Strickland v. Union Carbide Corp.
Filed 6/18/13 Strickland v. Union Carbide Corp. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
LINDA S. STRICKLAND et al.,
Plaintiffs and Respondents,
v.
UNION CARBIDE CORPORATION,
Defendant and Appellant.
B234459
(Los Angeles
County
Super. Ct.
No. BC379088)
APPEAL from
a judgment of the Superior Court
of
County, Charles F. Palmer, Judge. Affirmed.
Horvitz
& Levy, David M. Axelrad, Daniel J. Gonzalez, Wesley T. Shih; Orrick,
Herrington & Sutcliffe, Morton D. Dubin, Catherine Morris Krow and
Thomas A. Harvey for Defendant and Appellant.
Paul &
Hanley, Dean A. Hanley; Law Office of Ted W. Pelletier and Ted W.
Pelletier for Plaintiffs and Respondents.
___________________________
>
Glen Arthur Strickland, a construction worker for 45
years, died in 2007 from peritoneal mesothelioma. Union Carbide, the manufacturer of Calidria,
a chrysotile asbestos product used in certain drywall joint compounds, appeals
from the judgment after a jury verdict in favor of Strickland’s widow, Linda
Strickland, and their two children (the Strickland family) in this wrongful
death action. Union Carbide contends the
Strickland family failed to prove exposure to Calidria was a substantial factor
contributing to Strickland’s risk of developing peritoneal mesothelioma. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary
of the Evidence Presented at Trial
a. Asbestos
and mesothelioma generally
There are
several types of asbestos. During the
time relevant to Strickland’s claims chrysotile asbestos was the most common
type used, including in insulation and fireproofing materials, stucco and gun
cement, ceiling and wall texturing materials and drywall joint compound. Union Carbide mined and milled chrysotile, which
it began marketing under the brand name Calidria in the late 1960’s. Amphibole is another type of asbestos. It was often used in conjunction with
chrysotile for higher-temperature, industrial applications. Much of the chrysotile that is mined is contaminated
with amphibole fibers. Calidria,
however, is pure chrysotile.
Mesothelioma
is a rare cancer of the mesothelial cells that line several body cavities. It is caused primarily by asbestos exposure,
developing 20 to 40 years after the exposure.
About 90 percent of cases occur in the pleural (chest) cavity and about
10 percent in the peritoneal (abdominal) cavity. Peritoneal mesothelioma is associated with
high concentrations of amphibole asbestos.
b. Strickland’s
exposure to various products containing asbestos
In the early 1960’s Strickland
began installing drywall, including hanging wallboard, applying and sanding
drywall joint compound to mask the seams between the boards and cleaning up the
dust from sanding the compound. From the
late 1960’s to 1977 Strickland personally used, and was present on jobsites
where others used, drywall joint compound containing Calidria.
During his
life Strickland was also likely exposed
to amphibole and chrysotile asbestos on repeated occasions. For example, his father did some construction
and insulation work at naval shipyards when Strickland was growing up. The insulation materials used on ships often
contained amphibole asbestos. It is
known that naval shipyard workers who returned home at the end of the day
covered in dust containing amphibole asbestos fibers could contaminate family
members. Strickland’s own construction
work included tearing out insulation and scrapping off fireproofing, creating
inhalable dust with asbestos fibers.
Additionally, in 1962 Strickland worked on the construction of a movie
theater where a spray-on amphibole asbestos product (Limpet) was used that had
a “very, very, very high†concentration of asbestos fibers per cubic
centimeter.
Strickland
was diagnosed with peritoneal mesothelioma in December 2006 and died within a
year. A biopsy of Strickland’s lung
tissues showed a significant concentration of asbestos bodies indicating he had
mostly likely been exposed to a very high concentration of amphibole asbestos.
c. Expert testimony regarding Strickland’s exposure to chrysotile
contributed to his risk of developing peritoneal mesothelioma
Dr. Samuel
Hammar, a pathologist with an extensive career studying asbestos-related
disease, opined, “to a reasonable medical certainty,†chrysotile causes
peritoneal mesothelioma.
name="_ftnref2" title="">[2] Although Hammar had believed through the late
1980’s there was insufficient evidence it did so, he changed his opinion based
on his own research finding chrysotile in the abdominal cavity. Hammar explained, although it is “probably
easier [for asbestos] to get to the pleura than it is to get to the abdominal
cavity[,] . . . there are still well-defined mechanisms by which
asbestos could get into your lungs and then travel through the lymphatic system
into the abdominal cavity and, actually, be deposited there where peritoneal
mesotheliomas occur,†including if a person exposed to asbestos were to cough
and then swallow: “It would go down your
intestinal tract. And it’s been shown
experimentally in animals that asbestos fibers can penetrate through the wall
of an intestine and get into the tissue and the abdominal cavity that
way.â€
Hammar
acknowledged some of his colleagues continue to believe there is insufficient
evidence chrysotile causes peritoneal mesothelioma and conceded “there still
probably is relatively little evidence†it does, but maintained there is
nevertheless evidence. Describing a
study finding the most common group of workers who developed peritoneal
mesothelioma were insulators exposed to a combination of amphibole and
chrysotile, Hammar opined, “[T]here’s no inherent reason why you would think
that if chrysotile can cause pleural mesothelioma, and we know that it gets
into the abdominal cavity, why it would also not cause peritoneal
mesothelioma. You’re talking about the
same cells. You’re talking about the
same type of carcinogens. You’re talking
about the same mechanisms by which asbestos causes cancer.â€
die from mesothelioma, about half of those workers die from pleural
mesothelioma and half from peritoneal mesothelioma, yet they are all exposed to
a similar combination of amphibole and chrysotile asbestos. He also stated the professional literature
consistently reports that people exposed to multiple kinds of asbestos have a
high rate of peritoneal mesothelioma.
With
respect to Calidria specifically Dr. Hammar was asked, “And do you have any
reason to believe that the chrysotile that comes out of the mine that Union
Carbide mined is different in some way from other people’s chrysotile?†Hammar responded, “The chrysotile itself I
don’t think is different. I think what
perhaps would be different in some situations would be is that the Calidria
chrysotile doesn’t contain any tremolite or anthophyllite [that is, amphibole
asbestos], as far as we can tell.â€
During cross-examination Hammar was asked, “And it’s true that you do
not have any evidence you can rely on to say that exposure to Calidria asbestos
causes mesothelioma in humans, correct?â€
He responded, “As a pure product, no, that’s correct.†He later explained, “what I meant is that I
don’t know of any cases where the only exposure that a person has had is to
Calidria type of chrysotile asbestos, but I know plenty of cases
. . . where Calidria has been part of the make-up of the asbestos
that the individuals . . . were exposed to.â€
John
Templin, an industrial hygienist who also testified as an expert witness on
behalf of the Strickland family, opined the range of Strickland’s likely
exposure to asbestos as a user of drywall joint compound (that is, mixing,
sanding and cleaning up) or someone present in the same room as a user was
significantly higher than ambient background levels. Templin explained one cubic meter of city air
in the 1960’s to 1970’s contained about 50 asbestos fibers per cubic meter as
compared to from 2 million to 40 million asbestos fibers in the area
around drywall joint compound user’s or bystander’s head. Templin, who is not a medical doctor, further
testified, “Each exposure to asbestos results in an increasing body burden of
the material and being a carcinogen, there isn’t any known threshold or no
effect level, if you will. So it’s
viewed in the scientific community as every exposure being cumulative and
increasing the risks of developing disease.â€
Union
Carbide did not present any expert testimony on the issue of causation.
2. Closing
Argument; the Verdict
The heart of Union Carbide’s
defense was that “[E]xposure to Union Carbide asbestos, if any, did not cause
Mr. Strickland’s peritoneal mesothelioma.â€
Union Carbide argued the Strickland family’s witnesses “vastly
exaggerated†Strickland’s exposure to drywall tape compound and changed their
testimony to identify Union Carbide as the manufacturer of the drywall tape
compound once the other asbestos-manufacturer defendants were no longer in the
case. It also argued, even accepting
Dr. Hammar’s testimony chrysotile may cause mesothelioma in some circumstances,
he failed to opine that Calidria, specifically, was a substantial factor
causing Strickland’s disease; and
Strickland had ample exposure to amphibole, which is commonly associated with
peritoneal mesothelioma, including when his father brought it home on his
clothes, and while he worked on the construction project where Limpet, the
worst asbestos product ever made, was used—an exposure Union Carbide accused
the Strickland family witnesses of trying to downplay. Although the special verdict form submitted
to the jury included multiple questions regarding the Strickland family’s
causes of action for negligence, design defect and failure to warn, counsel for
Union Carbide told the jury to simply answer yes to the questions establishing
negligence and product defect and focus only on causation.
The jury
returned a verdict in favor of the Strickland family on each claim and awarded
$865,120.05 in economic damages and $1.3 million in noneconomic damages. The jury allocated 46 percent fault to Union
Carbide, 25 percent to Strickland and 29 percent to other persons or
entities. The jury did not find Union
Carbide was guilty of malice, oppression or fraud warranting imposition of
punitive damages.
3.
for Judgment Notwithstanding the Verdict; Entry of Judgment
Union Carbide
moved for judgment notwithstanding the verdict contending no reasonable juror
could conclude exposure to Calidria was a substantial factor contributing to
Strickland’s risk of peritoneal mesothelioma based on Dr. Hammar’s testimony. Union Carbide argued Hammar fatally conceded
Calidria is different from other forms of chrysotile and he had no proof
Calidria causes mesothelioma, thus his opinion it did was speculative. Union Carbide further argued, “According to
Dr. Hammar, there is ‘abundant proof’ that amosite and crocidolite [that
is, amphibole] causes peritoneal mesothelioma; even a single day of exposures
to these forms of asbestos can be sufficient; and the asbestos bodies in Mr.
Strickland’s lungs prove that he was likely exposed to heavy doses of amphibole
asbestos. The product responsible for
Mr. Strickland’s massive amphibole exposure (Limpet) is also known. Thus, Mr. Strickland’s harm would have
occurred absent any act by Union Carbide . . . .†With respect to Templin’s testimony every
asbestos exposure is cumulative and increases the risk of developing
mesothelioma, Union Carbide argued counsel for the Strickland family had
represented to the court Templin, who is not a doctor, was not being called to
testify on the issue of causation.
The court
denied Union Carbide’s motion. On May
27, 2011 the court entered judgment against Union Carbide in the amount of
$598,000, reflecting credit for pre-verdict settlements and apportionment of
fault.
DISCUSSION
1. Standard
of Review
Union
Carbide’s appeal from the final judgment and from the order denying its motion
for a judgment notwithstanding the verdict (see Code Civ. Proc., § 904.1,
subd. (a)(4) [making such an order appealable]) both present the question
whether any substantial evidence—contradicted or uncontradicted—supports the
jury’s conclusion. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62,
68; Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764, 770.) “A motion
for judgment notwithstanding the verdict may be granted only if it appears from
the evidence, viewed in the light most favorable to the party securing the
verdict, that there is no substantial evidence in support.†(Sweatman, at p. 68; see Hansen v. Sunnyside Products, Inc. (1997)
55 Cal.App.4th 1497, 1510 [“‘trial court’s discretion in granting a motion
for judgment notwithstanding the verdict is severely limited’â€].) “‘The trial judge cannot reweigh the evidence
[citation], or judge the credibility of witnesses. [Citation.]
If the evidence is conflicting or if several reasonable inferences may
be drawn, the motion for judgment notwithstanding the verdict should be
denied.’†(Clemmer v. Hartford
Insurance Co. (1978) 22 Cal.3d 865, 877-878.)
witness may constitute substantial evidence.
(In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) If there is any substantial evidence, we must
affirm the order denying the motion and the jury verdict. (Sweatman, at p. 68; Hauter v.
Zogarts (1975) 14 Cal.3d 104, 110.)
2. Law
Governing Proof of Causation in Asbestos Cases
Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953 (Rutherford) sets
forth the controlling standard for proving causation in an asbestos-related
personal injury case. “[T]he plaintiff
must first establish some threshold exposure to the defendant’s
defective asbestos-containing products,
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. In an
asbestos-related cancer case, the plaintiff need not prove that fibers
from the defendant’s product were the ones, or among the ones, that actually
began the process of malignant cellular growth.
Instead, the plaintiff may meet the burden of proving that exposure to
defendant’s product was a substantial factor causing the illness by showing
that in reasonable medical probability it was a substantial factor contributing
to the plaintiff’s or decedent’s risk
of developing cancer.†(
also id. at pp. 976-977 [plaintiff
may prove causation “by demonstrating that the plaintiff’s exposure to
defendant’s asbestos-containing product in reasonable medical probability
to the aggregate dose of asbestos the plaintiff or decedent
inhaled or ingested, and hence to the risk of
asbestos-related cancer,†fn. omitted].)
The
plaintiffs exposed to occupational asbestos have often been exposed to multiple
products containing asbestos, raising the question “which exposures to asbestos-containing
products contributed significantly enough to the total occupational dose to be
considered ‘substantial factors’ in causing the disease.†(Rutherford,
supra, 16 Cal.4th at
p. 977.) Answering that question,
the Court held, “The substantial factor standard is a relatively broad one,
requiring only that the contribution of the individual cause be more than
negligible or theoretical. A standard
instruction [on concurring causes] tells juries that each of several actors or
forces acting concurrently to cause an injury is a legal cause of the injury
‘regardless of the extent to which each contributes to the injury.’ A plaintiff who suffers from an
asbestos-related cancer and has proven exposure to inhalable asbestos fibers
from several products will not, generally speaking, face insuperable
difficulties in convincing a jury that a particular one of these product
exposures, or several of them, were substantial factors in creating the risk of
asbestos disease or latent injury.†(
132 Cal.App.4th 990, 999 [“In Rutherford, the court recognized that
‘a force which plays only an “infinitesimal†or “theoretical†part in bringing
about injury, damage, or loss is not a substantial factor,’ but warned that
‘[u]ndue emphasis should not be placed on the term “substantial.†For example, the substantial factor standard,
formulated to aid plaintiffs as a broader rule of causality than the “but forâ€
test, has been invoked by defendants whose conduct is clearly a “but for†cause
of plaintiff’s injury but is nevertheless urged as an insubstantial
contribution to the injury.
[Citation.] Misused in this way,
the substantial factor test “undermines the principles of comparative
negligence, under which a party is responsible for his or her share of negligence
and the harm caused thereby.â€â€™â€ ].)
3. Substantial
Evidence Supports the Jury’s Verdict
Focusing on
the precise language of several of the questions asked Dr. Hammar and his
responses to them, Union Carbide contends his opinion addressed only the
consequence of Strickland’s total exposure to asbestos during his working
career, leaving unresolved the significance of Calidria on his risk of
developing peritoneal mesothelioma.
Union Carbide argues, “[B]ecause Union Carbide was only responsible for
Strickland’s exposure to its own product, it was essential that Dr. Hammar say
the cumulative exposure
other types of asbestos, was a substantial factor contributing to Strickland’s
risk of developing the rare cancer.
Because Dr. Hammar never said that exposure in and of itself contributed substantially to Strickland’s risk of
developing the disease, there was a failure of proof on the issue of medical
causation.â€
title="">[4]
Union Carbide’s argument misstates
the plaintiff’s burden under Rutherford. As discussed, to create a jury question on
the issue of causation in an asbestos-related cancer case, it is sufficient for
the plaintiff to prove a threshold exposure to the defendant’s product and to
present expert testimony there is a
reasonable medical probability the defendant’s product can cause the type of
cancer at issue and the plaintiff’s (or decedent’s) cumulative exposure to
asbestos contributed to his or her disease.
(Rutherford, supra, 16 Cal.4th
at pp. 982-983.) It is then up to the
jury to determine whether that testimony is persuasive and, if so, to what
extent this defendant’s product, rather than the other asbestos-containing
products to which the plaintiff (or decedent) was exposed, was a factor
contributing to the disease. There need
not be testimony specifically linking the defendant’s product in isolation to
the plaintiff’s increased risk of developing cancer. (See Hernandez
v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 674-675 (Hernandez).)
In
of this court recently considered a similar question regarding the proof of
substantial factor causation in a mesothelioma case. Hernandez, a construction worker, was exposed
to asbestos when he used Riverside gun plastic cement to apply stucco to houses
from 1969 through the 1970’s. At the
wrongful death trial against the manufacturer of Riverside gun plastic cement,
plaintiff presented the expert testimony of epidemiologist Richard Lemen,
Ph.D., who opined, “[I]f a worker poured a 94-pound bag of Riverside gun
plastic cement containing asbestos, the worker would be at increased risk for
developing mesothelioma as long as the asbestos fibers were respirable and
airborne [and,] if a worker were exposed to many different asbestos-containing
products, each of those products would contribute to an increased risk of
asbestos-related disease, as long as the asbestos was inhaled and retained in
the worker’s body.†(
Hernandez’s medical records, work history and lung tissue, prepared a report
that was read into evidence noting Hernandez had repeatedly been exposed to
asbestos while working in construction from 1963 through the 1990’s. Kradin opined “to a reasonable degree of
medical probability†Hernandez’s mesothelioma was caused by asbestos
exposure. (Ibid.)
The trial
court granted defendant’s motion for nonsuit, finding plaintiff had failed to
prove causation because neither expert opined that defendant’s product
specifically caused Hernandez’s mesothelioma.
(Hernandez,
p. 668.) The trial court “also
expressed concern that Dr. Lemen used the words ‘reasonable scientific
certainty’ and did not ‘utter the words “reasonable degree of medical
probability.â€â€™â€ (Ibid.) Division Two
reversed, “We disagree with the trial court’s view that Rutherford
mandates that a medical doctor must expressly link together the evidence of
substantial factor causation. The Rutherford
court did not create a requirement that specific words must be recited by
appellant’s expert.†(
The
in the case before it was “nearly identical†to the evidence in
included factual evidence of the decedent’s exposure to respondent’s product,
expert testimony from an epidemiologist who opined as to the cause of
mesothelioma generally, and expert medical testimony on the relationship
between asbestos exposure and
lung cancer. Pursuant to Rutherford,
such evidence is sufficient for a jury to determine the issue of
causation.†(Hernandez, supra, 215
Cal.App.4th at pp. 675-676.)
Similarly,
in the case at bar the Strickland family presented evidence Strickland was
exposed to a significant amount of Calidria (although disputed at trial, it is
not challenged on appeal) and expert testimony about the link between asbestos
and mesothelioma generally, as well as studies finding chrysotile in the
abdominal tissue, possible mechanisms as to how it would get there, and a
hypothesis why chrysotile can, like amphibole, cause peritoneal
mesothelioma. To be sure,
Dr. Hammar did not specifically link Strickland’s exposure to Calidria to
an increased risk of developing the disease, opining instead as to the
cumulative impact of his exposure to asbestos.
“Q: In this particular case, you understand
that Mr. Strickland did drywall work; is that right?
“A: Yes.
“Q: And in the course of doing that drywall
work and other work that was related to the construction industry, he was
exposed to asbestos; is that also your understanding?
“A: Yes.
“Q: And certainly one of the types of asbestos
he was exposed to was chrysotile?
“A: Yes.
“Q: Do you have an opinion to a reasonable
medical certainty as to whether those exposures that Mr. Strickland suffered as
a result of doing drywall work and other work where he was exposed to asbestos,
that those were a substantial factor that ultimately contributed to his risk of
getting mesothelioma?
[¶] . . .
[¶]
“A: I do.
“Q: What is that opinion?
“A: That they were.â€
That testimony, coupled with Dr. Hammar’s unequivocal
opinion chrysotile causes peritoneal mesothelioma, was sufficient to permit the
jury to find substantial factor causation:
“Plaintiffs cannot be expected to prove the scientifically unknown
details of carcinogenesis, or trace the unknowable path of a given asbestos
fiber.†(Rutherford, supra, 16
Cal.4th at p. 976.)
In sum, in
light of the highly deferential standard
of review requiring us to view the testimony in the Strickland family’s
favor, there was substantial evidence from which the jury could conclude
Strickland’s exposure to Calidria played more than a negligible or theoretical
part in his risk of developing peritoneal mesothelioma. Even if we disregard Templin’s more specific
testimony on causation because it was expressly represented he was not called
to opine on that subject, Dr. Hammar’s testimony was sufficient. (See In re Marriage of Mix,
[uncorroborated testimony of a single witness may constitute substantial
evidence].) Union Carbide’s arguments,
in essence, simply challenge the proper weight to be given this scientific
evidence.
DISPOSITION
The judgment is affirmed. Linda Strickland and her children, Holly
Strickland-Morgan and Robert Strickland, are to recover their
PERLUSS,
P. J.
We concur:
ZELON,
J. SEGAL,
J.
bodies are asbestos fibers at least five micrometers long that become coated in
iron and protein as the body attempts to make the fiber nontoxic.
Hammar’s testimony on this crucial point, although brief, was quite direct:
“Q.
And do chrysotile fibers get to the peritoneum in humans?
“A.
Yes.
[¶] . . . [¶]
“Q.
You’ve formed some opinions in this case; is that fair to say?
“A.
Sure.
“Q.
This idea that—I think you told us when you were with us on Monday, it’s
your opinion that chrysotile causes peritoneal mesothelioma?
“A.
Yes.
“Q.
And do you hold that opinion to a reasonable medical certainty?
“A.
Yes.â€
Hammar was also asked, “[A]re there
articles [in the medical literature] that support the idea specifically as to
chrysotile causing peritoneal mesothelioma?â€
He answered, “Yes.â€
