Filed 11/30/21 Webb v. General Cable Corp. CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
AMOS WEBB et al.,
Plaintiffs and Respondents,
A159632, A159747
v.
GENERAL CABLE CORPORATION, (Alameda County
Super. Ct. No. RG18925553)
Defendant and Appellant.
Defendant General Cable Corporation (defendant or General Cable)
appeals from a jury verdict in favor of plaintiffs Amos Webb and his wife on
their complaint for personal injury and loss of consortium. Defendant raises
several claims of error, including that (1) plaintiffs failed to present
substantial evidence that plaintiff Amos Webb (hereafter Webb) was exposed
to products manufactured by defendant that contained asbestos; (2) plaintiffs’
evidence of medical causation was based on assumptions unsupported by the
facts; (3) the jury’s allocation of fault among defendants was not supported by
substantial evidence; and (4) the jury’s $11.5 million verdict for future
noneconomic damages was excessive as a matter of law.
After a review of the entire appellate record, we agree with defendant
that plaintiffs failed to present substantial evidence Webb was exposed to
products manufactured by defendant that contained asbestos. Because the
jury would be required to speculate to find in plaintiffs’ favor, we conclude the
judgment is not supported by sufficient evidence and reverse.
I. BACKGROUND
A. Plaintiffs’ Lawsuit
Webb was diagnosed with mesothelioma in 2018. He and his wife,
Jeannie Webb, filed this action against defendants General Cable
Corporation and 26 other defendants, alleging, among other causes of action,
negligence, strict liability, and loss of consortium based on his exposure to
asbestos as an electrician for various employers at various worksites over the
course of his career.
B. Evidence at Trial
1. Webb’s Work as an Electrician
In 1959, Webb went to work as an apprentice electrician for Littles
Electric (Littles) in Berkeley. Littles was a small electrical contractor that
did remodeling, new residential, and commercial construction work.
Webb worked as an apprentice at Littles for about three years. He
advanced quickly to become the foreman of the company, and remained
employed at Littles until approximately 1973.
a. Webb’s work with Romex wire
While he worked at Littles, Webb worked “quite frequently” with a
product known as “Romex wire.” In fact, during his first three or four years
of his employment, “it was mostly Romex.”
Romex was a popular brand of cable used for interior wiring. General
Cable acquired the trademark for “Romex” brand wire in 1944. Romex
consisted of a nonmetallic sheathed cable containing multiple wires.
2
Multiple witnesses at trial confirmed that Romex was both a trade
name for one particular manufacturer’s electrical wire or cable, 1 but it was
also a generic term, “like someone saying, give me some Kleenex. If they give
you Puffs, it’s still Kleenex.” One of plaintiffs’ experts confirmed that many
companies manufacture what one might call “Romex,” as that name refers “to
a type of cable that has an external sheathing.” Defendant’s expert agreed
Romex was both a brand name and generically understood as a type of wire.
For the first three years he worked at Littles as an apprentice, Webb
did not purchase electrical wire, but picked it up from suppliers. In about
1962, Webb began doing his own ordering. About 60 percent of the wire he
ordered when he worked at Littles was from General Cable and about 40
percent was from other manufacturers.
Webb testified that “Romex” was a brand of wire. Webb “worked with
Romex that was made by General Cable.” He knew he was working with the
brand “Romex” wire because he saw “Romex” written on the box. The Romex
that Webb worked with came in different colors, but “[m]ost of the time back
in the olden days, most of it was gray—grayish wire with a grayish—gray-
type cover on the outside, and . . . . a fiber—a white fiber in it that [he] would
have to trim and get off.”
When working with Romex, Webb would use a utility knife or a wire
stripper to cut back the outer layer of insulation and scrape the wires to
establish a good electrical connection. Webb would “take a utility knife and
cut the outer layer with the knife, peel it off.” He testified, “[I]t’s the same
with the smaller wires. They had the insulation—I mean, the covering on the
1Webb confirmed that Romex is technically a “cable” because it
contains multiple strands of wire, but plaintiffs’ expert, Charles Ay, described
Romex as a “wiring system,” not cable.
3
outside, take the paper off. And then it also had white fiber in it that we
would have to cut, and most electricians just cut it and throw it on the floor
. . . .”
Webb was working close to the wires when trimming, stripping, and
scraping them.2 He was also exposed to dust when cleaning up the debris
from his work with wires. “We use a dust pan and a broom to sweep it all
together and put it in a container and put the trash away. [¶] . . . [¶] . . .
anytime you’d do the cleanup, sweeping and things, you would create some
type of dust or something, you know.”
Webb was not wearing any protective gear with respect to breathing
when doing this work. Webb was never warned by Littles about wiring
having asbestos, nor did he see any warnings on packaging from General
Cable. Defendant admitted it was “unaware of any warnings placed on its
products relating to asbestos health hazards.”
b. Webb’s work with “heat wire”
In his work as an electrician, Webb “hooked up” appliances that had
“high-heat wire,” such as bathroom heaters, heat lamps, ovens, and range
tops. Webb would use Romex or “other wire” to hook up high-heat appliances
because “different jobs come with different applications.”
Webb explained for example, how he would “hook up” an oven: “Your
oven, you would have to bring your line in to accommodate the load that the
oven would require in order to operate. So you did that with a . . . Number 8
wire . . . . [¶] So you bring that in, and you come into a junction box and you
Plaintiffs’ expert explained that Webb would have been exposed to
2
asbestos fibers when cutting the ends of wires and stripping them back, and
testified that when cutting, stripping, and hooking up wires, electricians are
“within 8, 10, 12 inches of this, and our normal breathing zone is an 18-inch
umbrella. . . . So you’re definitely going to inhale those fibers.”
4
have an oven that recesses into the cabinet. And with that oven, it comes
with a pigtail that—the pigtail have [sic] highly resistant heat wire that come
into that you have to trim the wire and cut the insulation back, and make a
termination into the junction box.” Similarly, with a “range top,” Webb would
“bring in the line for that,” “put a junction box in,” “put your cable in through
the connector and strip back the wire that have the high-heat resistant [sic]
because the wire that we have that come in Romex, which would be TW, and
then you make a connection . . . and then you . . . connect that cable into the
panel.”
Asked to clarify what “pigtail” is, Webb explained, “[T]he appliance
come with a pigtail, if a piece of equipment come with a pigtail, that mean it’s
got flexible cable. It could be liquid-type flex or just regular flex. And this
is—it’s still wrapped in a piece of flexible conduit, and that would come in
with a connector on the end, and as a matter of fact, be it Westinghouse or
GE or whoever made the appliance, it would already be installed, the wires
necessary to make that appliance work.” Webb would then “have to
accommodate that. So when we put that in the junction box, we terminate
their wire with our wire in order to have continuity from the breaker all the
way through the appliance.”
When asked whether he used wire manufactured by General Cable for
“high-temperature applications,” Webb said: “For the high-temperature wire,
it’s very seldom we would get high-temperature wire to pull in to
accommodate appliance unit and things. With Romex and things of this sort,
it was already on the—it was put in by others.” When asked to explain
further, Webb responded: “It was put in by whoever made the appliance or
the unit that we was [sic] wiring. [¶] . . . [¶] They put that in there for it to be
5
hooked up. And we had to terminate it by stripping it and hooking it to the
wire we bring in. [¶] . . . [¶] We didn’t put no wires in. They did.”
For a commercial job, Webb “would run conduit pipe called ‘EMT,’ and
then you put that in, and this is a situation where you have to run a fishtail
through it to pull your cable, your wires through, which would be both—both
times it’s THW. THWN would carry more heat. [¶] Then you could—if you
could carry more heat, you didn’t have to have a larger conductor to conduct
the electricity, depending on what application you wanted to use. So you
bring that to the junction box, and the same way you would do with the
Romex pretty much, but then you would make a splice into the junction box
and then put your high-heat wires to this wire and go from there.”
In addition to Romex, Webb used “TW wire, THW, THWN.” Webb
explained “[t]hese are different insulation that’s on the different wires that
we put through a conduit pipe.”
2. Plaintiffs’ Certified Asbestos Consultant’s Testimony
Charles Ay, a California certified asbestos consultant, testified for
plaintiffs as an expert about “the different types of products that contained
asbestos, and how [Webb,] in performing his work, would have had an
opportunity for exposure to that asbestos.” To obtain his certification, Ay
satisfied a protocol established by the federal Asbestos Hazard Emergency
Response Act. As part of his training, Ay learned about what products were
historically made with asbestos during the period 1955 to 1978.
Ay learned about the work of electricians from 1959 to 1978 by
personally observing them on job sites and reading depositions of electricians.
According to Ay, “a lot” of wire used by electricians during that time
contained asbestos. Residential electricians were generally at risk of
occupational exposure to asbestos “[f]rom [their] own work, some of the cable
6
wire that [they are] pulling is an asbestos-containing product. And the
handling of that wire, the preparation of that wire, the hooking up of that
wire, if you will, causes fiber to be released when [they are] handling and
working with an asbestos product that generates dust.”
Ay stated that the only potential exposure Webb had to asbestos from
wire during the 1955 to 1978 time period came from Romex or from heat
wire. Ay testified that heat wire and Romex are “completely different”
products.
Ay described Romex as a “type of wire that the household person knows
what it is. It’s something you use in your house if you’re doing some
electrical work.” 3
Ay tested Romex wire used in the 1950’s and early 1960’s and found
some Romex wire from 1959 to 1962 had asbestos. The product in which he
found asbestos had wires that were “black [with] a silver coating” and the
silver coating contained asbestos. Ay elaborated: “If you look at Romex
today, it’s a white plastic-looking material. . . . [¶] [B]ack . . . in the ‘50s, that
wasn’t plastic. That was made of a woven material, and so you would cut
that woven material away. Then there is this packing material. Today it
looks like brown paper, but back then there [were] other products that were
used, and so you would pull that away. Then you would strip the wire. And
so the asbestos on the old Romex—it was black in color instead of white—and
some of that Romex had a silver—it looked like it was—had a silver coating
on it. And that silver coating historically was asbestos-containing. [¶] So
when you’re pulling and stripping, you’re abrading that silver material that
3 Ay opined that while homeowners might use the term Romex
generically to describe a type of cable or wire rather than a brand name, “an
electrician would know the difference.”
7
causes it to flake off, and when you abrade it, it causes fiber to be released
into the air. And if you’re breathing that air, then you are exposed.”
Ay stated that he did not perform any testing for purposes of this
lawsuit, did not test any of the products Webb worked with, and did not visit
any of Webb’s worksites. Though he had done testing of Romex wire in the
past, he did not bring photographs, samples of wire, or results of his tests to
trial, nor did he have any notes from the tests he performed.
Ay also admitted he did not know or research who manufactured the
brand name “Romex.” When asked to list the manufacturers of wire that had
asbestos in it between 1957 and 1978, Ay testified he had “done a lot of
research on it” and “a lot of testing on wires.” He opined, “There’s [sic]
probably at least 20 manufacturers that made wire that was associated with
asbestos.” He did not look at formula sheets, patents, or trademark
applications for General Cable products.
In addition to Romex, Ay testified “heat wire” contained asbestos. He
stated, “I don’t think I found one that did not have asbestos during the
relevant time period. They all contained asbestos.” Ay confirmed that “heat
wire” is integral to the appliance itself. He explained: “[Y]ou have an electric
stove that, because of the heat that’s generated in there, the wiring within
the stove itself and when you tie into that, that has an insulator on the—on
the wire itself. That insulator is made with asbestos. So when you strip that
off and—if you’re working, you strip it off, it falls to the ground while you’re
standing there shuffling your feet, doing your work you’re grinding that
material up, and that material is an asbestos-containing material. [¶] They
put heat lamps in bathrooms or electric heaters in homes. Those electric
heaters had asbestos cabling or wiring, and so in order to hook them up, you
had to strip that. [¶] The wire itself, when you were pulling the wire, it’s an
8
asbestos-containing fibrous material that gets abraded when you’re pulling it
and it causes fiber to be released.”
As to General Cable specifically, Ay testified “[t]hey made a good
product” and “they were large in the industry.” He stated they “made wire
that was used in the commercial and marine industry. In the marine
industry it contained asbestos. In the commercial industry the Romex
contained asbestos. Their heat wire contained asbestos.” As to heat wire
specifically, Ay testified their asbestos-containing heat wire would be used
“for any of your electric heaters, heat lamps, things like that, ovens, stoves,
anywhere you’re going to generate heat.”
Ay opined based on his review of Webb’s deposition testimony that
“[t]here’s no question he would have been exposed to elevated levels of
asbestos.” When asked specifically whether he had any opinion in regard to
General Cable as to Webb, however, Ay responded: “Other than he identified
it as a product he used, he identified—and that was basically it for what he
said I used, you know, General Cable. And then he mentioned a lot of
material, equipment that he used that was made by people other than
General. But that was it. He didn’t go into the asbestos aspects because, at
the time, he was not aware that they contained asbestos or that asbestos was
being released.” When asked whether he had an opinion that the General
Cable wire that Webb was using contained asbestos, Ay stated: “Again,
beyond what I’ve already stated, no. The wire, depending on the wire that
you were using contained asbestos. If it was Romex, black with a silver
coating, there was no question about it, it was an asbestos-containing
material.”
9
3. General Cable’s Special Interrogatory Responses
Plaintiffs’ counsel read into the record at trial defendant’s responses to
several interrogatories.
In response to interrogatory No. 30, asking whether defendant had
engaged in a variety of specific activities with regard to asbestos-containing
products between 1930 and 1985, defendant stated it “manufactured and
marketed a specialty brand wire which contained asbestos as an insulation.
Such asbestos was totally encapsulated and saturated with flame retardant
and water-resistant materials.” Defendant responded that its “first
information of marketing such a product occurs in 1933,” and further stated
that “while the amount of production of said specialty product was quite low,
it appears that all manufacturing of said product ended sometime in the late
1960s or very early in the 1970s.”
In response to another interrogatory seeking further information about
defendant’s asbestos-containing products and activities, defendant
incorporated its response to interrogatory No. 30, and further stated that:
“[A]ny use of small amounts of fully encapsulated asbestos as an insulating
material in a minimal amount of General Cable Corporation’s specialty
products ended not later than March 31st, 1978, when General Cable
Corporation’s power and control division was sold to Pirelli Cable
Corporation.
“The small amount of fully encapsulated asbestos that may have been
used as an insulating material on wire and cable products sold by General
Cable Corporation would have been manufactured using chrysotile, CY
asbestos.
“It is believed that the insulation on said wire and cable products would
have contained between 20 percent and 30 percent fully encapsulated
10
chrysotile asbestos, between 60 percent and 70 percent of cellulose binding
materials with the remainder being other nonasbestos materials.”
4. General Cable’s Person Most Knowledgeable Testimony
At trial, plaintiffs’ counsel also read the August 29, 2007 deposition
testimony of defendant’s person most knowledgeable, Carlos Katz. Katz
testified that he knew General Cable was producing asbestos-containing wire
when he went to work for them in the early 1960’s. When asked if he had
“any knowledge as to what type of asbestos fiber was used with insulation of
the asbestos wiring from General Cable at any point in time,” Katz
responded, “Yes, I know it was crysolite [sic], I think that’s the way you
pronounce it.”
C. Jury Verdict
The jury found in favor of plaintiffs on their negligence, failure to warn,
and product liability claims. The jury rejected an award of punitive damages,
finding defendant did not act with malice, oppression, or fraud.
The jury awarded Amos Webb $343,226.57 for past medical expenses,
$2.5 million for future medical expenses, $592,737 for nonmedical economic
damages, $2.25 million for past noneconomic damages from the time of
Webb’s diagnosis in 2018 to the time of trial in 2019, and $11.25 million for
future noneconomic damages. The jury awarded Jeannie Webb $11.5 million
for loss of consortium.
The jury apportioned damages among 11 defendants. They assigned
General Cable 39 percent fault and allocated the remaining 61 percent fault
among other defendants. The court entered judgment in favor of plaintiffs.
D. Defendant’s Posttrial Motions
Defendant moved for judgment notwithstanding the verdict on the
grounds that plaintiffs failed to establish Webb was exposed to asbestos
11
attributable to General Cable and failed to establish Webb’s mesothelioma
was caused by exposure to any General Cable product. Defendant filed a
motion for new trial raising the same issues and arguing, among other
things, that that the $11.25 million award for Webb’s future noneconomic
damages was excessive and the evidence insufficient to support the jury’s
39 percent fault allocation to defendant.
The trial court denied both motions. The court did, however, grant
partial judgment notwithstanding the verdict on the damages award for
future medical expenses, reducing the award from $2.5 million to $100,000
based on plaintiffs’ expert’s uncontradicted testimony.
Defendant timely appealed.
II. DISCUSSION
Defendant first argues that the judgment must be reversed because
plaintiffs did not present substantial evidence that Webb was exposed to
asbestos from any General Cable wire. As we explain, we agree.
A. Applicable Law
To prove exposure to asbestos from a particular product was a legal
cause of a plaintiff’s injury, the plaintiff must satisfy the two-part test
enunciated by our Supreme Court in Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953 (Rutherford). “[T]he plaintiff must first establish some
threshold exposure to the defendant’s defective asbestos-containing products,
and must further establish in reasonable medical probability that a
particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e.,
a substantial factor in bringing about the injury.” (Id. at p. 982, fn. omitted,
italics omitted; Berg v. Colgate-Palmolive Co. (2019) 42 Cal.App.5th 630,
635.) The plaintiff bears the burden of proof on the issue of threshold
12
exposure. (Rutherford, at pp. 968, 975–976; McGonnell v. Kaiser Gypsum
Co., Inc. (2002) 98 Cal.App.4th 1098, 1103.)
“If an asbestos plaintiff fails to prove exposure, there is no causation
and no liability as a matter of law.” (LAOSD Asbestos Cases (2020)
44 Cal.App.5th 475, 488; Collin v. CalPortland Co. (2014) 228 Cal.App.4th
582, 589.) Circumstantial evidence that raises “[t]he mere ‘possibility’ of
exposure” is insufficient. (Andrews v. Foster Wheeler LLC (2006)
138 Cal.App.4th 96, 108; Berg v. Colgate-Palmolive Co., supra,
42 Cal.App.5th at p. 637.)
“We review a jury’s causation finding for substantial evidence.” (Izell v.
Union Carbide Corp. (2014) 231 Cal.App.4th 962, 969.) In doing so, we
consider all of the evidence in the light most favorable to the prevailing party,
giving it the benefit of every reasonable inference and resolving all conflicts
in support of the judgment. (Howard v. Owens Corning (1999)
72 Cal.App.4th 621, 630.)
B. Analysis
Defendant contends plaintiffs failed to meet their burden on the
threshold issue of exposure because their evidence showed “at most a
possibility of exposure attributable to General Cable.”
As discussed above, to prove causation a plaintiff must first establish
some threshold exposure to a defendant’s asbestos-containing products.
(Rutherford, supra, 16 Cal.4th at p. 982.) Plaintiffs’ claims against defendant
were premised entirely on Webb’s exposure to asbestos through Romex and
heat wire manufactured by defendant. But plaintiffs offered no substantial
evidence that (1) General Cable manufactured Romex that contained
asbestos or (2) Webb used any heat wire manufactured by General Cable.
13
1. Romex
The only witness to testify that any type of Romex contained asbestos
was plaintiffs’ expert, Charles Ay. Ay conducted tests on wire used in the
1950’s and 1960’s, and found “some” asbestos-containing Romex wire from
1959 to 1962 that was black with a silver coating. But Ay did not testify
defendant manufactured the wires he tested, nor did he know or research
who manufactured Romex between 1959 and 1977. Ay conceded he
conducted no tests in connection with this lawsuit. He did not bring notes,
photographs, samples of wire, or results from his testing to trial. He did not
visit any of Webb’s worksites nor test any of the products Webb worked with.
When asked to name manufacturers of wire that had asbestos between 1957
and 1978, Ay did not mention General Cable, despite having done “a lot of
research on it” and “a lot of testing on wires.” He did not look at formula
sheets, patents, or trademark applications for General Cable products.
Ay never offered an opinion that he knew the black-and-silver wire in
which he found asbestos was manufactured by General Cable or that it was
Romex brand wire as opposed to generic Romex cable. When asked if he had
an opinion about whether Webb’s work with General Cable products exposed
him to asbestos, Ay said, “Again, beyond what I've already stated, no. The
wire, depending on the wire that you were using contained asbestos. If it was
Romex, black with a silver coating, there was no question about it, it was an
asbestos-containing material.” (Italics added.)
Webb, on the other hand, offered substantial evidence that he worked
with General Cable’s Romex brand wire, but he did not know whether it
contained asbestos. Webb described the Romex he worked with as “grayish
wire with a grayish—gray-type cover.” Moreover, Webb described the Romex
he used as “cables that had a little white fiber inside of them.” But Ay
14
testified that the asbestos-containing Romex was black and silver, and did
not contain interior asbestos packing. According to Ay, the asbestos was in a
silver coating that flaked off when scraped.
We find Berg v. Colgate-Palmolive Co., supra, 42 Cal.App.5th 630
(Berg) instructive here. In Berg, the plaintiff alleged he was exposed to
asbestos from 1959 to 1962, when he used defendant’s talc shaving product.
(Id. at p. 632.) The defendant moved for summary judgment, arguing the
plaintiffs could not establish the particular shave talc Berg had used
contained asbestos. In opposition to the summary judgment motion, the
plaintiffs relied on an expert declaration stating some of the talc
manufactured by the defendant came from mines contaminated with
asbestos, and that Food and Drug Administration testing in 1972 had
detected the presence of asbestos in shave talc manufactured by the
defendant. (Id. at p. 632.) The expert also personally tested samples of the
defendant’s shaving talc in 2016 and 2018 in containers that were “consistent
with Berg’s description of the containers he remembered using.” (Id. at
p. 633.) The trial court granted summary judgment, concluding the plaintiffs’
expert declaration did not meet their burden to demonstrate the existence of
a triable issue of fact regarding Berg’s exposure to asbestos through the
defendant’s products. (Id. at pp. 633–634.)
A different panel of this court affirmed, ruling, “It was not enough for
plaintiffs to produce some evidence that Berg was exposed to a product that
possibly contained asbestos.” (Berg, supra, 42 Cal.App.5th at p. 637.) First,
because Berg alleged he had been exposed to asbestos from other products
and had used the shave talc a short time, “his eventual development of
mesothelioma provide[d] much weaker support for an inference that the
shave talc he used contained asbestos.” (Id. at p. 636.) “More importantly,”
15
however, the plaintiffs did not present evidence that “all or most of the
Mennen Shave Talc containers sold from 1959 to 1962 contained asbestos.”
(Ibid.) As a result, the “only basis on which to conclude that the samples
tested were of the correct vintage was Berg’s testimony that the containers
[the expert] tested looked like the ones he used.” (Ibid.) Such testimony fell
“far short” of satisfying the plaintiffs’ burden. (Id. at pp. 636–637.)
The expert testimony plaintiffs presented in this case is even more
speculative than the evidence in Berg. Ay did not testify he sampled any of
defendant’s Romex wire for asbestos; nor did he testify that all or most Romex
manufactured between 1959 and 1962 contained asbestos.4 Rather, Ay found
that “some” Romex wire from 1959 to 1962 that was black with a silver
coating contained asbestos. And unlike in Berg, here, the witnesses’
testimony did not even establish that the product Ay tested looked the same
as the product Webb used. (See Berg, supra, 42 Cal.App.5th at p. 636.) Ay
testified the asbestos-containing Romex he tested was black with a silver
coating, while Webb testified the Romex wire he used was gray with a gray
cover.5 Without more, the jury could not reasonably infer that the General
4 Further, like the plaintiffs in Berg, plaintiffs here presented evidence
Webb was exposed to asbestos from other sources. Ay testified, for example,
that Webb was “working around other crafts and trades. So he has some
drywall exposure, some roofing felt exposure, some flooring exposure. . . .
ventilation systems exposure. So he’s got—a lot of other products that we
find in our homes that contained asbestos, he would have an exposure to
them also.”
5 Plaintiffs contend this inconsistency goes to the weight of the evidence
and argue that a jury may accept part of the testimony of a witness and reject
another part even though the latter contradicts the part accepted. As
defendant points out, however, rejecting testimony “has the effect only ‘of
removing that testimony from the evidentiary mix. Without more, the
disregard or disbelief of the testimony of a witness is not affirmative evidence
of a contrary conclusion.’ ” (Moran v. Foster Wheeler Energy Corp. (2016)
16
Cable Romex wire Webb used was the same type of wire Ay tested that
contained asbestos, but would have to speculate to reach that conclusion.
(Berg, at p. 637 [“ ‘speculation’ that the product [the plaintiff] used might
have contained asbestos is insufficient”]; Izell v. Union Carbide Corp., supra,
231 Cal.App.4th at p. 969 [“ ‘[P]roof that raises mere speculation, suspicion,
surmise, guess or conjecture is not enough to sustain [the plaintiff’s] burden’
of persuasion.”]; compare Strobel v. Johnson & Johnson (2021)
70 Cal.App.5th 796, 814 [plaintiff established triable issue of fact on asbestos
exposure where expert “proffered testimony that his lab conducted bulk
testing of Cashmere Bouquet product and concluded that ‘[t]he results of such
testing are consistent with the makeup of the product, the ore, and the
geology of the talc sources used by its manufacturer, Colgate’ ”].) Thus, even
taken together and construed liberally in favor of plaintiffs, such evidence is
not sufficient to support a finding Webb was exposed to asbestos when he
used General Cable’s Romex wire.
Plaintiffs also point to defendant’s interrogatory responses as
substantial evidence that General Cable’s Romex wire contained asbestos.
Defendant admitted it “manufactured and marketed a specialty brand wire
which contained asbestos as an insulation.” (Italics added.) Plaintiffs urge
us to construe this statement as a concession that all of defendant’s products
were for “specialty” applications and contained asbestos. But the inferences
that constitute substantial evidence are those that can reasonably be drawn
from the evidence. (See, e.g., Kuhn v. Department of General Services (1994)
22 Cal.App.4th 1627, 1633 [“While substantial evidence may consist of
246 Cal.App.4th 500, 518.) Assuming the jury rejected Webb’s description of
the color of wire he used, the elimination of that testimony is not substantial
evidence that he used the wire Ay tested.
17
inferences, such inferences must be ‘a product of logic and reason’ and ‘must
rest on the evidence’ ”; “ ‘A decision supported by a mere scintilla of evidence
need not be affirmed on review.’ ”].) Here, defendant’s response further
stated, “the amount of production of said specialty product was quite low.”
The interrogatory response makes no mention of Romex, a popular product
widely used for general interior wiring.6 Defendant’s interrogatory responses
also pointed to “copies of [its] catalogs for the relevant time period showing
the marketing of various General Cable Corporation products, including
specialty brand products which may have included asbestos content as
insulation.” Further, defendant admitted “asbestos was used in certain
products primarily shipboard cable pursuant to government specifications
. . . .” None of this evidence, however, supports a logical inference that
defendant’s Romex cable contained asbestos.
Plaintiffs also rely on testimony from Carlos Katz, defendant’s person
most knowledgeable, and state he “confirmed the broad use of asbestos.” But
Katz testified that General Cable used asbestos for wire in high-heat
applications, not Romex. As even Ay agreed, heat wire and Romex are
“completely different products.” In sum, our review of the entire record
discloses no substantial evidence Webb was exposed to asbestos from
defendant’s Romex.
2. Heat Wire
Plaintiffs likewise failed to present any substantial evidence that Webb
was exposed to asbestos from heat wire manufactured by General Cable.
6 Ay explained, “Romex is a type of wire that the household person
knows what it is. It’s something you use in your house if you’re doing some
electrical work.” He also explained it is a product one could buy at a
“hardware store, or Home Depot, whatever you want” and get it either off a
spool or in a box.
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Ay testified that certain high-heat appliances, such as ovens, ranges,
electric heaters, and heat lamps used wire insulated with asbestos to protect
against the heat. Webb and Ay described such wire as heat wire. Webb also
called heat wire “pigtail,” because it looked a bit like a pig’s tail where it
stuck out of the appliance.
Both Ay and Webb testified that the heat wire used in high-heat
appliances came with the appliance. Webb stated, “The high-heat application
[sic] had their own wire inside of it already there for us to hook it up.” Ay
agreed the heat wire was “integral to the appliance.” Plaintiffs presented no
evidence that General Cable supplied any heat wire to any of the
manufacturers of appliances that Webb installed.
Plaintiffs point to Webb’s testimony at trial affirming that the wire he
brought in to hook up to the preinstalled, high-temperature wire was
manufactured by General Cable, but Webb did not testify that wire was heat
wire.7 To connect a high-heat appliance, Webb would first run its
preinstalled heat wire, or “pigtail,” to a junction box. He would then run wire
from the walls, such as Romex wire, through a connector to the junction box.
Elaborating how he would hook up appliances in a kitchen, for example,
Webb testified: “Let’s start with your oven. Your oven, you would have to
bring your line in to accommodate the load that the oven would require in
order to operate. So you did that with . . . Number 8 wire . . . . [¶] So you
bring that in, and you come into a junction box and you have an oven that
recesses into the cabinet. And with that oven, it comes with a pigtail that—
the pigtail have [sic] highly resistant heat wire that comes into that you have
7 After explaining that appliances would come with a wire already
installed, Webb was asked: “Okay. But the wire you brought in to hook up to
these high-temperature wires, right, that was—that was the wire you were
talking about manufactured by General Cable?” Webb responded: “Yes.”
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to trim the wire and cut the insulation back, and make a termination into the
junction box.” (Italics added.) Webb stated it was the same process with a
range. “You bring in the line for that. The same gauge wire, and put a
junction box in. With the junction box, you take and put your cable in
through the connector and strip back the wire that have the high-heat
resistant [sic] because the wire that we have that come in Romex, which would
be TW, and then you make a connection, and then you . . . connect that that
cable into the panel.” (Italics added.)
Later in his testimony, Webb explained he used “Romex . . . to
accommodate the high-temperature wire.” Asked what other types of
General Cable wire he used, Webb said: “It would be THW, THWN, and I
think two or three other types. I forget all the names. . . . I think some of it
was RH.” Webb was again asked, “Was there any other General Cable wire
that you were hooking up into high-temperature applications manufactured
by General Cable, other than Romex?” He responded: “Yes. Like I stated
before, it would depend on the application. If it was a commercial job or
something that needed wiring, the conduit pipe, which would be your EMT,
things of this sort, we didn’t pull Romex through that. We’d pull TW, THW,
whatever the case may be, to a junction box and made [sic] the same
application. . . . [W]e didn’t use Romex, but we used a different wire that was
made by General Cable to pull through there.” Plaintiffs offered no
testimony that TW, THW, THWN, or RH wires were “heat wire” or contained
asbestos.8
8 The only testimony in the record about such products suggests that
they did not contain asbestos. Ay testified he did not know what “T type
wire,” “THW,” or “THHN” meant. Defendant’s industrial hygienist expert
testified that THWN wire is “thermal heat water nylon” and THHN is
“thermal high heat nylon,” and that he did not find anything to suggest those
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In fact, when asked whether he “would at times use wire manufactured
by General Cable” for the “high-temperature applications,” Webb testified,
“For the high-temperature wire, it’s very seldom we would get high-
temperature wire to pull in to accommodate appliance unit and things. With
Romex and things of this sort, it was already on the—it was put in by
others.”9 When asked to explain, Webb responded: “It was put in by whoever
made the appliance or the unit that we was [sic] wiring. [¶] . . . [¶] They put
that in there for it to be hooked up. And we had to terminate it by stripping
it and hooking it to the wire we bring in. [¶] . . . [¶] . . . We didn’t put no wires
in. They did.” Counsel read a portion of Webb’s deposition testimony to the
jury in which Webb confirmed that he did not know who made the heat wire
that came in the appliances he helped install.
At oral argument in this appeal, plaintiffs’ counsel argued that Webb
testified he worked with heat wire manufactured by General Cable, but
counsel did not provide any specific record citations supporting that
assertion. Counsel did reference Webb’s testimony that approximately 60
percent of the wire he used when he worked at Littles came from General
Cable, but Webb did not state in that testimony that he used any General
Cable heat wire.
Rather, Webb’s testimony regarding “heat wire” showed that in his
work as an electrician, he manipulated and stripped heat wire or “pigtail”
products contained asbestos. Notably, plaintiffs did not argue to the jury
below, nor in their appellate briefing, that these types of wires were “heat
wire” or contained asbestos.
9 Webb’s reference to Romex in this sentence is confusing. In any
event, this ambiguous testimony, which plaintiffs did not discuss in their
briefing, is not substantial evidence that Webb used heat wire manufactured
by General Cable to hook up high-heat appliances.
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that came preinstalled in appliances in order to obtain a proper electrical
connection. Webb did not know who manufactured the wire that came with
the appliances, and he presented no evidence General Cable supplied heat
wire to manufacturers for appliances he installed. Webb affirmed that he
used wire manufactured by General Cable to hook up to high-heat
appliances, but he testified that wire was Romex, “Number 8,” TW, THW,
THWN, RH, and “a different wire that was made by General Cable”—not
“heat wire.” The mere possibility that Webb may at some point have used or
encountered heat wire manufactured by General Cable is insufficient to meet
plaintiffs’ burden to present substantial evidence on the threshold issue of
exposure. (McGonnell v. Kaiser Gypsum Co., supra, 98 Cal.App.4th at
p. 1105.)
In sum, viewing all of the evidence in the light most favorable to
plaintiffs, we conclude they have failed to present substantial evidence Webb
was exposed to products manufactured by defendant that contained asbestos.
Accordingly, the judgment must be reversed, and judgment must be entered
in defendant’s favor. (Code Civ. Proc., § 629, subd. (c); Bank of America v.
Superior Court (1990) 220 Cal.App.3d 613, 624.) Given our conclusion that
the evidence of exposure was insufficient, we need not reach defendant’s
arguments regarding plaintiffs’ evidence of medical causation, allocation of
fault, and excessiveness of the verdict for future noneconomic damages.
III. DISPOSITION
The judgment is reversed. The trial court is directed to enter judgment
in defendant’s favor. Appellant is to recover its costs on appeal.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A159632, A159747
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