DOC - California Courts

By Cathy Austin,2014-06-26 20:02
11 views 0
DOC - California Courts ...






     Plaintiffs and Respondents, A116523 v.

     (San Francisco County ASBESTOS CORPORATION, LTD.,

     Super. Ct. No. 438144) Defendant and Appellant.

     Defendant Asbestos Corporation, Limited, (“ACL”) appeals a jury verdict in favor

    of plaintiffs Joseph and Mary Garza on their complaint for damages for personal injury

    and loss of consortium filed after Joseph contracted asbestosis. We affirm.



     On January 26, 2005, plaintiffs filed their complaint for personal injury and loss of

    consortium alleging that Joseph‟s exposure to asbestos and asbestos-containing products

    caused him severe and permanent lung damage, as well as increased risk and fear of

    developing mesothelioma and lung cancer. According to the complaint, Joseph was

    diagnosed with asbestosis and asbestos-related pleural disease in May 2004. The

    complaint included causes of action for negligence and strict liability.1

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

    certified for publication with the exception of the Discussion, parts A, C, and D.

    1 The complaint incorporated by reference designated portions of the Master

    Complaint for Personal Injury [and Loss of Consortium] Asbestos filed on January 2, 2003 in San Francisco Superior Court.


    2 ACL denied

    the allegations of the complaint and listed various “affirmative defenses,” including one ACL filed an answer to the complaint on February 22, 2006, including notice of its

    stating that “because all sales by this answering defendant were F.O.B. Quebec, Canada, request for trial by jury pursuant to Code of Civil Procedure, section 631.

    this Court lacks personal jurisdiction over this defendant.” On June 14, 2006, ACL

    appeared at a pre-trial conference, after which the court continued the matter to June 19

    and ordered parties to file any motions in limine by that date.

     One of ACL‟s various motions in limine filed on June 15, 2006, was styled: “Defendant Asbestos Corporation Ltd.‟s Motion in Limine to preclude the exercise of

    personal jurisdiction (Motion in Limine No. 1).” ACL argued it was a Quebec company

    that had not consented to jurisdiction, was not physically present in California, and

    lacked sufficient contact with the state for the court to assume either general or limited

    jurisdiction over it. Plaintiffs opposed the motion, asserting among other things that ACL

    had consented to jurisdiction by making a general appearance. On June 20, 2006, the

    trial court denied without comment ACL‟s motion in limine regarding personal


     The jury heard opening statements from counsel on June 23, 2006. The trial court

    instructed the jury under California law on theories of negligence as well as strict liability

    based on both defective design and failure to warn. The trial court also instructed the

    jury on economic, non-economic and punitive damages. Counsel delivered closing

    arguments on the morning of July 6, 2006. The following morning the jury returned a

    special verdict in favor of plaintiffs on all allegations. The jury found that ACL sold a

    product that did not perform as safely as an ordinary consumer would have expected, that

    the use was both reasonably foreseeable and a substantial factor in causing injury to

    Joseph Garza, and that the risks of its use were known or knowable to ACL at the time it

    sold the asbestos. The jury also found that ACL failed to adequately warn about the risks

    2 Further statutory references are to the Code of Civil Procedure unless noted



of asbestos fibers and that ordinary consumers would not have recognized those potential

    risks. The jury also found that ACL negligent and that its negligence was a substantial

    factor in causing harm to Joseph Garza.

     The jury awarded damages to Joseph Garza as follows: $127,294 in past and

    $325,000 in future medical expenses; $66,700 in future lost earning capacity; $21,000 in

    past and $139,000 in future loss of household services; and $500,000 in non-economic

    damages. The jury also determined that Mary Garza suffered damages in the amount of

    $400,000 for loss of consortium. The jury allocated 75% of liability to ACL and 25% to

    all others, and also found by clear and convincing evidence that ACL acted with malice

    or oppression. Based on the jury‟s finding of malice, the trial proceeded to a separate

    phase on punitive damages. At the conclusion of the punitive damages phase, the jury

    returned a verdict of $10 million in punitive damages. On December 4, 2006, the trial

    court denied ACL‟s motion for judgment notwithstanding the verdict and its motion for a

    new trial on the grounds they “lack[] substantive merit.” ACL filed a notice of appeal on

    December 4, 2006, stating it appealed “the judgment filed and entered on August 8,

    2005.” On January 10, 2007, ACL filed its Amended Notice of Appeal from Judgment

    and Post-Judgment Orders to include appeal not only from the judgment but also from the

    orders denying its motion for judgment notwithstanding the verdict and its motion for

    new trial.


    F Evidence adduced at trial concerning Joseph Garza‟s asbestos-related disease and

    ACL‟s asbestos product was as follows: Joseph Garza testified that he was born in

    Mercedes, Texas, in August 1930, and lived in the Rio Grande Valley until he was 17

    years old. Garza joined the U.S. Navy when he was almost 18 years old, and after boot

    camp training he was posted to the aircraft carrier USS Antietam. Onboard the Antietam,

    Garza was assigned as a fireman apprentice. After a short spell on the Antietam, Garza

    was assigned to the troop carrier and cargo ship, USS Randall, which was undergoing

    repairs at Hunters Point shipyard in San Francisco. Garza served as fireman first class on


    board the Randall for about 18 months and then was promoted to the rank of boiler man, third class petty officer. Garza served on the Randall for five or six years and attained the rank of petty officer second class. The insulation in the boiler rooms was in poor condition when Garza arrived on board the Randall, and required a lot of repair work to get the boilers back into top shape. This entailed lagging the pipes and sealing the joints and flanges where lagging could not be applied with a type of adhesive cement. The cement material came either in buckets premixed, or in bags which had to be mixed, and it was applied by hand with a putty knife or trowel. The material in the bags was mixed with water in a 5-gallon bucket by hand using a stick or whatever else was handy. There was always dust thrown up when the bags were opened and emptied into the bucket. The dust got on Garza‟s clothing and into his hair. He was never given any respiratory

    protection while doing this work. Garza and his crewmates wore their dust-covered clothing back in their berthing compartment and sometimes wore the same clothes on multiple shifts. After any repair to the piping insulation, Garza and his crewmates cleaned up insulation debris using brooms and foxtails and there was always dust in the air while they were doing this. After Garza left the Randell in about 1955, he went to the destroyer USS Agerholm. He worked on board the Agerholm as boiler man second class for about eighteen months. Garza was in charge of number 2 boiler room, with a crew of about a dozen seamen. The work he did on board the Agerholm was similar to what he did on the Randall, working with piping insulation and adhesive cements. Conditions were more cramped on the Agerholm and ventilation was much poorer. Garza never wore respiratory protection on board the Agerholm and as on the Randall, his clothes and hair would get covered in dust from the materials and debris he worked with. Garza identified a product known as Eagle-Pitcher Super 66, which he used all the time for insulation repairs aboard the Randall and the Agerholm. Each boiler room on the ships always had at least a bag of Super 66 available.

     After Garza left the Navy in 1957, he worked for Westinghouse between 1957 and 1973. He started with the company testing hydraulic and hydrostatic components and the integrity of materials for use in turbines and other marine equipment. About six times per


    year, Garza would have to assemble the steam lines for testing equipment and during this process the insulation on the pipes was disturbed and gave off dust. At Westinghouse, as well as in the Navy, Garza worked with another type of insulation called rope packing, a fiber material that looks like rope which can be used wet or dry to insulate hard to reach areas. Packing pullers, a corkscrew-type implement, was used to remove rope packing, which sometimes came out in pieces. Garza never wore respiratory protection at Westinghouse. After Garza left Westinghouse in 1973, he had various jobs involving contact with insulation materials until he retired in 1993 at age 63. These included spells with Basapan at Moffet Field as a boiler operator, where he handled the same type of insulation materials he worked with on the ships and also refurbished boilers completely, which involved tearing out brick, mortar, and insulation blocks from inside the boiler firebox, a small 5-foot by 7-foot area. In 1978 the family moved to Willits, and after that Garza worked as a maintenance mechanic for Microphor, where he hung drywall and sanded drywall compound in a project. From around 1980-81 to about 1900-1991 he commuted weekly to the Bay Area to work for Varian Associates in Palo Alto as a building maintenance mechanic. Varian manufactured electron tubes. At Varian, he may have been exposed to asbestos while working in the attic among the insulated pipes. These pipes were deteriorating and giving off dust until Varian had a company “encapsulate” the insulation by spraying it with adhesive. For about six months while he was with Varian, Garza held a second job as a maintenance mechanic with Certainteed, a company that made fiber cement pipes. On three occasions, Garza actually had to go into the silos to repair the augers, where he worked “up to his knees” in fiber of some sort.

     Between his retirement in 1993 and 2000, Garza spent his time working around the house and gardening. In 2000, Garza and his wife move from Willits, California, to Colorado to be near their daughter and her husband, and “enjoy life out there in the mountains.” When he first moved to Colorado, Garza was not experiencing any breathing problems. His wife Mary was also very active and did a lot of needlepoint and other home crafts Mary, however, developed health problems: She had part of an intestine removed, a cyst that had to be removed, then she developed diabetes and began


    to lose the use of her legs. For the last few years, Mary has been almost completely dependent on Garza for her daily needs.

     Garza first had serious trouble breathing in 2003. Dr. Peter Holt ordered x-rays and blood tests before diagnosing Garza with asbestosis. Before that time, Garza had always been healthy, had never been hospitalized or had surgery, and had “never been

    down because of sickness other than having a slight cold or cough of that nature.” Since he was diagnosed with asbestosis, Garza has been taking a series of medications, including steroids, to help him breath as well as pain killers for pain in the left lower quadrant of his lung. At first, Garza took a mild pain killer but the dosage has increased over time. Garza also takes a mild tranquilizer “to take the edge off” when he gets upset about not being able to do things he‟s always done, like gardening, mowing the lawn, and playing with his grandkids. For over two years, Garza has been using an oxygen unit to assist his breathing. Now, Garza said he can walk only about half a block, can‟t do even

    small things without getting exhausted, and his view of the future is “bleak.” His condition is irreversible and what worries him most is his decreasing ability to take care of his wife and he worries who‟ll look after her when he‟s gone. He and his wife have

    talked about that and his wife is concerned and worries about what is going to happen. Garza agreed with an estimate that put him at 65% disabled in February 2005, increasing to 80% disabled today.

     The deposition testimony of Robert Bockstahler, deceased, was read to the jury. Bockstahler‟s deposition was taken on November 2, 1995, in the San Francisco actions. Bockstahler worked for Eagle-Pitcher Industries of Cincinnati, Ohio, from October 1955 until July 1991, when he took early retirement from his position as Director of Claims after the firm went into bankruptcy. In December 1966, Bockstahler became the general sales manager for the unit of the company that sold industrial insulation products. In that capacity, Bockstahler was familiar with the manufacturing process for asbestos containing cement. In 1971, Bockstahler was appointed general manager of a new arm of the company known as chemicals and fibers division, which included the insulation plant in Joplin, Missouri. In that capacity, he oversaw division operations in research,


production and marketing, including the asbestos-containing insulation products that

    were eliminated in August 1971. In the fall of 1981, he was relocated back to Cincinnati

    and served there until December 1987 as litigation assistant to the general counsel. In

    that capacity, he served as the company fact witness in litigation matters.

     Bockstahler prepared a document around 1982 to show the amounts of chrysotile

    asbestos used by Eagle-Pitcher in its production processes and the suppliers of that

    asbestos. Bockstahler prepared the document from cost of production records found in

    the accounting department at the Joplin plant in Missouri. The cost of production records

    show the weight and amount of each ingredient for each product and are intended by the

    plant accountant to establish total cost not including overhead. Bockstahler stated that

    Asbestos Corporation Limited (“ACL”) was the sole supplier of chrysotile asbestos fiber

    to Eagle-Pitcher between 1935 and 1957. Throughout the 1940s and 1950s, the amount

    of asbestos supplied by ACL to Eagle-Pitcher peaked at 1227 tons in the war-year of

    1943, falling to 662 tons in 1956. Bockstahler stated that the processed asbestos supplied

    by ACL was used primarily in the manufacture of insulating cements. In fact, 95% of the

    asbestos was used in the manufacture of Eagle-Pitcher‟s “Cadillac” product, its Eagle Super 66 insulating cement.

    ISCUSSION DA. Personal Jurisdiction

     ACL contends the trial court lacked personal jurisdiction. ACL‟s argument goes as follows: Plaintiffs asserted in its complaint that ACL is jurisdictionally present in

    California; plaintiffs‟ jurisdictional assertion was denied by ACL in its answer, thereby

    preserving ACL‟s “jurisdictional defense”; in a motion in limine filed before trial, ACL

    moved to dismiss the complaint for lack of personal jurisdiction; having so moved, the

    burden shifted to the plaintiffs to present evidence demonstrating that ACL is present in

    California for jurisdictional purposes, citing Thomas J. Palmer, Inc. v. Turkiye Is Bankasi

    A.S. (1980) 105 Cal.App.3d 135 and Sheard v. Superior Court (1974) 40 Cal.App.3d 207;


plaintiffs failed to come forward with any such documentary evidence, ergo, the trial

    court should have dismissed the complaint against ACL. This argument is without merit.

     It is true that “[w]here a defendant properly moves to quash out-of-state service for lack of jurisdiction, „the burden of proof is upon the plaintiff to establish the facts of

    jurisdiction by a preponderance of the evidence.‟ (Citation.)” (Thomas J. Palmer, Inc. v. Turkiye Is Bankasi A.S., supra, 105 Cal.App.3d at p. 146.) In this case, though, plaintiffs

    never had the burden of proof to show jurisdiction, because ACL never properly moved

    to quash service for lack of jurisdiction. Instead, ACL filed an answer and attended a

    pre-trial settlement conference before submitting a motion in limine purporting to

    challenge personal jurisdiction. However, “it has long been the rule in California that a party waives any objection to the court‟s exercise of personal jurisdiction when the party

    makes a general appearance in the action. (See 2 Witkin, Cal. Procedure (4th ed. 1996)

    Jurisdiction, ? 190, p. 756.) An answer, of course, is such an appearance, as is expressly

    made clear by section 1014: „A defendant appears in an action when the defendant

    answers, demurs, [or] files a notice of motion to strike.‟ ” (Roy v. Superior Court (2005)

    127 Cal.App.4th 337, 341 (Roy) [noting in addition that even a defendant “who has not yet answered has been held to have made a general appearance ― that is, to have

    conceded the jurisdiction of the court ― if he invokes the authority of the court on his

    behalf, or affirmatively seeks relief”].)

     Nor was this longstanding rule of California law altered by 2002 amendments to

    section 418.10, which governs the procedure for making a motion to quash service or

    dismiss or stay an action on the basis of lack of jurisdiction or inconvenient forum. (See

    ? 418.10.) As the court in Roy concluded: “The statute continues to prescribe the motion

    to quash as the means of challenging personal jurisdiction and does not in any way imply

    the existence of an alternative. The defendant may move to quash and simultaneously

    file an answer containing affirmative defenses, but the latter is not a substitute for the

    former. The answer remains solely the vehicle by which a defendant may assert defenses

    to the action, not to jurisdiction. (Citation.)” (Roy, supra, 127 Cal.App.4th at p. 345.)


    Accordingly, by filing an answer and litigating the case to trial, ACL made a general

    appearance and submitted voluntarily to the jurisdiction of the court.

    B. Arena v. Owens-Corning

     In Arena v. Owens-Corning Fiberglass Corporation (Arena) (1998) 63

    Cal.App.4th 1178, Division One of this Court upheld a judgment against two asbestos

    suppliers, one of which was ACL, concluding among other things that raw asbestos is a

    product that may have a design defect, and that strict liability can apply to the supplier of

    a defective raw material. (See generally Arena, supra.) ACL submits that Arena was

    “wrongly decided” because: (1) the court erred by holding that a raw material could be

    defectively designed; (2) the court erred by holding that the consumer-expectations test

    applied to a raw material like asbestos; (3) the decision is “inconsistent” with case law

    governing the liability of bulk suppliers of raw materials to users of end products

    manufactured by others. ACL further asserts that the jury returned a verdict in favor of

    plaintiffs only because it was erroneously instructed under Arena, supra. ACL contends

    that we should “revisit” Arena, overrule it, and hold that a supplier of raw asbestos is

    3 Having done that, ACL asserts that we should then under no duty to provide warnings.

    reverse the jury‟s finding of liability against ACL and dismiss “the plaintiffs‟ complaint

    as asserted against ACL.”

    4 We decline ACL‟s invitation to “revisit” and “overrule” Arena. ACL simply

    offers us the same arguments that it presented to the court in Arena. All were rejected by

    the Arena court in its 1998 decision, and ACL points to no Court of Appeal decision

3 Alternatively, ACL suggests we could “certify this issue to California‟s high


    4 As a court of equal dignity, we are certainly free to disagree with our colleagues in

    Division One, and may even decline to follow them. However, principles of stare decisis

    do not permit us to “overrule” their decision in Arena. (Cuccia v. Superior Court (2007) 153 Cal.App.4th 347, 353-354 [under principles of stare decisis only a court of superior

    jurisdicition may overrule courts exercising inferior jurisdiction, and noting that

    “disagreements at the Court of Appeal level are common”].)


    since then disagreeing with the central tenets of Arena. Rather, ACL submits that Arena was “wrongly decided.”

     First, ACL contends that the Arena court erred by holding that raw asbestos could

    be defectively “designed” because asbestos is “a natural immutable mineral” which does

    not “fit the analytical mold of products-liability principles.” To the contrary, Arena held that strict liability applies to suppliers of raw asbestos because “incorporating raw 5 (Arena, supra, 63 Cal.App.4th at asbestos into an insulation product does not substantially alter” the asbestos, and because

    pp. 1188-1189.) In this regard Arena is entirely consistent with the principles of strict liability is not “restricted to processed products.”

    California strict liability law governing the liability of component manufacturers, and

    ACL cites no California law to the contrary. (Cf. Jimenez v. Superior Court (2002) 29

    Cal.4th 473, 479-480 [noting that, “For purposes of strict products liability, there are „no

    meaningful distinctions between, on the one hand, component manufacturers and

    suppliers and, on the other hand, manufacturers and distributors of complete products; for

    both groups, the „overriding policy considerations are the same.‟ (Citation.)”].)

     Second, ACL contends that the Arena court erred by applying the consumer-

    expectations test to a raw material. ACL criticizes the Arena court for extending the

    holdings of Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461 and Morton v.

    Owens-Corning Fiberglas Corp. (1995) 33 Cal.App.4th 1529applying the consumer-

    expectations test to finished productsto a raw material like asbestos. In this regard,

    ACL asserts that “raw asbestos is no more „designed‟ than is sodium . . . [or] lead,” and

    asks rhetorically whether a company that provides chlorine gas should be held liable if a

    manufacturer uses it to produce defective bleach.

    5 ACL relies on language in Mullen v. Armstrong World Industries (1988) 200 Cal.App.3d 250, stating that “asbestos is not a „product,‟ but rather a generic name for a

    family of minerals.” (Id. at p. 257.) The Arena court stated that ACL‟s reliance on this

    language “does not support its argument . . . [because] Mullen concerned only the applicability of the „market share‟ theory to asbestos removal cases, and not the „raw

    materials‟ issue.” (Arena, supra, 63 Cal.App.4th at p. 1191, fn. 6.)


Report this document

For any questions or suggestions please email