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

Opinion

PHELAN, J.

Owens-Illinois, Inc. (Owens-Illinois or appellant), timely appeals from a judgment entered after a jury trial, by which it was held 100 percent responsible for personal injuries to Charles Wayne Sparks (Sparks) and his wife, Betty Raley Sparks, respondents herein. The jury found that an Owens-Illinois product, an asbestos-containing thermal insulation known as Kaylo, was defective, and that the defect was the sole legal cause of injury to Sparks. Appellant contends that: (1) There was no evidence that Kaylo was defective because plaintiffs failed to show that it could have been designed more safely, i.e., without asbestos as a component; (2) There is no substantial evidence to support the jury’s decision to allocate 100 percent of the fault to Owens-Illinois, as opposed to other manufacturers of asbestos-containing products to which Sparks was or may have been exposed; and (3) It is entitled to a new trial to determine whether Sparks’s employer, the United States Navy, must bear responsibility for a portion of his non-economic damages pursuant to Civil Code section 1431.1 et seq. (hereafter Proposition 51), as that provision has been interpreted by the California Supreme Court in a recent decision, DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593 [7 Cal.Rptr.2d 238, 828 P.2d 140],

We conclude that substantial evidence supports the jury verdict in this case, and that Owens-Illinois failed to preserve the issue whether the Navy should be held responsible for a portion of Sparks’s noneconomic damages. Accordingly, we affirm the judgment in its entirety.

I. Factual and Procedural Background

Appellant Owens-Illinois made and sold a product known as “Kayla” between 1948 and 1958. Kaylo was a calcium silicate insulation, made with 13 to 20 percent asbestos, which was sold in pipe-covering and block forms, and intended to be used for “industrial high[-]temperature thermal insulation.” The asbestos used in Kaylo was predominantly of the chrysotile variety but amosite was also used to a lesser extent. Owens-Illinois never made asbestos-containing products other than Kaylo pipe covering and block. Owens-Illinois sold its Kaylo operation to Owens-Coming Fiberglass in April 1958. Owens-Coming Fiberglass continued to make and sell Kaylo pipe covering and block insulation after April 1958. The Kaylo products were made for Owens-Coming Fiberglass by Fibreboard Corp. from 1960 to 1972.

A. Charles Sparks’s Service Aboard the U.S.S. Bremerton.

Charles Sparks joined the United States Navy in 1959, when he was 20 years old. Although he originally intended to obtain training as a draftsman, he was instead sent for training as a metalsmith. Also in 1959, Sparks met and married his wife, Betty. Shortly after he was married, Sparks was sent out on a six-month omise aboard the heavy cmiser U.S.S. Bremerton.

The Bremerton operated on steam turbines and, therefore, had many pipes, valves, condensers, heat exchangers, generators, boilers, and other machinery which had to be insulated against high temperatures. There was no significant work on the insulation during the omise but, in January or February of 1960, the Bremerton was sent to Long Beach for a decommissioning overhaul, which lasted approximately six months. Sparks’s duty aboard the Bremerton during the decommissioning was to remove and inspect the valves in the various pipelines. In order for Sparks to do this, the insulation had to be sawed or cut, and removed from the pipes. A great deal of dust was generated by the procedures Sparks followed to remove the insulation and the valves. At the same time, the boilers and other machinery were being overhauled by procedures that also generated dust to which Sparks was exposed. Regular cleanup procedures during the decommissioning involved the use of compressed air and fox-tail brooms, both of which generated a large amount of dust.

B. The Prior Overhaul of the U.S.S. Bremerton in Puget Sound.

Lowell Erwin was an insulator at Puget Sound from 1955 to 1959, and a journeyman mechanic from 1959 to 1974. He gave extensive testimony about the installation and removal of both block insulation and pipe covering on Navy ships. In particular, he testified that a standard way for removing calcium silicate pipe insulation such as Kaylo was to cut the cloth covering with a linoleum knife, and then to saw through the insulation down to the underlying pipe. This procedure generated “sawdust” consisting of the insulation material.

One of the ships on which Erwin worked was the Bremerton. At the time he worked on the Bremerton, which he remembers as sometime around the middle of 1957, all the old asbestos insulation in the machinery areas had been removed and new insulation was being installed. Erwin further testified that the boiler of a ship such as the Bremerton was insulated with large amounts of Kaylo block. The high-temperature piping coming out of the boilers was insulated with calcium silicate sectionals, and Erwin used Kaylo when it was available. High-temperature valves were also insulated with calcium silicate, preferably Kaylo. Low-temperature piping was insulated with 85 percent magnesium insulation (“85% mag”) or felt insulation. Some of the “85% mag” insulation was manufactured by Johns-Manville, but some may have been made by Carey and Pabco.

Erwin identified a picture of a package of Owens-Illinois’s Kaylo as the product used at Puget Sound, and testified that it was the insulation he preferred to use and would search to find before using other substitute products. He said that Kaylo was installed on low-temperature steam lines and hot water systems although, for the low-temperature situations, “85% mag” insulation was cheaper than Kaylo. The “85% mag” insulation was also used for hull work, which was outside the machinery area and involved mostly low-temperature applications. Erwin testified that he used Kaylo on the high-pressure steam lines and more than likely on the fire pumps and minor turbines. All of Erwin’s work on the Bremerton was on the steam systems, and approximately 75 percent was on the pipelines. None was on hull work.

Plaintiffs also presented the deposition testimony of another insulator who worked at the Puget Sound Shipyard. That witness, Ralph David, testified that he had no idea that his workplace exposure to asbestos could be dangerous to his health. Mr. David further stated that both he and the other workers who ripped out and installed asbestos-containing insulation simply assumed that it was part of their job and that there was no particular danger in it.

C. Charles Sparks’s Later Asbestos Exposure.

Sparks was undisputedly exposed to asbestos on two occasions after his tour of duty on the Bremerton. He was a sheet metal worker aboard the U.S.S. Frontier, a destroyer tender, for 18 months. Then, from 1966 to 1974, he worked as a sheet metal worker as a civilian employee in the Long Beach Naval Shipyard. Sparks did not work with asbestos during this time period but the pipefitters across the alley did and, occasionally, dust from their work area would blow into the shop where Sparks worked. During his first year at the Long Beach Naval Shipyard, he worked as a sheetmetal fabricator and was occasionally exposed to the pipefitters’ dust. Thereafter, however, he drew and cut paper patterns for sheet metal at a large workbench, which was located in an enclosed air-conditioned space that was not infiltrated by the white dust from the shop across the alley. Sparks also parked his car next to the pipefitting shop and, during the summer, he left the windows open a crack for ventilation. A small amount of asbestos dust would, thus, occasionally blow into his car.

D. Expert Testimony Regarding Asbestos Exposure.

Several medical experts testified on behalf of the Sparkses. Dr. Barry Horn testified that asbestos-related cancers are dose dependent — that is, the risk of contracting the disease increases with the amount of exposure to asbestos dust. He also testified that both the intensity of the dosage and the length of time of exposure are important to the risk assessment. However, all asbestos-exposures are not equally risky; exposure to amosite asbestos is three times as likely to cause mesothelioma as exposure to the same amount of chrysotile asbestos. Although he discussed the risk of mesothelioma in terms of Sparks’s cumulative exposure to asbestos, Dr. Horn also testified that the exposure which Charles Sparks experienced on the Bremerton was the most intense of his lifetime and was “certainly” sufficient, “in and of itself,” to have caused his mesothelioma.

Dr. Samuel Hammar, a pathologist, also testified that the exposure Sparks incurred on the Bremerton was “easily great enough” to have caused his mesothelioma. More specifically, Dr. Hammar opined that exposure to Kaylo fibers during the decommissioning of the Bremerton was, by itself, sufficient to cause his disease.

Douglas Fowler, an industrial hygienist at the University of California in Berkeley, testified about various asbestos products, including the calcium silicate product known as Kaylo. He also gave a rough estimate that a single saw cut across a Kaylo-covered pipe during removal could potentially release trillions of asbestos fibers. This removal process and the dust it generated were easily foreseeable because overhauls necessitating removal of pipe insulation are routine for Navy ships. In particular, removal involved ripping out the old insulation and sweeping up debris, all of which generated dust. Fowler further testified that if Kaylo was installed on the Bremerton in 1957, it was almost certainly removed in 1959 or 1960, because the Navy ships operated on a two- to three-year overhaul cycle. Fowler also testified that Sparks’s exposure to asbestos on the Bremerton was the most intense of his lifetime.

Dr. Allan Smith, a professor of epidemiology at the University of California, testified that the only established cause of mesothelioma in humans was asbestos exposure, and that the highest exposure levels recorded on board ships were in cleanup work. He also testified that the peak occurrence of mesothelioma diagnosis is between 30 and 40 years after the first exposure to asbestos fibers. Finally, he testified that the asbestos exposure that Sparks experienced aboard the Bremerton in 1960 during the decommissioning was the highest intensity asbestos exposure of his working life and that this exposure, by itself, was sufficient to have caused his mesothelioma.

Finally, Samuel Schillaci, the Owens-Illinois employee who was responsible for overseeing the Kaylo division in the 1950’s, testified that he had observed workers in the field using Kaylo. These workers would saw the Kaylo and generate dust, but would not be using respirators at the time.

E. Trial Proceedings.

The Sparkses filed their complaint for personal injuries and loss of consortium on April 11, 1991. The complaint alleged a number of causes of action, including negligence and strict liability, and named over 40 defendants, including appellant Owens-Illinois. A first amended complaint was filed on April 16, 1991. Owens-Illinois answered the first amended complaint on May 29, 1991. Jury trial commenced on October 21, 1991, in department 5 of the San Francisco Superior Court, the Honorable Roy L. Wonder, presiding.

Prior to trial, both plaintiffs and defendants filed a large number of motions in limine. Plaintiffs moved to exclude evidence of the knowledge of the Navy regarding asbestos exposure insofar as this evidence related to a defense of superseding cause. The trial court granted this motion. Plaintiffs also prevailed on their motion to exclude evidence on a “state-of-the-art” defense, on the ground that the case was to be tried solely on a “consumer expectation” theory and all claims for punitive damages were being waived.

Defendant Fibreboard Corp. made an in limine motion, with the apparent agreement of the other defendants, to preclude the medical experts from testifying that a particular exposure was a “substantial factor” in causing Sparks’s mesothelioma, or to give any testimony other than an opinion that a given exposure was the “more-probable-than-not” cause of the disease. The trial court denied Fibreboard’s motion, but ruled that “the expert witnesses [would] not be permitted to use legal conclusions, legal language in testifying.”

Also during the pretrial proceedings, the trial court ruled that Proposition 51 would apply to this case. The effect of that ruling was to limit the defendants’ liability to the “amount allocated to that defendant in direct proportion to that defendant’s percentage of fault.” (Civ. Code, § 1431.2, subd. (a).)

During trial, which commenced in November 1991, the defendants attempted to introduce evidence of the Navy’s knowledge of asbestos hazards. In each case, the plaintiffs objected on the basis of the in limine orders regarding superseding cause and the “state-of-the-art” defense. Owens-Illinais made no showing or argument that the evidence was admissible for any other purpose, and the objections were sustained.

Both Owens-Illinois and the plaintiffs submitted jury instructions specifying the “consumer expectation test” for determining whether a given product was defectively designed. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1] (Barker); Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118-119 [184 Cal.Rptr. 891, 649 P.2d 224, 35 A.L.R.4th 1036].) Owens-Illinois also requested BAJI No. 3.76, under which the jury was told that “A legal cause of injury, damage, loss, or harm is a cause which is a substantial factor in bringing about the injury, damage, loss or harm.” The plaintiffs requested a slightly modified version of the standard jury instruction on “Concurring Causes,” BAJI No. 3.77, and Owens-Illinois joined in the plaintiffs’ request for a modified version of former BAJI No. 3.78. These instructions were adopted and given by the trial court.

As to the parties’ respective burdens of proof on the products liability claim and the allocation of fault for the plaintiffs’ injuries, the jury was instructed as follows: “Charles and Betty Sparks have the burden of proving by a preponderance of the evidence all of the facts necessary to establish: [¶] 1. That defendant Owens-Illinois, Inc.’s product failed to perform as safely as an ordinary consumer of that product would expect; [