throbber
FILED: NEW YORK COUNTY CLERK 08/21/2017 01:37 PM
`NYSCEF DOC. NO. 410
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`INDEX NO. 190261/2015
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`RECEIVED NYSCEF: 08/21/2017
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`Filed 3/17/17
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`CERTIFIED FOR PARTIAL PUBLICATION*
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`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
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`FIFTH APPELLATE DISTRICT
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`CHARITY FAITH PHILLIPS et al.,
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`Plaintiffs and Respondents,
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`v.
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`HONEYWELL INTERNATIONAL INC.,
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`F070761
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`(Super. Ct. No. 12CECG04055)
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`OPINION
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`Defendant and Appellant.
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`APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
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`Hamilton, Jr., Judge.
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`Horvitz & Levy, Lisa Perrochet, Robert H. Wright, Curt Cutting; Perkins Coie,
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`Brien F. McMahon and Daniel D. O’Shea for Defendant and Appellant.
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`Simon Greenstone Panatier Bartlett and Brian P. Barrow for Plaintiffs and
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`Respondents.
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`-ooOoo-
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`*
`Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
`certified for publication with the exception of parts I, II, IV, and V of the Discussion.
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`FILED: NEW YORK COUNTY CLERK 08/21/2017 01:37 PM
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`Defendant Honeywell International Inc. (Honeywell) appeals from a judgment of
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`over $5.8 million awarded to the spouse and surviving children of a man who died of
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`asbestos-related cancer. The jury found the mesothelioma contracted by James Lester
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`Phillips (Phillips) was caused in part by exposure to asbestos contained in Bendix brakes.
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`Honeywell contends a new trial is warranted because (1) the jury’s special verdict
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`was fatally inconsistent; (2) the trial court erroneously refused to give its proposed jury
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`instruction on the factors relevant to causation; and (3) the trial court erroneously
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`admitted prejudicial evidence. Moreover, Honeywell contends judgment should be
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`entered in its favor because the verdict was based entirely on a failure to warn theory that
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`lacked sufficient evidentiary support. If judgment is not entered in its favor, Honeywell
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`contends the $3.5 million award of punitive damages must be reversed because plaintiffs
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`failed to introduce sufficient evidence of malice or oppression.
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`In the published portion of this opinion, we reject Honeywell’s claims of
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`evidentiary error. The trial court properly admitted—subject to a limiting instruction—a
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`1966 letter of a Bendix employee sarcastically addressing an article in Chemical Week
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`magazine that stated asbestos had been accused, but not yet convicted, as a significant
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`health hazard. The letter is circumstantial evidence relevant to the issue of Bendix’s
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`awareness of asbestos’s potential to cause cancer. The Illinois and Florida cases holding
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`admission of this letter was prejudicial are distinguishable because they did not include a
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`limiting instruction.
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`In addition, the trial court properly admitted the testimony of plaintiffs’ expert
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`about causation and the contributions to Phillips’s risk of cancer from every identified
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`exposure to asbestos that Phillips experienced. In the context of this case, the every-
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`identified-exposure theory is distinguishable from the every-exposure theory and we join
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`courts from other jurisdictions in recognizing that distinction. Furthermore, we conclude
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`the application of every-identified-exposure theory in this case was consistent with
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`2.
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`FILED: NEW YORK COUNTY CLERK 08/21/2017 01:37 PM
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`California law addressing proof of causation in asbestos-related cancer cases.
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`Consequently, we need not address the every-exposure theory that the Second District
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`allowed to be presented to the jury in Davis v. Honeywell Internat. Inc. (2016) 245
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`Cal.App.4th 477, review denied May 25, 2016 (Davis)1 and Honeywell’s contention that
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`this court should split with Davis.
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`In the unpublished portion of this opinion, we reject Honeywell’s other
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`contentions. First, the jury’s answers to questions in the special verdict about causation
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`are not inconsistent. Second, the trial court properly rejected Honeywell’s proposed
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`instruction about the factors relevant to causation of asbestos-related cancer. Third, as to
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`the sufficiency of the evidence, we conclude there was adequate evidentiary support for
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`the jury’s findings that (1) Honeywell was liable under a failure to warn theory and (2)
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`Honeywell’s predecessor, Bendix, acted with malice—that is, a willful and conscious
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`disregard of the safety of others. (Civ. Code, § 3294, subd. (c)(1) [definition of malice].)
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`We therefore affirm the judgment.
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`FACTS
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`Bendix and Asbestos
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`In 1939, The Bendix Corporation (Bendix) began manufacturing friction products,
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`including automotive brakes, that contained asbestos.2 Until 1983, Bendix manufactured
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`its brakes using 25 to 50 percent asbestos with other ingredients bound in a resin. In
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`1
`The court in Davis concluded that the trial court did not abuse its discretion in
`allowing the plaintiff’s medical expert to present opinion testimony under the every-
`exposure theory. (Davis, supra, 245 Cal.App.4th at p. 480.) The court reviewed the
`commentary and scientific literature cited by the parties, concluded “the theory is the
`subject of legitimate scientific debate,” and stated it was for the jury to resolve the
`conflict among the competing expert opinions. (Ibid.)
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`2
`“In 1985, Allied Corporation purchased Bendix. Later, Allied Corporation
`changed its name to Allied Signal, Inc., and in 1999 changed it to Honeywell
`International, Inc.” (Dukes v. Pneumo Abex Corporation (2008) 386 Ill.App.3d 425 428
`[900 N.E.2d 1128, 1131] (Dukes).)
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`3.
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`1983, Bendix began offering asbestos-free brakes for some vehicles, but continued to
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`manufacture and sell asbestos-containing brakes until 2001.
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`Bendix operated a manufacturing facility in Troy, New York. By 1944, Bendix
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`had installed a ventilation system at the facility to assist in the removal of dust. Also,
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`duct work was hooked up to grinding machines to remove the grinding dust from the
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`workplace. Sometime during the 1950’s, Bendix began giving employees at the facility
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`annual chest x-rays.
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`In 1956, New York’s Department of Labor adopted regulations setting a maximum
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`allowable concentration for airborne asbestos at 5 million particles per cubic foot. These
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`regulations applied at Bendix’s Troy plant.
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`In March 1966, the New York Times published an article titled, “Asbestos Dust
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`Called a Hazard To at Least One-Fourth of U.S.” The title’s reference to a quarter of the
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`pollution was described as a preliminary finding by Dr. Irving J. Selikoff, who announced
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`the establishment of an environmental health laboratory at Mount Sinai Hospital to
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`further investigate the dangers of asbestos and other contaminants. The article mentioned
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`Dr. Selikoff’s finding of a link between cancer and asbestos in asbestos workers and his
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`belief that the dangers extended to contiguous trades, such as construction workers. The
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`article also stated that asbestos was used in fireproof materials, asphalt tile, dental
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`cement, brake linings, beer filters, gas masks and paper.
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`Later in 1966, the publication of Asbestos: Awaiting ‘Trial’ (Sept. 10, 1966)
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`Chemical Week, at page 32 caused E. A. Martin, director of purchases at Bendix’s Troy
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`facility, to write a now-infamous letter to Bendix’s asbestos supplier (Martin letter). The
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`letter was dated September 12, 1966, and addressed to Noel Hendry of Canadian Johns-
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`Manville Asbestos Limited at Asbestos, Quebec, Canada.3 A box appearing immediately
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`3
`The Chemical Week article, Martin’s letter, and Hendry’s September 29, 1966,
`reply are discussed in Castleman, Asbestos: Medical and Legal Aspects (5th ed. 2005) p.
`534.
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`4.
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`FILED: NEW YORK COUNTY CLERK 08/21/2017 01:37 PM
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`above the article’s title listed sources of airborne asbestos, including “Motor vehicle
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`brake linings and clutch plates.” The contents of the Martin letter are quoted in full in
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`part III.A.1, post. The Martin letter plays a role in this appeal because Honeywell
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`contends its admission into evidence was prejudicial error.
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`Honeywell’s corporate representative testified that in 1973 Bendix began placing
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`warning on the cartons for asbestos-containing brake pads. The warning label used the
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`exact language prescribed by newly enacted OSHA regulations and was placed on the
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`side of the box so it would be visible when the boxes were stacked. The warning stated:
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`“Caution: Contains asbestos fibers, avoid creating dust. Breathing asbestos dust may
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`cause serious bodily harm.”
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`In December 1975, Jacob W. Tawiah presented Bendix with a review of the
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`medical literature addressing the health hazards of asbestos. The executive summary of
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`the review stated that medical knowledge at that time associated asbestos with three
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`primary diseases: asbestosis, lung cancer and mesothelioma, a rare form of cancer that is
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`the most deadly of the three. It also described the general agreement that the diseases are
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`positively correlated to the intensity and duration of exposure to asbestos dust, but noted
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`“there is no conclusive proof of a safe threshold level of exposure.” The summary stated
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`that there have been cases of mesothelioma that cannot be linked to asbestos, but
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`exposure to asbestos dust is the only known cause of mesothelioma. The commentary
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`section of the executive summary stated: “The medical literature is full of solid evidence
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`linking asbestos to disease. Eliminating the emission of asbestos dust into the working
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`environment appears to be an obvious way of dealing with the problem. This, however,
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`may not be the most feasible approach in light of economic considerations. It then
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`becomes necessary to examine what other alternatives exist.” Many of the references
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`listed at the end of the review predate the 1970’s.
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`5.
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`Asbestos
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`The term “asbestos” is applied to six different types of naturally occurring mineral
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`fibers. (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 177, fn. 2 (Webb).)
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`When mined and processed, asbestos generally is separated into thin fibers that are then
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`mixed with a binding agent so the fibers may be used in various products. (Ibid.)4 The
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`individual fibers are invisible to the naked eye. (Ibid.) The six types of asbestos are
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`divided into two groups, amphibole and serpentine. The only member of the serpentine
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`group used in a commercial setting is chrysotile, which was the type used in Bendix
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`brakes. The amphibole family contains the other five types, of which amosite and
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`crocidolite are used commercially. The differences between the two groups was
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`explained during the trial and Honeywell argued Phillips’s mesothelioma was caused by
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`his exposure to asbestos fibers from the amphibole group, not chrysotile fibers from
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`Bendix brakes.
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`The different types of asbestos have different physical properties and different
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`chemical makeups. As to shape, chrysotile tends to be curved (i.e., spiral) and thin
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`compared to the straight, thin structure of amphibole asbestos. The physical and
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`chemical differences affect both the human body’s ability to clear the fiber and the fiber’s
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`toxicity—that is, the likelihood the fiber will cause disease.
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`In this case, the term “biopersistence” was used to refer to the capacity of asbestos
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`fibers to persist over time in specific tissues of the body and retain their chemical and
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`physical features. Underlying the use of this term is the testimony that the longer a fiber
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`4
`Asbestos was used by the ancient Greeks, Romans and Charlemagne. (See
`Comment, The Threshold Level of Proof of Asbestos Causation: The “Frequency,
`Regularity and Proximity Test” and a Modified Summers v. Tice Theory of Burden-
`Shifting (1995) 24 Cap. U. L.Rev. 735, 737 [Roman slaves wore transparent bladder skins
`as veils to avoid inhaling asbestos dust]; Comment, Issues in Asbestos Litigation (1983)
`34 Hastings L.J. 871, 872, fn. 7.)
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`6.
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`remains in the tissue and retains the characteristics of asbestos, the higher the risk that it
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`will induce adverse health effects.
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`Carl Andrew Brodkin, M.D., testified as plaintiffs’ medical expert. Dr. Brodkin
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`stated amphiboles last longer in the human body, with a half-life measured in months or
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`years, while the half-life of chrysotile is measured in weeks or months. Nonetheless, Dr.
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`Brodkin stated his opinion that (1) all of the major types of commercial asbestos fibers
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`are known to cause cancer, in both the lung and the lining of the lung; (2) amosite and
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`crocidolite are about three times more potent than chrysotile in causing mesothelioma;5
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`and (3) persons exposed to chrysotile have far higher rates of mesothelioma than
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`individuals who are not exposed. In contrast, a Honeywell expert, Richard L. Attanoos,
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`M.D., testified that chrysotile-containing friction products, such as brakes, do not cause
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`mesothelioma. Another Honeywell expert, David Weill, M.D., testified that available
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`medical literature and cohort studies showed that individuals working with chrysotile
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`products did not have an elevated risk of mesothelioma. Dr. Weill distinguished the risk
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`from lower exposures experienced by people who work with chrysotile products from the
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`risk of higher exposures experienced by workers who mine chrysotile.
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`Dr. Attanoos explained his opinion that brakes do not cause mesothelioma by
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`stating that (1) the asbestos in brakes is chrysotile, not amphibole, and chrysotile has a
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`low biopersistence; (2) the chamfering done before brakes are installed releases fibers
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`encapsulated in resin that do not have the normal respirability; (3) the brake dust created
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`by the braking process contains only about one percent chrysotile because the friction of
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`5
`The experts who testified in Webb, supra, 63 Cal.4th 167, presented a range of
`opinions about the relative risk of contracting mesothelioma after exposure to crocidolite
`and chrysotile. “One expert opined that crocidolite presents five times the risk of
`chrysotile asbestos … and conceded crocidolite might present a risk as high as 10 times
`the toxicity of chrysotile. A second expert opined that crocidolite is 500 times as toxic,
`and testified that others estimated its risk to be 800 times has high.” (Id. at p. 194, (conc.
`& dis. opn. of Cantil-Sakauye, C.J.).)
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`7.
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`braking creates very high temperatures that breaks down the chrysotile into a
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`noncarcinogenic material called forsterite; and (4) the chrysolite remaining in brake dust
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`tends to be very small in size.
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`Dr. Brodkin agreed the heat of braking causes a breakdown of asbestos fiber into
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`forsterite and “[t]here is no evidence that forsterite causes disease.” He testified the
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`studies of brake dust that found less than one percent residual asbestos were at the low
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`end of the range and referred to other studies finding 5, 6 and 15 percent residual asbestos
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`in brake dust.
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`Mesothelioma
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`Mesothelioma is a relatively rare cancer that occurs in the lining of the lung,
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`which is called the pleura. (Webb, supra, 63 Cal.4th at pp. 194-195 (conc. & dis. opn. of
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`Cantil-Sakauye, C.J.).) As the cancer grows, it “will eventually entrap the entire lung,
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`creating the tightening effect of a corset by preventing the lung from expanding. The
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`cancer also grows outward into the chest wall where it irritates nerve roots, creating pain.
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`People with mesothelioma live, on average, 12 to 14 months.” (Id. at p. 195.)
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`Our Supreme Court recently described mesothelioma as a cancer “closely
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`associated with asbestos exposure.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132,
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`1141; see Moran v. Foster Wheel Energy Corp. (2016) 246 Cal.App.4th 500, 503
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`[mesothelioma is “a cancer uniquely associated with exposure to asbestos”]; Hoffheimer,
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`California’s Territorial Turn in Choice of Law (2015) 67 Rutgers U. L.Rev. 167, 191, fn.
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`125 [research report of National Cancer Institute cited for propositions that by “1988,
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`asbestos was identified as the only known risk factor for mesothelioma” and the time lag
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`between exposure and developing mesothelioma usually is 30 to 40 years].)
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`Dr. Brodkin testified that mesothelioma is a dose-response disease, which means
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`the greater the dose of asbestos, the greater the risk for the disease. Dr. Brodkin’s
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`testimony about the causal connection between the asbestos exposures identified in this
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`case and Phillips’s mesothelioma is set forth in part III.B.4, post.
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`8.
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`Mesothelioma (in contrast to asbestosis) is not a cumulative disease in the sense
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`that each inhalation of asbestos generates a certain amount of disability. (Stapleton, The
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`Two Explosive Proof-of-Causation Doctrines Central to Asbestos Claims (2009) 74
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`Brook. L.Rev. 1011, 1023.) The more a person is exposed to asbestos, the more likely
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`asbestos-related cancer will occur, but once the cancer occurs its severity does not depend
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`upon the amount of asbestos to which the victim was exposed. (Id. at pp. 1023-1024.)
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`Also, mesothelioma is “indivisible in the sense that it is beyond our current abilities to
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`ascertain which asbestos fiber(s) caused the illness.” (Sanders, The “Every Exposure”
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`Cases and the Beginning of the Asbestos Endgame (2014) 88 Tul. L.Rev. 1153, 1161.)
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`This characteristic underlies our Supreme Court’s conclusion in Rutherford v. Owens-
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`Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford) that “[i]n an asbestos-related cancer
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`case, the plaintiff need not prove [asbestos] fibers from the defendant’s product were the
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`ones, or among the ones, that actually began the process of malignant cellular growth.”
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`(Id. at p. 982.) Instead, our Supreme Court adopted a special rule allowing plaintiffs to
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`prove exposure to the defendant’s product was a substantial factor in causing the cancer
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`by showing (in a reasonable medical probability) the exposure was a substantial factor
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`contributing to the decedent’s risk of developing cancer. (Ibid.)
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`Phillips’s Exposure to Asbestos
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`Phillips was born in September 1953. In 1967, Phillips had a summer job where
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`he learned how to change brakes. In 1969, 1970 and 1971, while in high school, Phillips
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`worked as an attendant and mechanic at gas stations in Mariposa. While employed at the
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`gas stations, he performed many tasks, including brake jobs. In addition to the brake jobs
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`at the gas stations, Phillips performed brake jobs on his own vehicles and the vehicles of
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`9.
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`friends.6 Phillips did brake jobs throughout the 1970’s and 1980’s, right up to the time he
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`was diagnosed with mesothelioma.
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`When asked if he could quantify the number of vehicles on which he did brake
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`work, Phillips answered, “No. A lot.” Asked again during his deposition, Phillips stated,
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`“I couldn’t count them. Quite a few.” Phillips identified the brands of brakes he installed
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`or removed as Raybestos, Rayloc, Wizard, Bendix and Vapex. He was aware of the
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`brand because it was printed on the box and stamped on a metal part of the brake.
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`Phillips described the steps he took when installing Bendix brakes as follows:
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`“Take it out of the package, clean them up. You want to scuff the shiny
`stuff off with sandpaper, you know, if you have some rough 80 [grain
`sandpaper], and chamfer the edges. Remove the old brakes, install the new
`brakes with the springs and stuff – the new brake drums with the springs
`and stuff – the new brake pads with the springs. Clean all the dirt out, blow
`all the dust off, and then install the new brakes, and put the drum back on,
`and then you readjust the brakes up until the drum stops moving and back it
`off 13 clicks, and put your tires on it.”
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`Phillips also stated that the cleaning process involved the use of compressed air to
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`blow the dust out of the brake drum, which was messy but worked well.
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`In 1972, at the age of 19, Phillips was employed as a maintenance worker by
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`Mariposa County High School. Phillips held that job for one year. He sometimes
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`worked at a bench in a room that housed a boiler and insulated steam pipes. Phillips also
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`worked directly with insulation. When a valve on the steam heating system
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`malfunctioned, Phillips or his boss would fix the valve and then Phillips would remove
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`any affected insulation, do the necessary clean up, and replace the pipe’s insulation. He
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`also remembered removing insulation from a storage tank and rewrapping the tank with
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`new insulation. Phillips testified that he assumed the insulation contained asbestos.
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`6
`Phillips owned roughly 40 vehicles over his lifetime. Honeywell summarized his
`deposition testimony by stating Phillips was able to recall changing brakes on 21
`vehicles, which he identified by make and model.
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`10.
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`Plaintiffs’ expert, Dr. Brodkin, testified the insulation was likely to contain asbestos and
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`estimated its content at 12 to 50 percent. Dr. Attanoos testified thermal insulation from
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`that period would have contained amphibole asbestos. The jury allocated 15 percent of
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`the fault to boiler insulation, impliedly finding the insulation contained asbestos.
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`During Phillips’s employment at the high school, he also worked on a project that
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`involved the installation of asbestos cement pipe, which he called transite pipe.7 Phillips
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`estimated that he installed approximately 120 linear feet of the pipe and cut the pipe
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`about 40 times using a snap cutter, Skilsaw with carborundum blade, or a handsaw.
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`Phillips stated he did about half the cuts with the Skilsaw, which he described as messy.
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`In 1973, Phillips began working as a plumber. He worked about seven years for
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`Hudson’s Plumbing, followed by a year at Posey Plumbing. In the late 1980’s, he
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`returned to Hudson’s Plumbing for another four years. Phillips testified that he worked
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`with asbestos cement pipe while at Hudson’s Plumbing.
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`Phillips worked a brief stint with the Mariposa Public Utilities District and then
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`was employed by a construction company. One of the construction company’s projects
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`involved the removal of water and sewer lines at Yosemite National Park, some of which
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`were asbestos cement pipe. The jury allocated 23 percent of fault to asbestos-containing
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`cement pipe.
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`Additional exposures to asbestos occurred when Phillips did repair and
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`maintenance work on vehicles he owned or friends owned, such as (1) the installation of
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`clutches and (2) the removal and installation of gaskets, particularly on carburetors.
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`Phillips testified he learned how to perform a clutch job when he was 14 or 15 years old
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`and did his last clutch job about two years before his 2012 deposition. He stated he could
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`7
`In Webb, the court stated that Johns-Manville “made an asbestos cement pipe
`known as Transite pipe. Although ‘Transite’ was trademarked by Johns-Manville, the
`name became a generic term for all brands of asbestos cement pipe.” (Webb, supra, 63
`Cal.4th at p. 178.)
`
`11.
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`not count the number of clutch jobs he did, but described some of the vehicles he worked
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`on, including a 1966 Chevelle Super Sport that he and his wife used to drag race and
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`required 13 new clutches. The jury allocated 9 percent of the fault to clutches and 5
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`percent to automotive gaskets.
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`In March 2012, Phillips was diagnosed with mesothelioma. He died in February
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`2013.
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`PROCEEDINGS
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`
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`In May 2012, Phillips and his wife, Charity Phillips, filed a complaint seeking
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`damages for personal injuries caused by asbestos. In May 2013, after Phillips’s death,
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`Charity Phillips, individually and as the personal representative of his estate, filed a first
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`amended complaint alleging negligence and strict liability. Three of their children were
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`added as plaintiffs and asserted claims for wrongful death.8 For purposes of this opinion,
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`“plaintiffs” refer to Phillips’s wife and the three children.
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`The first amended complaint named over 25 defendants engaged in the
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`manufacture or supply of products containing asbestos. Defendant Honeywell, formerly
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`known as AlliedSignal Inc., was sued individually and as the successor-in-interest to The
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`Bendix Corporation, a manufacturer of automotive brakes. Bendix brakes were among
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`the asbestos-containing products to which Phillips was exposed.
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`
`
`Plaintiffs settled with most of the defendants and the matter proceeded to trial
`
`against Honeywell and Calaveras Asbestos Ltd. Calaveras Asbestos Ltd. was granted
`
`nonsuit during the jury trial. As a result, Honeywell was the only defendant remaining in
`
`the case when it was presented to the jury.
`
`
`8
`Phillips and Charity were married in 1972. Their youngest child was 30 years old
`at the time of Phillips’s deposition in September 2012.
`
`12.
`
`

`

`FILED: NEW YORK COUNTY CLERK 08/21/2017 01:37 PM
`NYSCEF DOC. NO. 410
`
`INDEX NO. 190261/2015
`
`RECEIVED NYSCEF: 08/21/2017
`
`
`
`Jury’s Findings as to Liability
`
`
`
`In May 2014, the jury completed a special verdict form that addressed plaintiffs’
`
`negligence claim and three separate theories of strict liability. As to negligence, the jury
`
`expressly found (1) Phillips had been exposed to asbestos from Bendix brakes; (2)
`
`Bendix was negligent in manufacturing or selling asbestos-containing brakes; and (3)
`
`Bendix’s negligence was a substantial factor in causing harm to Phillips.
`
`Plaintiffs’ other successful legal theory was strict liability based on the failure to
`
`warn. The jury found (1) Bendix’s asbestos-containing products had potential risks that
`
`were known or knowable in light of the generally accepted scientific and medical
`
`knowledge that was available at the time of sale; (2) the potential risks of Bendix’s
`
`asbestos-containing products presented a substantial danger to persons using or misusing
`
`the product in an intended or reasonably foreseeable way; (3) ordinary consumers of the
`
`products would have failed to recognize the potential risks; (4) Bendix did not adequately
`
`warn or instruct consumers of the potential risks; and (5) the lack of sufficient warnings
`
`or instructions on Bendix’s asbestos-containing products was a substantial factor in
`
`causing harm to Phillips.
`
`Plaintiffs were unsuccessful on their strict liability theories based on (1) a risk-
`
`benefit analysis of the product’s design and (2) consumer expectations. The jury
`
`answered “no” when asked if the risks of Bendix’s design outweighed the benefits of the
`
`design. As to consumer expectations, the jury found that Bendix’s products failed to
`
`perform as safely as an ordinary consumer would have expected when used or misused in
`
`an intended or reasonably foreseeable way. However, the jury also found that the design
`
`of the products was not a substantial factor in causing harm to Phillips.
`
`The jury was asked to allocate the fault that caused harm to Phillips among eight
`
`sources. Those sources and the jury’s percentage allocation were Bendix (30 percent),
`
`asbestos-containing cement pipe (23 percent), brakes from other manufacturers (15
`
`13.
`
`

`

`FILED: NEW YORK COUNTY CLERK 08/21/2017 01:37 PM
`NYSCEF DOC. NO. 410
`
`INDEX NO. 190261/2015
`
`RECEIVED NYSCEF: 08/21/2017
`
`
`
`percent), boiler insulation (15 percent), clutches (9 percent), automotive gaskets (5
`
`percent), joint compound (3 percent), and mastic (0 percent).9
`
`Actual Damages
`
`The parties stipulated to economic damages of $900,000. The amount of
`
`noneconomic damages was decided by the jury. It found Charity Phillips’s noneconomic
`
`losses were $5,550,000 and the three children experienced noneconomic losses of
`
`$329,500 each. Thus, plaintiffs’ noneconomic damages totaled $6,538,500.
`
`Punitive Damages
`
`
`
`The jury’s special verdict included a finding that, based on clear and convincing
`
`evidence, one or more of Bendix’s officers, directors or managing agents acted with
`
`malice or oppression in the conduct upon which the finding of liability was based. Based
`
`on this finding, the trial proceeded to a punitive damages phase. The jury awarded $3.5
`
`million in punitive damages.
`
`Judgment and Appeal
`
`The damages were adjusted by the trial court to reflect (1) the jury’s allocation of
`
`fault to other causes and (2) the settlements paid to plaintiffs by other defendants. The
`
`settlements totaled $4,041,750. The court determined Honeywell was liable for
`
`$1,961,550 in noneconomic damages (i.e., 30 percent of $6,538,500), $414,990 in
`
`economic damages, and $3.5 million in punitive damages.
`
`
`9
`“Mastic” refers to a paste-like material spread before the installation of tiles or
`other flooring. Exposure to asbestos can occur while installing new flooring or while
`removing old flooring and the mastic holding it in place. When in his early teens,
`Phillips removed the vinyl flooring in a laundry room so new flooring could be installed.
`The job involved scraping the old mastic off the floor, which Phillips accomplished using
`a wire brush and spatula. The jury’s finding as to mastic implies it did not accept or
`apply the every-exposure theory challenged by Honeywell. (See pt. III, B, post.)
`
`14.
`
`

`

`FILED: NEW YORK COUNTY CLERK 08/21/2017 01:37 PM
`NYSCEF DOC. NO. 410
`
`INDEX NO. 190261/2015
`
`RECEIVED NYSCEF: 08/21/2017
`
`
`
`On September 17, 2014, the trial court entered a judgment holding Honeywell
`
`liable for $5,876,540. In October 2014, Honeywell filed a notice of appeal challenging
`
`the judgment.
`
`CONSISTENCY OF THE SPECIAL VERDICT*
`
`DISCUSSION
`
`Honeywell’s claims of legal error are discussed in reverse chronological order.
`
`I.
`
`
`
`First, we consider whether the answers in the special verdict are consistent. Second, we
`
`address whether the trial court erred in rejecting Honeywell’s proposed jury instruction
`
`about the factors relevant to causation. Third, we consider Honeywell’s claims that
`
`evidence was improperly admitted. After resolving the claims of legal error, we turn to
`
`Honeywell’s challenges to the sufficiency of the evidence for the jury’s findings relating
`
`to (1) the failure to warn and (2) punitive damages.
`
`A.
`
` Basic Principles of Law
`
`
`
`1.
`
`Appellate Review
`
`Whether two of the jury’s findings in a special verdict are inconsistent with each
`
`
`
`
`
`other is analyzed as a matter of law. (City of San Diego v. D.R. Horton San Diego
`
`Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.) Consequently, when analyzing a
`
`claim of inconsistency, appellate courts conduct an independent review that does not
`
`defer to the trial court’s determination. (See Collins v. Navistar, Inc. (2013) 214
`
`Cal.App.4th 1486, 1500 [special verdict’s correctness subject to de novo review].) When
`
`an appellate court identifies inconsistent findings in a special verdict, it may not choose
`
`which of the inconsistent findings to implement. (Singh v. Southland Stone, U.S.A., Inc.
`
`(2010) 186 Cal.App.4th 338, 358 (Sing

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