Joseph Petitpas v. Ford Motor Company

Plaintiffs Marline Petitpas1 and Joseph Petitpas sued Ford

Motor Company, Exxon Mobil Corporation, Rossmoor

Corporation,2 and others, alleging that exposure to asbestos

caused by these defendants resulted in Marline’s mesothelioma.

Motions for summary adjudication were granted before trial,

narrowing the claims against Exxon and Ford. During trial, the

court granted nonsuit for Rossmoor. The jury returned defense

verdicts for Exxon and Ford.

Plaintiffs assert five contentions on appeal. First, they

argue that the trial court erred by granting summary

adjudication in favor of Exxon as to strict product liability and

secondary, or “take home,” exposure. Second, they contend that

the trial court erred by granting nonsuit for Rossmoor as to both

direct and secondary exposure. Third, plaintiffs maintain that

the trial court failed to properly instruct the jury regarding

design defect issues involving Ford. Fourth, plaintiffs argue that



1 . Because plaintiffs share a last name, we refer to them

individually by their first names for clarity and intend no

disrespect. Marline passed away while this appeal was pending.

We granted the unopposed motion seeking to substitute Joseph

as Marline’s successor-in-interest in this action. We refer to

Joseph in both his individual and representative capacity as

plaintiffs.

2 Rossmoor Corporation has been dissolved, and therefore

Fireman’s Fund Insurance Company intervened below and is a

respondent in this appeal. We refer to this party as “Rossmoor.”

3

the trial court erred by granting summary adjudication in favor

of Ford as to plaintiffs’ punitive damages claims. Finally,

plaintiffs assert that the jury verdict in favor of Exxon was not

supported by the evidence.

We affirm on all challenged grounds. First, summary

adjudication for Exxon appropriately was granted because the

evidence did not show that Exxon was within the stream of

commerce for any asbestos-containing products, and Exxon did

not have a duty to Marline regarding secondary exposure because

Marline was not a member of Joseph’s household at the relevant

time. Second, nonsuit as to Rossmoor was appropriate because

the causation evidence against Rossmoor presented at trial was

insufficient to support a verdict for plaintiffs. Third, jury

instructions relating to Ford accurately reflected the law, and

Ford was not liable under a design defect theory for products it

did not manufacture or supply. Fourth, because we affirm the

defense verdict in favor of Ford, plaintiffs’ challenge to the

summary adjudication of punitive damages claims against Ford

is moot. Finally, since plaintiffs have not demonstrated that they

were entitled to a verdict in their favor as to Exxon as a matter of

law, there is no basis for reversing the defense verdict in favor of

Exxon.

I.

Plaintiffs filed a complaint against more than 30

defendants alleging that Marline developed mesothelioma as a

result of exposure to asbestos-containing products. Against all

defendants, plaintiffs alleged causes of action for negligence and

strict liability based on alleged exposure to the defendants’

products. Plaintiffs also asserted premises liability claims

against Exxon, Rossmoor, and others, alleging that Joseph

4

worked on premises owned by those defendants, where “he was

exposed to asbestos products and dust from asbestos products

and consequently exposed” Marline. Joseph also alleged loss of

consortium.

Marline’s alleged exposure to asbestos stemmed from many

sources and spanned several years. The evidence presented in

pretrial motions and at trial is discussed in detail below. In

short, plaintiffs allege that Marline suffered from both direct

exposure and secondary exposure to asbestos-containing dust.

They assert that the direct exposures occurred when Marline

visited Joseph while he worked at an Enco service station owned

by Exxon, from Joseph’s work on Ford vehicles at the Enco

station and at home while Marline was present, from exposure to

dust when Marline visited a Rossmoor construction site, and from

drywall compound and stucco in two of plaintiffs’ homes built by

defendant Shea Homes, which is not a party to this appeal. As

for secondary exposure, plaintiffs allege that Marline was

exposed to asbestos-containing dust that collected on Joseph’s

clothing while Joseph worked at the Enco station, as he worked

on Ford vehicles at home, and when he visited construction sites

as part of his work as an architectural drafter at Rossmoor.

A. Summary adjudication in favor of Exxon

1. Motion, opposition, and trial court ruling

Joseph and Marline testified in their depositions that they

met while Joseph was working at an Enco service station in

Pomona. Exxon’s predecessor, Humble Oil, owned the Enco

service station at the relevant time. Marline visited Joseph at

work in 1966 and 1967, while Joseph worked on automotive

friction products: brakes, clutches, and gaskets. Marline was

present when Joseph used compressed air to clean brake drums,

5

and as he swept the service bays before closing. Occasionally,

Marline was present when a mobile brake service van was on site

preparing brakes for installation. Plaintiffs alleged that these

activities directly exposed Marline to airborne asbestos. Joseph

said in his deposition that auto parts used at the Enco station

came from independent auto parts suppliers or the mobile brake

service.

Joseph briefly worked at a different Enco service station in

Ontario in 1968, and Marline also visited him there. Joseph also

worked at an Enco service station in Pleasanton in 1970 and

1971, after he and Marline were married. In Pleasanton, Marline

laundered Joseph’s work pants and came into contact with his

clothing.3

Exxon argued that summary adjudication should be

granted on two separate bases that plaintiffs challenge on appeal.

First, Exxon argued that it could not be liable under plaintiffs’

strict product liability theory because plaintiffs “have no

evidence, and cannot reasonably obtain evidence, that Mrs.

Petitpas was indirectly or secondarily exposed to asbestos from

an asbestos-containing product manufactured, distributed, or

sold by Exxon.” Exxon submitted undisputed evidence showing

that at the Pomona Enco station, asbestos-containing

replacement clutches and gaskets came from an independent

auto parts store, and asbestos-containing replacement brakes

were supplied by the mobile brake service. None of these

products was manufactured by Exxon. Exxon argued that

because it supplied these parts only through the provision of

automotive services, not as a seller or retailer of parts, it could



3 The parties agreed that the Pomona Enco station was the

only one relevant to plaintiffs’ product liability claims.

6

not be strictly liable because it was not within the stream of

commerce.

Second, Exxon argued that it did not have a duty to protect

Marline from secondary exposure from “allegedly toxic materials

that are carried off the premises on the clothing of an employee.”

Citing Rowland v. Christian (1968) 69 Cal.2d 108 and Oddone v.

Superior Court (2009) 179 Cal.App.4th 813 (Oddone), Exxon

argued that as a matter of law it did not have a duty to prevent a

non-employee’s secondary exposure to asbestos.

After Exxon’s motion was filed, the Court of Appeal decided

Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15

(Campbell). The plaintiff in Campbell alleged she developed

mesothelioma as a result of asbestos exposure from laundering

her father’s and brother’s clothing during the time they worked

as independent contractors installing asbestos insulation at a

Ford plant. (Id. at p. 19.) The Campbell court considered

“whether a premise[s] owner [Ford] has a duty to protect family

members of workers on its premises from secondary exposure to

asbestos used during the course of the property owner’s

business.” (Id. at p. 29.) The court concluded that “a property

owner has no duty to protect family members of workers on its

premises from secondary exposure to asbestos used during the

course of the property owner’s business.” (Id. at p. 34.)

Plaintiffs opposed Exxon’s motion. They argued Exxon

knew in the 1930’s that asbestos exposure was hazardous, and it

took steps to minimize refinery workers’ exposure to asbestos.

Because of this knowledge, plaintiffs argued, “a ‘reasonably

thoughtful’ employer would not only have protected its employees

from the risk of asbestos exposure, but would have protected its

employees’ household members who would be subjected to that

7

exposure from the asbestos debris taken home to the household.”

Plaintiffs contended that Campbell was wrongly decided.

Plaintiffs also argued that Exxon failed to shift the burden

on the product liability causes of action because it did not present

evidence showing that the Enco station did not sell asbestoscontaining

auto parts. Automotive repair and maintenance

facilities usually charge for both parts and services, plaintiffs

asserted, and Exxon failed to provide evidence that it did not

engage in such a practice.

At the hearing on the motion, after argument from the

parties, the court granted Exxon’s motion for summary

adjudication as to strict product liability and secondary exposure.

On appeal, plaintiffs assert that the trial court erred in granting

on both bases. We address each below.

2. Standard of review

On appeal following a motion for summary adjudication,

“‘[w]e review the trial court’s decision de novo, considering all the

evidence set forth in the moving and opposing papers except that

to which objections were made and sustained.’ [Citation.]” “We

liberally construe the evidence in support of the party opposing

summary [adjudication] and resolve doubts concerning the

evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc.

(2005) 36 Cal.4th 1028, 1037.)

“A defendant moving for summary judgment or summary

adjudication need not conclusively negate an element of the

plaintiff’s cause of action. (Code Civ. Proc., § 437c, subd. (f)(2);

Aguilar [v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,] 853, 107

Cal.Rptr.2d 841, 24 P.3d 493 [(Aguilar)].) Instead, the defendant

may show through factually devoid discovery responses that the

plaintiff does not possess and cannot reasonably obtain needed

8

evidence.” (Collin v. CalPortland Company (2014) 228

Cal.App.4th 582, 587-588.) “After the defendant meets its

threshold burden, the burden shifts to the plaintiff to present

evidence showing that a triable issue of one or more material

facts exists as to that cause of action or affirmative defense.

(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th

at p. 850, [107 Cal.Rptr.2d 841, 24 P.3d 493].) The plaintiff may

not simply rely on the allegations of its pleadings but, instead,

must set forth the specific facts showing the existence of a triable

issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A

triable issue of material fact exists if, and only if, the evidence

reasonably permits the trier of fact to find the contested fact in

favor of the plaintiff in accordance with the applicable standard

of proof. (Aguilar, supra, 25 Cal.4th at p. 850, [107 Cal.Rptr.2d

841, 24 P.3d 493].)” (Collin, supra, 228 Cal.App.4th at p. 588.)

3. Summary adjudication of strict product liability

claims against Exxon

As an initial matter, plaintiffs argue that summary

adjudication should have been denied. Plaintiffs contend that

Exxon failed to meet its summary adjudication burden because

the evidence Exxon submitted with its motion was insufficient to

prove that Exxon did not supply asbestos-containing vehicle

parts. “[T]he party moving for summary [adjudication] bears an

initial burden of production to make a prima facie showing of the

nonexistence of any triable issue of material fact.” (Aguilar,

supra, 25 Cal.4th at p. 850.) “When a defendant seeking

summary judgment submits the plaintiff’s . . . deposition

testimony indicating the plaintiff does not possess any evidence

to support one or more elements of the plaintiff’s claim, the

burden shifts to the plaintiff to present evidence sufficient to

9

raise a triable issue of material fact. [Citation.]” (Sweeting v.

Murat (2013) 221 Cal.App.4th 507, 514 fn. 8.)

California cases have found that a defendant involved in

the marketing/distribution process may be held strictly liable “if

three factors are present: (1) the defendant received a direct

financial benefit from its activities and from the sale of the

product; (2) the defendant’s role was integral to the business

enterprise such that the defendant’s conduct was a necessary

factor in bringing the product to the initial consumer market; and

(3) the defendant had control over, or a substantial ability to

influence, the manufacturing or distribution process. [Citation.]”

(Bay Summit Community Assn. v. Shell Oil Co. (1996) 51

Cal.App.4th 762, 776 (Bay Summit).) In addition, “strict liability

is not imposed even if the defendant is technically a ‘link in the

chain’ in getting the product to the consumer market if the

judicially perceived policy considerations are not satisfied. Thus,

a defendant will not be held strictly liable unless doing so will

enhance product safety, maximize protection to the injured

plaintiff, and apportion costs among the defendants.” (Arriaga v.

CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527,

1537.) “The application of strict liability in any particular factual

setting is determined largely by the policies that underlie the

doctrine.” (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171

Cal.App.4th 564, 576.)

Exxon met its summary adjudication burden here. Exxon

stated in its separate statement that Joseph “replaced brakes,

clutches and head gaskets at the Pomona Enco station,” and that

“the replacement clutches and gaskets used at the Enco station

came from a local independent auto parts stores [sic].” It also

stated that replacement brakes “were obtained from a mobile

10

brake service company which not only provided brakes but also

came to the station to do brake work.” With its motion, Exxon

submitted excerpts from Joseph’s deposition to support these

statements. This evidence was sufficient to support an inference

that Enco was not primarily in the business of supplying

asbestos-containing vehicle parts. Because the Enco station was

able to complete vehicle repairs with asbestos-containing parts

only through the use of the mobile brake service or with parts

purchased from auto parts stores, defendants demonstrated that

the Enco station did not generally stock these parts for sale to

consumers. In addition, Joseph stated in his deposition that the

workers at the Enco station installed the parts as part of its

repair and maintenance services. This evidence, and the

inferences that can be drawn from it, was sufficient to meet

Exxon’s burden under Aguilar.

Plaintiffs also assert that even if the summary adjudication

burden had been shifted, the motion should have been denied

because there was a triable issue of fact as to whether Exxon

played a role in the stream of commerce for these parts, and

therefore summary adjudication on strict product liability was

unwarranted. Plaintiffs assert that Exxon’s evidence did not

constitute “actual proof” that the brake service company, rather

than Exxon, was the supplier or seller of the brakes. Plaintiffs

also argue there was no evidence “that Exxon did not sell

[replacement] parts but merely included them as part of the cost

of the services provided.” Plaintiffs point to Joseph’s deposition,

in which he said the Enco station displayed motor oil, windshield

wipers, dust rags, transmission fluid, brake fluid, and perhaps

tires and fan belts. Plaintiffs argue that this “evidence

demonstrates that the Exxon station was in the business of

11

selling vehicle parts and supplies and frequently supplied its

customers with replacement brakes, clutches and engine

gaskets.”

Because this case involves strict liability for products

causing exposure to asbestos, however, the relevant question is

not whether the Enco station sold parts such as oil and

windshield wipers to customers, but instead whether Exxon was

within the stream of commerce for automotive parts that may

have exposed Marline to asbestos. In supplemental briefing,

Plaintiffs argue that our recent decision in Hernandezcueva v.

E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249

(Hernandezcueva) supports reversal of Exxon’s motion for

summary adjudication of plaintiffs’ strict liability claims.4

Hernandezcueva, the plaintiff was a janitor at an industrial

building complex. Defendant E.F. Brady was a drywall

subcontractor that helped build the complex in the 1970’s. The

plaintiff was diagnosed with mesothelioma, and alleged that E.F.

Brady supplied and installed drywall and related products that

included asbestos. (Id. at p. 253-254.) The trial court granted a

partial nonsuit on the plaintiff’s strict liability claims, and we



4 Exxon correctly points out that plaintiffs failed to cite

legal authority in their opening brief supporting their arguments

as to strict product liability against Exxon. Every appellate brief

must “support each point by argument and, if possible, by citation

of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) When an

appellant asserts an argument but fails to support it with

reasoned argument and citations to authority, we may treat the

point as waived. (Badie v. Bank of America (1998) 67

Cal.App.4th 779, 784-785.) We nonetheless exercise our

discretion to consider plaintiffs’ arguments about the effect of our

recent decision in Hernandezcueva, supra.

12

reversed. We discussed the stream-of-commerce theory of strict

product liability (see id. at pp. 257-258), and noted that

“‘[s]ervices, even when provided commercially, are not products.’”

(Id. at p. 259, quoting Rest. 3d Torts, § 19, subd. (b).) We said,

“[W]hen injury arises from a component integrated in another

product, the imposition of strict liability on a party hinges on its

role in the relevant transaction. Generally, manufacturers and

suppliers of a component to be integrated into a final product

may be subject to strict liability when the component itself causes

harm.” (Id. at p. 259.) On the other hand, “parties involved in

passing a defective component to the ultimate user or consumer

are not subject to strict products liability when their sole

contribution to the pertinent transaction was a service, namely,

the installation of the component into the pertinent final

product.” (Ibid.) Therefore, “[t]he propriety of imposing strict

liability on a party that both supplies and installs a defective

component hinges on the circumstances of the transaction.” (Id.

at p. 260.)

In Hernandezcueva, the evidence presented at trial showed

that “E.F. Brady was a large drywall installation firm whose

relevant contracts always involved the provision of drywall and

related materials.” (Hernandezcueva, supra, 243 Cal.App.4th at

p. 263.) In other words, providing drywall to customers

constituted a substantial portion of E.F. Brady’s business. E.F.

Brady also had significant, ongoing relationships with two

different drywall manufacturers, which were “sufficient to

command the personal attention of” both companies’

representatives when E.F. Brady had some problems with one

brand of drywall compound while working on the job at issue.

(Id. at p. 263.) This type of relationship is relevant in a strict

13

liability context, because it speaks to the defendant’s “position to

enhance product safety or exert pressure on the manufacturer to

promote” a product. (Id. at p. 262.) Based on this evidence, “a

jury could reasonably find that E.F. Brady was more than an

‘occasional seller’ of drywall and joint compounds.” (Id. at pp.

262-263.)

Exxon argues that the holding in Hernandezcueva

reinforces earlier strict liability cases, and supports its argument

that summary adjudication of plaintiffs’ strict liability claims was

appropriate. Exxon also contends that none of the factors

supporting a finding of strict liability in Hernandezcueva exist in

this case. We agree that the evidence here is dissimilar to that in

Hernandezcueva and that reversal is not warranted.

The evidence here does not indicate that supplying

asbestos-containing gaskets, clutches, and brakes was a central

part of the Pomona Enco station’s business. Joseph’s testimony

showed that the Enco station did not supply brake parts. Instead,

a mobile brake service came to the Enco station, supplied brake

parts, and performed services relating to those parts such as

turning brake drums and arcing brake linings. In addition,

Joseph’s testimony demonstrated that providing gaskets and

clutches was not a significant portion of the Pomona Enco

station’s business. Joseph said that in the year he worked at the

Pomona Enco station, clutch replacements were done rarely, less

than once per month. In that year, he and the other mechanics

performed two to three engine rebuilds involving gaskets. Joseph

rebuilt carburetors using gaskets about once per month. This

evidence of sporadic work with asbestos-containing parts does not

support a finding that supplying asbestos-containing parts was a

primary aspect of the Enco station’s business.

14

Moreover, Joseph testified that the Enco station obtained

gaskets and clutch parts from local auto parts stores. There is no

suggestion in the record that the Enco station managers or Exxon

had any direct relationship with the parts manufacturers. As

previous cases have noted, a relationship between the defendant

and the manufacturer is a significant consideration in a strict

liability analysis. In Hernandezcueva, for example, E.F. Brady

had an ongoing relationship with the drywall manufacturer that

was significant enough to exert pressure on the manufacturer to

influence product safety. (Hernandezcueva, supra, 243

Cal.App.4th at p. 263.) In Kasel v. Remington Arms Co. (1972) 24

Cal.App.3d 711, 725, the court noted that an “individual

defendant’s control over the cause of defect in the product” is not

determinative, but is a “significant factor” in a strict liability

analysis. And the court in Bay Summit, supra, 51 Cal.App.4th at

p. 776, said that strict liability may be appropriate where “the

defendant had control over, or a substantial ability to influence,

the manufacturing or distribution process.” The evidence here

offers no suggestion that such a relationship existed between

Enco or Exxon and the manufacturers of asbestos-containing auto

parts.

This case is more like Monte Vista Development Corp. v.

Superior Court (1991) 226 Cal.App.3d 1681, in which the plaintiff

alleged that a ceramic soap dish installed with her home’s

bathtub tile was defective and broke, causing a severe laceration.

Defendant Willey Tile was a subcontractor that installed the tile

and soap dishes in the plaintiff’s home and other homes in that

development. Willey Tile selected and purchased the soap dish in

bulk from a supplier. The trial court granted summary

adjudication on plaintiff’s strict liability claims against Willey

15

Tile, and the Court of Appeal affirmed. The appellate court said,

“The focus of our analysis is . . . whether the tile company came

within the chain of commerce as a supplier of the soap dish to the

extent that it became strictly liable if the item was defective. We

conclude liability should not be extended under these

circumstances.” (Monte Vista, supra, 226 Cal.App.3d at p. 1687.)

The court explained, “Willey Tile was not in the business of

selling soap dishes or any other fixtures. It purchased the soap

dish that injured plaintiff, as well as other fixtures, in order to

complete its subcontract with Monte Vista [the developer].

Obviously, it mattered not to Willey Tile whether Monte Vista or

someone else supplied the tile fixtures.” (Ibid.)

Similarly, in Endicott v. Nissan Motor Corp. (1977) 73

Cal.App.3d 917, the Court of Appeal affirmed nonsuit for a seat

belt installer who was not in the stream of commerce. The

plaintiff alleged that his seat belt failed in a car accident,

contributing to injuries. (Endicott, supra, 73 Cal.App.3d at p.

923-924.) An independent contractor installed the seat belts:

“When a vehicle arrived in California, its belts were already in

the trunk of the vehicle, and the locations for their installation

were marked. Installer’s employees took the belts out of the

trunk and attached them to the vehicle according to the

manufacturer’s directions. The manufacturer supplied all

materials for attaching the belts.” (Id. at p. 925.) The Court of

Appeal held that nonsuit for the installer was appropriate. “[W]e

find no evidence that Installer was an integral part of the overall

marketing enterprise that produces Datsun automobiles or that it

played any significant role in placing Datsun’s product in the

stream of commerce that could render Installer liable in tort for

defects in Datsun’s automobiles. [Citation.] As a mere provider

16

of services Installer is not liable for defects in the product.” (Id.

at p. 930.)

Here, the Enco station was in a similar situation. If a

customer needed a clutch facing or gasket, the Enco station

needed to purchase one that fit the particular make and model of

the vehicle. There is no suggestion in the record that Joseph,

other Enco station workers, or Exxon had any control over which

clutch parts or gaskets could be used to complete these repairs or

whether those parts were made with asbestos. The evidence

therefore shows that the Enco station was a “provider of services”

rather than a seller or distributor of asbestos-containing vehicle

parts.

In sum, the evidence submitted with Exxon’s motion for

summary adjudication was sufficient to shift the burden to

plaintiffs under Aguilar. Plaintiffs’ evidence does not support a

finding that there was a triable issue of fact as to whether the

Enco station or Exxon was within the stream of commerce for

asbestos-containing vehicle parts to the extent that strict liability

is warranted. Summary adjudication on plaintiffs’ strict liability

claims against Exxon was properly granted.

4. Summary adjudication of secondary exposure claims

relating to Exxon

Plaintiffs also argue that the court erred by granting

summary adjudication of their claims against Exxon based on

Marline’s secondary exposure to asbestos. The trial court

granted summary adjudication based on the reasoning of

Campbell, which held that “a property owner has no duty to

protect family members of workers on its premises from

secondary exposure to asbestos used during the course of the

17

property owner’s business.” (Campbell, supra, 206 Cal.App.4th

at p. 34.)

While this appeal was pending, the Supreme Court

disapproved Campbell and Oddone in Kesner v. Superior Court

(2016) 1 Cal.5th 1132 (Kesner). In Kesner, the Court held, “[T]he

duty of employers and premises owners to exercise ordinary care

in their use of asbestos includes preventing exposure to asbestos

carried by the bodies and clothing of on-site workers. Where it is

reasonably foreseeable that workers, their clothing, or personal

effects will act as vectors carrying asbestos from the premises to

household members, employers have a duty to take reasonable

care to prevent this means of transmission.” (Kesner, 1 Cal.5th at

p. 1140.) The Court was very specific that this duty extended

only to members of the employee’s household: “We hold that an

employer’s or property owner’s duty to prevent take-home

exposure extends only to members of a worker’s household, i.e.,

persons who live with the worker and are thus foreseeably in

close and sustained contact with the worker over a significant

period of time.” (Id. at pp. 1154-1155.) Although other people

might regularly have contact with a worker whose clothing

carries asbestos fibers, the Court’s foreseeability analysis relied

“on the fact that a worker can be expected to return home each

work day and to have close contact with household members on a

regular basis over many years.” (Id. at p. 1155.) Limiting

liability to household members “strikes a workable balance

between ensuring that reasonably foreseeable injuries are

compensated and protecting courts and defendants from the costs

associated with litigation of disproportionately meritless claims.”

(Ibid.)

18

We asked the parties for further briefing to address the

effect of Kesner on plaintiffs’ assertions that summary

adjudication in favor of Exxon on the issue of secondary exposure

should be reversed. Plaintiffs acknowledge in their supplemental

briefing that “Marline and Joseph were not married and did not

live together at the time Joseph worked at the Exxon station and

thus technically were not members of the same household.”

Plaintiffs ask us to hold that Exxon had a duty to Marline

nevertheless, contending that “Marline’s status is close to that of

a household member” because she and Joseph hugged, kissed,

and went places in Joseph’s car while Joseph was wearing his

work clothes. Plaintiffs thus ask us to remand for “a trial on the

issue of whether Marline’s exposures as a result of her close,

personal contact with Joseph were factually similar to the status

of a household member.”5

We decline to expand Kesner’s duty to apply to a nonhousehold

member. The Kesner Court was very specific in

limiting the duty to non-employees “only to members of a

worker’s household, i.e., persons who live with the worker.”

(Kesner, supra, 1 Cal.5th at pp. 1154-1155.) The Court

recognized that maintaining this limitation on the scope of the

duty was important: “We are mindful that recognizing a duty to

all persons who experienced secondary exposure could invite a

mass of litigation that imposes uncertain and potentially massive

and uninsurable burdens on defendants, the courts, and society.”

(Id. at p. 1156.) Inviting a trial to determine whether a non-



5 Plaintiffs do not argue that Exxon should be liable under

Kesner for take-home exposure relating to Joseph’s work at the

Enco station in Pleasanton after plaintiffs were married. We

therefore do not consider Kesner’s effect on this alleged exposure.

19

household member’s contact with the employee was “similar to

the status of a household member” appears to be exactly what the

Supreme Court was attempting to avoid with this bright-line

rule.

Because Marline was not a member of Joseph’s household

when Joseph worked at the Enco station in Pomona, Exxon did

not have a duty to Marline with respect to secondary asbestos

exposure. Summary adjudication in favor of Exxon is therefore

affirmed.

II.

Trial began against defendants Union Carbide, Shea

Homes, Rossmoor, Ford, and Exxon. Union Carbide and Shea

Homes settled with plaintiffs during the course of the trial, the

trial court granted nonsuit for Rossmoor, and Ford and Exxon

proceeded to verdict. The evidence summarized below was

presented at trial.

A. Enco service station and Joseph’s work on Ford cars

Joseph and Marline both testified at trial. Joseph testified

that he worked at an Enco gas and service station, operated by

Exxon,6 in Pomona from 1966 to 1967. Joseph and Marline met

in 1966 at the Enco station, and after they began dating, Marline

visited Joseph while he worked there several days a week. She

sat in the service bay where mechanics worked on cars. Marline

continued to visit Joseph at work for about a year and a half,

until Joseph was drafted into the Army. Marline estimated that

her visits ranged from 20 minutes to several hours.

The cars that came into the Enco station in that time

period were mostly American-made cars: about 40 percent



6 At trial the parties stipulated that defendant Exxon was

known or did business as Enco and Humble Oil.

20

General Motors models, 40 percent Ford models, and the rest

other makes. Joseph did a variety of work on Ford cars,

including brake inspections and replacements. He did brake

inspections two or three times a day, and brake replacements two

or three times a week. About 40 percent of these inspections and

replacements were on Ford cars.

Joseph used an air compressor to blow dust out of wheel

assemblies to check or change brakes. Marline estimated that

she watched Joseph do brake work on a total of seven to ten cars

at the Enco station, and she could not identify the make or model

of any of those cars. Marline observed that when Joseph did

brake work, it created dust, and she breathed that dust. Marline

also watched Joseph clean up at the end of the day, which

involved blowing or sweeping the floor, which created dust, and

Marline breathed the dust.

A mobile brake service came to the Enco station once or

twice a week to turn brake drums and arc brake linings.

7 Arcing

the brake linings created airborne dust. Joseph often was in or

near the mobile brake van while this work was being done.

Marline testified that she approached the mobile brake van

either once or several times, and she testified that she breathed

the dust the work created. Some cars that went to the Enco

station had brakes stamped with “FoMoCo,” indicating original

Ford-installed brakes. The replacement brakes used by the brake

van and by Joseph when he worked at the Enco station were

Raybestos or Bendix brakes.



7 Joseph testified that this work was done when brake

drums became warped from use, or to fit brake linings better

within a brake drum to ensure a smooth braking surface.

21

Joseph wore a uniform shirt to work, and the service

station provided a cleaning service for the uniform shirts; once a

week Joseph brought his shirts in and the company had them

cleaned. Joseph usually wore his uniform shirt when he went out

with Marline after work. Marline did not wash Joseph’s clothing

when they were dating.

Joseph was drafted into the Army in early 1968, and moved

to Fort Carson, Colorado after basic training. He and Marline

married and lived together in Fort Carson. Joseph worked parttime

at a Chevron service station in Fort Carson in 1968 and

1969, doing the same type of work he had done at the Enco

station. Joseph testified that Marline came to visit him at that

service station as well. After Marline and Joseph moved back to

California in 1970, Joseph worked part-time at another Enco

station for a year or slightly longer. Joseph did the same type of

service work there that he did at the other service stations.

During this time period, Marline washed Joseph’s clothing.

Joseph testified that he also worked on his family’s cars at

home after 1972. He did a brake inspection on their 1964 Ford

Falcon Ranchero in their home garage. Joseph did two or three

brake changes on their 1976 Ford Ranchero, and a 1984 Ford

van. Joseph also did brake inspections on his father’s 1977 Ford

Thunderbird. Sometimes Marline was in the home garage

working on crafts or doing laundry as Joseph worked on the cars,

and she testified that she breathed dust that arose from Joseph’s

work. Marline also testified that during this period she did

Joseph’s laundry after he worked on vehicles, and she breathed

the dust that was on his shirts.

Joseph used Raybestos and Bendix replacement brakes on

these cars. Plaintiffs presented part of a 1989 deposition

22

transcript of Arnold Anderson, a Ford engineer, who testified

that Ford did not make the brake linings that were in Ford cars.

Instead, Ford would “buy brakes, brake assemblies from the

brake system suppliers who buy the linings from lining vendors.”

Anderson testified that he tested the brake linings supplied to

Ford by different vendors, and all brands of brake linings he

tested contained chrysotile asbestos.

Plaintiffs also presented an interrogatory response from

Ford, stating that some Ford vehicles prior to the 1980’s included

asbestos-containing brake linings, brake pads, and clutch facings,

and that these component parts were purchased from third-party

suppliers. In addition, the interrogatory response said that Ford

sold asbestos-containing replacement parts under the Ford

brand, although those parts were purchased from non-Ford

suppliers.

B. Joseph’s work at Rossmoor

Before nonsuit was granted as to Rossmoor, the following

evidence was presented at trial. In 1971, Joseph began working

at Rossmoor as an architectural drafter, drawing plans for

construction projects. At the time, Rossmoor was building

Leisure World, a large retirement community consisting of

houses, condominiums, and high-rise buildings. As a drafter,

Joseph worked primarily in an office. After he had been at

Rossmoor for six months to a year, he began visiting the

construction site as part of his work. He usually left the office

first thing in the morning to visit the construction sites, where he

answered questions and responded to building inspectors. He

typically spent half an hour to an hour and a half at the site, and

spent the rest of the day in his office. At first he drove to the site

in his own car, and later he used a company car available for that

23

purpose. Joseph testified that the Leisure World construction

used gypsum drywall, joint compound, textured ceiling material,

and stucco. Plaintiffs’ expert Richard Hatfield testified that

these materials typically contained asbestos.8

Plaintiffs owned one car, and once or twice a week Marline

drove Joseph to work in the morning and picked him up in the

evening. When Marline picked up Joseph, they typically hugged

each other. After they bought a house nearby in 1972, Joseph

sometimes came home for lunch.

Joseph testified that before he left a construction site he

might stomp his feet or brush off his pants if he was dusty, but it

was “very possible” that dust from the construction site might be

on his lower pants at the end of the day. Plaintiff’s counsel asked

Hatfield whether Marline could be exposed to asbestos if Joseph

had been at a construction site and he could “see like white

powder, I don’t know, six inches or a foot up his leg,” and he

brushed it off in Marline’s presence. Hatfield testified that

exposure could occur in that manner. Plaintiffs’ counsel also

asked Hatfield whether exposure could occur if Joseph was at a

dusty work site and got dust on his shirt and pants, then Marline

“comes to pick him up, she drives onto the site,” and Joseph

hugged Marline. Again Hatfield said that scenario could expose

Marline to asbestos. On cross-examination, Hatfield said that if

Joseph picked up dust on his clothes at the construction site in

the morning and then worked the rest of the day at his office,

there was no way to say with any scientific certainty whether

Joseph exposed Marline to asbestos.



8 Hatfield’s specific area of expertise is unclear from the

record, but he testified that he is a geologist, microscopist, and

“know[s] a lot about the industrial hygiene of asbestos.”

24

Joseph testified that during this time period Marline

washed some of Joseph’s shirts, socks, and underclothes; Joseph’s

slacks and ties were dry cleaned. Hatfield said that if Marline

were to shake visible dust out of Joseph’s clothing when she

laundered it, that could result in exposure. Neither Joseph nor

Marline testified that Marline shook visible dust out of the

clothing Joseph wore to work at Rossmoor.9

Joseph occasionally showed Marline the partially

completed buildings when the work had finished for the day and

“nobody was around.” When Marline visited the construction

sites, no active construction work was being done. Joseph

testified, “I wouldn’t say she was there during the day when that

action [construction] was going on . . . but after, late in the

afternoon or when she picked me up, we’d swing out there maybe

on a Saturday. So yes, those activities were going on, but not at

that moment.” Marline agreed that she was “never on any one of

the construction sites while the construction workers were there

performing construction work.” Marline occasionally saw

construction materials on the floors of these partially completed

buildings, but she could not recall seeing any dust.

C. Marline’s other exposures to asbestos-containing

materials

Union Carbide and Shea Homes also were defendants at

the start of the trial.

10 Plaintiffs’ counsel explained in opening



9 At one point Marline testified that she would shake out

the clothing Joseph wore while working on Ford cars, but none of

the parties have pointed us to any evidence that Marline shook

dust from the clothing Joseph wore while working at Rossmoor.

10 Because these defendants were dismissed before trial

was completed, some of the evidence pertaining to these

exposures, related causation, and defenses was not fully

25

statements that Union Carbide supplied asbestos for a joint

compound manufactured by Hamilton Materials (Hamilton) that

was used at construction sites where Joseph worked. Union

Carbide was dismissed from the case after several days of trial.

Joseph and Marline bought a new home in 1972 in Mission

Viejo from the predecessor to defendant Shea Homes. They first

purchased a lot in a tract of homes, and visited the house as it

was being built. They went to the construction site in the

evenings and cleaned up after the construction crew, sweeping up

drywall dust and throwing away trash. They also were present

when construction was occurring. The construction created

visible dust which they breathed. Joseph testified that defendant

Hamilton made the joint compound used in the construction of

the home. It created dust when it was sanded. Hatfield testified

that a neighboring home built at the same time with the same

materials was later tested for the presence of asbestos, and its

stucco, acoustical ceilings, and joint compound were found to

contain asbestos.

Plaintiffs also built some block walls at the Mission Viejo

house, using Merlex stucco to cover the walls. The stucco came

as a powder, which they poured into a wheelbarrow and mixed

with water. Joseph also drilled into the stucco on the house to

hang gates and build a patio roof; Marline was with him as he did

this and helped him. Joseph testified that because Marline was

an artist, they hung her art around the house by making holes in



developed. Nonetheless, the jury heard some information about

Marline’s exposures to asbestos from these sources. Because the

jury’s causation finding is at issue on appeal, we include a brief

summary of this evidence here.

26

the drywall. Hatfield testified that these activities could result in

exposure to asbestos dust.

In 1977, plaintiffs bought a new home in Lake Forest,

California. As with the Mission Viejo house, plaintiffs purchased

this home before it was built and visited the site as construction

was being completed. They were present as the drywall was

being installed and after it had been sanded, and Joseph testified

that a Hamilton joint compound also was used at the Lake Forest

house. Plaintiffs built extensive walls and planters around that

home using Merlex stucco.

Joseph testified that in 1972 they bought a Chevrolet

Monte Carlo, and he did brake inspections and brake changes on

the car at home. As noted above, Joseph testified that when he

worked on cars at home Marline was sometimes nearby, and she

laundered his clothing afterward.

Marline testified that she initially told her doctors that the

only asbestos to which she had been exposed was in dental tape

she used while employed by an orthodontist. She worked with

the asbestos dental tape two to three times in the 1980s, for a few

minutes at a time.

Counsel introduced pretrial discovery responses in which

Marline stated that she was exposed to asbestos in locations

including the Enco service station in Pomona, a Chevron service

station where Joseph worked briefly, various homes in California

and Colorado, and the orthodontist’s office. The discovery

responses stated that Marline laundered Joseph’s clothing when

he worked at the Pomona Enco station, the Chevron station,

Rossmoor, and one additional company, although Joseph testified

at trial that Marline did not do his laundry while he was working

at the Pomona Enco station.

27

In addition, the discovery responses stated that Marline

was exposed to asbestos-containing automobile products supplied

or sold by Borg Warner; Morse Tec., Inc.; Dana Companies LLC,

formerly known as Spicer Manufacturing Company; El Toro Auto

Supply, Inc.; Exxon Mobil Corporation; Ford Motor Company;

Genuine Parts Company; Honeywell International, Inc.; Bendix

Brakes; Metropolitan Life Insurance Company; National

Automotive Parts Association; and Pneumo Abex. The discovery

responses also stated that Marline was exposed to asbestoscontaining

construction-related products supplied or sold by

Amcord; California Portland Cement; Dowman Products; Georgia

Pacific; Griffith Company; John K. Bice; Kaiser Gypsum; Kelly

Moore; Kentile Floors; Merlex Stucco; Metropolitan Life

Insurance; William B. March; and Union Carbide Corporation.

In addition, in responses to requests for admissions that were

read to the jury, plaintiffs admitted that Marline was exposed to

asbestos-containing products manufactured or sold by Hamilton

Materials and Merlex Stucco Incorporated, and that Marline was

exposed to asbestos on the premises of Shapell Homes

Incorporated.

D. Causation evidence

Plaintiffs presented the expert testimony of pulmonologist

Barry Horn, M.D. Dr. Horn testified about numerous studies

connecting asbestos and lung disease. He said that if there is

visible dust in the air, “[t]hat means there’s heavy exposure.” He

also testified that everyone is exposed to “background” or

“ambient” asbestos in the air, but that such exposure is very

minor and does not overwhelm the body’s defense mechanisms.

Dr. Horn testified that asbestos from joint compound, textured

ceilings, and brakes can cause disease. Dr. Horn said each

28

exposure to asbestos raised Marline’s risk of developing

mesothelioma. On cross-examination, Dr. Horn agreed that

several studies found no increased risk of mesothelioma in auto

mechanics.

Plaintiffs presented the testimony of Barry Castleman,

Sc.D., a public health expert. Dr. Castleman testified that the

health hazards relating to the inhalation of asbestos dust were

known by 1929. In the 1930’s, industrial hygienists published

articles indicating that “asbestosis,” or lung scarring disease,

“was widespread in manufacturing plants where asbestos was

used to make brake linings, and grinding of asbestos brake

linings was particularly emphasized in some of these articles.”

Dr. Castleman also testified that a Dr. Wilhelm Hueper

published data in 1965 relating to health hazards of brakes and

“brake work.”

On cross-examination, Dr. Castleman agreed that much of

the asbestos-related research through the 1940’s and 1950’s was

“being done in factories that worked directly with asbestos.” Dr.

Castleman testified that he was not aware of any epidemiological

studies prior to 1968 showing an increased risk of mesothelioma

in mechanics, and by 1969, “there was nothing in print on the

measurement of exposure of brake mechanics to asbestos.”

Counsel for Exxon read to the jury a portion of Dr. Castleman’s

deposition testimony in which Dr. Castleman stated that to this

day, there are no studies “that have any statistical power . . . that

speak of the mesothelioma risk of mechanics that do brake repair

work.”

Plaintiffs presented the 2004 deposition testimony of Dr.

Neill Weaver, a cardiologist and former Exxon employee. Dr.

Weaver’s testimony is discussed more fully below, but in short he

29

testified that he worked at a refinery owned by an Exxon

predecessor in Baton Rouge from 1951 to 1964, and later became

an associate medical director with “primary responsibility for all

refining and petrochemical manufacturing” at Exxon and its

related companies at the time. Industrial hygiene practices with

respect to asbestos were already in place before he began working

at Exxon, showing that Exxon knew of the dangers of asbestos

exposure. Exxon objected to this testimony because it related to

refineries instead of service stations; the court overruled the

objections.

A Ford company representative, Mark Taylor, testified

about a 1975 study indicating that although dust remained inside

a brake drum after use of the brakes, only .02 percent of that

dust was chrysotile asbestos because “99.98 percent of the

chrysotile asbestos is consumed in the braking . . . operation.”

Ford engineer Arnold Anderson’s 1989 deposition testimony

explained that chrysotile asbestos is in a coiled form, and when

heated to 650 degrees Celsius, it becomes glassy forsterite, which

is “the same chemistry but totally different structure than the

original chrysotile.”11 Taylor testified that in 1973, Ford tested



11 Anderson also testified that his studies showed that with

use, almost all of the asbestos in brake linings was converted to

non-fiber forsterite. The record does not make clear if Anderson

and Taylor were discussing results of the same tests. The portion

of Anderson’s testimony read into the record at trial also was not

clear regarding the time period in which Anderson tested brake

linings containing asbestos. Anderson’s deposition testimony

that was read at trial said that “99.87 plus percent” of the

chrysotile was converted to forsterite, and that “approximately

.03% or less” was fiber bundles. These numbers do not add up to

100 percent and do not match Taylor’s numbers, which suggests

30

asbestos in dust blown out of brake drums with compressed air,

and found that the asbestos level in the dust exceeded OSHA

requirements. He testified that in about 1975, Ford began

advising service mechanics not to blow out brake drums with

compressed air.

Defense expert pathologist Victor Roggli, M.D., testified

that forsterite “has no disease-producing potential at all.” Dr.

Roggli also testified that that mesothelioma and other asbestos

diseases depend on a dose-response relationship: “The higher the

dose, the more likely you are to get the disease.” He said that

since the 1980’s, no study has shown that career brake or auto

mechanics are at an increased risk of developing mesothelioma.

On cross-examination, Dr. Roggli agreed that he could not rule

out exposure to asbestos as a cause of Marline’s mesothelioma.

He also admitted that there were documented cases of

mesothelioma in people whose only known exposure to asbestos

was through automotive brake inspection and repair.

William Dyson, Ph.D., a defense industrial hygiene expert,

also testified about the dose-response relationship with asbestos.

Dr. Dyson testified that “it takes a lot of chrysotile exposure to

present a risk of asbestos-related mesothelioma,” and Marline’s

exposure to asbestos at the Enco station was “trivial,

inconsequential,” because it was “well less than the lowest

exposure dose at which we’ve observed risk in the most sensitive

person in the population for exposure to chrysotile and risk of

mesothelioma.” Dr. Dyson also opined that Joseph’s work on

vehicles in the family’s home garage was insignificant and did not

increase the risk to Marline.



either an error or that Anderson and Taylor were discussing

different tests.

31

E. Verdict

Before closing arguments, plaintiffs and Shea Homes

reached a settlement, and Shea Homes was dismissed from the

case. The case against Exxon and Ford was therefore submitted

to the jury. The jury instructions relevant to the appeal are

discussed in a separate section below.

The jury answered the questions on the verdict form as

discussed below. The jury was polled afterward, and the poll

numbers are included with the verdict findings:

“Section 1, as to defendant Exxon Mobil Corporation.

“Question No. 1: Did Exxon Mobil Corporation operate or

control an Enco service station where Mr. Petitpas worked during

the 1960s?

“Answer: Yes. [10-2]

“Question No. 2: Was Mrs. Petitpas exposed to asbestos

dust at the Enco service station?

“Answer: Yes. [10-2]

“Question No. 3: Was Mrs. Petitpas’ exposure to asbestos

dust at the Enco service station a substantial factor in

contributing to her risk of developing mesothelioma?

“Answer: Yes. [9-3]

“Question No. 4: Did Exxon Mobil Corporation know or

through the exercise of reasonable care should have known that

there was a condition at the Enco station that created an

unreasonable risk to Mrs. Petitpas of exposure to asbestos dust?

“Answer: No. [12-0]

“[¶ . . . . ¶]

“Section 2, as to defendant Ford Motor Company.

“Question No. 7: Was Mrs. Petitpas exposed to asbestos

dust from Ford original equipment brakes, gaskets or clutches?

32

“Answer: Yes. [11-1]

“Question No. 8: Was Mrs. Petitpas’ exposure to asbestos

dust from Ford original equipment brakes, gaskets or clutches a

substantial factor in contributing to her risk of developing

mesothelioma?

“Answer: No. [10-2]”

The court entered judgment in favor of defendants, and

plaintiffs timely appealed. Marline passed away on October 21,

2013, while the appeal was pending. Joseph was appointed as

her successor-in-interest.

III.

Plaintiffs assert separate errors relating to Rossmoor,

Exxon, and Ford. We discuss each in turn below.

A. Rossmoor

1. Rossmoor’s nonsuit motion

After plaintiffs rested, Rossmoor moved for nonsuit on

several different grounds.12 Rossmoor asserted that under

Campbell, supra, 206 Cal.App.4th 15, “there is no duty to protect

family members of workers on premises.” Rossmoor argued that

it was irrelevant whether such exposures occurred “from

laundering the clothes, from riding in the same automobile as

someone who was directly exposed or giving someone a hug in the

parking lot by the office.” The court granted nonsuit on Campbell

grounds for all claims of secondary exposure.

Rossmoor also argued that there was no evidence that

Marline was directly exposed to asbestos at the Rossmoor

construction site: “[T]here’s no testimony that they were at the

house at the time that the construction work was going on and/or



12 Rossmoor also moved for nonsuit after plaintiffs’ opening

statements.

33

that they were even on the premises at the time that construction

work was going on where there was any potential release of

asbestos fibers.” The court noted, “They said they were not there

during construction.” Rossmoor’s counsel agreed, and said, “Mrs.

Petitpas specifically testified that, when she walked into the

house, she didn’t see any dust.”

The court asked plaintiffs’ counsel what evidence there was

of exposure, in light of the fact that Marline testified that she did

not see any airborne dust at the construction sites. Plaintiffs’

counsel responded that expert testimony showed “that the nature

of respirable asbestos fibers are, in fact, microscopic and invisible

to the naked eye.” As a result, only specialized testing can

demonstrate if there are asbestos fibers in the air. Because the

houses were under construction at the time, “that asbestos and

asbestos dust, asbestos laden dust was in the structures. And . . .

it doesn’t go out. So there doesn’t need to be someone actively

doing work for asbestos exposures to occur.”

Rossmoor also asserted that plaintiffs failed to establish

medical causation because they had not presented “evidence that

Mrs. Petitpas was actually exposed to asbestos-containing

materials by Rossmoor Corporation with enough frequency and

regularity to show a reasonable medical probability that the

exposure was a factor in causing her injury.” Rossmoor said the

testimony of plaintiffs’ medical expert, Dr. Horn, was insufficient

to establish that any exposure from Rossmoor was a substantial

factor in causing Marline’s mesothelioma.

The court granted the motion “on all the grounds raised in

the written motion and the oral motion that I’ve heard.” When

the jury returned to the courtroom, the judge informed the jury

that Rossmoor was no longer in the case.

34

On appeal, plaintiffs contend that nonsuit in favor of

Rossmoor should be reversed on two different grounds. First,

plaintiffs argue that the court’s nonsuit as to secondary exposure

should be reversed under Kesner, supra. Second, plaintiffs assert

that nonsuit as to Marline’s direct exposure should be reversed

because they presented sufficient evidence to warrant sending

the case to the jury. We address each of these arguments below.

2. Standard of review

In reviewing a judgment of nonsuit, “we must view the

facts in the light most favorable to the plaintiff. ‘[C]ourts

traditionally have taken a very restrictive view of the

circumstances under which nonsuit is proper. The rule is that a

trial court may not grant a defendant’s motion for nonsuit if

plaintiff’s evidence would support a jury verdict in plaintiff’s

favor. [Citations.] [¶] In determining whether plaintiff’s

evidence is sufficient, the court may not weigh the evidence or

consider the credibility of witnesses. Instead, the evidence most

favorable to plaintiff must be accepted as true and conflicting

evidence must be disregarded. The court must give “to the

plaintiff[’s] evidence all the value to which it is legally entitled, . .

. indulging every legitimate inference which may be drawn from

the evidence in plaintiff[’s] favor. . . .”’ [Citation.] The same rule

applies on appeal from the grant of a nonsuit. [Citation.]”

(Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215; see also

O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 347 (O’Neil).)

3. Nonsuit for secondary exposure

The trial court granted Rossmoor’s nonsuit for secondary

exposure under the reasoning of Campbell. As discussed above,

Campbell was recently disapproved in Kesner. In their

supplemental briefing plaintiffs argue, “Because the trial court

35

granted non-suit in favor of Rossmoor as to Marline’s ‘take-home’

exposures based on its determination that Rossmoor did not owe

her a duty as a matter of law under Campbell, and given that

Kesner disapproved Campbell on that very issue, reversal and

remand for trial against Rossmoor is required.”

Rossmoor argues that reversal is not required because

although the trial court stated that it granted nonsuit for

secondary exposure based on the reasoning of Campbell, the

court also said, “I’m going to grant the motion for non-suit as to

Rossmoor on all the grounds raised in the written motion and the

oral motion that I’ve heard.” One basis for nonsuit in Rossmoor’s

motion was insufficient evidence of causation. Rossmoor argues

that plaintiffs “presented no substantial evidence that [Marline]

was exposed to asbestos-containing products from the Rossmoor

project with such frequency, regularity, and proximity as to

satisfy the causation standard articulated in Rutherford [v.

Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford)],

Hernandez [v. Amcord, Inc. (2013) 215 Cal.App.4th 659], and

Lineaweaver [v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409

(Lineaweaver)].”

Plaintiffs reply that “[e]xpert testimony confirmed that

those exposures [from Joseph’s clothes and in the family car]

were sufficient to increase her risk of exposure [sic].” They cite

pages from the testimony of Dr. Horn, who testified that every

asbestos exposure increases the risk of mesothelioma.

“In the context of a cause of action for asbestos-related

latent injuries, the plaintiff must first establish some threshold

exposure to the defendant’s defective asbestos-containing

products, and must further establish in reasonable medical

probability that a particular exposure or series of exposures was

36

a ‘legal cause’ of his injury, i.e., a substantial factor in bringing

about the injury. . . . [T]he plaintiff may meet the burden of

proving that exposure to defendant’s product was a substantial

factor causing the illness by showing that in reasonable medical

probability it contributed to the plaintiff or decedent’s risk of

developing cancer.” (Rutherford, supra, 16 Cal.4th at p. 982

[italics in original].) “[T]he proper analysis is to ask whether the

plaintiff has proven exposure to a defendant’s product, of

whatever duration, so that exposure is a possible factor in

causing the disease and then to evaluate whether the exposure

was a substantial factor.” (Lineaweaver, supra, 31 Cal.App.4th at

p. 1416.) “Many factors are relevant in assessing the medical

probability that an exposure contributed to plaintiff’s asbestos

disease,” including “[f]requency of exposure, regularity of

exposure, and proximity of the asbestos product to plaintiff.”

(Ibid.)

Here, the evidence showed that Joseph worked mostly in an

office, and sometimes got dust on the legs of his pants when he

visited construction sites. Plaintiffs’ expert Hatfield testified that

if Joseph was working at a construction site and Marline “drives

onto the site” to pick him up, she could be exposed as well. The

evidence showed, however, that Marline picked Joseph up from

his office, not the construction site. In the time period in which

Joseph was at the construction site daily, he was there early in

the mornings and usually drove a company car to and from the

site.

13



13 Plaintiffs suggest that asbestos may have contaminated

the family car, but they have not pointed us to any testimony

suggesting that asbestos-containing dust was in the car and that

37

Hatfield testified that if Joseph got dust on his clothes at

the work sites in the morning and Marline picked him up at his

office at the end of the day, there was no telling with a scientific

certainty whether Marline was exposed as a result. Although

Hatfield testified that shaking visible dust out of clothing before

laundering could contribute to exposure that can cause

mesothelioma, there was no testimony that Joseph had visible

dust on his clothing when he came home, or that Marline shook

any such dust from his clothing.

The evidence therefore suggested it was possible that

Marline was exposed to asbestos from dust on Joseph’s clothing,

because Joseph was in the presence of dust that may have

contained asbestos, and later Marline was in the presence of

Joseph. But “[m]ere presence at a site where asbestos was

present is insufficient to establish legally significant asbestos

exposure.” (Shiffer v. CBS Corporation (2015) 240 Cal.App.4th

246, 252.) Viewing the evidence in the light most favorable to

plaintiffs, the evidence did not make the required connection

between asbestos at the Rossmoor work site and Marline’s

exposure to asbestos from Joseph’s clothing. “‘While there are

many possible causes of any injury, “‘[a] possible cause only

becomes “probable” when, in the absence of other reasonable

causal explanations, it becomes more likely than not that the

injury was a result of its action. This is the outer limit of

inference upon which an issue may be submitted to the jury.’”

[Citation.]’ [Citation.]” (Whitmire v. Ingersoll-Rand Co. (2010)

184 Cal.App.4th 1078, 1084.)



Marline was exposed to asbestos when she breathed dust in the

car.

38

In responding to questions about hypothetical scenarios,

Hatfield testified that exposure could have occurred if Marline

shook visible dust from Joseph’s clothing or if Joseph brushed

dust off his pants in her presence. However, no one testified that

these factual scenarios happened. “[A]n expert’s opinion that

something could be true if certain assumed facts are true,

without any foundation for concluding those assumed facts exist

in the case before the jury, does not provide assistance to the jury

because the jury is charged with determining what occurred in

the case before it, not hypothetical possibilities.” (Jennings v.

Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th

1108, 1117.)

Plaintiffs argue that Dr. Horn testified that every exposure

to asbestos can contribute to the risk of mesothelioma. But “[i]f

there has been no exposure, there is no causation.” (McGonnell v.

Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103.) Even

assuming Dr. Horn is correct as to the cause of mesothelioma in

general, plaintiffs had the burden to prove that exposure to

asbestos-containing materials at Rossmoor was a substantial

factor in contributing to the risk of Marline’s mesothelioma.

Because Joseph’s and Marline’s testimony did not show that

Joseph’s clothing was contaminated with asbestos fibers at the

times Joseph was in contact with Marline, plaintiffs did not

establish that asbestos from Rossmoor was a substantial factor in

causing Marline’s mesothelioma. Therefore, nonsuit relating to

secondary exposure was correctly granted.

4. Nonsuit for direct exposure

Plaintiffs also argue that nonsuit for Rossmoor should be

reversed because even though Marline was never on the

Rossmoor premises while construction was occurring, she

39

nevertheless may have been exposed to asbestos there. They do

not dispute that there was no visible dust when Marline visited

the Rossmoor construction site, but contend that “the fact that

you do not see dust does not mean that you are not being

exposed.” Plaintiffs point to Dr. Roggli’s testimony that asbestos

fibers are invisible when they are suspended in the air and

separated from one another. Plaintiffs also argue that asbestos

fibers “can remain in the air for 15 minutes or more” once

disturbed.

There are two problems with plaintiffs’ argument. First,

the cited evidence does not support it. Plaintiffs cite Hatfield’s

testimony in which he discussed testing of “exposures generated

from a particular activity.” He testified that “most of these

activities did take place for – in the range of 10, 15 minutes,

which people do label as peak exposures.” Hatfield did not testify

that invisible asbestos fibers remain airborne for 15 minutes

after activity has ceased.

Second, even assuming Hatfield’s testimony supported

plaintiffs’ statement, plaintiffs do not point to any evidence that

Joseph and Marline visited construction sites within 15 minutes

of asbestos dust-producing construction work. Plaintiffs also

have not pointed to any evidence indicating that asbestos fibers

would have become airborne and respirable as Joseph and

Marline walked around the site. As we noted above, mere

presence at a location where asbestos is present is insufficient to

establish exposure. Indulging every legitimate inference that

may be drawn from the evidence in plaintiffs’ favor, there was

insufficient evidence to support a jury verdict for plaintiffs. (See

Hernandez v. Amcord, Inc., supra, 215 Cal.App.4th at p. 669.)

40

The trial court therefore did not err in granting nonsuit to

Rossmoor on plaintiffs’ direct exposure claims.

B. Ford

Plaintiffs assert two errors relating to Ford. First, they

argue the trial court erred in instructing the jury that Ford could

not be held liable for asbestos exposure from vehicle parts not

originally installed by Ford. Second, plaintiffs argue that if we

reverse the judgment as to Ford, we also should reverse the

court’s summary adjudication of plaintiffs’ punitive damages

claims against Ford. We address each of these arguments below.

1. Jury instructions at trial

When discussing jury instructions, the court said CACI

Nos. 430 and 435 should be given. CACI No. 430, relating to the

substantial factor test, states, “A substantial factor in causing

harm is a factor that a reasonable person would consider to have

contributed to the harm. It must be more than a remote or trivial

factor. It does not have to be the only cause of the harm.” The

use notes for CACI No. 430 say, “In asbestos-related cancer cases,

Rutherford v. Owens-Illinois, Inc.[, supra,] 16 Cal.4th [at p.] 977

[67 Cal.Rptr.2d 16, 941 P.2d 1203] requires a different

instruction regarding exposure to a particular product. Give

CACI No. 435, Causation for Asbestos-Related Cancer Claims,

and do not give this instruction.”

CACI No. 435 states, “A substantial factor in causing harm

is a factor that a reasonable person would consider to have

contributed to the harm. It does not have to be the only cause of

the harm. [¶] [Name of plaintiff] may prove that exposure to

asbestos from [name of defendant]’s product was a substantial

factor causing [his/her/[name of decedent]’s] illness by showing,

through expert testimony, that there is a reasonable medical

41

probability that the exposure was a substantial factor

contributing to [his/her] risk of developing cancer.” The use notes

for CACI No. 435 state, “Unless there are other defendants who

are not asbestos manufacturers or suppliers, do not give CACI

No. 430, Causation: Substantial Factor.”

Plaintiffs’ counsel argued, “[F]or the record, . . . I don’t

think 430 ought to be given,” but suggested that the issue already

had been discussed off the record. Exxon’s counsel argued that

because Exxon was a premises liability defendant with no

products claims pending against it, CACI No. 430 was the

appropriate instruction: “[C]ounsel has cited no authority that

would extend 435, which is specifically for manufacturers and

suppliers of asbestos-containing products, to a premises

defendant.” Over Exxon’s objection, the court agreed to give

CACI No. 435 as to Exxon.

The court’s instructions to the jury included the following:

“[430.] A substantial factor in causing harm is a factor that a

reasonable person would consider to have contributed to the

harm. It must be more than a remote or trivial factor. It does not

have to be the only cause of the harm. [¶] . . . . [¶] 435. A

substantial factor in causing harm is a factor that a reasonable

person would consider to have contributed to the harm. It does

not have to be the only cause of the harm. Plaintiff Marline

Petitpas must prove that exposure to asbestos from Exxon Mobil

Corporation or Ford Motor Company was a substantial factor

causing her illness by showing through expert testimony there is

a reasonable medical probability that the exposure was a

substantial factor contributing to her risk of developing

mesothelioma.”

42

The court also gave Ford’s Special Instruction No. 2: “Ford

Motor Company is not liable for Marline Petitpas’ exposure to

asbestos that comes from other companies’ brakes, clutches or

gasket products installed on Ford vehicles by parties other than

Ford.” This instruction was based on O’Neil, supra, 53 Cal.4th at

p. 342, in which the court held that “a product manufacturer may

not be held liable in strict liability or negligence for harm caused

by another manufacturer’s product unless the defendant’s own

product contributed substantially to the harm, or the defendant

participated substantially in creating a harmful combined use of

the products.”

Plaintiffs filed a written objection to this instruction,

arguing that O’Neil applies to failure-to-warn allegations only.

After the court read the instruction, while the jury was out of the

courtroom, plaintiffs’ counsel stated again, “[W]e object to that

special instruction at all for the reasons that we previously

stated.” Plaintiffs argued that the design of Ford cars was

defective because “it is a Ford design that called for the

installation and inclusion of asbestos-containing brake products

whether or not they were made by Ford or anyone else.” Ford

disagreed that plaintiffs’ argument correctly reflected the law.

In closing arguments, plaintiffs’ counsel told the jury to

focus on the definition of substantial factor in the jury

instructions. Counsel then read part of CACI No. 430: “‘A

substantial factor in causing harm . . . is a factor that a

reasonable person would consider to have contributed to harm.’

That’s it.” Shortly thereafter, plaintiffs’ counsel also read a

portion of CACI No. 435 to the jury. Plaintiffs’ counsel read

question 8 on the verdict form, which asked whether Marline’s

“exposure to asbestos dust from Ford original equipment brakes,

43

gaskets, or clutches [was] a substantial factor in contributing to

her risk of developing meosthelioma.” Counsel argued, “[E]ven if

the original lining had been changed out, [it is] still a Ford drum

and assembly with the backing plate that’s holding all the dust.”

Plaintiffs’ counsel focused on the evidence presented, arguing

that it supported a finding for plaintiffs. Counsel read CACI Nos.

430 and 435 to the jury again in rebuttal arguments.

In its closing, counsel for Exxon also discussed CACI Nos.

430 and 435. Counsel for Ford argued that the evidence did not

support a finding that Marline was present at the Enco station

when Joseph was working on any Ford cars. Counsel also

referred to Special Instruction No. 2, stating that Ford could not

be held liable for other parties’ products. “[T]he law says

basically that if the exposure that she had, whatever it might

have been, was not a Ford brake, clutch or gasket installed on a

Ford vehicle by Ford, that’s not our responsibility.” Counsel also

emphasized that the defense epidemiologists made clear that the

available studies and literature showed that brake mechanics

had no increased risk of mesothelioma.

As discussed above, the jury found that Marline was

exposed to asbestos from Ford original brakes, gaskets, or

clutches, but that the exposure was not a substantial factor in

contributing to her risk of mesothelioma.

2. Plaintiffs’ contentions on appeal

Plaintiffs assert that Special Instruction No. 2, stating that

Ford was not liable for parts that were not originally installed by

Ford, was incorrect. Plaintiffs argue that by giving this

instruction and also giving CACI No. 430, the trial court

incorrectly limited the jury’s consideration of asbestos exposure

resulting from design defects. We review the legal adequacy of

44

jury instructions de novo. (Davis v. Honeywell International Inc.

(2016) 245 Cal.App.4th 477, 495.)

Plaintiffs argue that because Ford cars were designed with

braking systems intended to be used with asbestos brake linings,

Ford is liable for any injuries caused by Marline’s exposure to

asbestos replacement parts.14 Ford, on the other hand, contends

that under O’Neil, supra, 53 Cal.4th 335, a manufacturer is not

liable for exposure to asbestos from replacement parts that were

not manufactured or supplied by Ford.

Plaintiffs’ theory is not supported by the law or the

evidence in this case. In O’Neil, the decedent was exposed to

asbestos on a naval ship from insulation, gaskets, and packing

used in conjunction with pumps and valves manufactured by the

defendants. (O’Neil, supra, 53 Cal.4th at p. 342.) The Navy

replaced all of the original asbestos-containing parts before the

decedent was exposed to them, and the manufacturers of the

pumps and valves were not part of the chain of distribution for

those replacement parts. (Ibid.) The Supreme Court held that

the manufacturers of the pumps and valves could not be liable for

the decedent’s exposure: “[A] product manufacturer may not be

held liable in strict liability or negligence for harm caused by

another manufacturer’s product unless the defendant’s own

product contributed substantially to the harm, or the defendant

participated substantially in creating a harmful combined use of

the products.” (O’Neil, supra, 53 Cal.4th at p. 342.)



14 Although the instruction and verdict form referenced

brakes, clutches, and gasket products, plaintiffs’ argument on

appeal discusses replacement brakes only, and includes record

citations to evidence relating to brake parts. We therefore focus

our analysis on brake parts.

45

The plaintiffs in O’Neil argued that the “defendants’

products were defective because they were ‘designed to be used’

with asbestos-containing components.” (O’Neil, supra, 53 Cal.4th

at p. 350.) The Supreme Court rejected this argument. It noted

that “strict products liability in California has always been

premised on harm caused by deficiencies in the defendant’s own

product.” (Id. at p. 348.) The court added, “It is fundamental that

the imposition of liability requires a showing that the plaintiff’s

injuries were caused by an act of the defendant or an

instrumentality under the defendant’s control.” (Id. at p. 349.)

Plaintiffs point to O’Neil’s footnote 6: “A stronger

argument for liability might be made in the case of a product that

required the use of a defective part in order to operate. In such a

case, the finished product would inevitably incorporate a defect.”

( O’Neil, supra, 53 Cal.4th at p. 350 fn. 6.) As the Court in O’Neil

pointed out, at the time the warship in that case was built,

“asbestos was the only insulating material that could withstand

the extremely high temperatures and pressures produced by a

warship’s steam propulsion system. Following mandated Navy

specifications, Crane used asbestos in its valves and packing.

However, no evidence was presented that asbestos, as opposed to

some other type of insulation material, was needed in order for

the valves to function properly.” (Id. at p. 344.) For the other

defendant, Warren, “no evidence was presented that Warren’s

pumps required the use of internal components made with

asbestos in order to operate.” (Ibid.) This did not amount to a

design defect because “[a]s alternative insulating materials

became available, the Navy could have chosen to replace worn

gaskets and seals in defendants’ products with parts that did not

contain asbestos. Apart from the Navy’s specifications, no

46

evidence showed that the design of defendants’ products required

the use of asbestos components, and their mere compatibility for

use with such components is not enough to render them

defective.” (Id. at p. 350.)

Division Five of the First Appellate District recently

followed this reasoning in Johnson v. ArvinMeritor (2017) 9

Cal.App.5th 234. In that case, the plaintiff alleged he had been

exposed to asbestos-containing parts in axle and brake

assemblies. (Id. at p. 237.) The plaintiff alleged that defendant

ArvinMeritor was liable under a design defect theory because

defendant’s brake assemblies required the use of asbestoscontaining

brake linings, even if ArvinMentor did not supply

those brake linings. (Id. at pp. 245-246.) The court compared the

facts with O’Neil, and held that there was no liability for design

defect: “As with the pumps and valves in O’Neil, the Rockwell

axle and brake assemblies, as originally manufactured,

incorporated asbestos-containing material (brake linings)

supplied by a third party (Carlisle), and asbestos-containing

replacement parts, whether made by Carlisle or others, were

most likely used in aftermarket repairs. But nothing

demonstrates that the assemblies were themselves defective,

apart from the hazards presented by the third party

components.” (Id. at p. 247.)

The plaintiff in Johnson also pointed to footnote 6 in O’Neil,

and argued that the “brake assemblies specified and required use

of asbestos-containing brake linings.” (Johnson, supra, 9

Cal.App.5th at p. 247.) The court rejected this argument: “As

with the products in O’Neil, there is no evidence that the brake

assemblies required asbestos-containing materials in order to

function generally. (See O’Neil, supra, 53 Cal.4th at p. 343.)

47

There is no evidence that any alternatives to asbestos-containing

friction materials were even available for automotive use at the

relevant times. There is no evidence that, as alternative friction

materials became available, users of Rockwell’s brake assemblies

could not have chosen to replace the brake linings with parts that

did not contain asbestos. In fact, the record suggests that, as

vehicle manufacturers transitioned from use of asbestoscontaining

friction materials, this is exactly what occurred.

There is no evidence Rockwell needed to redesign its brake

assemblies to accommodate asbestos-free linings.” (Id. at p. 248.)

The court found that the plaintiff’s argument would constitute an

“unprecedented” extension of liability: “Were we to accept

Johnson’s argument, by logical extension every vehicle produced

by any manufacturer during the period before nonasbestos

friction materials became generally available would be considered

a defective product simply by virtue of incorporation of, or

specification of, asbestos-containing materials in third party

component parts.” (Ibid.)

The same reasoning applies here. Plaintiffs did not present

any evidence to show that cars originally equipped with asbestoscontaining

brakes were unable to use non-asbestos brake parts.

No evidence suggested that Ford-designed brake drums or disks

were incompatible with lining materials that did not contain

asbestos. Although the evidence indicated that in the 1960’s and

much of the 1970’s replaceable brake linings almost universally

contained asbestos, and therefore the available replacement

brake linings contained asbestos, mere compatibility with such

parts does not render a product defective. Other than presenting

evidence that replacement brake linings typically contained

asbestos at the time, plaintiffs presented no evidence that the

48

very design of Ford cars from that time period required brakes

that contained asbestos. Plaintiffs therefore have not

demonstrated that Ford’s design falls outside the scope of O’Neil’s

central holding that a manufacturer cannot be held liable for

harm caused by another manufacturer’s product.

In plaintiffs’ reply brief, they cite to O’Neil’s duty-to-warn

analysis to support their contention that Ford cars were

defectively designed because they incorporated asbestoscontaining

brake parts. However, a duty to warn is not relevant

to the design defect analysis here. California recognizes three

different types of product defects under strict liability—

manufacturing defects, design defects, and warning defects.

(Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d

987, 995.) “[A] product is defective in design either (1) if the

product has failed to perform as safely as an ordinary consumer

would expect when used in an intended or reasonably foreseeable

manner, or (2) if . . . the benefits of the challenged design do not

outweigh the risk of danger inherent in such design.” (Barker v.

Lull Engineering Co. (1978) 20 Cal.3d 413, 418.) Strict liability

for failure to warn, on the other hand, “require[s] a plaintiff to

prove . . . that the defendant did not adequately warn of a

particular risk that was known or knowable in light of the

generally recognized and prevailing best scientific and medical

knowledge available at the time of manufacture and

distribution.” (Anderson, 53 Cal.3d at p. 1002.) Therefore, “[t]he

‘warning defect’ relates to a failure extraneous to the product

itself.” (Ibid.) The legal analysis for these types of product

defects is not interchangeable, and plaintiffs offer no argument or

49

reasoning supporting the application of a failure-to-warn analysis

to support a finding of design defect.15

Moreover, even if O’Neil’s failure-to-warn analysis were

applicable here, it does not support plaintiffs’ argument. In the

portion of its decision addressing a duty to warn, the O’Neil Court

explained that the manufacturer of a product intended to be used

with asbestos-containing parts may have a duty to warn about

potential asbestos-related hazards where “the defendant’s

product was intended to be used with another product for the

very activity that created a hazardous situation.” (O’Neil, supra,

53 Cal.4th at p. 361.) The court distinguished Tellez-Cordova v.

Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577

(Tellez-Cordova), in which the plaintiff alleged that he worked

extensively with tools designed to grind and sand metals, thus

producing respirable metallic dust that caused him to develop

pulmonary fibrosis. In reversing an order of dismissal based on

the sustaining of a demurrer, the Court of Appeal held that the

plaintiff had alleged a viable cause of action under a duty-towarn

theory. (Ibid.)

The O’Neil Court distinguished Tellez-Cordova from the

case before it in two ways. First, the Court noted that according

to the complaint, “the power tools in Tellez-Cordova could only be



15 Plaintiffs argued below that O’Neil “does not apply with

respect to design defect liability.” This is incorrect; the O’Neil

Court expressly addressed that theory, holding that design defect

liability was not available under the circumstances: “We

conclude that defendants were not strictly liable for O’Neil’s

injuries because (a) any design defect in defendants’ products was

not a legal cause of injury to O’Neil, and (b) defendants had no

duty to warn of risks arising from other manufacturers’ products.”

(O’Neil, supra, 53 Cal.4th at p. 348.)

50

used in a potentially injury-producing manner. Their sole

purpose was to grind metals in a process that inevitably produced

harmful dust. In contrast, the normal operation of defendants’

pumps and valves did not inevitably cause the release of asbestos

dust. This is true even if ‘normal operation’ is defined broadly to

include the dusty activities of routine repair and maintenance,

because the evidence did not establish that defendants’ products

needed asbestos-containing components or insulation to function

properly.” (O’Neil, supra, 53 Cal.4th at p. 361.) Second, the

Court reasoned that “it was the action of the power tools in

Tellez-Cordova that caused the release of harmful dust, even

though the dust itself emanated from another substance. . . . The

same is not true here. The asbestos dust that injured O’Neil

came from thermal insulation and replacement gaskets and

packing made by other manufacturers. Nothing about

defendants’ pumps and valves caused or contributed to the

release of this dust.” (Ibid.) The O’Neil Court continued,

“Recognizing a duty to warn was appropriate in Tellez–Cordova

because there the defendant’s product was intended to be used

with another product for the very activity that created a

hazardous situation.” (Ibid.) The same analysis was not

applicable for valves and pumps that included asbestoscontaining

gaskets and insulation, the Court said, because

“where the hazard arises entirely from another product, and the

defendant’s product does not create or contribute to that hazard,

liability is not appropriate.” (Id. at pp. 361-362.)

Several cases have followed Tellez-Cordova in finding that

liability may arise from the use of brake lining arcing machines.

As Joseph and Marline testified in this case, the work of arcing

brake linings can create airborne dust. In cases specific to arcing

51

machines, as in Tellez-Cordova, plaintiffs alleged that the arcing

machine’s sole purpose was to grind brake linings, at the relevant

time all brake linings contained asbestos, and grinding the brake

linings on the machine created hazardous airborne dust. Courts

have found that the arcing machines therefore were “intended to

be used with another product for the very activity that created a

hazardous situation.” (Bettencourt v. Hennessy Industries, Inc.

(2012) 205 Cal.App.4th 1103, 1116 [partially reversing judgment

on the pleadings]; see also Shields v. Hennessy Industries, Inc.

(2012) 205 Cal.App.4th 782, 797 [reversing judgment on the

pleadings]; Sherman v. Hennessy Industries, Inc. (2015) 237

Cal.App.4th 1133, 1147 [reversing summary judgment]; Hetzel v.

Hennessy Industries, Inc. (2016) 247 Cal.App.4th 521, 525

[reversing summary judgment]; Rondon v. Hennessy Industries,

Inc. (2016) 247 Cal.App.4th 1367, 1381 [reversing summary

judgment].)

This case is more like O’Neil than Tellez-Cordova and the

arcing machine cases. A car is not like a brake lining arcing

machine, in which the intended use of the machine is the very

activity that creates a hazardous situation—respirable airborne

dust. There was no evidence presented that using a car’s brakes

created airborne dust that exposed the user to respirable asbestos

fibers. To the contrary, the testimony indicated that brake dust

collected in the brake drum, rather than being released into the

air. And even if we were to define the “normal operation” of a

vehicle to include routine repair and maintenance, as the Court

did in O’Neil, liability still would not attach. Only the manner in

which Joseph or others chose to clean the brake drums—by

blowing the dust out with compressed air or tapping the dust out

onto the ground—released the dust into the air. Had Joseph or

52

others chosen to clean brake drums in some other manner, such

as vacuuming brake dust out of the drums or wiping the drums

with wet rags, presumably the existence of airborne dust would

have been minimized. This implicates a critical issue in product

liability jurisprudence: “It is fundamental that the imposition of

liability requires a showing that the plaintiff’s injuries were

caused by an act of the defendant or an instrumentality under

the defendant’s control.” (O’Neil, supra, 53 Cal.4th at p. 349.)

Plaintiffs did not present evidence that Ford’s design left no other

option than to blow brake dust into the air, and the manner in

which Joseph and others at the Enco station chose to clean brake

drums was not under Ford’s control.16

We therefore decline to find an exception to O’Neil in this

case. That Ford vehicles were compatible with other

manufacturers’ asbestos-containing brakes available at the time

did not make Ford liable under a design defect theory of liability

for Marline’s exposure to asbestos from replacement brakes

placed into the stream of commerce by other manufacturers.

Special Instruction No. 2 correctly stated the law under O’Neil.

3. CACI No. 430 regarding causation

Plaintiffs argue that the O’Neil instruction error in Ford’s

Special Instruction No. 2 “was exacerbated when the court read

CACI 430 to the jury” because it imposed a higher burden on

plaintiffs. CACI No. 430, as given, stated, “A substantial factor

in causing harm is a factor that a reasonable person would



16 Plaintiffs presented evidence that Ford knew that

cleaning brake dust from brake drums with compressed air could

cause the release of respirable asbestos fibers. While such

evidence might have been relevant to a duty to warn, which

plaintiffs do not assert here, without more it was not relevant to

the design defect claim plaintiffs assert.

53

consider to have contributed to the harm. It must be more than a

remote or trivial factor. It does not have to be the only cause of

the harm.”

Plaintiffs argue that the inclusion of CACI No. 430

exacerbated the error of giving Ford’s Special Instruction No. 2.

As explained above, however, we find that Special Instruction No.

2 was correct. The use of CACI No. 430 therefore could not have

exacerbated any such error.

Plaintiffs also argue that the directions for use for CACI

No. 430 state that it should not be given in asbestos cases.

Plaintiffs argue that the instruction required plaintiffs to show

that defendants’ conduct contributed to the harm, rather than

contributed to the risk of harm, as stated in CACI No. 435, the

causation instruction specific to asbestos-related cancer claims.

Plaintiffs argue that the instructions likely confused the jury and

imposed a higher burden of proof on plaintiffs.17

Ford points out that CACI No. 430 was requested by

Exxon, which was a premises liability defendant and not a

product liability defendant. Ford also argues that directions for

use of CACI No. 435 state, “Unless there are other defendants

who are not asbestos manufacturers or suppliers, do not give

CACI No. 430, Causation: Substantial Factor.” Here, Ford

argues, Exxon was not an asbestos manufacturer or supplier, and

therefore the inclusion of CACI No. 430 was appropriate.



17 Ford argues that plaintiffs forfeited this argument by

suggesting to the trial court that both instructions should be read

to the jury. However, this occurred only after plaintiffs’ counsel

already objected to the inclusion of CACI No. 430, however.

Plaintiffs’ objection therefore was preserved.

54

Causation specific to asbestos cases was discussed in

Rutherford, supra, 16 Cal.4th 953. In that case, the Supreme

Court acknowledged that an asbestos plaintiff could not be

expected to connect a particular defendant’s asbestos fibers to the

origins of the plaintiff’s cancer. The Court therefore held that

“plaintiffs may prove causation in asbestos-related cancer cases

by demonstrating that the plaintiff’s exposure to defendant’s

asbestos-containing product in reasonable medical probability

was a substantial factor in contributing to the aggregate dose of

asbestos the plaintiff or decedent inhaled or ingested, and hence

to the risk of developing asbestos-related cancer, without the

need to demonstrate that fibers from the defendant’s particular

product were the ones, or among the ones, that actually produced

the malignant growth.” (Id. at pp. 976-977, footnote omitted.)

The Court held that the jury should be instructed that a

plaintiff’s exposure to asbestos is a substantial factor “in causing

or bringing about the disease if in reasonable medical probability

it was a substantial factor contributing to plaintiff’s or decedent’s

risk of developing cancer.” (Id. at p. 977.) The Court reiterated

its holding and pointed to related instructions, stating, “[T]he

plaintiff may meet the burden of proving that exposure to

defendant’s product was a substantial factor causing the illness

by showing that in reasonable medical probability it was a

substantial factor contributing to the plaintiff’s or decedent’s risk

of developing cancer. The jury should be so instructed. The

standard instructions on substantial factor and concurrent

causation (BAJI Nos. 3.76 and 3.77) remain correct in this context

and should also be given.” (Rutherford, supra, 16 Cal.4th at pp.

982-983, italics added.)

55

In the time since Rutherford was decided in 1997, CACI

instructions have been implemented, including CACI No. 435,

specific to asbestos causation. The directions for use for CACI

No. 430 now state, “In asbestos-related cancer cases, Rutherford

[supra] requires a different instruction regarding exposure to a

particular product. Give CACI No. 435, Causation for AsbestosRelated

Cancer Claims, and do not give this instruction.” (CACI

No. 430, directions for use.) The directions for use in CACI No.

435 say, “Unless there are other defendants who are not asbestos

manufacturers or suppliers, do not give CACI No. 430, Causation:

Substantial Factor.” It appears, therefore, that despite

Rutherford’s statement that the standard instruction on

substantial factor remains correct and also should be given, the

CACI use notes disagree with this approach.

Other than the Use Notes, plaintiffs have presented us

with no authority supporting their argument that CACI No. 430

should not be given in an asbestos case that includes a defendant

that is not a manufacturer or supplier. “Pattern jury instructions

. . . while designed to accurately reflect the law, are not the law

itself.” (Christian Research Institute v. Alnor (2007) 148

Cal.App.4th 71, 82, citing People v. Alvarez (1996) 14 Cal.4th 155,

217.) That the Use Notes caution against giving the more

general CACI No. 430 in a mesothelioma case, when the more

specific instruction CACI No. 435 is more applicable, does not

support a conclusion that it was error to give both instructions.

CACI No. 430 is a correct statement of the law relating to

substantial factor causation, even though, as Rutherford noted,

more specific instructions also must be given in a mesothelioma

case. Because the more specific CACI No. 435 also was given, we

do not find that the trial court erred by giving both instructions.

56

Even if giving both CACI Nos. 430 and 435 was error, it

was harmless. “A judgment may not be reversed on appeal, even

for error involving ‘misdirection of the jury,’ unless ‘after an

examination of the entire cause, including the evidence,’ it

appears the error caused a ‘miscarriage of justice.’ (Cal. Const.,

art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th

548, 574.) “In assessing prejudice from an erroneous instruction,

we consider, insofar as relevant, ‘(1) the degree of conflict in the

evidence on critical issues [citations]; (2) whether respondent’s

argument to the jury may have contributed to the instruction’s

misleading effect [citation]; (3) whether the jury requested a

rereading of the erroneous instruction [citation] or of related

evidence [citation]; (4) the closeness of the jury’s verdict

[citation]; and (5) the effect of other instructions in remedying the

error [citations].’ [Citations.]” (Id. at pp. 570-571.)

Here, there was not a large degree of conflict about general

causation. Experts from both sides agreed that there is a certain

amount of “ambient” or “background” asbestos in the air, and

excessive exposure to asbestos can cause disease. There was

some conflict in the evidence about the extent to which brake

dust might contribute to a risk of developing mesothelioma.

Plaintiffs presented evidence that cleaning brake drums with

compressed air created airborne asbestos levels that exceeded

OSHA requirements; defendants presented evidence that brake

dust was largely harmless forsterite and auto workers did not

experience an increased risk of asbestos-related disease. No

evidence was presented to show that bystanders near automotive

workers had an increased risk of disease.

As for specific causation, there was no dispute about

Marline’s presence at the Enco station, and no dispute that about

57

40 percent of the cars serviced at the Enco station were Ford

vehicles. The experts’ opinions differed regarding whether the

alleged exposures contributed to Marline’s risk of developing

mesothelioma. Therefore, there were conflicts in the evidence as

to whether exposure to Ford’s asbestos-containing auto parts at

the Enco station could have been a substantial factor in causing

Marline’s mesothelioma.

It does not appear that defendants’ arguments contributed

to any misleading effect of CACI No. 430. Before defense counsel

talked about CACI No. 430 in closing arguments, plaintiffs’

counsel stated, “A substantial factor in causing harm . . . is a

factor that a reasonable person would consider to have

contributed to harm. That’s it. Do you believe that it contributed

to the harm? . . . . That’s the question.” This language is in both

CACI Nos. 430 and 435. Plaintiffs’ counsel also read CACI No.

435, and said plaintiffs, through the testimony of Dr. Horn, had

met their burden to prove that Marline’s combined exposures to

asbestos constituted a substantial factor contributing to her risk

of mesothelioma.

Counsel for Ford, the defendant to whom plaintiffs’

appellate argument is directed, did not address CACI Nos. 430

and 435 in closing arguments. Counsel for Exxon noted that

CACI No. 430 states that a substantial factor “must be more than

a remote or trivial factor,” and noted that Dr. Dyson testified that

Marline’s exposures were trivial. Exxon’s counsel then discussed

CACI No. 435, and argued that the epidemiological studies

demonstrated no increased risk in auto industry workers.

Plaintiffs argue that Exxon’s comments were prejudicial

because the Judicial Council Advisory Committee on Civil Jury

Instructions “expressly and specifically found that the ‘trivial’

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language from CACI 430 should not be given in an asbestos case.”

In fact, the Advisory Committee considered whether an

instruction about “trivial” exposures must be given or could be

omitted, and ultimately decided that “the issue is appropriate for

legal argument, to be decided by the trial judge.” (Report of the

Advisory Committee on Civil Jury Instructions, Oct. 12, 2007, p.

6, available at www.courts.ca.gov/documents/120707item4.pdf.)

The Advisory Committee noted Rutherford’s statement that “a

force [that] plays only an “infinitesimal” or “theoretical” part in

bringing about injury, damage, or loss is not a substantial factor.”

(Id. at p. 5, quoting Rutherford, supra, 16 Cal.4th at p. 969.) The

Committee continued, “While under Rutherford there clearly is a

de minimis standard at which there is no liability, it does not

follow that the jury must be so instructed. The committee

believes that neither Rutherford nor any other case or legal

principle requires that the jury be instructed on a limitation

based on ‘infinitesimal,’ ‘theoretical,’ ‘negligible,’ or ‘trivial’

contribution to the aggregate dose.” (Ibid.) The report noted that

the committee was divided on the issue, and said that until

further legal guidance was provided, the question should be

determined on a case-by-case basis. (Id. at pp. 5-6.) Contrary to

plaintiffs’ argument, therefore, the Advisory Committee did not

conclude that a “trivial” instruction is inherently inappropriate in

an asbestos case. We do not find Exxon’s fleeting mention of

trivial exposures to be misleading.

The third factor relating to prejudice is whether the jury

requested a rereading of an erroneous instruction or related

evidence. Here, the jury did not request such information. The

fourth factor is the closeness of the jury’s verdict. Here, on the

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substantial factor question relating to Ford, the jury found in

favor of Ford ten to two.

The fifth factor is the effect of other instructions in

remedying the error. Here, even if CACI No. 430 is insufficiently

detailed to accurately reflect substantial factor causation in an

asbestos case, the court also read CACI No. 435, which is specific

to asbestos cases. The question on the verdict form correctly

stated the substantial factor standard, asking whether Marline’s

exposure was “a substantial factor in contributing to her risk of

developing mesothelioma.” Counsel on both sides argued both

jury instructions. The jury found that Marline’s exposure to

asbestos at the Enco station was a substantial factor in

contributing to the risk of her disease but exposure to Ford parts

was not. Plaintiff argues that this indicates that the jury must

have been confused, but to the contrary, it shows that the jury

understood it was not constrained as to any predetermined

answer to the substantial factor question.

Plaintiffs have not shown that the inclusion of CACI No.

430 was erroneous, nor that they were prejudiced by the use of

CACI No. 430.

4. Ford’s motion for summary adjudication of plaintiffs’

punitive damages claim

Ford moved for summary adjudication of plaintiffs’ punitive

damages claims before trial. The court granted the motion,

stating, “[T]here is not a showing of factual issues of conscious

disregard towards a bystander or a showing that there was a

duty owed to her relative to the – that they had a conscious

disregard toward a bystander that would justify punitives.”

On appeal, plaintiffs’ arguments as to Ford’s motion are

relevant only if we were to find a basis for reversing the verdict

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in favor of Ford. Plaintiffs state in their opening brief,

“Assuming that the judgment in Ford’s favor is reversed, reversal

of the summary adjudication is also required so that plaintiffs

can seek recovery of punitive damages at retrial.” In their reply,

they state, “Upon reversal, the trial court must be directed to

reverse its grant of summary adjudication as to the punitive

damage issues.”

As stated above, we find no basis to reverse the verdict as

to Ford. Plaintiffs’ arguments as to Ford’s motion for summary

adjudication are therefore moot.

C. Verdict in favor of Exxon

The jury returned a verdict in favor of Exxon. Plaintiffs

argue that the evidence did not support the verdict.

When the trier of fact has expressly or implicitly concluded

that the party with the burden of proof failed to carry that

burden and that party appeals, the substantial evidence test does

not apply. Instead, “the question for a reviewing court becomes

whether the evidence compels a finding in favor of the appellant

as a matter of law.” (Shaw v. County of Santa Cruz (2008) 170

Cal.App.4th 229, 279.) “‘Specifically, the question becomes

whether the appellant’s evidence was (1) “uncontradicted and

unimpeached” and (2) “of such a character and weight as to leave

no room for a judicial determination that it was insufficient to

support a finding.” [Citations.]’” (In re R.V. (2015) 61 Cal.4th

181, 218.) Plaintiffs correctly recognize this standard of review,

and argue that the evidence at trial compelled a finding in their

favor against Exxon as a matter of law.

Here, the jury found that Exxon controlled the Enco

station, that Marline was exposed to asbestos there, and that

Marline’s exposure at the Enco station was a substantial factor in

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contributing to her risk of developing mesothelioma. However,

when asked if “Exxon [knew], or through the exercise of

reasonable care should have known, that there was a condition at

the Enco station that created an unreasonable risk to Mrs.

Petitpas of exposure to asbestos dust,” the jury unanimously

answered “no.” Plaintiffs argue that this answer “is not legally

supportable in light of the uncontradicted evidence that Exxon

actually knew about the danger.”

The evidence presented at trial arguably shows that Exxon

knew about potential dangers of asbestos exposure to refinery

workers—not bystanders at service stations. The evidence does

not support a finding, as a matter of law, that Exxon knew that

there was a condition at the Enco station that created an

unreasonable risk to Marline.

Plaintiffs argue that Exxon “not only knew about the

general risks associated with asbestos exposure, but knew about

the risks associated with asbestos released from [the] inspection

and repair of brakes,” and “Exxon had actual knowledge that

terminal disease was associated with exposure of automotive

mechanics to work on asbestos-containing brakes.” The cited

evidence does not support these statements. Plaintiffs point to

the testimony of their expert, Dr. Weaver, who was formerly

employed as a physician addressing issues of worker health at oil

refineries for Exxon predecessors. Before Dr. Weaver’s testimony

was read to the jury, the court gave a limiting instruction: “Dr.

Weaver was appearing at this deposition as an expert witness,

not as a corporate representative of Exxon Mobil corporation. [¶]

None of the products identified in this deposition are brakes,

gaskets, or clutches; none of the locations identified are service

stations. The only locations are refineries.” Dr. Weaver’s

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testimony addressed working conditions at refineries and

generally available knowledge that asbestos can cause disease,

but he said nothing about knowledge of hazards involving brake

or automotive work. Dr. Weaver’s testimony therefore does not

support a finding that Exxon knew or should have known that

bystanders at service stations might be at risk for hazardous

asbestos exposure.

Plaintiffs also cite the testimony of their expert, Dr.

Castleman, who testified that the health hazards relating to the

inhalation of asbestos dust was known by 1929. However, he also

acknowledged that much of the asbestos-related research through

the 1940’s and 1950’s was “being done in factories that worked

directly with asbestos.” Dr. Castleman also testified that a Dr.

Wilhelm Hueper published data in 1965 relating to health

hazards of brakes and “brake work.” Dr. Castleman testified that

Dr. Hueper did not rely on any epidemiological studies, but

rather was “drawing a broad picture of public health hazard from

asbestos use in society.” Dr. Castleman testified that internal

communications at the Friction Materials Standards Institute—

which included companies that made asbestos brakes, such as

Bendix—“appeared to talk about asbestos starting in 1968.”18 Dr.

Castleman did not testify about Exxon’s knowledge regarding

whether automotive workers were exposed to asbestos.

Plaintiffs argue that under agency theory, knowledge can

be imputed from a principal to an agent. Plaintiffs contend that

because the principal—Exxon management—knew about the

hazards of asbestos exposure to refinery workers, we may assume



18 Since there was no evidence suggesting that Marline

visited Joseph at any Enco stations after 1968, Exxon’s

knowledge on that point after 1968 is irrelevant.

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that agents—subsidiary service stations—also knew. Plaintiffs

also assert that “Exxon presented no evidence at all

demonstrating that its refineries were operated independently of

its retail service stations.” This theory is not well taken.

As noted above, the trial court correctly granted summary

adjudication of plaintiffs’ product liability claims against Exxon.

Plaintiffs therefore proceeded to trial against Exxon on premises

liability claims. The jury was asked whether Exxon knew or

should have known “that there was a condition at the Enco

station that created an unreasonable risk” to Marline (italics

added). Evidence suggesting there were conditions at other

locations (refineries) that posed a risk to a different class of

people (refinery workers), without more, cannot support an

affirmative answer to the question posed to the jury.

Moreover, even if the evidence plaintiffs rely upon

supported their argument, it would not compel reversal. As

discussed above, reversal under these circumstances requires

“uncontradicted and unimpeached” evidence that is “of such a

character and weight as to leave no room for a judicial

determination that it was insufficient to support a finding.”

Here, however, the evidence was contradicted. As noted above,

several witnesses testified that brake dust was almost exclusively

non-hazardous forsterite, not asbestos. Defense expert Dr. Roggli

testified that forsterite “has no disease-producing potential at

all.” Dr. Castleman testified that by 1969, “there was nothing in

print on the measurement of exposure of brake mechanics to

asbestos.” Counsel for Exxon read to the jury a portion of Dr.

Castleman’s deposition testimony in which Dr. Castleman stated

that to this day, there are no studies “that have any statistical

power . . . that speak of the mesothelioma risk of mechanics that

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do brake repair work.” Plaintiffs’ expert Dr. Barry Horn also

testified that several studies found no increased risk of

mesothelioma in auto mechanics. There was no evidence linking

asbestos exposure to occasional bystanders who were near

automotive workers as they did brake work.

Contrary to plaintiffs’ arguments, therefore, Exxon’s

knowledge about asbestos hazards for vehicle mechanics—and

bystanders at service stations—was far from uncontroverted.

Plaintiffs have not met the high threshold of showing that they

were entitled to a verdict against Exxon as a matter of law.

The judgment is affirmed. Defendants are entitled to costs on appeal.