The Second District Court of Appeal, Division Four in Los Angeles handed down a decision in an asbestos case that involved appellate issues pertaining to causes of action for strict products liability and premises liability, primary and secondary (“take-home”) exposure, liability for replacement component parts, and proper jury instructions to be given in asbestos cases on the issue of substantial factor.  Joseph Petitpas v. Ford Motor Company, et al. (Cal. Ct. App., July 5, 2017, No. B245037), an opinion certified for publication on July 5, 2017, presents several factual scenarios to test a number of the decisions in the past decade that continue to shape asbestos litigation in California.   Motions for summary adjudication and defense jury verdicts were affirmed for Ford Motor Company and Exxon Mobile Corporation, while the trial court’s granting of a nonsuit for defendant Rossmoor Corporation was also affirmed.

Background

Plaintiffs  Marline and Joseph Petitpas filed suit against over 30 defendants, alleging Marline’s mesothelioma was caused by exposure to asbestos from sources including, but not limited to, direct exposure from being in the presence of automotive maintenance work, secondary exposure by coming into contact  with Joseph’s clothes and person after he performed automotive maintenance work, primary exposure by visiting Joseph at construction sites while he was employed as an architectural drafter for Rossmoor, and secondary exposure through contact with Joseph’s clothes and person after he  visited construction sites in the course of his employment with Rossmoor.  Marline passed away during the appeal.

Issue One

Prior to trial, Exxon was granted summary adjudication of Plaintiffs’ strict products liability claim.  Exxon, a premises defendant, demonstrated that in the course of Joseph’s work at a service station for which Exxon assumed liabilities, Joseph used replacement clutches and gaskets that came from a local independent auto parts store.  Exxon also showed that Joseph used brakes obtained from a mobile brake service company that not only provided brakes but also performed brake work at the service station.  Exxon’s evidence was sufficient to support an inference that the service station was not primarily in the business of supplying asbestos-containing vehicle parts.  In distinguishing this case from its decision in Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249, the Court found the service station was a provider of services rather than a seller or distributor of asbestos-containing parts.  The Court also found no relationship existed between the service station and parts manufacturers in which the station could exert any influence on product safety on the manufacturers.  Exxon was not in the stream of commerce for asbestos-containing vehicle parts to the extent strict liability was warranted.

Issue Two

Exxon had also been granted summary adjudication relating to Plaintiffs’ claims of secondary exposure to asbestos.  The trial court applied Campbell v. Ford Motor Co.  (2012) 206 Cal.App.4th 15 and found that Exxon was a property owner that had no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the court of the property owner’s business.  During the pendency of the Petitpas appeal, the California Supreme Court disapproved Campbell in Kesner v. Superior Court (2016) 1 Cal.5th 1132.  Kesner holds that “[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 in Petitpas strictly construed the holding in Kesner with the regard to the requirement that the injured person be a household member.  Marline and Joseph were not married and did not live together at the time Joseph worked at the Exxon station.  Although Joseph argued he still came into contact with Marline, the Court declined to create a new class of secondary exposure plaintiffs.

Issue Three

Rossmoor was granted a nonsuit after Plaintiffs rested.  The trial court granted the nonsuit as to secondary exposures based on a Campbell theory that there is no duty to protect family members of workers on premises, as Plaintiffs contended Marline was exposed to asbestos through laundering Joseph’s clothes, riding in the car they shared, and through physical contact with Joseph at the conclusion of his workday.  As such, Plaintiffs failed to satisfy the requirements under Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 to show Marline was actually exposed to asbestos-containing materials by Rossmoor with enough frequency and regularity to show a reasonable medical probability that the exposure was a factor in causing her injury.  Even though Kesner had displaced Campbell, Rossmoor’s nonsuit was affirmed on appeal because of the insufficient evidence of causation.  The Court ruled Plaintiffs were unable to bridge the gap between the possibility Marline was exposed via asbestos dust on Joseph’s person and clothes and the necessary showing of frequency, regularity, and proximity of exposure to rise to a level that would increase one’s risk of the development of an illness.

Additionally, Rossmoor moved for nonsuit as to the claim of primary exposure from Marline’s visits to the Rossmoor constructions sites, on the basis that Marline always visited after work had concluded for the day.  Plaintiffs provided no evidence that dust was present when Marline visited a Rossmoor site.  Citing Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246, 252 for the premise that mere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure, the Court held Plaintiffs presented no evidence there were respirable asbestos fibers present at a site when Marline visited.

Issue Four

Joseph Petitpas claimed error by the trial court with respect to jury instructions.  One alleged error was that the Court gave a special instruction requested by Ford that stated “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.”  The basis for this instruction is the O’Neil v. Crane Co. (2012) 53 Cal.4th 335 case that held “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.”  The Court held no design defect existed because the Ford vehicle did not require the use of asbestos-containing components in the brakes and Ford had no control of replacement brakes placed into the stream of commerce by other manufacturers.

Joseph Petitpas also argued the trial court erred in reading CACI jury instruction numbers 430 and 435, as opposed to just 435.  The Court of Appeals held that because 435 states “unless there are other defendants who are not asbestos manufacturers or suppliers, do not give CACI No. 430”, and Exxon as a premises defendant was neither a manufacturer nor a supplier, it was proper to instruct with 430.  The primary difference between 430 and 435 is that 430 focuses on the harm resultant from defendant’s conduct while 435 focuses on the risk of harm from defendants’ conduct.

Issue Five

The Court of Appeals affirmed the verdict in favor of Exxon after Joseph argued the evidence did not support the verdict.  The jury found that Exxon controlled the service station that Marline was exposed to asbestos at, and that Marline’s exposure at the station was a substantial factor in contributing to her risk of developing mesothelioma.  The jury did not find, however, that Exxon knew, or through the exercise of reasonable care should have known, that there was a condition at the station that created unreasonable risk to Marline.  Joseph claimed it was uncontroverted Exxon knew of the risks attendant to such an environment.  The Court of Appeals, however, agreed with Exxon that the evidence presented at trial did not show that Exxon had such knowledge or could have even come to know as such, as in the relevant time period—and even today—there are no studies documenting that performing brake work increases one’s risk for the development of mesothelioma.

Although the Petitpas decision did not create new law, it is a good example of how the courts will interpret, at least for now, increasingly common issues in California asbestos litigation with respect to causation and duty.