Metropolitan News-Enterprise


Friday, March 4, 2016


Page 1


In Asbestos Cases:

C.A. Allows ‘Every Exposure’ Theory to Be Argued




Plaintiffs may present expert testimony in support of the theory that exposure to asbestos fibers, even in low doses, contributes to mesothelioma, the Court of Appeal for this district ruled yesterday.

Div. Four upheld a $1.7 million against Honeywell International, Inc. The plaintiff, Nickole Davis, was substituted as plaintiff after her father, Sam Davis, died in 2012.

Sam Davis moved to Downey from Alabama, where he grew up doing farm work, in the early 1960s, at the age of around 20. He worked in auto repair, mostly fixing brakes, and home remodeling.

He was diagnosed with mesothelioma in 2011.

His lawyers claimed he had acquired the illness in his past work, particularly by breathing the dust created while sanding brake linings made by Bendix Corporation, which was acquired by Honeywell. He was also allegedly exposed during his home-remodeling work, which included applying a joint compound called “mud” that had to be sanded, sometimes by machine, which created a great deal of dust.

Chavez Permits Testimony

Honeywell moved in limine to exclude expert testimony supporting the “every exposure” theory, sometimes referred to as the “any exposure” or “any fiber” theory. Los Angeles Superior Court Judge Victor Chavez denied the motion, allowing the plaintiff’s pathologist to testify, in response to a hypothetical question, that if Davis did two brake jobs a day from 1962 to the late 1970s, sanding four liners for a minute or more each, with each liner containing 50 percent asbestos, exposure was a substantial contributing factor in causing mesothelioma.

He added that asbestos was the only known cause of the disease.

A defense medical expert testified that there was no known association between employment as a mechanic and the risk of mesothelioma, and an industrial hygienist testified that Davis’ cumulative exposure was below limits set by the Occupational Safety and Health Administration. Asbestos fibers, he added, became non-toxic when extremely high heat was applied, as was the case with brake linings.

Jurors found for the plaintiff on claims of negligence, false representation, and intentional failure to warn. They concluded that exposure to Bendix products was 85 percent responsible for Davis’ damages of $2 million, with the rest of the fault attributable to companies responsible for his exposure at home-remodeling sites.

Willhite’s Opinion

Justice Thomas Willhite, writing for the Court of Appeal, said the trial judge was correct in allowing the plaintiff’s medical expert to testify.

“Because in ruling on the admissibility of expert testimony the trial court ‘does not resolve scientific controversies’…it is for the jury to resolve the conflict between the every exposure theory and any competing expert opinions,” he wrote, citing Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747.

The Sargon court held that Los Angeles Superior Court Judge Terry Green did not abuse his discretion in excluding expert testimony that USC may have cost a small dental implant manufacturer more than $1 billion in profits by breaching a contract to conduct a clinical trial of one of its products.

The ruling was within the trial judge’s role as “gatekeeper,” the high court said, adding that the excluded testimony provided “no logical basis” for the calculation.

Honeywell argued that the testimony of Davis’ expert was similarly lacking in logic, citing cases from other jurisdictions which have rejected the theory. California, however, has a different standard for causation than those jurisdictions, Willhite said, adding that it was not up to the appellate panel to determine which side is right in the scientific debate.

“Rather, we rely upon the rule of Sargon that although trial courts have ‘a substantial ‘gatekeeping’ responsibility’ in evaluating proposed expert…the gate tended is not a partisan checkpoint,” he wrote. “It bars expert opinion only if it fails to meets the minimum qualifications for admission.”

Special Instruction Unnecessary

The justice also rejected Honeywell’s argument that Chavez abused his discretion in declining to give a special instruction regarding the factors to be weighed in determining whether exposure to the defendant’s products caused Davis’ cancer.

It was sufficient for the trial judge to give the standard “substantial factor” instruction, CACI No. 435, Willhite said.

Attorneys on appeal were Perkins Coie’s Brien F. McMahon and Aaron R. Goldstein and Horvitz & Levy’s Lisa Perrochet and Robert H. Wright for the defendant and George H. Kim of Karst & Von Oiste for the plaintiff.

The case is Davis v. Honeywell International, Inc., 16 S.O.S. 1245.


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