Sufficient evidence supported a jury’s determination that asbestos in joint compounds used by an architect caused his mesothelioma, a California appellate court said in an unpublished decision upholding jury verdicts of $56,250 and $33,750 plus costs against Union Carbide Corp. and Elementis Chemicals (Marteney v. Union Carbide Corp., October 28, 2015, Manella, N.).

Background. Marty Marteney began working in his father’s garage in 1940 at age 9, replacing asbestos-containing truck brakes. He also helped his father by installing asbestos sheets in renovations of car dealerships. He worked for architectural firms beginning in the late 1950s, during which he spent 20 percent or more of his time in the field, demonstrating how to mix and apply joint compounds at job sites that often were dusty. From 1965 until the mid-1970s, he remodeled his home and volunteered to help remodel churches. For these remodeling projects, he used large bags of joint compound. In April 2012, he was diagnosed with mesothelioma. (He died while this appeal was pending.) He and his wife brought claims for negligence, breach of warranties, strict liability, and loss of consortium against 21 defendants involved in the manufacture and marketing of asbestos-containing products, including joint compounds. By the time of trial, the Marteneys had reached settlements with all of the defendants except Union Carbide Corp. and Elementis Chemicals Inc.

Beginning in 1963, Union Carbide sold asbestos to various manufacturers, including makers of joint compounds. Elementis is the successor-in-interest to Harrison & Crosfield (Pacific), Inc., along with related entities (HCP) that distributed Union Carbide asbestos. At issue during the trial was the extent to which Marteney was exposed to Union Carbide asbestos from Gold Bond, Paco Quick Set, and Georgia Pacific brands of joint compound, and the extent to which Elementis distributed the Union Carbide asbestos to which he had been exposed. The jury returned a special verdict for the Marteneys on their claim for strict liability for design defect, but not on special verdicts regarding negligence and strict liability for failure to warn. The jury concluded that the defendants were not negligent and that their warnings adequately addressed the known or knowable potential risks in light of the scientific and medical knowledge generally accepted at the time, but determined that Union Carbide asbestos was defective under the consumer expectations test. It awarded non-economic damages of $1.175 million, but declined to award punitive damages, and allocated five percent of the fault to Union Carbide and three percent to Elementis. After the trial court denied the defendants’ motions for judgment notwithstanding the verdict, each appealed (the appeals were consolidated).

Causation. There was sufficient evidence to support the special verdicts against Union Carbide and Elementis regarding their role in the causation of the decedent’s mesothelioma. Although Union Carbide argued that the decedent’s experts did not provide sufficient evidence to satisfy the “substantial factor” requirement, the court pointed out that relevant inquiry concerned whether there was sufficient evidence to support the judgment, and that it was not limited to focusing only on the testimony of the decedent’s experts. Viewing the record as a whole, there was adequate expert testimony—including testimony from the defendants’ experts—regarding the length, intensity, and frequency of exposures to Union Carbide asbestos fibers from joint compounds to support a finding that these exposures were a substantial factor in causing his mesothelioma. A jury could reasonably infer from their testimony that an exposure level of .05 fiber years (the equivalent of exposure to air containing .05 fibers per cubic centimeter throughout an average working day for a one-year period) would constitute a substantial factor contributing to a person’s risk of the development of cancer. The evidence in the record was sufficient to show that decedent’s contact with Gold Bond joint compound containing Union Carbide asbestos met this exposure level from his supervision of workers using Gold Bond at job sites and his own use of it in remodeling.

During his exposure to the Gold Bond joint compound, which contained Union Carbide’s Calidria asbestos product, HCP was the exclusive distributor of Calidria. HCP and Union Carbide worked closely in distributing the asbestos and HCP received a commission for any Calidria that Union Carbide supplied directly to a customer. This evidence established that HCP was in Calidria’s vertical chain of distribution and was sufficient to impose liability on HCP pursuant to Bay Summit Community Assn. v. Shell Oil Co., 51 Cal.App.4th 762 (1996).

Defective design. The jury’s special verdicts rejecting the decedent’s claims on negligence and strict liability for failure to warn did not shield Union Carbide and Elementis on the decedent’s strict liability design defect claim under a consumer expectations test. The relevant inquiry for this test focuses on the expectations of the ultimate consumer, and while the defendants provided information describing the risks of asbestos to joint compound as of 1968, there was no evidence that this information was passed onto ultimate consumers such as the decedent. A Union Carbide expert conceded that “do-it-yourselfers” generally lacked knowledge of these risks as recently as 1978.

Liability of raw materials supplier. Finally, Union Carbide and Elementis were not protected from liability by the component parts doctrine. The defendants asserted that in O’Neil v. Crane Co., 53 Cal.4th 335 (2012), the California Supreme Court adopted section 5 of the Restatement (Third) of Torts, including comment c that holds that raw materials such as sand and gravel cannot suffer from design defects. However, O’Neil does not refer to comment c or discuss the doctrine addressed in it, and nothing in that case supports the argument that the state high court had adopted the entirety of section 5 or comment c in particular. Furthermore, this doctrine would not apply to Union Carbide and Elementis in this case because the doctrine encompasses component materials that are usually innocuous, whereas raw asbestos itself produces harmful dust.

The consolidated case is Nos. B252711 and B253265.  

Attorneys: Michele Odorizzi (Mayer Brown LLP) for Union Carbide Corp. William H. Armstrong (Armstrong & Associates) for Elementis Chemicals Inc. Benno Ashrafi (Weitz & Luxenberg P.C.) for Marie Marteney.

Companies: Union Carbide Corp.; Elementis Chemicals Inc.