Metropolitan News-Enterprise


Wednesday, March 20, 2002


Page 4


Asbestos Makers Can’t Lay Blame for Cancer Deaths on Tobacco Firms—C.A.


By a MetNews Staff Writer


The First District Court of Appeal has rejected an effort by asbestos manufacturers to have a portion of their liability to lung-cancer sufferers allocated to tobacco makers.

Div. One Monday affirmed a judgment awarding more than $1 million to the family of a plasterer who died in August 1996, just two days after being diagnosed with lung cancer.

Sharon McKinney acknowledged her belief that her husband’s illness was partially due to his having smoked. But a San Francisco Superior Court jury agreed that  Roland McKinney’s breathing fibers from products made by California Portland Cement Company and Amcord, Inc. were also a cause of the fatal illness.

Specifically, the jury found that Roland McKinney was 50 percent to blame and that Amcord and Portland Cement were each 17.5 percent responsible. The survivors were awarded—after offsets—more than $77,000 in economic damages against the defendants jointly and severally, plus $480,000 in noneconomic damages against each of them.

Several other defendants settled prior to trial. Amcord and Portland Cement each turned down an early offer to settle for under $120,000, and both were tagged with prejudgment interest.

Presiding Justice James Marchiano, writing for the Court of Appeal, said that San Francisco Superior Court Judge Charlene Mitchell correctly instructed the jury not to consider the comparative fault of tobacco companies because they were statutorily immune at the time of McKinney’s death.

The presiding justice rejected the defendants’ contention that they were entitled to an apportionment of fault under the 1997 legislation lifting the Civil Code Sec. 1714.45 immunity enacted 10 years earlier.

“[T]here is no hint in the legislative verbiage that the amendment was intended to revive an already barred claim for purposes of applying Proposition 51 to allocate non-economic damages to a statutorily immune non-party to the action,” Marchiano wrote.

Proposition 51 is the measure that abolished joint-and-several liability for noneconomic damages in tort actions.

The limitations period to sue for McKinney’s wrongful death expired in August 1997, over four months before the amendment to Sec. 1714.45 took effect, Marchiano noted.

The jurist went on to cite Barker v. Brown & Williamson Tobacco Corp. (2001) 88 Cal.App.4th 42, in which the court held that the lifting of the immunity did not revive time-barred claims for smoking-related illnesses.

“Because the claim in this case was barred before the tobacco immunity was repealed, it would be unfair and contrary to the legislative intendment to allocate fault to an absent defendant that was statutorily immune during the time the plaintiff could have filed an action against that defendant,” Marchiano wrote.

The court also rejected the argument that Civil Code Sec. 3291, allowing plaintiffs to recover prejudgment interest in “personal injury” cases where the defendant turns down a settlement offer and fails to obtain a better result at trial, does not apply to wrongful death cases.

The defendants contended that because the Legislature did not refer to “personal injury or wrongful death,” as it has in other tort statutes, it must not have intended to apply Sec. 3291 to wrongful death cases.

But the distinction cited by the defendants has not been consistently applied, Marchiano noted, citing cases in which the phrases “personal injury,” “injury to the person,” or “injury” were construed to include wrongful death.

As for Sec. 3291, Marchiano said, legislative history reveals that lawmakers intended to distinguish personal injury from property damage, not from death resulting from personal injury.

“We believe the answer is clear that the damages awarded to a spouse and children as a result of the wrongful death of a husband and father are personal injury damages,” the jurist wrote.

The case is McKinney v. California Portland Cement Company, 02 S.O.S. 1404.


Copyright 2002, Metropolitan News Company