ANDERSON v. OWENS CORNING FIBERGLAS CORPORATION

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Court of Appeal, Second District, Division 4, California.

Carl ANDERSON, Plaintiff and Respondent, v. OWENS–CORNING FIBERGLAS CORPORATION, et al., Defendants and Appellants.

No. B034245.

Decided: January 30, 1990

Howarth & Smith, Don Howarth, Suzelle M. Smith, Barbara Gregg Glenn and Brian D. Bubb, Los Angeles, for defendants and appellants Fibreboard Corp., Owens–Illinois, Inc., Pittsburg–Corning Corp., Keene Corp., AC and S, Inc., Armstrong World Industries, GAF Corp. and Celotex Corp. Yusim, Stein & Hanger and Roger Bentley, Sherman Oaks, for defendant and appellant Eagle–Picher Industries, Inc. Stemple & Boyajian, David Kupfer and Peter Kunstler, Los Angeles, for plaintiff and respondent.

This is an appeal from an order granting a new trial following a defense verdict in a products liability case.   The primary issues on appeal are the propriety of a “state of the art” defense in a design defect case where no punitive damages are sought and the interrelationship of a failure-to-warn theory and a “state of the art” defense.   For reasons explained herein, we affirm the order granting a new trial.

Respondent Carl A. Anderson sued appellants Owens–Corning Fiberglas Corporation (hereinafter “OCF”), Eagle–Picher Industries, Inc. (hereinafter “EPI”), Fibreboard Corporation, Owens–Illinois, Inc., Pittsburgh–Corning Corporation, Keene Corporation, AC and S, Inc., Armstrong World Industries, GAF Corporation, Celotex Corporation, H.K. Porter Company, Inc. (hereinafter the “other” or “remaining” appellants) and others 1 alleging that he suffered asbestosis and other lung damage as a result of his exposure to asbestos in his capacity as an electrician at the Long Beach Naval Shipyard from 1941 to 1984.   Appellants were alleged to be engaged in the business of manufacturing, fabricating, designing, assembling, distributing, leasing, buying, selling, inspecting, servicing, repairing, marketing, warranting and advertising asbestos and products containing asbestos.   The complaint stated causes of action for negligence, breach of warranty, and strict liability.   Appellant prayed for general, special and punitive damages together with prejudgment interest.   Pursuant to stipulation entered at the time of trial, respondent proceeded only on his cause of action for strict liability and did not seek punitive damages.

Extensive motions in limine were made by all parties.   Among the motions which were granted were respondent's motion that appellants be precluded from presenting a “state of the art” defense 2 and appellants' motion that respondent be precluded from proceeding on a failure to warn theory.

Following a four-week trial, the jury returned a special verdict finding no defect in design of the products manufactured by the defendants.

Thereafter, the trial court granted respondent's motion for new trial on the grounds that (1) “[i]t was prejudicial error for the Court to consider the exclusion of ‘state of the art’ evidence as requiring the exclusion of ‘failure to warn’ evidence and preclude Plaintiff from going to the jury with this issue” and (2) “․ the evidence and common experience at this time puts beyond question the dangerous nature of asbestos as a product and its inherent defect as a product.   The jury's finding for the contrary is not supported by either the Defendants' or the Plaintiff's evidence.”

Although all appellants contend the court erred in granting the motion for new trial, their reasons for this assertion are not unanimous.   Therefore, specific contentions of the parties will be addressed in the discussion which follows.

I

 When the trial court ruled on respondent's motion to exclude state of the art evidence and appellants' related motion to exclude failure to warn evidence, there was no California case on point.   Case law from other jurisdictions demonstrated that appellants had fought this same battle over a period of years in many jurisdictions with varying results.

Some of the courts in which the issue was raised held that a manufacturer could not be held strictly liable for injuries caused by its product where generally recognized and prevailing scientific evidence had not made the association between injury and exposure to the product, and that state of the art evidence was therefore relevant and admissible.  (See, e.g., Lohrmann v. Pittsburgh Corning Corp. (4th Cir.1986) 782 F.2d 1156, 1164 [applying Maryland law];  Murphy v. Owens–Illinois, Inc. (6th Cir.1985) 779 F.2d 340, 342 [applying Tennessee law];  Bernier v. Raymark Industries, Inc. (Me.1986) 516 A.2d 534, 537–538 [Maine];  Steinfurth v. Armstrong World Industries (Ohio Com.Pl.1986) 27 Ohio Misc.2d 21, 500 N.E.2d 409, 411 [Ohio].)

Other jurisdictions held that “state of the art” evidence improperly injected an element of negligence into strict liability cases, and that the evidence was therefore irrelevant and inadmissible.  (See, e.g., Kisor v. Johns–Manville Corp. (9th Cir.1986) 783 F.2d 1337, 1341 [applying Washington law];  Hayes v. Ariens Co. (1984) 391 Mass. 407, 462 N.E.2d 273 [Massachusetts];  Elmore v. Owens–Illinois, Inc. (Mo. banc 1984) 673 S.W.2d 434, 438 [Missouri];  Johnson v. Raybestos–Manhattan, Inc. (1987) 69 Haw. 287, 740 P.2d 548, 549 [Hawaii];  Lockwood v. AC & S, Inc. (1986) 44 Wash.App. 330, 722 P.2d 826, 835–838, affd. (1987) 109 Wash.2d 235, 744 P.2d 605;  Beshada v. Johns–Manville Products Corp. (1982) 90 N.J. 191, 447 A.2d 539, 546–547.)

In September of 1988, five months after the notice of appeal was filed in this matter, the First District Court of Appeal filed its opinion in Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 251 Cal.Rptr. 805, in which it reviewed pretrial evidentiary rulings applicable to approximately 2,000 asbestos cases in Alameda County.  (Id., at pp. 1195–1196, 251 Cal.Rptr. 805.)3

Two of the issues raised in Vermeulen are relevant to the case before us:  (1) whether state of the art evidence is admissible where the plaintiff relies exclusively on a consumer expectation theory of liability 4 and does not seek punitive damages (204 Cal.App.3d at p. 1198, 251 Cal.Rptr. 805);  and (2) whether state of the art evidence is admissible where the plaintiff relies on a failure-to-warn theory of liability (204 Cal.App.3d at p. 1202, 251 Cal.Rptr. 805).

The Vermeulen court made no attempt to resolve the former issue.   The reasons given for this refusal were the inadequacy of the record 5 and the breadth of the prohibition sought by defendants.6

As to cases tried on a failure to warn theory, the court observed:  “[W]e are again confronted with a general evidentiary ruling which is to be applied to the entire spectrum of products and uses which may conceivably arise among these hundreds of cases․   However, this order is not exclusionary across the board—the ultimate decision is necessarily left to the trial court in each case.”  (Vermeulen v. Superior Court, supra, 204 Cal.App.3d at p. 1203, 251 Cal.Rptr. 805.)   For this reason the Vermeulen court concluded it “should deny the petition unless plaintiffs can demonstrate that such evidence is not admissible under any circumstance.”  (Ibid.)  Following some discussion of the issue, the court did, in fact, deny the petition.  (204 Cal.App.3d at p. 1206, 251 Cal.Rptr. 805.)   Thus, the most that can be said of Vermeulen on this issue is that it rejected the plaintiffs' contention that state of the art evidence is inadmissible under any and all circumstances in products liability cases tried on a failure to warn theory.

Nevertheless, Vermeulen contains the following statement:  “[W]e conclude that manufacturers may not be held strictly liable for failure to warn of risks of which they were unaware and could not have been aware by the reasonable application of scientific knowledge available at the time of distribution.   Consequently, ‘state of the art’ evidence may well be relevant and admissible in a failure to warn case․”  (204 Cal.App.3d at p. 1206, 251 Cal.Rptr. 805.)

For purposes of stare decisis, this statement leaves much to be desired.   First, there is the lack of predictability resulting from the use of the words “may well” and the corresponding lack of guidance as to the factual or legal predicate for admission or exclusion of the evidence.

More importantly, however, is the unfortunate, though not uncommon, commingling of strict liability and negligence language.   This confusion is evident throughout products liability law.   For example, comment k to section 402A of the Restatement Second of Torts7 provides that a producer of a properly manufactured prescription drug “may be held liable for injuries caused by the product only if it was not accompanied by a warning of dangers that the manufacturer knew or should have known about.”  (Brown v. Superior Court (1988) 44 Cal.3d 1049, 1058, 245 Cal.Rptr. 412, 751 P.2d 470.)   The California Supreme Court agrees with the general consensus of authorities that “although [comment k] purports to explain the strict liability doctrine, in fact the principle it states is based on negligence.  [Citations.]”  (Id., at p. 1059, 245 Cal.Rptr. 412, 751 P.2d 470.)

While some courts have been careful to distinguish between strict liability and liability for negligence in products actions (see, e.g., Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133, 104 Cal.Rptr. 433, 501 P.2d 1153 [in which the court rejected the “unreasonably dangerous” requirement of Restatement section 402A, explaining that to burden the injured plaintiff with proof of an element which rings of negligence would represent “a step backward in the area pioneered by this court.”] ), others have applied principles “borrowed from negligence” in cases employing strict liability rubric.  (See, e.g., Lee v. Electric Motor Division (1985) 169 Cal.App.3d 375, 387–388, 215 Cal.Rptr. 195.)

This “overlap” has caused at least one appellate court to “question the commonly assumed and often asserted proposition that in products liability cases failure to warn or inadequacy of a warning may be a basis for imposition of strict liability.”  (Emphasis in original.)  (Kearl v. Lederle Laboratories (1985) 172 Cal.App.3d 812, 831–832, 218 Cal.Rptr. 453, disapproved on other grounds in Brown v. Superior Court, supra, 44 Cal.3d at pp. 1068–1069, 245 Cal.Rptr. 412, 751 P.2d 470.)8

The distinction between negligence and strict liability was recently explained in Brown v. Superior Court, supra, 44 Cal.3d at page 1059, footnote 4, 245 Cal.Rptr. 412, 751 P.2d 470, as follows:  “The test stated in comment k is to be distinguished from strict liability for failure to warn.   Although both concepts identify failure to warn as the basis of liability, comment k imposes liability only if the manufacturer knew or should have known of the defect at the time the product was sold or distributed.   Under strict liability, the reason why the warning was not issued is irrelevant, and the manufacturer is liable even if it neither knew nor could have known of the defect about which the warning was required.   Thus, comment k, by focussing on the blameworthiness of the manufacturer, sets forth a test which sounds in negligence, while imposition of liability for failure to warn without regard to the reason for such failure is consistent with strict liability since it asks only whether the product that caused injury contained a defect.  [Citation.]”  (Emphasis added.)

It appears that the Vermeulen court failed to take this distinction into consideration when it stated that state of the art evidence “may be” admissible in the failure to warn strict liability cases which it reviewed.   Had it done so, its options would have been limited to two:  either the producer of a product containing asbestos, may, as a matter of public policy, be subject to strict liability for failure to warn of its risks, in which case a state of the art defense is irrelevant and inadmissible, or the plaintiff must prove negligence in which case the “knowability” of the defect is both essential to the plaintiff's case, and relevant in defense of the charges.

Finding no guidance in Vermeulen, we turn to the Brown decision.   In Brown v. Superior Court, supra, 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470, our Supreme Court held, for policy reasons, that drug manufacturers should not be subject to strict liability for failure to warn of unknown and unknowable risks inherent in a prescription drug.   Rather, it concluded, the test of liability in drug cases should be the negligence test set forth in comment k.  (44 Cal.3d at pp. 1061–1065, 245 Cal.Rptr. 412, 751 P.2d 470.)

Should this conclusion be applied to asbestos cases where the plaintiff proceeds on a failure to warn theory?   Appellants assert that it should, relying in part on the following language from Brown:  “It has been said that to ‘hold the manufacturer liable for failure to warn of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer the virtual insurer of the product․’  [Citations.]”  (44 Cal.3d at p. 1066, 245 Cal.Rptr. 412, 751 P.2d 470.)

Respondent counters that the holding of Brown “was expressly bottomed on considerations peculiar to the world of prescription drug manufacture” i.e., the necessity of such products, despite their risks or side effects, for the relief of pain and the preservation of life;  and that the public has no similar policy reasons to protect manufacturers of asbestos products.   We agree.

The decision to subject a producer of a defective product to strict liability, has, from its inception in the concurring opinion of Justice Roger Traynor in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 461, 150 P.2d 436, been a policy decision.   In Escola, a waitress was injured when a bottle of Coca Cola broke in her hand.   Her complaint alleged the negligent selling of bottles which were likely to explode.   At trial, plaintiff admitted she was unable to show any specific acts of negligence and “relied completely on the doctrine of res ipsa loquitur.”  (Id., at p. 457, 150 P.2d 436.)   The jury found for the plaintiff, and defendant appealed contending that the doctrine of res ipsa loquitur did not apply and that the evidence was insufficient to support the judgment.

The Supreme Court affirmed, concluding that the evidence was sufficient to support the inference that the bottle was in some manner defective when it left the defendant's control, that the defect which made the bottle unsound could have been discovered by reasonable and practicable tests, and for this reason there was no error in allowing plaintiff to rely on the doctrine of res ipsa loquitur.  (24 Cal.2d at pp. 459–461, 150 P.2d 436.)

Justice Traynor concurred in the judgment, but declared his belief that a “manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one.”  (24 Cal.2d at p. 461, 150 P.2d 436.)   He explained:  “The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, ․  It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence.   If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.”  (24 Cal.2d at pp. 462–463, 150 P.2d 436.)  (Emphasis added.)

Nineteen years later the California Supreme Court did precisely that when it adopted the concept in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897.   This judicially created liability arises from “the economic and social need for the protection of consumers in an increasingly complex and mechanized society, and because of the limitations in the negligence and warranty remedies.”  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 733, 144 Cal.Rptr. 380, 575 P.2d 1162.)   Liability is imposed to “insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”  (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897.)

Each decision in which the contours of strict products liability are more clearly defined is, of necessity, rooted in matters of policy.  (See, e.g., Becker v. IRM Corp. (1985) 38 Cal.3d 454, 463, 213 Cal.Rptr. 213, 698 P.2d 116 [real estate];  Fluor Corp. v. Jeppesen & Co. (1985) 170 Cal.App.3d 468, 475, 216 Cal.Rptr. 68 [airport instrument approach charts];  Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 84, 212 Cal.Rptr. 283 [metered electricity].)   Nothing in Brown suggests that this approach should be abandoned in failure to warn cases.9

The cases in which strict liability has been imposed against producers of products containing asbestos are legion.   The policy reasons invoked in these cases apply with full force to cases in which the plaintiff elects to pursue a failure to warn theory of defect.

Millions of workers have been exposed to asbestos, and thousands upon thousands of cases have been filed to recover for the injuries caused as a result of the exposure.  (Fischer v. Johns–Manville Corp. (1986) 103 N.J. 643, 512 A.2d 466, 477;  see Leonen v. Johns–Manville Corp. (D.N.J.1989) 717 F.Supp. 272, 282–285.)   The great number of reported appellate decisions reviewing various aspects of this litigation attests to the heavy toll which has been exacted not only from those who have been the direct victims of products containing asbestos, but from society at large by the producers and manufacturers of such products.

Many of the reported cases recount evidence supporting the conclusion that at least one such manufacturer, Johns–Manville Corporation, “ ‘had so much information on the hazards to asbestos workers as early as the mid–1930's and that it not only failed to use that information to protect these workers but, more egregiously, that it also attempted to withhold this information from the public․’ ”  (Fischer v. Johns–Manville Corp., supra, 512 A.2d at p. 476.)

Courts have attempted to manage the resulting deluge of litigation by various means.10  Some have forthrightly sought to prohibit relitigation of recurring issues such as the existence of a defect or the point at which the defect became “knowable,” thereby streamlining the fact-finding process.  (See Leonen v. Johns–Manville Corp., supra, 717 F.Supp. at p. 278.)   On at least one occasion counsel for appellant Celotex agreed that the jury be instructed “that an asbestos product without a warning is a defective product as a matter of law.”  (Campolongo v. Celotex Corp. (D.N.J.1988) 681 F.Supp. 261, 262.)

It is not unjust to prevent asbestos defendants from relying on a state of the art defense in strict liability failure to warn cases.   As we have discussed, a conduct-related state of the art defense is not a legitimate defense because under strict liability the reason why the warning was not given is irrelevant.   (Brown v. Superior Court, supra, 44 Cal.3d at p. 1059, 245 Cal.Rptr. 412, 751 P.2d 470.)   Additionally, the plaintiff in strict liability cases still bears the burden of proving that the product is defective and that the defective product was the proximate cause of the injury.11  Further, and most importantly, disallowing the state of the art defense will have a beneficial effect of implementing the policies which are the undergirding of strict liability in tort.   Such policies include the refusal to permit the manufacturer to define the scope of its own liability for defective products (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897), the decision to relieve plaintiff of the need to prove negligence (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 736, 144 Cal.Rptr. 380, 575 P.2d 1162), and public interest in discouraging the marketing of products having defects that are a menace to the public (Escola v. Coca Cola Bottling Co., supra, 24 Cal.2d at p. 462, 150 P.2d 436).

We therefore conclude that in strict liability asbestos cases, including those prosecuted on a failure to warn theory, state of the art evidence is not admissible since it focuses on the reasonableness of the defendant's conduct, which is irrelevant in strict liability.

It follows from our conclusion that the trial court properly granted respondent's motion for new trial on the ground that it erred in its ruling precluding respondent from proceeding on a failure to warn theory.12

II

 We also affirm the trial court's grant of new trial on the ground that there was no evidence in support of the jury's finding of no defect.

The declaration in support of the motion for new trial directed the court's attention to uncontroverted evidence that inhalation of microscopic asbestos fibers in sufficient quantities causes asbestosis and can also cause Mesothelioma, a form of cancer which results from no other known cause.   The motion also focused on uncontradicted evidence that neither plaintiff nor “any other person working with or around asbestos containing products had any expectation of developing ․ any disease ․ as a result of inhalation of asbestos dust and fibers while working with and around such products in the workplace.”

The opposition 13 contended, in relevant part, that the evidence supported the conclusion that one specific product was safe when used in a reasonably foreseeable manner, and that the evidence supported the reasonableinferences that plaintiff “expected a possible harmful effect from exposure to the dust in the ships and at the shipyard.” 14

The trial court ruled that “the evidence and common experience at this time15 puts beyond question the dangerous nature of asbestos as a product and its inherent defect as a product.   The jury's finding for the contrary is not supported by either the Defendants' or the Plaintiff's evidence.”

We reject appellant's contention that the trial court, in effect, took judicial notice that the products in question were defective.16  Although the first sentence of this portion of the order referred to both “evidence and common experience,” the next sentence clearly reveals that the trial court's reason for granting the motion was insufficiency of the evidence.   The two sentences, read together, reveal that the court was exercising its power as a thirteenth juror to weigh the evidence and draw reasonable inferences from the evidence.  (Dixon v. St. Francis Hotel Corp. (1969) 271 Cal.App.2d 739, 743, 77 Cal.Rptr. 201.)

The trial court, having seen and heard the evidence, is clearly in the best position to determine whether, under all the circumstances, justice demands a retrial, and the trial court's discretion in granting a new trial is seldom reversed.   The presumptions on appeal favor the order, and this court does not independently redetermine the question of whether an error was prejudicial.   Review is limited to the inquiry whether there was any support for the trial judge's ruling.17  The order will be reversed only on a strong affirmative showing of abuse of discretion.  (Richard v. Scott (1978) 79 Cal.App.3d 57, 64, 144 Cal.Rptr. 672.)   Abuse of discretion must be ‘manifest and unmistakable’ before an appellate court substitutes its view of a fair trial.  (Jones v. Sieve (1988) 203 Cal.App.3d 359, 365, 249 Cal.Rptr. 821.)  “An abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached under the theory expressed in the order for a new trial.   [Citations.]”  (Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 711, 106 Cal.Rptr. 28, 505 P.2d 220.)

Appellants concede that both sides “presented considerable evidence on the magnitude of risks and characteristics of the products involved.”   Although they claim “ample evidence” supports the jury's finding of no defect, this statement carries with it the implied admission that there was also evidence to the contrary.   Such evidence included, inter alia, the testimony of medical experts, who testified that plaintiff had a disease which was “most consistent with asbestos dust inhalation.” 18  This evidence provides the necessary “substantial basis” for the trial court's ruling because it supports the reasonable inference that the product failed to perform as safely as an ordinary customer would expect when used in an intended and reasonably foreseeable manner.19

 Finally, we reject the contention of appellant EPI that the order must be reversed because the trial court did not “briefly identify the portion of the records [sic] which convinces him that the jury clearly should have reached a different verdict.”   Although the reason given is tersely stated, “ ‘the trial judge is not necessarily required to cite page and line of the record, or discuss the testimony of particular witnesses,’ nor need he undertake ‘a discussion of the weight to be given, and the inferences to be drawn from each item of evidence supporting, or impeaching, the judgment.’   [Citation.]”  (Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 370, 90 Cal.Rptr. 592, 475 P.2d 864.)   All that is required is that the trial court furnish “ ‘a concise but clear statement of the reasons why he finds one or more of the grounds of the motion to be applicable to the case before him.   No hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.’ ”  (Ibid.)

Where, as here, the order provide a sufficient basis upon which to review the issue, the trial court has sufficiently, if not perfectly, performed its duty.  (Jones v. Citrus Motors Ontario, Inc., supra, 8 Cal.3d at pp. 710–711, 106 Cal.Rptr. 28, 505 P.2d 220.)

For all of the foregoing reasons, the order granting a new trial is affirmed.

I dissent.   The trial judge stated two grounds for granting the motion for new trial.   I turn to the second ground stated by the trial judge at the outset.   The second ground purports to deal with evidence received at the trial whereas the first ground deals with a legal theory of liability proffered by plaintiff and excluded by the trial court.   With respect to the second ground, the trial judge stated:  “(2) New trial is granted on the ground that the evidence and common experience at this time puts beyond question the dangerous nature of asbestos as a product and its inherent defect as a product.   The jury's finding for the contrary is not supported by either the defendant's or the plaintiff's evidence.   The issues to be decided were whether plaintiff had asbestosis or heart disease, proximate cause, exposure to defendant's products, and damages.   For the jury to find no product defect deprived both sides of any trial in the issues they were asking to be decided.”  (Emphasis added.)

In affirming the trial court's grant of the new trial motion, the majority has disposed of this second stated ground with the basic conclusion that the trial court was in the best position to determine if a new trial was warranted.   I agree that the trial court is in the best position to make such a determination, but I fail to find that the emphasized language, supra, makes any legal sense whatsoever.   What concerns me most is the language:  “common experience at this time puts beyond question the dangerous nature of asbestos as a product and its inherent defect as a product.”   A search of the trial record fails to disclose any rational basis for such a statement.   Does the term “at this time” relate to the period of time when respondent was allegedly exposed to asbestos?   Does it relate to the time of trial?   Does it relate to the date the trial judge was ruling on the new trial motion?

While I am aware that the whole field of products liability is enmeshed in complex legal principles, I do not feel a ruling as important as one which overturns a jury verdict can be grounded on a concept as unclear as the one stated by the trial court, supra.   It is true that the trial court followed this unclear statement with the sentence:  “The jury's finding for the contrary is not supported by either the defendant's or the plaintiff's evidence.”   This sentence does not clear up the mystery of what the trial judge had in mind when he ruled.

As the Court of Appeal observed in Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 438–439, 142 Cal.Rptr. 304, with regard to the order before it, conditionally granting a new trial:  “The trial court's stated ‘reason’ is little more than a reiteration of the ground of the ruling itself;  it is wholly conclusory and stated in terms of ‘ultimate fact.’   The trial court fails to cite the respects in which the plaintiff's evidence is legally inadequate.   There is no identification of the deficiencies which the trial court found in ‘the evidence,’ and in ‘the record,’ as opposed to merely in ‘the issues.’   [Citations.]   The specification of reasons must briefly identify the evidence or portion of the record which convinces the judge that the jury clearly should have reached a different verdict.  [Citation.]”  (Emphasis added.)

“When a new trial is granted, section 657 of the Code of Civil Procedure requires that the trial court specify the ground or grounds upon which the new trial is granted and the court's reason or reasons for granting the new trial upon each ground stated.  [Citations, including Mercer v. Perez (1968) 68 Cal.2d 104, 115–116, 65 Cal.Rptr. 315, 436 P.2d 315.)   In Mercer v. Perez, supra, the California Supreme Court ‘explained that the requirement of a specification of reasons served the two-fold purpose of encouraging careful deliberation by the trial court before ruling on a motion for new trial, and of making a record sufficiently precise to permit meaningful appellate review.  [Citations.]’ ”  (Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d at p. 437, 142 Cal.Rptr. 304, emphasis added.)

Thus, because of the inadequacy of the statement of reasons set forth by the trial judge in his second ground, the order granting the new trial should be reversed.

As his first ground for the granting of the motion for new trial, the trial court stated:  “(1) Plaintiff was erroneously precluded from presenting evidence of ‘failure to warn.’   It was prejudicial error for the court to consider the exclusion of ‘state of the art’ evidence as requiring the exclusion of ‘failure to warn’ evidence and preclude plaintiff from going to the jury with this issue.”

This ground is irrelevant after disposing of the second ground, supra.   The jury found that the product was not defective.   Thus, the lack of a “failure to warn” theory would not have affected the outcome of the trial, since the jury would not have reached that issue.

However, the majority contends that in this case a “failure to warn” theory was appropriate and that “state of the art” evidence by the defense should not be admissible.

Thus, the majority seeks to hold the defendants liable for failure to warn of a danger even if there was no knowledge based on the state of human knowledge at the time a given injury was incurred.   This would make the manufacturer “ ‘the virtual insurer of the product.’ ”  (Brown v. Superior Court (1988) 44 Cal.3d 1049, 1066, 245 Cal.Rptr. 412, 751 P.2d 470.)   In Brown, the California Supreme Court went on to hold that such a theory of liability was contrary to the tenets of the strict liability doctrine.

The majority attempts to distinguish the Brown case on the basis that it dealt with prescription drugs.

However, the case of Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 251 Cal.Rptr. 805, a case dealing with asbestos, has a clear and concise response to such a purported distinction.  At page 1206, 251 Cal.Rptr. 805, the Vermeulen court stated:  “Brown also cited comment j, and noted that most jurisdictions condition liability for failure to warn on the manufacturer's actual or constructive knowledge at the time the product was distributed.   In so ruling, Brown cited numerous cases which do not involve prescription drugs.  (Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173 [134 Cal.Rptr. 895];  Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930 [133 Cal.Rptr. 483];  Dosier v. Wilcox–Crittendon Co. (1975) 45 Cal.App.3d 74 [119 Cal.Rptr. 135];  Barth v. B.F. Goodrich Tire Co. [1968] 265 Cal.App.2d 228 [71 Cal.Rptr. 306];  Oakes v. E.I. Du Pont de Nemours & Co., Inc. [1969] 272 Cal.App.2d 645 [77 Cal.Rptr. 709];  Canifax v. Hercules Powder Co. [1965] 237 Cal.App.2d 44 [46 Cal.Rptr. 552].)  Brown also noted that the imposition of strict liability on a manufacturer for failure to warn of a risk which was not only unknown, but scientifically and technologically undiscoverable, was tantamount to making the manufacturer an insurer, a principle contrary to the tenets of the strict liability doctrine.  (See Daly v. General Motors Corp. [1978] 20 Cal.3d [725], 733 [144 Cal.Rptr. 380, 575 P.2d 1162].)   We therefore do not interpret Brown's analysis of the failure to warn issue to necessarily be limited to prescription drug cases.   The same rationale applies equally to other products.”

With respect to asbestos manufacturers, the majority points out that “Many of the reported cases recount evidence supporting the conclusion that at least one such manufacturer, Johns–Mansville Corporation, ‘ “had so much information on the hazards to asbestos workers as early as the mid–1930's and that it not only failed to use that information to protect these workers but, more egregiously, that it also attempted to withhold this information from the public․” ’ ”   This quoted language by the majority is from the case of Fischer v. Johns–Mansville, Corp. (1986) 103 N.J. 643, 512 A.2d 466, 477.

Inasmuch as the majority is in accord with the trial judge's ruling barring a “state of the art” defense, the Fischer case is irrelevant.   There appears to be no claim that any of the defendants in the case at bar had the same knowledge ascribed to Johns–Mansville Corporation in the 1986 Fischer case, supra, nor can we properly assume such knowledge on the part of the present defendants.   If such evidence did exist in the case at bar, however, one would think that the plaintiff would welcome a “state of the art” defense which they could then destroy with such explosive evidence of knowledge.

I also fail to see the relevance of the majority's comment that:  “Courts have attempted to manage the resulting deluge of litigation by various means.”   The cited footnote 10 then states:  “10.  The case before us provides one such example, it required 23 days of trial time resulting in over 3,400 pages of reporter's transcripts.”

The number of cases and the time consumed in litigating an issue such as a “state of the art” defense certainly is irrelevant to the admissibility or legal propriety of such an issue.

I am not unaware of the volume of asbestos cases nor am I insensitive to the damages that can flow from asbestos exposure.   But I feel that an asbestos manufacturer enjoys the same right to a fair trial that is accorded other litigants in civil and criminal cases.   If after litigation of all relevant issues a manufacturer is found liable for damages to a plaintiff, he should pay those damages.   In the case at bar, one of those relevant issues to be litigated is a “state of the art” defense.

The order granting the motion for new trial should be reversed, and the judgment for the defendants should be entered.

FOOTNOTES

1.   Among those named as defendants in the action was Raymark Industries, Inc.   As the result of a bankruptcy petition, all proceedings have been stayed as to Raymark.

2.   The moving papers explained that this defense “refers to the defense that the defendants did not, at relevant times, have scientific or medical knowledge of the hazardous propensity of the products which would have allowed them to know that their products were defectively designed or that consumers or end users needed to be warned of their hazards.  [¶] [I]t is an assertion by defendants that even those at the vanguard of scientific knowledge at the time the product was sold—those with ‘state of the art’ knowledge—could not have reasonably known that these products were defective.”  (Fn. omitted.)

3.   The appellate court had originally denied consolidated petitions of plaintiffs and defendants for writ of mandate due to the absence of an adequate record.   The Supreme Court, however, granted review of the defendants' petition and transferred the matter back to the appellate court with directions to issue an alternative writ in the interest of efficient management of the complex litigation.  (Vermeulen v. Superior Court, supra, 204 Cal.App.3d at p. 1196, 251 Cal.Rptr. 805.)Having thus been ordered to address the issues presented, the Vermeulen court did so reluctantly, complaining of the absence of an adequate record, the uncertainty of the scope of the underlying motions, the vagueness of the factual predicate of the motions, and the absence of a definition of “state of the art.”  (204 Cal.App.3d at pp. 1196, 1199, 1202–1203, 251 Cal.Rptr. 805.)

4.   Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432, 143 Cal.Rptr. 225, 573 P.2d 443, sets forth one definition of a design defect in a products liability case to be the failure of the product “to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.”

5.   The court explained that the order in question “does not define the sort of case or factual situation to which the consumer expectation theory will apply, nor does it limit or mandate its application.   Rather, it limits the sort of evidence which is admissible in those causes of action in which the plaintiff is entitled to and does rely solely upon such theory.”  (Vermeulen v. Superior Court, supra, 204 Cal.App.3d at p. 1199, 251 Cal.Rptr. 805.)

6.   The defendants challenged both the appropriateness of plaintiffs' use of the consumer expectation theory and the exclusion of state of the art defense in such cases “under any and all circumstances.”   (204 Cal.App.3d at p. 1199, 251 Cal.Rptr. 805;  emphasis in original)  The court rejected the challenge, stating:  “On the basis of this record, we cannot impose such broad prohibitions.”  (Ibid.)

7.   Restatement section 402A provides:  “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if [¶] (a) the seller is engaged in the business of selling such a product, and [¶] (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.  [¶] (2) The rule stated in Subsection (1) applied although [¶] (a) the seller has exercised all possible care in the preparation and sale of the product, and [¶] (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

8.   For a thoughtful treatment of “the point of confluence” of negligence and strict liability see Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, in which the California Supreme Court rejected “[f]ixed semantic consistency” (20 Cal.3d at p. 736, 144 Cal.Rptr. 380, 575 P.2d 1162) and observed that it is “more useful to examine the foundational reasons underlying the creation of strict products liability in California to ascertain whether the purposes of the doctrine [are being] defeated or diluted․”  (Ibid.)

9.   In fact, the Brown court used a policy analysis to conclude that drug manufacturers should not be held liable on a failure to warn theory of defect.   The court specifically stated that its decision on this issue was based on “reasons of policy” (44 Cal.3d at p. 1065, 245 Cal.Rptr. 412, 751 P.2d 470) including “whether the public interest would be served by the imposition of [strict] liability” (44 Cal.3d at p. 1062, 245 Cal.Rptr. 412, 751 P.2d 470), the “important distinction between prescription drugs and other products” (44 Cal.3d at p. 1063, 245 Cal.Rptr. 412, 751 P.2d 470), the public policy favoring “the development and marketing of beneficial new drugs, even though some risks, perhaps serious ones, might accompany their introduction” (44 Cal.3d at p. 1063, 245 Cal.Rptr. 412, 751 P.2d 470), the fear that drug manufacturers might, if subject to strict liability, be reluctant to develop some drugs due to the fear of large adverse judgments (ibid.), and the recognition that the additional expense of insuring against such liability might “place the cost of medication beyond the reach of those who need it most.”   (Ibid.)  The Vermeulen court's conclusion, with which the dissent concurs, that “[t]he same rationale applies equally to other products” lacks merit.  (204 Cal.App.3d at p. 1206, 251 Cal.Rptr. 805.)

10.   The case before us provides one such example, it required 23 days of trial time resulting in over 3,400 pages of reporter's transcripts.

11.   For this reason, the manufacturer does not become, as the dissent suggests, the absolute insurer of the product.  (Cronin v. J.B.E. Olson Corp., supra, 8 Cal.3d at pp. 133–134, 104 Cal.Rptr. 433, 501 P.2d 1153.)

12.   There is no merit to the assertion of some of the appellants that the motion should have been denied because certain limited evidence was admitted concerning the absence of warnings.   There was no objection to the evidence, the quantity of the evidence was trifling, and the court refused to instruct the jury on the theory.

13.   The opposition to the motion for new trial did not respond to plaintiff's assertions concerning insufficiency of the evidence.   The facts stated here are actually found in the opposition to plaintiff's concurrent motion for judgment notwithstanding the verdict.

14.   The opposition also contended that plaintiff “could not have had enough exposure to a Raybestos Manhattan product to cause the disease he was claiming he had,” and that plaintiff was not suffering from an asbestos related disease.

15.   The understanding of the meaning of the term “at this time,” raised by the dissent, was not raised by the parties.   Appellant EPI, the only party to discuss this aspect of the order, alleges that the trial court applied “hindsight” in making this statement.

16.   Even if one were to conclude, as does the dissent, that the trial, court erred in this regard, it does not follow that this case would be reversed.   The jury was not instructed on a failure-to-warn theory.   If it had been, it may well have concluded that the products “involve[d] a substantial danger that would not be readily recognized by the ordinary user” in the absence of an “adequate warning of such danger.”  (BAJI No. 9.00.7 (6th ed. 1981 pocket pt.).)

17.   For this reason, appellants' contention that substantial evidence supported the jury's verdict misses the point.   So, too, does the contention of appellant Eagle–Picher Industries, Inc., that respondent failed to demonstrate exposure to one of its products.   The jury did not resolve that issue, and we do not review it.

18.   The record supports respondent's assertion that two such medical experts were originally retained by appellants.

19.   This evidence also contradicts the dissent's claim that its search of the record fails to disclose any “rational basis” for the trial court's statement that “․ common experience at this time puts beyond question the dangerous nature of asbestos as a product and its inherent defect as a product.”  (Dis. opn. p. 213.)

ARLEIGH M. WOODS, Presiding Justice.

McCLOSKY, J., concurs.

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