Williams v. J-M Mfg. Co., Inc.

321 Cal.Rptr.3d 254

Nathan K. WILLIAMS, Plaintiff and Respondent,

v.J-M MANUFACTURING COMPANY, INC., Defendant and Appellant.

A162561, A163492

Court of Appeal, First District, Division 2.

Filed May 22, 2024

Certified for Partial Publication.^*

Court: Alameda County Superior Court, Trial Judge: Hon. Frank Roesch (Alameda County Super. Ct. No. RG19032329)

Manning Gross + Massenburg, Carrie S. Lin; Miller Barondess, Nadia A. Sarkis, Los Angeles; Greines, Martin, Stein & Richland, Kent L. Richland, Los Angeles, for Defendant and Appellant

Shook, Hardy & Bacon, Andrew Trask, Los Angeles; Fred J. Hiestand for Coalition for Litigation Justice, Inc. and Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Appellant

Elmer Stahl, Robert E. Dunn for Chamber of Commerce of the United States of America as Amicus Curiae on behalf of Defendant and Appellant

Maune Raichle Hartley French & Mudd, David L. Amell, Berkeley, Marissa Y. Uchimura, Oakland, for Plaintiff and Respondent

Miller, J.

Before he died from mesothelioma during the pendency of this appeal, Cornelius Williams filed a complaint for personal injury based on his secondary exposure to asbestos from his brother Nathan’s work with asbestos-cement pipe over more than 20 years. Cornelius and Nathan did not live together, but had regular close contact during Nathan’s employment. One of the entities Cornelius sued was J-M Manufacturing Company, Inc. (J-MM), a supplier of asbestos-cement pipe to Nathan’s workplaces.

Cornelius’s strict liability cause of action, based on theories of design defect and failure to warn, went to verdict. The jury found liability under both theories, concluding that Cornelius had proven he was exposed to asbestos, and that the pipe sold by J-MM was a substantial factor in increasing his risk of developing cancer.

J-MM raises three arguments in this appeal. First, J-MM argues it was entitled to judgment because, as a matter of law, strict liability does not apply in favor of Cornelius, a non-household member of his brother, under our Supreme Court’s decision in Kesner v. Superior Court (2016) 1 Cal.5th 1132, 210 Cal.Rptr.3d 283, 384 P.3d 283 (Kesner). Kesner, a negligence case, held that employers and premises owners owe a duty of care to prevent secondary exposure to asbestos carried by the bodies and clothing of on-site workers, but that the duty extends only to members of a worker’s household. (Id. at p. 1140, 210 Cal.Rptr.3d 283, 384 P.3d 283.) J-MM argues that Kesner’s limitation on the duty of care for claims based on negligence should be applied to strict liability claims against suppliers or sellers of asbestos products. Second, J-MM argues the judgment must be reversed because there was no substantial evidence that Cornelius was exposed to asbestos from pipe supplied by J-MM (rather than another supplier). Third, J-MM argues in the alternative that even if it is not entitled to a defense judgment, it is entitled to a new trial because the court abused its discretion in excluding certain exhibits from trial. We affirm.

BACKGROUND

Cornelius filed a complaint for personal injury against J-MM and several other defendants. Among other things, Cornelius asserted causes of action for negligence and strict liability, alleging he had been exposed to asbestos because Nathan "frequently and regularly worked with" asbestos-cement pipe manufactured, sold, supplied, and distributed by defendants while he was working for the East Bay Munici- pal Utilities District (EBMUD) from 1978 to 1988, and for Daly City from 1989 to 2011.

The negligence and strict liability causes of action proceeded to trial against only two defendants: J-MM and A.H. Voss Company (Voss). Voss sold asbestos cement pipe manufactured by Kubota from 1962 to 1975. J-MM sold asbestos-cement pipe from 1983 to 1988, after acquiring the assets of Johns-Manville’s domestic asbestos-cement pipe business.¹

At the close of presentation of evidence, J-MM and Voss filed motions for directed verdict. J-MM asked the trial court to grant a directed verdict on the issue of duty, relying on Kesner, where the California Supreme Court had limited an employer or property owner’s duty of care for negligence causes of action premised on secondary exposure to asbestos to members of an employee’s household. J-MM argued that the trial court should "similarly find that J-MM owes no legal duty" to Cornelius, because he was not a member of Nathan’s household during the alleged secondary exposure to asbestos.

The trial court dismissed the negligence cause of action, but not the strict liability cause of action. It explained: "With regard to the application of the Kesner case, to this case, the argument does have merit. But only part of the way home. [¶] The Kesner case neither says that it does not apply to product liability cases or to strict liability cases, nor does it say that it does apply to strict liability cases."

The jury found in favor of Cornelius on his remaining strict liability cause of action, awarding him $556,700 in economic damages and $2.14 million in non-economic damages. It apportioned 50 percent responsibility to J-MM, 20 percent to Voss, 10 percent to Johns Manville, and 20 percent to other manufacturers.

J-MM moved for judgment notwithstanding the verdict (JNOV) and, in the alternative, for a new trial, arguing that the trial court erred in its interpretation and application of Kesner to preclude only the negligence cause of action. The motion was denied. J-MM also moved to tax costs claimed by Cornelius.

J-MM appealed from the judgment and order denying its motion for JNOV, as well as the order on its motion to tax costs. The appeals were consolidated.² Voss also appealed, but subsequently notified this court that the parties were settling the matter and abandoned the appeal. After Cornelius’s death, Nathan was substituted as his successor-in-interest.

DISCUSSION

J-MM challenges the judgment on Cornelius’s strict liability cause of action in three respects. J-MM argues that (1) judgment must be entered in its favor because, under Kesner, strict liability does not apply to Cornelius; (2) the judgment must be reversed for lack of substantial evidence; or (3) a new trial is necessary because the trial court abused its discretion on certain evidentiary rulings. We address, and reject, each argument in turn.

I. Strict Liability

A. Framework and Standard of Review

[1, 2] We begin with the general framework for understanding Cornelius’s strict liability cause of action and the legal question presented in this appeal. California law recognizes strict liability as a theory under which plaintiffs may claim they were harmed by a defective product. (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181, 202 Cal.Rptr.3d 460, 370 P.3d 1022.) Strict liability can be asserted not only against the manufacturer of defective products, but also against distributors or sellers of defective products. (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 342, 135 Cal.Rptr.3d 288, 266 P.3d 987 ["California law has long provided that manufacturers, distributors, and retailers have a duty to ensure the safety of their products and will be held strictly liable for injuries caused by a defect in their products"].) Here, Cornelius asserted a strict liability cause of action against J-MM for selling asbestos-cement pipe.

[3–6] Strict liability may be invoked to allege three types of product defects: (1) manufacturing defects, (2) design defects, and (3) warning defects. (Webb, supra, 63 Cal.4th at p. 180, 202 Cal.Rptr.3d 460, 370 P.3d 1022.) "Manufacturing defects can arise, for example, when a flaw in the manufacturing process creates a product that differs from what the manufacturer intended." (Ibid.) "Design defects appear in products that, although properly manufactured, are dangerous because they lack a critical feature needed to ensure safe use." (Ibid.) Warning defects render a product " ‘dangerous because it lacks adequate warnings or instructions.’ " (Ibid.) Plaintiffs alleging product liability claims "often allege both design and warning defects." (Id. at p. 181, 202 Cal.Rptr.3d 460, 370 P.3d 1022.) That is what happened in this case; Cornelius alleged that asbestoscement pipe sold by J-MM had both design and warning defects.

[7, 8] For an alleged design defect, there are two alternative tests to prove liability: the consumer expectations test and the risk-benefit test. (Webb, supra, 63 Cal.4th at p. 180, 202 Cal.Rptr.3d 460, 370 P.3d 1022.) Here, Cornelius sought liability on his design defect claim under the consumer expectations test. To satisfy this test, Cornelius was required to prove that J-MM’s asbestos-cement pipe "fail[ed] to perform as safely as an ordinary consumer would expect" when used or misused in an intended or foreseeable way, and that the failure of the pipe to perform safely was a substantial factor in causing Cornelius’s harm. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418, 143 Cal.Rptr. 225, 573 P.2d 443; see also CACI No. 1203.)

[9] To establish his alleged warning defect claim, Cornelius was required to prove that J-MM’s asbestos-cement pipe had potential risks known or "knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution," that those potential risks presented substantial danger when the pipe was used or misused in an intended or reasonably foreseeable way, that ordinary consumers would not have recognized those potential risks, that J-MM failed to adequately warn of those potential risks, and that the lack of sufficient warning was a substantial factor in causing Cornelius’s harm. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002, 993, fn. 5, 281 Cal.Rptr. 528, 810 P.2d 549; see also CACI No. 1203.)

The judgment on special verdict makes clear that the jury concluded Cornelius had proven both that asbestos-cement pipe...