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Plaintiffs and Respondents,



Defendant and Appellant.





(San Francisco County

Super. Ct. No. 438144)



Defendant Asbestos Corporation, Limited, (“ACL”) appeals a jury verdict in favor of plaintiffs Joseph and Mary Garza on their complaint for damages for personal injury and loss of consortium filed after Joseph contracted asbestosis. We affirm.

Procedural Background

On January 26, 2005, plaintiffs filed their complaint for personal injury and loss of consortium alleging that Joseph’s exposure to asbestos and asbestos-containing products caused him severe and permanent lung damage, as well as increased risk and fear of developing mesothelioma and lung cancer. According to the complaint, Joseph was diagnosed with asbestosis and asbestos-related pleural disease in May 2004. The complaint included causes of action for negligence and strict liability.

ACL filed an answer to the complaint on February 22, 2006, including notice of its request for trial by jury pursuant to Code of Civil Procedure, section 631. ACL denied the allegations of the complaint and listed various “affirmative defenses,” including one stating that “because all sales by this answering defendant were F.O.B. Quebec, Canada, this Court lacks personal jurisdiction over this defendant.” On June 14, 2006, ACL appeared at a pre-trial conference, after which the court continued the matter to June 19 and ordered parties to file any motions in limine by that date.

One of ACL’s various motions in limine filed on June 15, 2006, was styled: “Defendant Asbestos Corporation Ltd.’s Motion in Limine to preclude the exercise of personal jurisdiction (Motion in Limine No. 1).” ACL argued it was a Quebec company that had not consented to jurisdiction, was not physically present in California, and lacked sufficient contact with the state for the court to assume either general or limited jurisdiction over it. Plaintiffs opposed the motion, asserting among other things that ACL had consented to jurisdiction by making a general appearance. On June 20, 2006, the trial court denied without comment ACL’s motion in limine regarding personal jurisdiction.

The jury heard opening statements from counsel on June 23, 2006. The trial court instructed the jury under California law on theories of negligence as well as strict liability based on both defective design and failure to warn. The trial court also instructed the jury on economic, non-economic and punitive damages. Counsel delivered closing arguments on the morning of July 6, 2006. The following morning the jury returned a special verdict in favor of plaintiffs on all allegations. The jury found that ACL sold a product that did not perform as safely as an ordinary consumer would have expected, that the use was both reasonably foreseeable and a substantial factor in causing injury to Joseph Garza, and that the risks of its use were known or knowable to ACL at the time it sold the asbestos. The jury also found that ACL failed to adequately warn about the risks of asbestos fibers and that ordinary consumers would not have recognized those potential risks. The jury also found that ACL negligent and that its negligence was a substantial factor in causing harm to Joseph Garza.

The jury awarded damages to Joseph Garza as follows: $127,294 in past and $325,000 in future medical expenses; $66,700 in future lost earning capacity; $21,000 in past and $139,000 in future loss of household services; and $500,000 in non-economic damages. The jury also determined that Mary Garza suffered damages in the amount of $400,000 for loss of consortium. The jury allocated 75% of liability to ACL and 25% to all others, and also found by clear and convincing evidence that ACL acted with malice or oppression. Based on the jury’s finding of malice, the trial proceeded to a separate phase on punitive damages. At the conclusion of the punitive damages phase, the jury returned a verdict of $10 million in punitive damages. On December 4, 2006, the trial court denied ACL’s motion for judgment notwithstanding the verdict and its motion for a new trial on the grounds they “lack[] substantive merit.” ACL filed a notice of appeal on December 4, 2006, stating it appealed “the judgment filed and entered on August 8, 2005.” On January 10, 2007, ACL filed its Amended Notice of Appeal from Judgment and Post-Judgment Orders to include appeal not only from the judgment but also from the orders denying its motion for judgment notwithstanding the verdict and its motion for new trial.

Factual Background

Evidence adduced at trial concerning Joseph Garza’s asbestos-related disease and ACL’s asbestos product was as follows: Joseph Garza testified that he was born in Mercedes, Texas, in August 1930, and lived in the Rio Grande Valley until he was 17 years old. Garza joined the U.S. Navy when he was almost 18 years old, and after boot camp training he was posted to the aircraft carrier USS Antietam. Onboard the Antietam, Garza was assigned as a fireman apprentice. After a short spell on the Antietam, Garza was assigned to the troop carrier and cargo ship, USS Randall, which was undergoing repairs at Hunters Point shipyard in San Francisco. Garza served as fireman first class on board the Randall for about 18 months and then was promoted to the rank of boiler man, third class petty officer. Garza served on the Randall for five or six years and attained the rank of petty officer second class. The insulation in the boiler rooms was in poor condition when Garza arrived on board the Randall, and required a lot of repair work to get the boilers back into top shape. This entailed lagging the pipes and sealing the joints and flanges where lagging could not be applied with a type of adhesive cement. The cement material came either in buckets premixed, or in bags which had to be mixed, and it was applied by hand with a putty knife or trowel. The material in the bags was mixed with water in a 5-gallon bucket by hand using a stick or whatever else was handy. There was always dust thrown up when the bags were opened and emptied into the bucket. The dust got on Garza’s clothing and into his hair. He was never given any respiratory protection while doing this work. Garza and his crewmates wore their dust-covered clothing back in their berthing compartment and sometimes wore the same clothes on multiple shifts. After any repair to the piping insulation, Garza and his crewmates cleaned up insulation debris using brooms and foxtails and there was always dust in the air while they were doing this. After Garza left the Randell in about 1955, he went to the destroyer USS Agerholm. He worked on board the Agerholm as boiler man second class for about eighteen months. Garza was in charge of number 2 boiler room, with a crew of about a dozen seamen. The work he did on board the Agerholm was similar to what he did on the Randall, working with piping insulation and adhesive cements. Conditions were more cramped on the Agerholm and ventilation was much poorer. Garza never wore respiratory protection on board the Agerholm and as on the Randall, his clothes and hair would get covered in dust from the materials and debris he worked with. Garza identified a product known as Eagle-Pitcher Super 66, which he used all the time for insulation repairs aboard the Randall and the Agerholm. Each boiler room on the ships always had at least a bag of Super 66 available.

After Garza left the Navy in 1957, he worked for Westinghouse between 1957 and 1973. He started with the company testing hydraulic and hydrostatic components and the integrity of materials for use in turbines and other marine equipment. About six times per year, Garza would have to assemble the steam lines for testing equipment and during this process the insulation on the pipes was disturbed and gave off dust. At Westinghouse, as well as in the Navy, Garza worked with another type of insulation called rope packing, a fiber material that looks like rope which can be used wet or dry to insulate hard to reach areas. Packing pullers, a corkscrew-type implement, was used to remove rope packing, which sometimes came out in pieces. Garza never wore respiratory protection at Westinghouse. After Garza left Westinghouse in 1973, he had various jobs involving contact with insulation materials until he retired in 1993 at age 63. These included spells with Basapan at Moffet Field as a boiler operator, where he handled the same type of insulation materials he worked with on the ships and also refurbished boilers completely, which involved tearing out brick, mortar, and insulation blocks from inside the boiler firebox, a small 5-foot by 7-foot area. In 1978 the family moved to Willits, and after that Garza worked as a maintenance mechanic for Microphor, where he hung drywall and sanded drywall compound in a project. From around 1980-81 to about 1900-1991 he commuted weekly to the Bay Area to work for Varian Associates in Palo Alto as a building maintenance mechanic. Varian manufactured electron tubes. At Varian, he may have been exposed to asbestos while working in the attic among the insulated pipes. These pipes were deteriorating and giving off dust until Varian had a company “encapsulate” the insulation by spraying it with adhesive. For about six months while he was with Varian, Garza held a second job as a maintenance mechanic with Certainteed, a company that made fiber cement pipes. On three occasions, Garza actually had to go into the silos to repair the augers, where he worked “up to his knees” in fiber of some sort.

Between his retirement in 1993 and 2000, Garza spent his time working around the house and gardening. In 2000, Garza and his wife move from Willits, California, to Colorado to be near their daughter and her husband, and “enjoy life out there in the mountains.” When he first moved to Colorado, Garza was not experiencing any breathing problems. His wife Mary was also very active and did a lot of needlepoint and other home crafts Mary, however, developed health problems: She had part of an intestine removed, a cyst that had to be removed, then she developed diabetes and began to lose the use of her legs. For the last few years, Mary has been almost completely dependent on Garza for her daily needs.

Garza first had serious trouble breathing in 2003. Dr. Peter Holt ordered x-rays and blood tests before diagnosing Garza with asbestosis. Before that time, Garza had always been healthy, had never been hospitalized or had surgery, and had “never been down because of sickness other than having a slight cold or cough of that nature.” Since he was diagnosed with asbestosis, Garza has been taking a series of medications, including steroids, to help him breath as well as pain killers for pain in the left lower quadrant of his lung. At first, Garza took a mild pain killer but the dosage has increased over time. Garza also takes a mild tranquilizer “to take the edge off” when he gets upset about not being able to do things he’s always done, like gardening, mowing the lawn, and playing with his grandkids. For over two years, Garza has been using an oxygen unit to assist his breathing. Now, Garza said he can walk only about half a block, can’t do even small things without getting exhausted, and his view of the future is “bleak.” His condition is irreversible and what worries him most is his decreasing ability to take care of his wife and he worries who’ll look after her when he’s gone. He and his wife have talked about that and his wife is concerned and worries about what is going to happen. Garza agreed with an estimate that put him at 65% disabled in February 2005, increasing to 80% disabled today.

The deposition testimony of Robert Bockstahler, deceased, was read to the jury. Bockstahler’s deposition was taken on November 2, 1995, in the San Francisco actions. Bockstahler worked for Eagle-Pitcher Industries of Cincinnati, Ohio, from October 1955 until July 1991, when he took early retirement from his position as Director of Claims after the firm went into bankruptcy. In December 1966, Bockstahler became the general sales manager for the unit of the company that sold industrial insulation products. In that capacity, Bockstahler was familiar with the manufacturing process for asbestos containing cement. In 1971, Bockstahler was appointed general manager of a new arm of the company known as chemicals and fibers division, which included the insulation plant in Joplin, Missouri. In that capacity, he oversaw division operations in research, production and marketing, including the asbestos-containing insulation products that were eliminated in August 1971. In the fall of 1981, he was relocated back to Cincinnati and served there until December 1987 as litigation assistant to the general counsel. In that capacity, he served as the company fact witness in litigation matters.

Bockstahler prepared a document around 1982 to show the amounts of chrysotile asbestos used by Eagle-Pitcher in its production processes and the suppliers of that asbestos. Bockstahler prepared the document from cost of production records found in the accounting department at the Joplin plant in Missouri. The cost of production records show the weight and amount of each ingredient for each product and are intended by the plant accountant to establish total cost not including overhead. Bockstahler stated that Asbestos Corporation Limited (“ACL”) was the sole supplier of chrysotile asbestos fiber to Eagle-Pitcher between 1935 and 1957. Throughout the 1940s and 1950s, the amount of asbestos supplied by ACL to Eagle-Pitcher peaked at 1227 tons in the war-year of 1943, falling to 662 tons in 1956. Bockstahler stated that the processed asbestos supplied by ACL was used primarily in the manufacture of insulating cements. In fact, 95% of the asbestos was used in the manufacture of Eagle-Pitcher’s “Cadillac” product, its Eagle Super 66 insulating cement.


A. Personal Jurisdiction

ACL contends the trial court lacked personal jurisdiction. ACL’s argument goes as follows: Plaintiffs asserted in its complaint that ACL is jurisdictionally present in California; plaintiffs’ jurisdictional assertion was denied by ACL in its answer, thereby preserving ACL’s “jurisdictional defense”; in a motion in limine filed before trial, ACL moved to dismiss the complaint for lack of personal jurisdiction; having so moved, the burden shifted to the plaintiffs to present evidence demonstrating that ACL is present in California for jurisdictional purposes, citing Thomas J. Palmer, Inc. v. Turkiye Is Bankasi A.S. (1980) 105 Cal.App.3d 135 and Sheard v. Superior Court (1974) 40 Cal.App.3d 207; plaintiffs failed to come forward with any such documentary evidence, ergo, the trial court should have dismissed the complaint against ACL. This argument is without merit.

It is true that “[w]here a defendant properly moves to quash out-of-state service for lack of jurisdiction, ‘the burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.’ (Citation.)” (Thomas J. Palmer, Inc. v. Turkiye Is Bankasi A.S., supra, 105 Cal.App.3d at p. 146.) In this case, though, plaintiffs never had the burden of proof to show jurisdiction, because ACL never properly moved to quash service for lack of jurisdiction. Instead, ACL filed an answer and attended a pre-trial settlement conference before submitting a motion in limine purporting to challenge personal jurisdiction. However, “it has long been the rule in California that a party waives any objection to the court’s exercise of personal jurisdiction when the party makes a general appearance in the action. (See 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, 190, p. 756.) An answer, of course, is such an appearance, as is expressly made clear by section 1014: ‘A defendant appears in an action when the defendant answers, demurs, [or] files a notice of motion to strike.’ ” (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341 (Roy) [noting in addition that even a defendant “who has not yet answered has been held to have made a general appearance ― that is, to have conceded the jurisdiction of the court ― if he invokes the authority of the court on his behalf, or affirmatively seeks relief”].)

Nor was this longstanding rule of California law altered by 2002 amendments to section 418.10, which governs the procedure for making a motion to quash service or dismiss or stay an action on the basis of lack of jurisdiction or inconvenient forum. (See 418.10.) As the court in Roy concluded: “The statute continues to prescribe the motion to quash as the means of challenging personal jurisdiction and does not in any way imply the existence of an alternative. The defendant may move to quash and simultaneously file an answer containing affirmative defenses, but the latter is not a substitute for the former. The answer remains solely the vehicle by which a defendant may assert defenses to the action, not to jurisdiction. (Citation.)” (Roy, supra, 127 Cal.App.4th at p. 345.) Accordingly, by filing an answer and litigating the case to trial, ACL made a general appearance and submitted voluntarily to the jurisdiction of the court.

B. Arena v. Owens-Corning

In Arena v. Owens-Corning Fiberglass Corporation (Arena) (1998) 63 Cal.App.4th 1178, Division One of this Court upheld a judgment against two asbestos suppliers, one of which was ACL, concluding among other things that raw asbestos is a product that may have a design defect, and that strict liability can apply to the supplier of a defective raw material. (See generally Arena, supra.) ACL submits that Arena was “wrongly decided” because: (1) the court erred by holding that a raw material could be defectively designed; (2) the court erred by holding that the consumer-expectations test applied to a raw material like asbestos; (3) the decision is “inconsistent” with case law governing the liability of bulk suppliers of raw materials to users of end products manufactured by others. ACL further asserts that the jury returned a verdict in favor of plaintiffs only because it was erroneously instructed under Arena, supra. ACL contends that we should “revisit” Arena, overrule it, and hold that a supplier of raw asbestos is under no duty to provide warnings. Having done that, ACL asserts that we should then reverse the jury’s finding of liability against ACL and dismiss “the plaintiffs’ complaint as asserted against ACL.”

We decline ACL’s invitation to “revisit” and “overrule” Arena. ACL simply offers us the same arguments that it presented to the court in Arena. All were rejected by the Arena court in its 1998 decision, and ACL points to no Court of Appeal decision since then disagreeing with the central tenets of Arena. Rather, ACL submits that Arena was “wrongly decided.”

First, ACL contends that the Arena court erred by holding that raw asbestos could be defectively “designed” because asbestos is “a natural immutable mineral” which does not “fit the analytical mold of products-liability principles.” To the contrary, Arena held that strict liability applies to suppliers of raw asbestos because “incorporating raw asbestos into an insulation product does not substantially alter” the asbestos, and because strict liability is not “restricted to processed products.” (Arena, supra, 63 Cal.App.4th at pp. 1188-1189.) In this regard Arena is entirely consistent with the principles of California strict liability law governing the liability of component manufacturers, and ACL cites no California law to the contrary. (Cf. Jimenez v. Superior Court (2002) 29 Cal.4th 473, 479-480 [noting that, “For purposes of strict products liability, there are ‘no meaningful distinctions between, on the one hand, component manufacturers and suppliers and, on the other hand, manufacturers and distributors of complete products; for both groups, the ‘overriding policy considerations are the same.’ (Citation.)”].)

Second, ACL contends that the Arena court erred by applying the consumer-expectations test to a raw material. ACL criticizes the Arena court for extending the holdings of Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461 and Morton v. Owens-Corning Fiberglas Corp. (1995) 33 Cal.App.4th 1529—applying the consumer-expectations test to finished products—to a raw material like asbestos. In this regard, ACL asserts that “raw asbestos is no more ‘designed’ than is sodium . . . [or] lead,” and asks rhetorically whether a company that provides chlorine gas should be held liable if a manufacturer uses it to produce defective bleach.

In Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, a panel of this Division agreed with the Arena court that “ ‘[t]he consumer expectations test asks if the reasonable minimum safety expectations of the product’s ordinary consumers were violated.’ ” (Id. at p. 1001, citing Arena, supra, 63 Cal.App.4th at p. 1185.) And the Arena court specifically rejected ACL’s “chlorine” analogy as a bar to the application of the consumer-expectations test to a product like asbestos. The court stated: “In Jenkins v. T&N PLC [1996] 45 Cal.App.4th 1224, the court noted that raw asbestos fibers do not change when they become a component part of another asbestos product. This fact alone distinguishes asbestos from the sulfuric acid supplier's drain cleaning product in Walker. When used by defendant’s tenant, the product exploded, injuring the plaintiff. (Walker v. Stauffer Chemical Corp., supra, 19 Cal.App.3d 669, 671.) The Walker court expressly stated: ‘The compounding [of the drain cleaning product] entailed a change in the physical composition of the bulk acid calculated to render it suitable as a household product. The bulk sulfuric acid was substantially altered, not only as to its chemical composition, but as to the container form in which it was distributed.’ (Citation.) For this reason, Walker refused to extend strict liability to the producer of a product that had been substantially changed. (Citation.) Walker belongs in the group of cases that involve nondefective raw materials or components supplied by the so-called upstream suppliers who have no control over alterations by the manufacturer of the final product. (Citations.) Walker does not provide the rule in this case because incorporating raw asbestos into an insulation product does not substantially alter ACL’s product.” (Arena, supra, 63 Cal.App.4th at p. 1188.) We see no flaw in the Arena court’s analysis.

Third, ACL contends that the Arena decision is “inconsistent” with case law governing the liability of bulk suppliers of raw materials to users of end products manufactured by others. ACL asserts that under this case law bulk suppliers of raw materials are not liable for end products manufactured by others and that “the duty to properly design, manufacture and test a product, and ultimately to provide appropriate warnings, is the responsibility of the manufacturer, not the supplier of the raw material ingredients.”

On this point, ACL merely recycles the argument it made ante, because Arena acknowledged and approved those cases holding that a raw material supplier is not liable under strict liability where its raw material has been substantially altered during the manufacturing process of a finished product. (See Arena, supra, 63 Cal.App.3d at pp. 1188-1189.) Indeed, the principal California case relied upon by ACL is Walker v. Stauffer Chemical (1971) 19 Cal.App.3d 669. But as noted above, the Arena case specifically and logically distinguished Walker because the bulk raw material in that case—sulphuric acid—was substantially altered by the manufacturer to produce the drain cleaning product that injured plaintiff. (Arena, supra, 63 Cal.App.3d at p. 1188.) In contrast, “incorporating raw asbestos into an insulation product does not substantially alter” the asbestos. (Ibid.)

ACL, however, asserts that Walker was followed by Groll v. Shell Oil (1983) 148 Cal.App.3d 444 (Groll), a case that predates and was not mentioned in Arena, supra. In Groll, the sixteen year old plaintiff was injured in an explosion when he attempted to use a can of Park Ranger Stove and Lantern Fuel (BT-67) to light a wood burning fireplace in the bedroom of his residence. Through his guardian ad litem, plaintiff sued for damages against Chase Chemical (Chase), the distributor, Sports, Ltd., the distributor sales company, and the manufacturer of BT-67, Shell Oil Company. Plaintiff settled with Chase and Sports, Ltd., and proceeded to trial against Shell Oil. At the conclusion of plaintiff’s case, the trial court granted Shell Oil’s motion for nonsuit on the ground that it did not owe or breach a duty to plaintiff. (Groll, supra, 148 Cal.App.3d at pp. 446-447.)

The Court of Appeal affirmed on two grounds. First, regarding the adequacy of the warnings Shell Oil and Chase provided with the BT-67, the court noted that “[a]ppellant had the burden of proving that the product was defective and that the defect was a proximate cause of his injuries. (Citation.) [Shell Oil’s] data sheet warned Chase regarding the dangerous propensities of BT-67 and specifically advised avoiding ‘excessive heat,’ ‘open flame,’ and ‘spark sources.’ Chase warned appellant that BT-67 was ‘extremely flammable’ and should be kept away from ‘heat’ and ‘open flame[s].’ Thus appellant was injured, not as a result of inadequate warnings by [Shell Oil] or Chase, but rather, as a consequence of his own improper use of the product. After reading the label, appellant should have known that BT-67 should not be used to start a wood burning fire.” (Groll, supra, 148 Cal.App.3d at p. 448.) Similarly, the court noted that a manufacturer’s liability to the ultimate consumer may be extinguished by “intervening cause” where the manufacturer either provides adequate warnings to a middleman or the middleman alters the product before passing it to the final consumer. (Id. at pp. 448-449.) Thus, the court concluded that since Shell Oil “manufactured and sold BT-67 in bulk, its responsibility must be absolved at such time as it provides adequate warnings to the distributor who subsequently packages, labels and markets the product.” (Id. at p. 449.) This case is thus diametrically opposed to Groll because there is no evidence that ACL provided warnings to its purchasers of asbestos within the relevant time frame, either on the 100-pound bags in which it was shipped or on any safety data materials shipped with the product as in Groll, supra.

Finally, just as it did in Arena, ACL relies on “out-of-state cases and [a comment in] a proposed draft of the Restatement Third of torts” (Arena, supra, 63 Cal.App.4th at p. 1188.) We need not discuss each of these out-of-state cases in detail. Most of them are inapposite because they involve application of the “bulk supplier defense” to suppliers of “unavoidably unsafe” products where those products are supplied in bulk to intermediaries either accompanied by proper directions and warnings or to sophisticated intermediaries who by training, experience, and instruction are familiar with the risks inherent in the use of the product. (See Purvis v. PPG Industries, Inc. (Ala. 1987) 502 So.2d 714, 718; Rivers v. AT&T Technologies, Inc. (N.Y.Sup.,1990) 554 N.Y.S.2d 401, 404; Sara Lee Corp. v. Homasote Co. (D.Md.,1989) 719 F.Supp. 417, 422-423.) Here by contrast, ACL was not a bulk supplier and there is no evidence either that ACL provided adequate warnings to its purchasers or that the purchaser identified in this case, Eagle-Pitcher, was aware of the dangers of asbestos. Last, to the extent that Cimino et al. v. Raymark Industries, Inc. et al. (C.A.5 1998) 151 F.3d 297, 331 [“ordinary raw asbestos sold to a sophisticated and knowledgeable manufacturer of such products is not of itself defective or unreasonably dangerous” (applying Texas law)], conflicts with Arena, supra, we decline to follow it.

C. Damages

ACL contends the damages awards must be set aside because there was insufficient evidence of malice to support punitive damages, and because there was insufficient evidence to support Mary Garza’s claim for loss of consortium. Additionally, ACL contends that, even if there was sufficient evidence to support punitive damages and damages for loss of consortium, the amount of the award in each case was excessive.

1. Sufficiency of the Evidence for Damages

In any challenge to a judgment based on the sufficiency of the evidence, “we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. (Citations.) [] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment. ( Citations.) [] We emphasize that the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing. (Citations.) In short, even if the judgment of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is ‘substantial, that is, of ‘ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value.’ (Citations.)” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)


Regarding punitive damages, the jury was instructed that if it decided that ACL’s conduct harmed Joseph and Mary Garza, then it should next decide whether ACL engaged in that conduct with malice or oppression. The jury was instructed that to obtain punitive damages plaintiffs had to show by clear and convincing evidence that ACL’s “conduct was despicable and was done with a willful and knowing disregard of the rights and safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of is or her conduct and deliberately fails to avoid those consequences.” ACL asserts plaintiffs failed to make that showing because the only evidence offered in support of punitive damages was “an eight-year-old response to an interrogatory, in an unrelated case, where it was represented that ACL likely had an understanding of some ‘association’ between exposure to asbestos and disease in human beings sometimes in the 1940s.” Not so. There was more.

Dr. Richard Cohen, a specialist in occupational medicine, testified about his study of what was known historically regarding the adverse health effects of asbestos. Dr. Cohen noted key articles and studies tracing the emerging recognition of asbestos-related disease. The first American article was a book authored by Hoffman and issued by the U.S. Bureau of Labor Statistics in 1918 that described a potentially fatal condition resulting from scarring of the lungs caused by breathing asbestos dust. Hoffman noted that Canadian and American asbestos workers were unable to get life insurance because of the hazard of working with asbestos. A 1924 medical article by a British pathologist, Dr. Cook, established asbestos as the cause of the scarring disease in the lungs. In 1928, an article in the Journal of the American Medical Association carried an editorial called “Pulmonary Asbestosis” stating that asbestos dust causes asbestosis. In 1930, Dr. Merewether studies workers in a textile factory in England producing asbestos cloth and found that those workers with the greatest exposure to dust had the greatest likelihood of getting sick, and that the disease progressed even after a victim stopped breathing the dust. Merewether proposed practices to reduce dust and educate workers to use respirators and gas masks.

In 1931, an article entitled “The Very Least an Employer Should Know About Dust and Fume Diseases” was published by Dr. Frederick Willson in the Safety Engineering Journal. Dr. Willson stated it was known that breathing in asbestos dust is seriously harmful. A 1934 study by Doctors Wood and Gloyne of 100 asbestosis patients showed that the risk of the disease was not confined to workers in asbestos mines or factories, but to workers in other settings who inhale the dust. A 1935 study by Dr. Fulton in Harrisburg, Pennsylvania to see if there was a safe level of asbestos dust workers could breath cited well over a hundred articles about asbestosis. In 1935, Dr. Lynch identified a link between the scarring of the lungs associated with asbestosis and lung cancer. In 1937, the American Association of Railroads recognized there was a health risk associated with railroad workers breathing asbestos. Around that time, a safety team at Standard Oil of New Jersey wrote a book about the hazard of asbestos dust from pipe insulation in oil refineries. Also, Dr. Dreessen studied how much asbestos dust would be a safe exposure for U.S. workers and recommended 5 million particles per cubic foot. In 1941, a text book of occupational disease by Reed listed different occupations at risk from asbestos related diseases. In 1944, the Journal of the American Medical Association carried an editorial on environmental cancer and listed asbestos as a cancer-causing substance. In 1944, the U.S. Navy commissioned a study by Dr. Fleischer of shipyard insulators that concluded asbestos-related disease resulted from long-term exposure and dust should be controlled. In 1949, the Journal of American Medical Association published an editorial stating asbestosis could lead to lung cancer and that not only workers in asbestos manufacturing facilities, but also workers using asbestos products, were at risk.

By the late 1940s and early 1950s information on medical problems related to asbestos began to appear in non-medical publications: In 1949, the New York Times ran an article linking asbestos to cancer, and in 1952 Encyclopedia Britannica published that asbestos causes lung cancer. The study in 1964 by industrial hygienist Marr of insulators in Naval shipyards measured airborne asbestos levels and reported claims for asbestosis among the insulators. And in 1964, Dr. Selikoff from New York found increased rates of lung cancer, mesothelioma and other cancers among asbestos insulators. The Selikoff study was reported widely in the media and publicized the subject of asbestosis as an occupational health hazard. Finally, Dr. Cohen opined that it was well understood as early as the 1930s that asbestos miners were at a high risk of asbestos related disease.

Against this chronology of mounting medical evidence and increasing public awareness of the link between exposure to asbestos and lung disease, the jury was presented with the following information about ACL. ACL was a member of the following trade organizations—Asbestos Information Association, the Asbestos Information Association of North America and the Quebec Asbestos Mining Association. ACL never conducted or commissioned any tests or studies on ambient asbestos dust levels at any location or job site where asbestos-containing products were installed, removed or utilized. ACL admitted that in the 1940s it was aware there is an association between asbestos exposure and disease in human beings. Kenneth Cohen, plaintiffs’ industrial hygienist expert, testified that he read a 1944 mining survey of the King Mine in Quebec owned by ACL to record dust counts in the mine and the report not only advised ACL about the results of the survey but referred ACL to literature about asbestos hazards. ACL marketed its 100-pound packages of asbestos in porous jute bags until the late 1960s and did not place any warnings on the bags of asbestos until January 1970. ACL’s company brochures published in 1956 and 1961 described extensively the nature and extent of the company’s asbestos operations, including the mining techniques employed, the tonnages of asbestos extracted, the grades and types of asbestos produced, the physical and chemical properties of asbestos, the special characteristics of its asbestos fibers, and the types of products for which its different grades of asbestos were suitable. The brochures, however, contain not a single reference to any health risk associated with asbestos. In our view, ACL’s belated action in 1970 when it had known since at least the 1940s of the health risks associated with its product, provides substantial evidence to a clear and convincing standard that ACL acted with a willful and knowing disregard of the safety of others and supports the jury’s decision to award punitive damages.


ACL contends that there was insufficient evidence to support an award of damages to Mary Garza for loss of consortium. ACL asserts that because Mary Garza did not testify in person “the award was based upon pure speculation” that she actually suffered a loss of consortium. We disagree because the testimony of Mary’s husband Joseph provides substantial evidence for her loss of consortium award.

“ ‘The concept of consortium includes not only loss of support or services; it also embraces such elements as love, companionship, comfort, affection, society, sexual relations, the moral support each spouse gives the other through the triumph and despair of life, and the deprivation of a spouse’s physical assistance in operating and maintaining the family home. [Citations.]’ (Citations.) Loss of consortium ‘has been referred to as the loss of “the noneconomic aspects of the marriage relation, including conjugal society, comfort, affection, and companionship.” [Citations.]’ (Citation.)” (Boeken v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 1391, 1399.) Joseph testified about his wife’s current health problems. She had part of an intestine removed, a cyst that had to be removed, then she developed diabetes and began to lose the use of her legs. Joseph states that for the last few years, Mary has been almost completely dependent on him for her daily needs. He gives her all her medications, cooks for her, assists her into shower, and helps her get dressed. For over two years, Garza has been using an oxygen unit to assist his breathing. Joseph testified that his irreversible and deteriorating medical condition has led to a decreasing ability on his part to take care of his wife. He stated that he worries who will take care of her when he’s gone, that he and his wife have talked about this and his wife is concerned and worries about what is going to happen. Joseph’s testimony constitutes substantial evidence supporting his wife Mary’s loss of consortium.

2. The Level of Damages Awarded

(a) Punitive Damages


Based on its finding of malice or oppression by ACL, the jury awarded plaintiffs $10 million in punitive damages. ACL contends that the jury’s punitive damages award was both excessive and constitutionally disproportionate. We disagree. The punitive damages are $10 million and compensatory damages, including loss of consortium, totaled almost $1.58 million. The punitive award is just over six times greater than the compensatory award. This falls well within the range of single digit multipliers approved as constitutionally permissible by the high court in State Farm Mutual Automobile Insurance Company v. Campbell (State Farm) (2003) 538 U.S. 408 , 425 [noting that “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with” higher ratios].)

Moreover, the award is not excessive in light of ACL’s reprehensible conduct. (See Boeken v. Philip Morris, Inc. (Boeken) (2005) 127 Cal.App.4th 1640, 1689 [courts consider three factors is assessing whether a punitive damages award is excessive: “(1) the reprehensibility of the acts of the defendant in light of the record as a whole; (2) the amount of compensatory damages awarded; and (3) the wealth of the particular defendant”].) Here, ACL intentionally marketed a defective product knowing that it might cause injury and death. Such conduct has been held to be “highly reprehensible,” (see Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738, 755 [highly reprehensible to place defective 1978-1979 model Ford Bronco in stream of commerce because it showed “a reckless disregard of consumers’ safety and lives”]), and we agree.

Indeed, in State Farm, supra, 538 U.S. 408, the high court identified several subsidiary factors which guide the determination of the degree of reprehensibility in assessing punitive damages: (1) whether “the harm caused was physical as opposed to economic”; (2) whether “the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others”; (3) whether “the target of the conduct had financial vulnerability”; (4) whether “the conduct involved repeated actions or was an isolated incident”; and (5) whether “the harm was the result of intentional malice, trickery, or deceit, or mere accident.” (State Farm, supra, 538 U.S. at p. 419.) The high court also noted: “The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect.” (Ibid.) The high court also stated that “ ‘repeated misconduct is more reprehensible than an individual instance of malfeasance’ ” and “ ‘a recidivist may be punished more severely than a first offender,’ ” so long as “the conduct in question replicates the prior transgressions.” (Id. at p. 423.)

An analysis under the high court’s State Farm factors validates our conclusion that ACL’s conduct was truly reprehensible because all show a high degree of reprehensibility and weigh in favor of the jury’s conclusion that a substantial punitive damage award was appropriate in this case. The evidence supports the conclusion that plaintiffs’ injuries were caused by a ACL’s defective asbestos, and that ACL vigorously marketed asbestos throughout 1950s and 1960s with no warnings whatsoever and with knowledge of the likely deleterious effects on the physical health of vulnerable downstream users working with products containing its asbestos, workers who were entirely unaware of the dangers posed by the material they were handling. In sum, having concluded that ACL’s conduct is “extremely reprehensible” (Romo v. Ford Motor Co., supra, 113 Cal.App.4th at p. 755), and that there is sufficient evidence supporting all five reprehensibility factors under State Farm, supra, 538 U.S. 408, a substantial punitive damage award was justified.


ACL, however, asserts that that punitive damage award was excessive because it was disproportionate to the value of the company. (See Boeken, supra, 127 Cal.App.4th at p. 1689 [one of the factors considered on the proportionality of punitive damages is “the wealth of the particular defendant”].) In particular, ACL relies on the Boeken court’s observation that “California courts have routinely upheld punitive damage awards which amounted to a percentage of net worth from .005 percent (citation), to 5 percent (citation), and not exceeding 10 percent. (Citation)” (Boeken, supra, 127 Cal.App.4th at p. 1697.) According to ACL, its balance sheet showed a negative value of minus $21 million. Even under plaintiffs’ market capitalization method of valuation, ACL continues, the low estimate of $13.8 million and the high estimate of $35 million represent punitive awards of 77 percent and 28 percent of ACL’s value, “well beyond the ten percent ceiling recognized by the Boeken court.” However, it was not so clear from the evidence presented in the punitive damages phase of the trial just what value ACL holds.

Indeed, the only testimony in the punitive phase was the testimony of Dr. Barry Ben-Zion, an economist called by plaintiffs to describe and explain to the jury the financial condition of ACL. Ben-Zion told the jury that ACL had not, as it claimed, sold its asbestos mines in 1986. Rather, ACL contributed the mines to a partnership which operates the mines and retained part ownership in the partnership. Ben-Zion stated he based his financial assessment of ACL on publicly available documents and had no deposition transcripts to review of any of the financial officers of the company. The partnership to which ACL contributed its mines is known as LAB & Company, Ltd. (LAB). ACL owns a 22.5 percent interest in LAB. ACL is a publicly traded company on the Toronto Stock Exchange. LAB, however, is not publicly traded, so the value of its assets cannot be determined from public sources—that information could only be obtained from the partnership entities and access to their financial records, and plaintiffs had no such access.

Ben-Zion stated that as a publicly traded company, ACL must file quarterly and annual balance sheets and income statements. He explained that the balance sheet lists the value of the company’s assets and the extent of the company’s liabilities at a given point in time. The income statement, on the other hand, shows revenues and expenses over a period of time. ACL is required to issue quarterly and annual income statements. Ben-Zion explained that for the first quarter of 2006, ACL showed revenue of $5.7 million and expenses of about $200,000, reporting a net profit of $5.5 million (Canadian), or $4.85 million (US). Regarding the balance sheet, Ben-Zion explained that ACL employed book value accounting, whereby assets are depreciated over time. Using this method, ACL values its long term assets—land holdings, mines, and equipment at zero. Ben-Zion also noted that based on ACL’s current share price of $5.50, the market valuation of the company is currently at $13.8 million in U.S. dollars, but the share price had fluctuated by a ratio of three times over the past year and had gone as high as $12.50 per share. However, share price is determined by the market’s assessment of the company’s likely future income stream, which Ben-Zion said could not be predicted without having access to information held by the corporate officers. Ben-Zion said he would want to know what specific assets the company held and to know “if the liabilities they list on their books are real because they seem a little strange.” Ben-Zion explained that the liabilities “appear strange” because ACL lists some $24 million in liabilities but their income statement shows the company pays no interest on those liabilities. He stated: “They say it’s liabilities to related companies, so maybe it’s like husband owing wife 24 million. Who knows. I don’t know. They don’t tell us.” The claimed liability of $24 million reduces the company’s net worth. Yet ACL, Ben-Zion noted, has made no effort to reduce that debt despite income of $5.5 million in the current quarter. As a marker for the true value of the company, Ben-Zion noted that ACL admitted a net worth of $150 million before the partnership was formed to operate the mines. The standard method of valuing companies, he stated, is to capitalize future projected cash flow and that in the U.S. most companies sell for roughly 15 times their earnings. Ben-Zion stated that for ACL “we don’t have enough information to make a projection” regarding the company’s future stream of income, so “we wind up relying on the market” even though “it’s not the best because we don’t have the inside information and so we don’t know how to properly value it. So it could be worth what the market thinks or it could be worth more than what the market thinks but we don’t know.” Ben-Zion stated that without information on the assets and liabilities of the LAB partnership, “we don’t know what 22 and a half percent of LAB is worth.” With the limited information available to him, Ben-Zion opined that ACL “definitely . . . ha[s] a positive value,” which the market puts at around $14 million (U.S.). Further, he opined that $14 million is “the minimum value,” that recent share prices would put it at $35 million (U.S.) and that “it could be worth a lot more depending on their future prospects” and the future prospects of ACL’s interest in the LAB partnership.

On cross-examination, Ben-Zion replied that according to balance sheet information the book value of ACL’s assets was $3.8 million at the end of 2004 and $3.4 million at the end of 2005. In 2005, ACL reported liabilities of $27 million, to the balance sheet showed a negative value of $21 million (U.S.) ACL also reported a net income loss for 2004 and 2005. On redirect, plaintiffs’ counsel asked Ben-Zion about the financial statement he had been asked to review on cross-examination. Ben-Zion stated it is a financial statement prepared by ACL and audited by Price Waterhouse Coopers of Canada. Ben-Zion opined that as far as understanding ACL’s current condition in terms of “what assets they have, where their liabilities lie,” and whether the $27 million dollars reported on the balance sheet was a true liability, “the best source of information” would be the directors who signed off on the financial statement. Ben-Zion agreed that if ACL’s counsel “really wanted to dispute what you had to say today, he should be bringing those people in here to talk to the jury.” And he further explained that the $27 million is shown as payable to “related companies,” which he opined was a parent company—a company that owns and directs another company—but “we have no idea” who the parent company is and “we don’t know the assets of that company except it holds a note from the daughter company [ACL] for $24 million for which it has not collected any interest. Ben-Zion agreed that “we have absolutely zero financial information to assess” the assets of the parent company, and stated that “we don’t know whether the parent company is publicly traded or privately held. We don’t know.”

In assessing whether, based upon the above testimony, the jury acted from passion rather than reason in assessing $10 million in punitive damages against ACL, we take particular note of two jury instructions given to the jury in this case. The first states, “You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence.” (See CACI No. 203 [mirroring language in Evidence Code, 412].) The second states, “You may consider whether a party failed to explain or deny some unfavorable evidence. Failure to explain or deny unfavorable evidence may suggest that the evidence is true.” (See CACI No. 205 [mirroring language in Evidence Code,  413].) Here, ACL could have called on its financial officers to testify about the assets, liabilities, past income, and anticipated future revenue streams of the company. Patently, such testimony would have provided much stronger and clarifying evidence on such questions as: (1) the nature of the financial relationship between ACL and its parent company, including the terms and conditions of the $24 million note, and the identity, assets, and liabilities of the parent company; (2) the market value as opposed to the book value of ACL’s long-term assets; (3) the value of the assets held by the LAB partnership; and, (4) ACL’s anticipated future revenue streams and a company valuation based on that instead of the market’s current valuation of the share price. ACL could have presented evidence on these questions but chose not to do so. So plaintiffs filled the evidentiary void with the testimony of Dr. Ben-Zion, whose testimony supports the unfavorable inference, which the jury was entitled to draw in the face of ACL’s failure to present evidence to the contrary, that ACL’s accounting practices were questionable; that its liabilities were vastly overstated; that its assets were grossly undervalued; and that it was now sheltering behind a parent company under favorable financial terms, having divested its mining operations to a non-public partnership for which no financial information was available except that it continued to mine and sell asbestos to provide income to ACL. Indeed, the jury heard that in the first quarter of 2006, ACL had a net income of almost $5 million (US). In sum, considering that the patchy and limited nature of the financial evidence presented to the jury was due to ACL itself, we conclude the jury’s punitive damages determination was not excessive, but rather a rational attempt to arrive at an appropriate punishment for what we acknowledged above as ACL’s reprehensible conduct. (Boeken v. Philip Morris Inc, supra, 127 Cal.App.4th at p. 1689 [noting that “the purpose of punitive damages is to punish wrongdoers and thereby deter the commission of wrongful acts” and stating that “review of punitive damage awards rendered at the trial level is guided by the historically honored standard of reversing as excessive only those judgments which the entire record, when viewed most favorable to the judgment, indicates were rendered as the result of passion and prejudice. . . .” (Citation omitted)].)

(b) Damages for Loss of Consortium

ACL also contends that the jury’s award of $400,000 for loss of consortium was excessive. “ ‘The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently . . . see the injury and the impairment that has resulted therefrom. . . . The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’ (Citation.)” Furthermore, “ ‘[t]he reviewing court does not act de novo. . . . [T]he trial court’s determination of whether damages were excessive “is entitled to great weight” because it is bound by the “more demanding test of weighing conflicting evidence than our standard of review under the substantial evidence rule . . . .” [Citation.] All presumptions favor the trial court’s determination [citation], and we review the record in the light most favorable to the judgment [citation].’ (Citation.) [] In reviewing a noneconomic damage award “[t]here are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. [Citation.] The amount to be awarded is ‘a matter on which there legitimately may be a wide difference of opinion” [citation]. In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent’s favor, and must give him [or her] the benefit of every inference reasonably to be drawn from the record [citation]. [] While the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. Such examination demonstrates that such awards vary greatly. [Citations.] Injuries are seldom identical and the amount of pain and suffering involved in similar physical injuries varies widely. These factors must be considered.’ (Citation.)” (Buell-Wilson et al. v. Ford Motor Co. et al. (Mar. 10, 2008, Nos. D045154, D045579) ___ Cal.App.4th ___ [2008 Cal. App. LEXIS 349 at p. 16; WL 625016, at pp. 14-15].)

Under these standards, we conclude the award of $400,000 to Mary Garza for loss of consortium was reasonable. Joseph’s injuries were exceedingly grave and severely debilitating. His capacity to provide the care and attention to his wife in her hour of greatest need was greatly diminished. Moreover, the award was not out of line with recent awards to spouses for loss of consortium in asbestos-related cases. (See Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 95 [awarding $1,605,619.32 to husband for his claims and $300,000 to his wife for her loss of consortium claim]; Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1412 [jury awarded husband economic damages in the amount of $319,500, noneconomic damages in the amount of $2.5 million, and awarded spouse $1.5 million for loss of consortium]; Jones v. John Crane, Inc., supra, 132 Cal.App.4th at p. 997 [jury awarded husband economic damages of $1,048,000, non-economic damages of $3.5 million, awarded spouse $500,000 for loss of consortium].) Accordingly, we conclude that the jury’s award of $400,000 for loss of consortium was not excessive.

D. Allocation of Fault

ACL disputes the jury’s allocation of fault and contends that it should be reduced from 75% to “a percentage that comports with the evidence presented, ranging from one percent to no more than twenty percent of the total culpability.” We decline to disturb the jury’s allocation of fault.

“The substantial evidence standard of review also applies to the jury’s findings on the issue of causation (citation), and its allocation of fault among concurrent or alternative tortfeasors (citations.)” (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 476; see also Howard v. Owens-Corning, supra, 72 Cal.App.4th at p. 631 [even if judgment is against the weight of the evidence it must be affirmed on appeal under substantial evidence standard “so long as the record is free from prejudicial error and the judgment is supported by evidence which is ‘substantial, that is, of ‘ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value’ ”].)

ACL does not dispute that plaintiffs proved its asbestos was more likely than not the source of the fibers that caused Joseph’s lung disease, i.e., that its asbestos was a legal cause of his injuries—rather, ACL asserts that the jury’s allocation of 75% fault to it was too high. However, we conclude that there was sufficient evidence to support the jury’s allocation of fault.

Bockstahler’s testimony showed that ACL was the sole supplier of chrysotile asbestos fiber to Eagle-Pitcher between 1935 and 1957, and that 95% of the processed asbestos supplied by ACL was used in the manufacture of Eagle-Pitcher’s “Cadillac” product — its Eagle Super 66 insulating cement. Charles Ay, an asbestos detection specialist and consultant, testified for plaintiffs. He stated that Eagle-Pitcher’s Super 66 high-temperature, insulating cement was “the best product on the market” in the ’40s, ’50s and ’60s and was the most commonly used asbestos-containing product in the Navy. According to Ay, Super 66 could be found in “every compartment on the ship” “from the very back end to the very front end,” “from the very bottom to the very top,” because it was used on all the ships’ pipes to form insulated elbows on the pipe bends. Ay stated that a destroyer class ship has about 50,000 lineal feet of pipes and a small aircraft carrier 250,000 lineal feet, and it is “all bent” to allow for expansion and contraction of the hot pipes. Ay explained that insulating cement came in a bag, so “you put your bag under your arm, and you got a bucket, you bend down, and you just tilt your body and you whip it up” with the water in the bucket. “You do it this way because the dust comes up so you turn your head.” The insulating cements were 15-20 % asbestos.

Plaintiff’s certified industrial hygienist, Kenneth Cohen, stated he was familiar with the Eagle-Pitcher Super 66 insulating cement because it was “very commonly used in Navy applications.” His samplings of air in environments where insulating cements were applied and removed from piping recorded levels of asbestos in “millions of particles per cubic foot.” Cohen explained the process of reentrainment—due to their aerodynamic qualities, microscopic asbestos fibers in a still environment take about eight hours to settle to the floor from an eight foot ceiling, but in a typical work space with noise, vibration, and movement the asbestos fibers are continuously whipped back up into the air. And he further stated that the first phase of mixing insulating cement with water can be a particularly hazardous operation because it causes “a major exposure of dust.” Cohen opined that Joseph Garza’s work in the Navy, where he described how he mixed dry powder insulating cement with water creating visible dust, “would have been a substantial exposure to asbestos.” This comports with Joseph Garza’s testimony that his clothes and hair would get covered in dust from the materials he worked with. In sum, all this constitutes powerful evidence that Joseph was directly, repeatedly, even continuously, exposed to ACL’s asbestos while working on board Navy ships.

Indeed, on the basis of such evidence, plaintiffs’ counsel asked the jury to attribute 100% fault to ACL. The jury decided, however, that 25% fault should be attributed to other suppliers of asbestos products. In this regard, ACL undisputedly had the burden to establish concurrent or alternate causes by proving: that Joseph Garza was exposed to defective asbestos-containing products of other companies; that the defective designs of the other companies’ products were legal causes of the plaintiffs’ injuries; and the percentage of legal cause attributable to the other companies. (Citations.)” (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 478.) Like the asbestos defendant in Sparks v. Owens-Illinois, Inc., supra, however, ACL sought to show that “other equally-defective products were concurrent causes” of Joseph’s asbestosis “primarily by eliciting the names of other products and their manufacturers during cross-examination of the plaintiffs’ witnesses” without offering “independent evidence ― from either lay or expert witnesses ― about the specific properties (e.g., the asbestos content), performance, extent of usage, or effects of the other products to which” Joseph was exposed. (Id. at pp. 477-478 [affirming jury’s allocation of 100% fault to Owens-Illinois’ product on the grounds it “was the sole legal cause of plaintiffs’ injuries”].) In fact, even ACL’s own industrial hygienist, Joel Cohen, opined that Joseph Garza “received his substantial exposure” to asbestos while serving in the Navy. And it was during that period Joseph repeatedly experienced major exposures of asbestos-containing dust while mixing the Super Eagle 66 insulating cement in buckets. Moreover, Charles Ay explained asbestos can be friable or non-friable—friable asbestos you can crumble by hand and easily release the fibers, whereas the fibers from non-friable asbestos have to be released mechanically. A friable product like the insulating cement releases asbestos much easier than other non-friable products Joseph Garza had worked with like gaskets and packing. In sum, we conclude substantial evidence supports the jury’s apportionment of 75% fault to ACL and 25% to other suppliers whose products Joseph Garza was exposed to at other times during his working life.


The judgment is affirmed in all respects. ACL shall bear costs on appeal.




Horner, J.*



We concur:




McGuiness, P. J.




Siggins, J.