
of mesothelioma.
Counsel for Ford, the defendant to whom plaintiffs’
appellate argument is directed, did not address CACI Nos. 430
and 435 in closing arguments. Counsel for Exxon noted that
CACI No. 430 states that a substantial factor “must be more than
a remote or trivial factor,” and noted that Dr. Dyson testified that
Marline’s exposures were trivial. Exxon’s counsel then discussed
CACI No. 435, and argued that the epidemiological studies
demonstrated no increased risk in auto industry workers.
Plaintiffs argue that Exxon’s comments were prejudicial
because the Judicial Council Advisory Committee on Civil Jury
Instructions “expressly and specifically found that the ‘trivial’

57
language from CACI 430 should not be given in an asbestos case.”
In fact, the Advisory Committee considered whether an
instruction about “trivial” exposures must be given or could be
omitted, and ultimately decided that “the issue is appropriate for
legal argument, to be decided by the trial judge.” (Report of the
Advisory Committee on Civil Jury Instructions, Oct. 12, 2007, p.
6, available at www.courts.ca.gov/documents/120707item4.pdf.)
The Advisory Committee noted Rutherford’s statement that “a
force [that] plays only an “infinitesimal” or “theoretical” part in
bringing about injury, damage, or loss is not a substantial factor.”
(Id. at p. 5, quoting Rutherford, supra, 16 Cal.4th at p. 969.) The
Committee continued, “While under Rutherford there clearly is a
de minimis standard at which there is no liability, it does not
follow that the jury must be so instructed. The committee
believes that neither Rutherford nor any other case or legal
principle requires that the jury be instructed on a limitation
based on ‘infinitesimal,’ ‘theoretical,’ ‘negligible,’ or ‘trivial’
contribution to the aggregate dose.” (Ibid.) The report noted that
the committee was divided on the issue, and said that until
further legal guidance was provided, the question should be
determined on a case-by-case basis. (Id. at pp. 5-6.) Contrary to
plaintiffs’ argument, therefore, the Advisory Committee did not
conclude that a “trivial” instruction is inherently inappropriate in
an asbestos case. We do not find Exxon’s fleeting mention of
trivial exposures to be misleading.
The third factor relating to prejudice is whether the jury
requested a rereading of an erroneous instruction or related
evidence. Here, the jury did not request such information. The
fourth factor is the closeness of the jury’s verdict. Here, on the

58
substantial factor question relating to Ford, the jury found in
favor of Ford ten to two.
The fifth factor is the effect of other instructions in
remedying the error. Here, even if CACI No. 430 is insufficiently
detailed to accurately reflect substantial factor causation in an
asbestos case, the court also read CACI No. 435, which is specific
to asbestos cases. The question on the verdict form correctly
stated the substantial factor standard, asking whether Marline’s
exposure was “a substantial factor in contributing to her risk of
developing mesothelioma.” Counsel on both sides argued both
jury instructions. The jury found that Marline’s exposure to
asbestos at the Enco station was a substantial factor in
contributing to the risk of her disease but exposure to Ford parts
was not. Plaintiff argues that this indicates that the jury must
have been confused, but to the contrary, it shows that the jury
understood it was not constrained as to any predetermined
answer to the substantial factor question.
Plaintiffs have not shown that the inclusion of CACI No.
430 was erroneous, nor that they were prejudiced by the use of
CACI No. 430.
4. Ford’s motion for summary adjudication of plaintiffs’
punitive damages claim
Ford moved for summary adjudication of plaintiffs’ punitive
damages claims before trial. The court granted the motion,
stating, “[T]here is not a showing of factual issues of conscious
disregard towards a bystander or a showing that there was a
duty owed to her relative to the – that they had a conscious
disregard toward a bystander that would justify punitives.”
On appeal, plaintiffs’ arguments as to Ford’s motion are
relevant only if we were to find a basis for reversing the verdict

59
in favor of Ford. Plaintiffs state in their opening brief,
“Assuming that the judgment in Ford’s favor is reversed, reversal
of the summary adjudication is also required so that plaintiffs
can seek recovery of punitive damages at retrial.” In their reply,
they state, “Upon reversal, the trial court must be directed to
reverse its grant of summary adjudication as to the punitive
damage issues.”
As stated above, we find no basis to reverse the verdict as
to Ford. Plaintiffs’ arguments as to Ford’s motion for summary
adjudication are therefore moot.
C. Verdict in favor of Exxon
The jury returned a verdict in favor of Exxon. Plaintiffs
argue that the evidence did not support the verdict.
When the trier of fact has expressly or implicitly concluded
that the party with the burden of proof failed to carry that
burden and that party appeals, the substantial evidence test does
not apply. Instead, “the question for a reviewing court becomes
whether the evidence compels a finding in favor of the appellant
as a matter of law.” (Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 279.) “‘Specifically, the question becomes
whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.” [Citations.]’” (In re R.V. (2015) 61 Cal.4th
181, 218.) Plaintiffs correctly recognize this standard of review,
and argue that the evidence at trial compelled a finding in their
favor against Exxon as a matter of law.
Here, the jury found that Exxon controlled the Enco
station, that Marline was exposed to asbestos there, and that
Marline’s exposure at the Enco station was a substantial factor in

60
contributing to her risk of developing mesothelioma. However,
when asked if “Exxon [knew], or through the exercise of
reasonable care should have known, that there was a condition at
the Enco station that created an unreasonable risk to Mrs.
Petitpas of exposure to asbestos dust,” the jury unanimously
answered “no.” Plaintiffs argue that this answer “is not legally
supportable in light of the uncontradicted evidence that Exxon
actually knew about the danger.”
The evidence presented at trial arguably shows that Exxon
knew about potential dangers of asbestos exposure to refinery
workers—not bystanders at service stations. The evidence does
not support a finding, as a matter of law, that Exxon knew that
there was a condition at the Enco station that created an
unreasonable risk to Marline.
Plaintiffs argue that Exxon “not only knew about the
general risks associated with asbestos exposure, but knew about
the risks associated with asbestos released from [the] inspection
and repair of brakes,” and “Exxon had actual knowledge that
terminal disease was associated with exposure of automotive
mechanics to work on asbestos-containing brakes.” The cited
evidence does not support these statements. Plaintiffs point to
the testimony of their expert, Dr. Weaver, who was formerly
employed as a physician addressing issues of worker health at oil
refineries for Exxon predecessors. Before Dr. Weaver’s testimony
was read to the jury, the court gave a limiting instruction: “Dr.
Weaver was appearing at this deposition as an expert witness,
not as a corporate representative of Exxon Mobil corporation. [¶]
None of the products identified in this deposition are brakes,
gaskets, or clutches; none of the locations identified are service
stations. The only locations are refineries.” Dr. Weaver’s

61
testimony addressed working conditions at refineries and
generally available knowledge that asbestos can cause disease,
but he said nothing about knowledge of hazards involving brake
or automotive work. Dr. Weaver’s testimony therefore does not
support a finding that Exxon knew or should have known that
bystanders at service stations might be at risk for hazardous
asbestos exposure.
Plaintiffs also cite the testimony of their expert, Dr.
Castleman, who testified that the health hazards relating to the
inhalation of asbestos dust was known by 1929. However, he also
acknowledged that much of the asbestos-related research through
the 1940’s and 1950’s was “being done in factories that worked
directly with asbestos.” Dr. Castleman also testified that a Dr.
Wilhelm Hueper published data in 1965 relating to health
hazards of brakes and “brake work.” Dr. Castleman testified that
Dr. Hueper did not rely on any epidemiological studies, but
rather was “drawing a broad picture of public health hazard from
asbestos use in society.” Dr. Castleman testified that internal
communications at the Friction Materials Standards Institute—
which included companies that made asbestos brakes, such as
Bendix—“appeared to talk about asbestos starting in 1968.”18 Dr.
Castleman did not testify about Exxon’s knowledge regarding
whether automotive workers were exposed to asbestos.
Plaintiffs argue that under agency theory, knowledge can
be imputed from a principal to an agent. Plaintiffs contend that
because the principal—Exxon management—knew about the
hazards of asbestos exposure to refinery workers, we may assume

18 Since there was no evidence suggesting that Marline
visited Joseph at any Enco stations after 1968, Exxon’s
knowledge on that point after 1968 is irrelevant.

62
that agents—subsidiary service stations—also knew. Plaintiffs
also assert that “Exxon presented no evidence at all
demonstrating that its refineries were operated independently of
its retail service stations.” This theory is not well taken.
As noted above, the trial court correctly granted summary
adjudication of plaintiffs’ product liability claims against Exxon.
Plaintiffs therefore proceeded to trial against Exxon on premises
liability claims. The jury was asked whether Exxon knew or
should have known “that there was a condition at the Enco
station that created an unreasonable risk” to Marline (italics
added). Evidence suggesting there were conditions at other
locations (refineries) that posed a risk to a different class of
people (refinery workers), without more, cannot support an
affirmative answer to the question posed to the jury.
Moreover, even if the evidence plaintiffs rely upon
supported their argument, it would not compel reversal. As
discussed above, reversal under these circumstances requires
“uncontradicted and unimpeached” evidence that is “of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”
Here, however, the evidence was contradicted. As noted above,
several witnesses testified that brake dust was almost exclusively
non-hazardous forsterite, not asbestos. Defense expert Dr. Roggli
testified that forsterite “has no disease-producing potential at
all.” Dr. Castleman testified that by 1969, “there was nothing in
print on the measurement of exposure of brake mechanics to
asbestos.” Counsel for Exxon read to the jury a portion of Dr.
Castleman’s deposition testimony in which Dr. Castleman stated
that to this day, there are no studies “that have any statistical
power . . . that speak of the mesothelioma risk of mechanics that

63
do brake repair work.” Plaintiffs’ expert Dr. Barry Horn also
testified that several studies found no increased risk of
mesothelioma in auto mechanics. There was no evidence linking
asbestos exposure to occasional bystanders who were near
automotive workers as they did brake work.
Contrary to plaintiffs’ arguments, therefore, Exxon’s
knowledge about asbestos hazards for vehicle mechanics—and
bystanders at service stations—was far from uncontroverted.
Plaintiffs have not met the high threshold of showing that they
were entitled to a verdict against Exxon as a matter of law.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs
on appeal.
CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

64