RICHMOND v. GREEN INDUSTRIES INC (1998)

Court of Appeal, First District, Division 5, California.

Cassie RICHMOND, Plaintiff and Respondent, v. A.P. GREEN INDUSTRIES, INC., et al., Defendants and Appellants.

No. A071729.

Decided: September 15, 1998

Brayton Harley Curtis,Philip A. Harley, Novato, James L. Oberman, for Plaintiff/Respondent. Haight, Brown & Bonesteel, Roy G. Weatherup, Steven E. Moyer, Santa Monica, Lisa L. Oberg, San Francisco, Jon M. Kasimov, Caroline E. Chan, Santa Monica, Carrie Cappai Bauccio, San Francisco, for Defendants/Appellants. Wartnick, Chaber, Harowitz, Smith & Tigerman, Harry F. Wartnick, San Francisco, Law Office of Daniel U. Smith, Daniel U. Smith, Kentfield, Ted W. Pelletier, Amici Curiae on behalf of Respondent.

Defendants/appellants A.P. Green Industries, Inc. (Green), and Flexitallic, Inc. (Flexitallic), appeal a judgment by jury trial awarding plaintiff/respondent Kyle Richmond ² damages in his action for personal injuries from asbestos exposure.   Appellants present numerous assignments of error, principal among which is that the action was barred by the statute of limitations.

The California Supreme Court granted review of our original opinion in this case and remanded it with directions to vacate and reconsider in light of Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71 (Buttram ).  Buttram held that “a cause of action for damages arising from a latent and progressive disease such as asbestos-related pleural mesothelioma will be deemed to have ‘accrued’-thereby precluding retroactive application of Proposition 51 [ (Civ.Code, §§ 1431-1431.5) ] ․ if the plaintiff was diagnosed with the disease for which damages are being sought, or otherwise discovered his asbestos-related illness or injuries prior to June 4, 1986, the effective date of Proposition 51.”   (Buttram at p. 540, 66 Cal.Rptr.2d 438, 941 P.2d 71.)   Since respondent's disease was diagnosed after June 4, 1986, and not otherwise discovered prior to that date, Proposition 51 governs the apportionment of his noneconomic damages.

background

Between 1942 and his retirement in 1973 respondent worked as a welder in various shipyards, through which he was exposed to airborne asbestos fibers emanating from appellants' products, the inhalation of which resulted in lung damage.

In 1983 respondent brought an action for asbestos-related injuries against multiple specifically named and fictitious defendants, naming Flexitallic but not Green as a defendant.   In his 1983 action respondent alleged that he suffered from “asbestosis, other lung damage, and cancer” and “is dying” as a result of his asbestos exposure.   Both respondent and his wife, although she was not a party to the 1983 action, settled with several defendants, but there is no record of any settlement with Flexitallic, and it is undisputed that Green was never designated as one of the fictitiously named defendants.   The action was ultimately dismissed against the nonsettling defendants for failure to bring the case to trial within five years.  (§§ 583.310 & 583.360.)

In June 1994 respondent complained of shortness of breath and pain in his lungs, and tests revealed a tumor arising in a scarred area.   Subsequent exploratory surgery revealed cancer on the pleural lining of the lung and other abnormalities consistent with asbestos pleural disease.   In August 1994 the tumor was diagnosed as mesothelioma.

On October 11, 1994, respondent filed the present action, from which this appeal is taken, against numerous defendants including appellants, alleging “breathing difficulties, asbestosis, lung and/or other cancer, mesothelioma, and/or other lung damage.”   Respondent's wife was also a named plaintiff, alleging loss of consortium, but she subsequently dismissed her action.

By special verdict the jury found that (1) appellants did not act negligently;  (2) appellants' products were defectively designed;  (3) the defects were a cause of respondent's injuries;  (4) respondent's injuries were caused by a reasonably foreseeable use of the products;  (5) respondent did not contribute to his injuries;  and (6) respondent suffered appreciable harm before June 3, 1986, as a result of asbestos inhalation.

The jury awarded respondent $165,000 in economic damages and $115,000 in noneconomic damages, assessing liability against Green at 1 percent, Flexitallic at .5 percent, and “all others” at 98.5 percent.

discussion

I

 Buttram, supra, 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71, which precipitated the Supreme Court's transfer of our original opinion, did not address the pivotal issue in this case:  whether respondent's present action is barred by the statute of limitations because of his 1983 action.   We permitted the parties to file supplemental briefing on this issue, and affirm our previous conclusion that respondent's action is not time-barred.

Section 340.2, subdivision (a) provides that the time for commencing any action based on exposure to asbestos “shall be the later of the following:  [¶] (1) Within one year after the date the plaintiff first suffered disability.  [¶] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.”   Subdivision (b) defines “disability” as “loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation.”   Section 340.2 has been construed as open-ended for plaintiffs, such as retirees, who are not working when asbestos-related injuries first appear, because they have not sustained a disability as that term is statutorily defined.  (Duty v. Abex Corp. (1989) 214 Cal.App.3d 742, 748-753, 263 Cal.Rptr. 13 (Duty );  see also Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406, 1419, 28 Cal.Rptr.2d 751.)

Appellants cite Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 47 Cal.Rptr.2d 580 (Darden ) for the proposition that respondent's present action accrued when he filed his previous action in 1983, and therefore the present action is barred by the statute of limitations.   In Darden the plaintiff retiree filed an action in 1987 against General Motors and others for pulmonary fibrosis and asbestos-related pleural disease that was first diagnosed in 1986.   In June 1990 plaintiff settled with other defendants and dismissed his action without prejudice against General Motors, whom he had not served.   In June 1991 he filed a virtually identical complaint against General Motors.  Darden held the plaintiff's second action was time-barred under the one year statute of limitations in section 340.2.  “[W]hen an individual has already announced and pursued an asbestos-related personal injury claim with a prior lawsuit, and indeed in that suit has named but not served the very defendant then pursued at a much later date, that person does not escape the limitation of section 340.2.   Rather, the statute starts to run upon filing the first lawsuit.”  (Darden at p. 356, 47 Cal.Rptr.2d 580.)

Darden is distinguishable.   It concerned a second action against the same defendant for the same injury.   By contrast, appellant Green was not named in respondent's 1983 action, Flexitallic was never served with process therein, and the 1983 action involved nonmalignant lung disease, whereas the 1994 action involves a different injury-malignancy of the lungs.

Another authority cited by appellants, Barr v. ACandS, Inc. (1997) 57 Cal.App.4th 1038, 67 Cal.Rptr.2d 494 is also distinguishable.  Barr upheld a summary judgment in favor of the defendant on the ground the plaintiff's second action for asbestos-related cancer sought damages for the same cancer alleged in his first action.  (Id. at pp. 1054-1055, 67 Cal.Rptr.2d 494.)   Barr did not decide “the intriguing question” of whether the cancer alleged in the second action constituted a separate and distinct injury to which a separate limitations period applied because the plaintiff (a) admitted seeking damages for cancer in the first action, and (b) presented no evidence that the cancer allegation in his first action was mistaken or inadvertent.  (Id. at pp. 1055-1056, 67 Cal.Rptr.2d 494.)

 Appellants rely on respondent's 1983 unverified complaint in which respondent alleged he was suffering from cancer.   Allegations in a prior pleading constitute evidentiary admissions (Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061, 271 Cal.Rptr. 1), thereby placing the burden on the party contesting his prior allegations of producing evidence that they were “ ‘inadvertently made or were not authorized by him or made under mistake of fact.’ ”  (Ibid., quoting Dolinar v. Pedone (1944) 63 Cal.App.2d 169, 177, 146 P.2d 237, italics omitted.)

Respondent's medical experts testified that his mesothelioma was first discovered and diagnosed in August 1994, following his complaints in June 1994 that he was experiencing shortness of breath, and there is no contrary evidence.   This is sufficient to satisfy respondent's evidentiary burden.   Since respondent's complaint was filed within one year after his diagnosis of mesothelioma, it was timely if the mesothelioma gives rise to a separate cause of action.

 California follows the general rule of American jurisprudence that all claims arising from a single wrongful act must be asserted in a single cause of action, variously known as the primary right theory, single action rule, entire controversy doctrine, indivisibility of a cause of action doctrine, or single injury rule.  (See, respectively, Crowley v. Katleman (1994) 8 Cal.4th 666, 681, 34 Cal.Rptr.2d 386, 881 P.2d 1083;  Marinari v. Asbestos Corp., Ltd. (1992) 417 Pa.Super. 440, 612 A.2d 1021, 1027 (Marinari );  Devlin v. Johns-Manville Corp. (1985) 202 N.J.Super. 556, 568 [495 A.2d 495, 502] (Devlin );  Sheppard v. A.C. & S. Co. (Del.Super.1985) 498 A.2d 1126, 1134 (Sheppard );  Potts v. Celotex Corp. (Tenn.1990) 796 S.W.2d 678, 682 (Potts ).)   To assert any cause of action, however, the plaintiff in California, as in American jurisdictions generally, must be able to allege that the damages, including future consequences resulting from the defendant's wrongful act are certain.   A cause of action will not lie if the damages are only speculative.  (Larcher v. Wanless (1976) 18 Cal.3d 646, 656, fn. 11, 135 Cal.Rptr. 75, 557 P.2d 507;  Wilson v. Johns-Manville Sales Corp. (D.C.Cir.1982) 684 F.2d 111, 119 (Wilson );  Rest.2d Torts, § 910, com. a.)

The single action and certainty of damage rules are on a potential collision course in the case of injuries from asbestos exposure.   Courts in this state and nationally have accepted that inhalation of asbestos fibers may result in discrete diseases which, although caused by the same exposure, have distinct and separate pathologies.   Asbestos-caused diseases are generally divided into nonmalignant diseases, such as asbestos-related pleural disease and pulmonary asbestosis, and malignant diseases, such as lung cancer and mesothelioma.  (Marinari, supra, 612 A.2d at p. 1024.)   Courts have also recognized that the malignant diseases are not natural or probable progressions of the nonmalignant diseases.  (See e.g., General Foundry Service v. Workers' Comp. Appeals Bd. (1986) 42 Cal.3d 331, 336, 228 Cal.Rptr. 243, 721 P.2d 124;  Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co. (1996) 45 Cal.App.4th 1, 37, 52 Cal.Rptr.2d 690;  Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1990) 219 Cal.App.3d 1265, 1268, 268 Cal.Rptr. 699 (Chevron );  Marinari, supra, 612 A.2d at 1024;  Potts, supra, 796 S.W.2d at p. 684;  Fusaro v. Porter-Hayden Co. (1989) 145 Misc.2d 911, 916 [548 N.Y.S.2d 856, 859];  Mauro v. Raymark Industries, Inc. (1989) 116 N.J. 126, 143-144 [561 A.2d 257, 267] (Mauro );  Hagerty v. L & L Marine Services, Inc. (5th Cir.1986) 788 F.2d 315, 320 (Hagerty );  Devlin, supra, 495 A.2d at p. 502;  Eagle-Picher Industries, Inc. v. Cox (Fla.Dist.Ct.App.1985) 481 So.2d 517, 522 (Eagle-Picher );  Sheppard, supra, 498 A.2d at p. 1128;  Smith v. Bethlehem Steel Corp. (1985) 303 Md. 213, 232 [492 A.2d 1286, 1295];  Jackson v. Johns-Manville Sales Corp. (5th Cir.1984) 727 F.2d 506, 520 (Jackson );  Wilson, supra, 684 F.2d at p. 117.) ³  In short, there is no medical certainty that a person diagnosed with asbestosis will subsequently develop mesothelioma.

If the single action rule is strictly enforced against a person who is suffering only from asbestosis, he is confronted with a Hobson's choice.   He can bring an action seeking compensation for his asbestosis, gambling that he will not contract a malignant disease in the future or, more morbidly, that if he does the malignancy will occur within the five years allowed to bring an action to trial.  (§§ 583.310, 583.420.)   Alternatively, he can forego an action for his certain and disabling present asbestosis injuries, even though compensation would alleviate attendant medical expenses and other related losses, out of fear that his need for such compensation will be greater if and when he develops one of the more disabling malignancies.

To remedy this dilemma, other jurisdictions, all of which have historically observed the principle of the primary right theory, are increasingly holding that each disease resulting from asbestos exposure triggers a new statute of limitations and new cause of action.   In Delaware, for example, the court held that a plaintiff was on sufficient notice in January 1980 that his bilateral pleural thickening was caused by asbestos exposure.   Delaware has a two-year personal injury statute of limitations, so plaintiff's action filed in December 1982 was untimely as to that ailment.   However, his action was not untimely as to his asbestosis which was not diagnosed until May 1982.   The Delaware court recognized that the doctrine of indivisibility of a cause of action works an injustice upon “the plaintiff who suffers a series of asbestos-related diseases over time as a result of the life-consuming maturation of the harm from asbestos exposure․  The Court is satisfied that latent disease cases justify a change in our perception and application of the statute of limitations to the end that a plaintiff with the misfortune of contracting more than one asbestos-related ailment over a long period of time not be without a remedy for the later and generally more serious and inherently unknowable claims.”   (Sheppard, supra, 498 A.2d at p. 1134.)

Similarly, Pennsylvania, confronted with “whether Pennsylvania, in the context of asbestos actions, shall be a one-disease or two-disease state,” concluded it “must join a majority of jurisdictions which have adopted a ‘separate disease’ rule in asbestos exposure actions.”  (Marinari, supra, 612 A.2d at 1022.)   Therefore, it held that the plaintiff's discovery of a nonmalignant, asbestos-related lung disease, which triggered the statute of limitations in 1983 for a personal injury action he could have but did not pursue, did not trigger the statute of limitations for lung cancer which was not diagnosed until 1987.  (Ibid.)

The “separate disease” cases have often arisen in the context of plaintiffs who are presently suffering from a nonmalignant asbestos (or other toxic exposure) disease and, in addition to damages for that injury, seek damages for their increased risk of developing a malignant disease.   The courts have generally held that such plaintiffs may not recover for increased risk because they will not be barred by the single action rule from bringing a second action for the later-manifesting disease if and when they actually contract it.  (See, e.g., Hagerty, supra, 788 F.2d at pp. 320-321 [Jones Act];  Jackson, supra, 727 F.2d at p. 520 [applying Mississippi law];  Eagle-Picher, supra, 481 So.2d at p. 520;  Mauro, supra, 561 A.2d at p. 266.)   Alternatively, cases have generally held that “increased risk” damages are available only upon a showing of a reasonable medical probability that the prospective disease will occur.  (See Mauro at pp. 264-265 and cases cited therein.)

The rationale of these cases that the traditional single action rule is inappropriate to the circumstances peculiar to injuries from asbestos exposure serves to advance the remedial purpose of section 340.2.   Prior to the enactment of section 340.2, persons injured from exposure to asbestos were limited to one year from the time of the wrongful act to file a personal injury action.  (§ 340, subd. (3).)  To “ameliorate the harsh application of the one-year statute in cases involving latent occupational diseases courts began to apply a ‘discovery rule,’ holding that the statute did not begin to run until the plaintiff discovered or should have discovered his disease․  [C]laims for asbestos-caused injury were held to have accrued for purposes of section 340, subdivision (3) when the plaintiff knew ․ ‘that he was suffering from a disease that had caused or was likely to cause him injury for which relief could be sought at law.’ ”  (Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 105, 200 Cal.Rptr. 52 (Blakey ), quoting Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 887-888, 159 Cal.Rptr. 113, italics added.)   Section 340.2 effectively codified the Velasquez discovery rule (id. at p. 106, 200 Cal.Rptr. 52), the corollary of which is that an action for asbestos exposure injuries does not accrue until the plaintiff discovers he is suffering from an asbestos-related disease.   Since mesothelioma is neither the same disease as asbestosis nor a certain complication thereof, it follows from the Velasquez rule that an action for mesothelioma cannot accrue until the plaintiff discovers he is suffering therefrom, even if a cause of action for asbestosis has accrued.

 The primary goal of statutory construction is to effectuate the statute's purpose.  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   The declared purpose of section 340.2 is to afford victims of asbestos exposure the opportunity to seek compensation for injuries which are manifested years after the exposure.   (Blakey, supra, 153 Cal.App.3d at p. 105, 200 Cal.Rptr. 52.)   That purpose can be most fully effectuated by construing independent diseases as provoking independent causes of action, and the language of the statute does not preclude such a construction.

This conclusion is supported by analogy to claims under the workers' compensation scheme, an issue we addressed in Chevron, supra, 219 Cal.App.3d 1265, 268 Cal.Rptr. 699.   In 1976 the applicant in Chevron was diagnosed with asbestosis and received a permanent disability award therefor.   In 1987 he was diagnosed with mesothelioma from the same asbestos exposure.   He died three months later, and his widow claimed death benefits on the ground the mesothelioma was the result of occupational asbestos exposure.  (Id. at p. 1268-1269, 268 Cal.Rptr. 699.)   We concluded that the date of injury for calculating death benefits was the date of the applicant's mesothelioma diagnosis, not, as the employer argued, the date of his asbestosis diagnosis.   Under workers' compensation law, the fact of injury (exposure) and the date of injury (disability) are not the same in latent disease cases.   Consequently, the fact of injury may result in more than one date of injury because exposure can cause different disease processes which manifest themselves at different times.  (Id. at p. 1271, 268 Cal.Rptr. 699.)   Notwithstanding the different purposes of the workers compensation scheme and civil tort litigation (see Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 914, 75 Cal.Rptr. 544), the principle of allowing separate compensation claims for discrete diseases that are manifested at different times is the same as characterizing those discrete diseases as different causes of action for accrual purposes.

 Like statutes of limitations, the single action rule was designed to protect defendants from stale claims, to require plaintiffs to pursue their claims diligently, and to promote judicial economy.   It is an aspect of the doctrine of res judicata, which requires the plaintiff to raise all available claims in one action and precludes subjecting the defendant to a successive action for the same conduct in order to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication by preventing inconsistent decisions.  (Allen v. McCurry (1980) 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308;  see also 7 Witkin, Cal. Procedure (4th ed.   1997) Judgment, § 343, 347, pp. 900, 905.)   It is neatly applied to a snapshot tort, i.e., a single, identifiable act which causes an immediate, traumatic injury with known or reasonably anticipated repercussions.  (See Buttram, supra, 16 Cal.4th at p. 529, 66 Cal.Rptr.2d 438, 941 P.2d 71;  Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112, 245 Cal.Rptr. 658, 751 P.2d 923 (Jolly );  Wulfjen v. Dolton (1944) 24 Cal.2d 891, 895, 151 P.2d 840 (Wulfjen );  Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316, 324, 164 Cal.Rptr. 591.)   The rule does not contemplate the situation where injuries result from a continuous process of multiple exposures to a variety of asbestos products, manufactured or used by a range of defendants;  where the exposures occurred at a series of sites;  where there may be a lengthy temporal separation not only between the wrongful conduct and the resulting injuries, but between the injuries themselves;  and where it is impossible to determine which specific exposure caused the disease or, as here, multiple diseases.

Therefore, the undeniable value of the single action rule must be balanced against such other considerations as the moral blame attached to the defendant's conduct and the injury suffered, the prevention of future harm, the extent of the burden to the defendant and consequences to the community, and the availability and cost of insuring against the risk.  (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561;  see also Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 611, 163 Cal.Rptr. 132, 607 P.2d 924.)   As our Supreme Court stated in the context of medicines whose deleterious effect, like exposure to asbestos, is not seen for years after their use, “In our contemporary complex industrialized society, ․ [t]he response of the courts [to advances in science and medicine] can be either to adhere rigidly to prior doctrine, denying recovery to those injured by such products, or to fashion remedies to meet these changing needs.”   (Sindell at p. 610, 163 Cal.Rptr. 132, 607 P.2d 924.)   To that end courts in product liability cases developed such remedies as delayed discovery and market share liability.  (See Jolly, supra, 44 Cal.3d at p. 1109, 245 Cal.Rptr. 658, 751 P.2d 923;  Sindell at pp. 612-613, 163 Cal.Rptr. 132, 607 P.2d 924).   Such remedies endorse the broad public policies that the interest of justice in vindicating the injured party's rights must in some cases outweigh procedural rules favoring the defendant (Burnett v. New York Central R. Co. (1965) 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941), and that a negligent defendant is responsible for and should bear the cost of an innocent plaintiff's injury “occasioned ․ by his want of ordinary care or skill in the management of his property․”  (Civ.Code, § 1714, subd. (a);  Sindell at pp. 610-611, 163 Cal.Rptr. 132, 607 P.2d 924.)

Similarly, these public policies necessitate a more generous construction of the single action rule in the case of injuries from asbestos exposure than appellants would give.   The Restatement Second of Judgments acknowledges that where the “plaintiff was unable to ․ seek a certain ․ form of relief in the first action because of ․ restrictions on [the court's] authority to entertain ․ demands for ․ forms of relief in a single action, and the plaintiff desires in the second action to ․ seek that form ․ of relief;” or where “it is the sense of the [statutory] scheme that the plaintiff should be permitted to split his claim;” or where it “is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason,” an exception to the general rule against splitting causes should obtain.  (Rest.2d Judgments, § 26, subd. (1)(c), (d) & (f).)

Construing discrete asbestos diseases as separate causes of action in California becomes even more compelling in light of Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (Potter ).  Potter held that damages for the fear of developing cancer following toxic exposure are available only upon a showing that the fear “stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure.”  (Id. at 997, 25 Cal.Rptr.2d 550, 863 P.2d 795.)   If the traditional single action rule is strictly applied to asbestos diseases, plaintiffs who find it necessary to seek relief for nonmalignant asbestos injuries will not only be precluded from seeking future damages should the malignant disease occur, they are also precluded from damages for emotional distress due to their fear of contracting cancer.

Potter's rationale for limiting emotional distress damages is based on the public policy considerations of (1) the “tremendous societal cost” of allowing emotional distress compensation to a potentially unrestricted class;  (2) the unduly detrimental impact on the health care field;  (3) the potential for inadequate compensation available for those who sustain actual physical injury and ultimately develop cancer if all fear-of-cancer plaintiffs are allowed recovery;  (4) the establishment of a sufficiently definite and predictable threshold to allow consistency of recovery;  and (5) the sometime necessity of limiting the class of potential plaintiffs if emotional injury absent physical harm is to continue as a recoverable item of damage in a negligence action.  (Id. at pp. 991-993, 25 Cal.Rptr.2d 550, 863 P.2d 795.)

Although the Potter plaintiffs were not suffering any physical ailments when they filed their action, its rationale is reminiscent of that in the aforementioned sister states for precluding or limiting “increased risk” damages to plaintiffs presently suffering a nonmalignant disease.   As these states emphasize, however, the limitation is fair only because, should the plaintiffs later contract a malignant disease, they will have recourse in the courts.

Allowing separate causes of action for discrete asbestos exposure diseases does not violate the underlying rationale against splitting causes of action-protection against vexatious litigation and assertion of claims that should have been settled in a prior action.  (Wulfjen, supra, 24 Cal.2d at p. 894, 151 P.2d 846.)   Vexatious litigation is generally defined as litigation that is meritless or designed solely for delay or harassment.  (§ 128.5.)   A second action for an asbestos exposure injury that did not exist when the first action was filed, and could not reasonably have been anticipated as a progression of the injuries that prompted the first action, cannot be characterized as vexatious.

As to the judicial economy prong of the single action rule, plaintiffs can resolve only those claims they have grounds to assert.   Until the plaintiff discovers the presence of a malignant disease, he has no medical basis to claim it as damages in an action for nonmalignant asbestos injuries.   Moreover, the legitimate concern of stale claims and lackadaisical plaintiffs is not present in discrete injuries from asbestos exposure.  “Key issues to be litigated in a latent disease case are the existence of the disease, its proximate cause, and the resultant damage.  [Unlike traditional personal injuries, e]vidence relating to these issues tends to develop, rather than disappear, as time passes.”  (Wilson, supra, 684 F.2d at 119.)

Any concerns that permitting separate actions for discrete asbestos exposure diseases would release floodgates of litigation are not well-founded.   Asbestos has not been used in the marketplace for some time and the average age of workers exposed to asbestos is rapidly increasing, thereby resulting in a diminishing number of new filings.   In addition, most cases result in settlements, and virtually all the asbestos releases we see, including those in the present record, contain waivers of any further claims against the defendant (see Civ.Code, § 1542), not only for malignant diseases, but also releases from the plaintiffs' spouses for wrongful death and loss of present and future consortium, thus protecting defendants from future litigation.

 Given the weight of authority from other jurisdictions, the remedial purpose of section 340.2, and the distinct pathologies of asbestos exposure injuries that make the purpose of the protective single action and res judicata doctrines largely inapplicable, we remain convinced that as a general rule, discrete asbestos injuries may give rise to separate actions.   In any tort action, the plaintiff has an interest in obtaining at least adequate compensation, and the defendant has an interest in paying no more than that.   “Integrating these two, the community seeks to advance, through the system of adjudication, relief that will sufficiently, but not excessively, compensate persons for injuries occasioned by the tortious acts of others.”  (Wilson, supra, 684 F.2d at p. 119.)   If injured parties are not permitted to bring separate actions for asbestos exposure diseases that are distinct and manifested at different times, they are denied the opportunity for adequate compensation.

 In this case, the rule is readily applied to appellant Green.   It cannot assert claim preclusion because it was never a party to respondent's 1983 action.   It cannot assert issue preclusion because the issue of whether decedent had mesothelioma or any other malignant disease was never litigated in the 1983 action.  (See Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439.)   It cannot assert a statute of limitations bar because respondent's 1994 action sought damages for a disease which neither existed in 1983 nor would with reasonable probability occur.

 Appellant Flexitallic's position differs from Green's because it was a named, but not served, party in the 1983 action.   Nevertheless, the policies of repose and judicial economy favoring a defendant are not violated by permitting a second action against it.   First, it does not, nor can it, assert a res judicata defense because the 1983 claim against it was apparently dismissed for lack of prosecution, and hence not resolved on the merits.  (See Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298, 263 Cal.Rptr. 195.)   Second, for the same reasons applicable to Green, it cannot assert a collateral estoppel defense.   Finally, it cannot complain of staleness as to the claim of mesothelioma, because it was promptly sued after respondent was diagnosed with that disease, and respondent met his evidentiary burden of showing that the 1983 allegation of cancer was mistaken.

II *

disposition

The judgment is modified to provide that appellants are jointly liable to respondent for $114,219 in economic damages;  A.P. Green is separately liable for $1,150 in noneconomic damages;  and Flexitallic is separately liable for $575 in noneconomic damages.   Except as modified, the judgment is affirmed.

The parties shall bear their own costs on appeal.

FOOTNOTES

2.   Kyle Richmond died pending appeal.   His widow, Cassie Richmond, has been substituted as his successor-in-interest.  (Code Civ. Proc., § 377.32.)   However, for clarity we refer to respondent by the masculine pronoun.All section references are to the Code of Civil Procedure.

3.   These cases indicate that persons exposed to asbestos tend, like respondent, to contract asbestosis at least several years before contracting one of the more lethal malignant diseases.

FOOTNOTE.   See footnote 1, ante.

HANING, Associate Justice.

JONES, P.J., and PETERSON, J.,** concur.