Metropolitan News-Enterprise


Monday, March 18, 2013


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C.A. Reinstates Judgment in Asbestos Suit, Faults Judge for JNOV

Divided Panel Says Procedural Errors Require Reinstatement of Verdict Against Supplier




A trial judge’s failure to follow the statutory procedure for granting JNOV sua sponte requires that the underlying verdict and judgment be reinstated, the Court of Appeal for this district has ruled.

Div. One Thursday revived a judgment for more than $900,000 against Special Electric Co., which brokered purchases of crocidolite asbestos to Johns-Manville from a mine in South Africa. Between 1974 and 1980, according to trial evidence, Special Electric supplied about 7,000 tons of the product, which is also called “blue” asbestos and has been shown to be particularly dangerous, to Johns-Manville.

William B. Webb, who sued along with his wife, was diagnosed with mesothelioma, which he claimed to be a result, in part, of having handled Johns-Manville Transite pipe containing those fibers while working at Pyramid Pipe & Supply in Canoga Park. There was evidence that blue asbestos from discarded or scrap pipe was added to the mix for Transite pipe, although it was not part of Johns-Manville’s formula.

The plaintiff claimed that Special Electric was liable on several theories, including strict liability and negligent failure to warn.

Special Electric moved for a directed verdict on the failure-to-warn theory. It argued that because all of the asbestos that it supplied was packaged with warnings, and because Johns-Manville was a “sophisticated user” of asbestos products, Special Electric was absolved of any duty to warn users down the line.

The plaintiff responded that not all of the asbestos was packaged with warnings, that the warnings that were provided were inadequate, and that the sophistication of Johns-Manville did not absolve the defendant of liability to foreseeable downstream users like Webb.

Delayed Ruling

Los Angeles Superior Court Judge John W. Wiley did not rule on the motion prior to the delivery of the verdict. The jury found that there was no design defect, but that Special Electric had breached a duty to warn, and that its breach was a substantial factor in the plaintiff’s injuries.

It found damages in the amount of a little over $5 million, attributed 18 percent to Special Electric, 49 percent to Johns-Manville, and 33 percent to third parties.

After the judge signed a judgment in favor of the Webbs, but before it was entered, Special Electric asked the judge to rule on its previous motions for directed verdict and nonsuit. Wiley subsequently ruled that Special Electric, as a smaller and less sophisticated entity, had no duty to warn Johns-Manville. “Telling Johns-Manville about asbestos is like telling the Pope about Catholicism,” the judge said.

The judge granted the motions and ordered entry of judgment in favor of the defendant. But Justice Victoria G. Chaney, writing for the Court of Appeal, said the judgment was invalid.

The defendant, she noted, did not file a motion for JNOV, so the only way it could be granted was on the court’s own motion. Wiley, she explained, did not follow the statutory procedure, which is set forth in Code of Civil Procedure Sec. 629 and 659.

Five Days’ Notice

The section requires the trial judge to provide the parties with five days’ notice of its intent to grant JNOV, prohibits the court from granting JNOV unless at least 15 days have passed since entry of judgment, and cannot grant JNOV if the time in which to rule on a motion for new trial has expired.

In this case, Chaney noted, the judge granted JNOV before judgment was entered, contrary to the statute.

“Judgment NOV was beyond the court’s authority to grant unless it acted within the legislatively imposed times,” the justice said. She also concluded that “[t]he court’s alternative orders granting nonsuit and directed verdict cannot overcome the court’s failure to provide the notice that the law requires before the court may grant judgment NOV.”

The justice went on to say that the Webbs are entitled to judgment on the substance of the dispute. She noted that the nonsuit and directed-verdict motions did not address the general negligence cause of action, on which the jury found for the plaintiffs, and said there was sufficient evidence for the jury to conclude that the defendant had supplied blue asbestos in unreasonable disregard of the dangers.

Presiding Justice Robert Mallano concurred, but Justice Frances Rothschild dissented.

Rothschild argued that the majority was wrong to hold “that it can be a tort to fail to tell someone something they already know.”

The dissenting justice also said that any procedural errors were harmless because the plaintiffs could not prove liability. An erroneously timed JNOV, she said, should not be reversed “if the ruling is correct on the merits and the timing...caused no prejudice.”

The verdict, she contended, cannot stand because there was no contention that the defendant could or should have warned Webb directly, nor any evidence that defendant had reason to believe that Johns-Manville would fail to provide adequate warnings.

Nor, she said, was there sufficient evidence of causation, because there was no showing that any failure on the part of Special Electric caused Webb’s cancer.

Attorneys on appeal were Dean A. Hanley and Anthony E. Vieira of Paul & Hanley, along with Ted W. Pelletier, for the plaintiffs and  Edward R. Hugo, James C. Parker and Jeffrey Kaufman of Brydon Hugo & Parker for the defendant.

The case is Webb v. Special Electric Company, Inc., 13 S.O.S. 1276.


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