Metropolitan News-Enterprise


Friday, June 14, 2013


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Supreme Court to Rule on Propriety of JNOV in Asbestos Case




The California Supreme Court will decide whether 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 justices, at their weekly conference in San Francisco Wednesday, voted unanimously to review the decision of Div. One of this district’s Court of Appeal in Webb v. Special Electric Company, Inc. (2013) 214 Cal. App. 4th 595.

Div. One, in a March ruling, 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.

Split Decision

The panel, in a 2-1 decision, said the JNOV granted by Los Angeles Superior Court Judge John Wiley was both procedurally and substantively flawed. The dissenting justice argued that the JNOV should stand because the plaintiffs failed to prove their case and that any procedural error was harmless.

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.

Plaintiff’s Response

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.

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.

Justice’s Reasoning

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.

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.

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.


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