Kazan, McClain, Lynons, Greenwood &
Harley
Attn: Rivamonte, Ian A
Jack London Market
55 Harrison Street,Snite 400
Oakland, CA 94607_ _
Morgenstein & Jubelirer LLP
Attn: Gambino, Mary Ellen
525 Market Street
17th Floor
San Francisco, CA 94105
Superior Court of California, County of Alameda
Rene C. Davidson Alameda County Courthouse
Grigg
No. RG12629580
Plaintiff/Petitioner(s)
Order
vs.
Motion for Summary Judgment
Denied
Defendant/Respondent(s)
Abbreviated Title
The Motion for Summary Judgment filed for Owens -Illinois, Inc was set for hearing on 03/08/2013 at
09:30AM in Department 30 before the Honorable Jo-Lynne Q. Lee. The Tentative Ruling was
published and was contested.
The matter was argued and submitted, and good cause appearing therefore,
IT IS HEREBY ORDERED THAT:
The motion by Defendant Owens-Illinois, Inc. ("0-1"), for summary judgment against the Complaint by
Plaintiffs Rose-Marie Grigg and Martin Grigg ("Plaintiffs") is DENIED.
Plaintiffs allege that Mrs. Grigg was exposed to asbestos brought home on the clothing and person of
her then husband, Donald Brown. Plaintiffs claims against 0-1 are based on Brown's exposure to
asbestos while he was working as an insulator for Fiberglas Engineering and Supply ("FEN CO"), the
contracting division of Owens Corning Fiberglas ("OCF"), from 1950 to 1958, and as a field supervisor
for OCF from 1958 to !965. Plaintiffs contend that Mr. Brown and his co-workers removed asbestoscontaining Kayle thermal pipe and block insulation manufactured by 0-1 during this period oftime. 01 contends that it stopped manufacturing Kayle insulation in 1958, when it sold the business to OCF.
Plaintiffs admit in Additional Fact 35 that OCF acquired 0-l's Kaylo Division in 1958, but Plaintiffs
contend 0-1 continued to manufacture and supply Kayle to OCF after that date.
0-l's motion for summary judgment rests on the contention that 0-1 did not owe a legal duty of care to
Mrs. Grigg under any of Plaintiffs' theories ofliability. Plaintiffs allege causes of action sounding in
strict products liability, negligence and fraud. As discussed below, the court rejects the argument that
0-1 does not owe a duty of care to Mrs. Grigg for strict products liability claims made in this case.
"[A] legal duty of care generally is owed to the class of persons who it is reasonably foreseeable may be
injured as a result of the actor's conduct. Campbell v. Ford Motor Co. ("Campbell") (2012) 206
Cal.App.4th 15, 31. 0-1 suggests that as a manufacturer of a product it owes a duty of care only when
a particular risk is known or knowable in light of the generally recognized and prevailing best scientific
knowledge available at the time of manufacture and distribution and 0-I argues that that Mrs. Griggs'
risk of mesothelioma was simply not reasonably "foreseeable" because it was unknovm before the mid1960's that asbestos exposure to workers created a risk ofharm to household members of those
workers, prior to the time that Mr. Brown was allegedly exposed to Kayle manufactured and supplied
by 0-1. 0-1 asserts that the first study to indicate even a potential for asbestos-related disease from
"take-home," rather than occupational, exposure appeared in 1960, and the first study to report cases of
Order
disease resulting from asbestos exposure in a domestic or household environment was published in
1965. 0-I further asserts that epidemiological studies confirming the potential risk associated with
family members' household exposure did not appear untill976. 0-I offers the declaration of Peter
Neushul, who opines that in 1958, there was no scientific or medical knowledge that suggested a
relationship between household exposure and a risk of developing asbestos-related disease.
0-I argues that this case is controlled by Campbell in which the Second District refused to impose a
duty of care upon Ford Motor Company to family members of employees of an asbestos subcontractor
in an action against Ford for premises liability. Following guidelines set forth by the Supreme Court in
Rowland v. Christian (1968) 69 Cal.2d 108 ("Rowland") the Campbell court considered (1) the
foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the
closeness of the connection between the defendant's conduct and the injury suffered; and (4) public
policy factors -the moral blame attached to the defendant's conduct, the policy of preventing future
harm, the extent of the burden to the defendant, the consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance
for the risk involved. In determining that no duty was owed, the Campbell court emphasized that
"... before liability may be thrust on a landlord for a third party's injury due to a dangerous condition on
the land, the plaintiff must prove that the landlord had actual knowledge of the dangerous condition in
question, plus the right and ability to cure the condition." Campbell, supra, 206 Cal.App.4th at p. 30.
After weighing these factors the Campbell court concluded that the injury suffered by plaintiff in that
case was only distantly and indirectly connected to the defendant's alleged negligence and even if it was
foreseeable to Ford that workers on its premises could be exposed to asbestos dust as a result of work
performed on its premises, the "closeness of the connection" between Ford's conduct in having the work
performed and the injury suffered by a worker's family member off the premises was highly attenuated.
Moreover, when balancing the public policy considerations for and against the imposition of liability,
the Campbell court concluded that the extent of the burden to the defendant and the consequences to the
community of imposing a duty of care upon the premises owner weighed heavily against plaintiff, noting
that where the claim is that the laundering of the workers' clothing was the primary source of the
asbestos exposure, the class of secondarily exposed potential plaintiffs is ahnost unlimited, and could
include fellow commuters, those performing laundry services, and more.
For tlte reasons stated below, the court believes that Campbell is distinguishable because this case- in
contrast to Campbell - involves strict products liability claims against the manufacturer and distributor
of the asbestos-containing product and the public policy considerations in such a case differ from that
involved in an action for premises liability.
"A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design ofits
products causes injury while the product is being used in a reasonably foreseeable way." Soule v.
General Motors Corp. (1994) 8 Cal. 4th 548, 560, citing Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d
121, 126-130. The California Supreme Court has identified three alternative theories for ascertaining
whether a product has a design defect. First, the "consumer expectation" test provides that "... a product
may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely
as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner."
Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413, 430. Alternatively, under the "risk-benefit" test
"a product may be found defective in design, even if it satisfies ordinary consumer expectations, if
through hindsight tlte jury determines that the product's design embodies 'excessive preventable danger,'
or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs
the benefits of such design." Ibid. Finally, a manufacturer can be held strictly liable for failing to warn
or for giving inadequate warnings about its products. Anderson v. Owens-Coming Fiberglas Corp.
(1991) 53 Cal.3d 987.
Under the consumer expectation and risk-benefit tests, it is well established that strict liability focuses
not on the conduct of the manufacturer but on the product itself, and the law holds the manufacturer
liable if its product was defective. Brown v. Superior Court (1988) 44 Cal.3d 1049, 1056; see also,
Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 558-559. In Ehnore v.
American Motors Corp. (1969) 70 Cal.2d 578, 586, the Supreme Court determined that bystanders are
entitled to protection where the injury to bystanders from the defect in the product is reasonably
foreseeable. 0-I suggests that household members of asbestos workers are not entitled to protection
because asbestos related disease from take home exposure was not a reasonably foreseeable injury at
the time it manufactured Kaylo. First, it is noted tltat as to 0-I, Plaintiffs dispute that 0-l's liability as a
manufacturer and distributor of Kaylo ended in 1958 or that 0-1 was not aware of the hazards of
Order
asbestos from so-called "take home" exposure during the relevant time period. Plaintiffs submit expert
opinion that prior to 1960 there was scientific literature evidencing concern about workers taking
asbestos off the worksite because industrial hygienists were reconuuending that employees be required
to change contaminated clothing and/or that showers be provided to them. It is the plaintiffs' experts'
opinion that prior to 1958, asbestos-related disease was known by 0-I to occur among "bystanders"
such as employees who did not themselves work with asbestos but were working near others working
with asbestos, persons living in conuuunitics ncar asbestos mines, and/or persons living or working ncar
industrial sites where there was heavy asbestos release from those facilities. Dec!. of Michael
Ellenbecker, Section B; Dec!. of Barry Hom. 0-I concedes that a documented case of exposure in a
domestic or household enviromnent was published in 1965. At the minimum, whether 0-I knew or
reasonably should have known of the risk of harm resulting from "take home" exposure to asbestos
when it manufactured and distribute Kaylo is a triable issue offact. See, Jolley v. Chase Home Finance,
LLC. (2013) 213 Cal.App.4th 872 (triable issue of fact as to a duty of care to Plaintiff defeating
sunuuary judgment).
In contrast to negligence, failure to warn, and fraud claims, "state of the art" evidence such as that
submitted by the parties herein -to wit, what the scientific conuuunity knew about the dangers of
asbestos to household members and when they knew it - is not relevant and excludable in the trial of a
product liability/consumer expectation claim. In Morton v. Owens-Corning Fiberglas Corp. (1995) 33
Cal.App.4th 1529 ("Morton"). the appellate court, addressing whether the consumer expectation test
was available in a case of alleged asbestos exposure, noted: "[T]he individuals who worked with and
around this product were capable offormulating minimum expectations as to its safety" [and] "... what
the scientific conuuunity knew about the dangers of asbestos and when they knew it is not relevant to
show what the ordinary consumer of OCF's product reasonably expected in terms of safety at the time
of [plaintiff's] exposure." Rather, the court in Morton stated: "It is the knowledge and reasonable
expectations of the consumer, not the scientific conuuunity that is relevant under the consumer
expectation test. The fact that the scientific conuuunity was unaware of the dangers of asbestos, if that
is a fact, would not make it any less reasonable for [plaintiff] or other consumers of OCF's products to
expect that they could work with or near OCF's products without getting cancer." Morton v. OwensCorning Fiberglas Corp. supra, 33 Cal.App.4th at 1535-1536. In this case the court cannot say it was
unreasonable for Mrs. Grigg to expect that her husband could work with or near 0-I's products without
getting cancer. Further, here there is a far greater "closeness of the connection" between 0-I's tortious
conduct - to wit, manufacturing and distributing a known hazardous material and placing it into the
stream of commerce -and Mrs. Grigg. See, Gallick v. Baltimore & 0 Railroad Company (1963) 372
U.S. 108 at fn. 8, quoting the Restatement of Torts, section 435 ("If the actor's conduct is a substantial
factor in bringing about the harm to another, the fact that the actor neither foresaw nor should have
foreseen the extent of the harm or the manner in which it occurred does not prevent him from being
liable.").
Finally, public policy considerations support burdening 0-I, a manufacturer and distributor, with the
duty of care under strict liability for defective products. "Strict liability ... was created judicially
because of the economic and social need for the protection of consumers in an increasingly complex and
mechanized society, and because of the limitations in the negligence and warranty remedies. Our
avowed purpose was to 'insure that the costs of injuries resulting from defective products are borne by
the manufacturer that put such products on the market rather than by the injured persons who are
powerless to protect themselves.' (citation)." Daly v. General Motors Corp. (1978) 20 Cal.3d 725,732733. See also, Nelson v. Superior Court (2006) 144 Cal.App.4th 689 (holding that the strict liability
doctrine was developed mainly to protect consumers, users, and bystanders who are not in a position to
protect themselves. This case is In contrast to the Campbell opinion relied upon by 0-I where the court
chose not to extend the duty of care of a premises owner who allegedly negligently allowed workers on
its premises to take home asbestos dust that injured plaintiff, a relative of one of those workers.
Campbell did not involve a claim of product liability/consumer expectation. Campbell did not involve a
defendant who made a manufacturer who incorporated asbestos in its product - knowingly creating au
inherently defective product - and placed that product in the stream of commerce.
In sum, the court concludes that in this case 0-T has failed to establish the absence of any duty of care
toward Mrs. Grigg because under the strict products liability cause of action asserted in this case 0-I
owed a general duty to produce defect-free products. In light of the foregoing the court does not reach
the issue as to whether such a duty of care would exist under other causes of action asserted by
Plaintiffs in tl1is case. C.C.P. sec. 473c(c); Zavala v. Arce (1997) 58 Cal.App.4tl1 915, 926.
Order
Plaintiffs' evidentiary objections to the declaration of Peter Neushul, are OVERRULED. Peter Neushul
has relied on information on w!rich a reasonable expert would rely. He has provided a sufficient
foundation for his opinion that there was no scientific or medical knowledge that suggested or
established a relationship between household exposure and the risk of developing asbestos-related
disease prior to 1958.
Plaintiffs' evidentiary objections to the declaration ofRaporc, p. 2, lines 7-9, and Exhibit A, arc
SUSTAINED. Lack of authentication.
Plaintiffs' evidentiary objections to the declaration ofRapore, p. 2:19-3:6, and Exlubits D, E, F, G, and
H, are OVERRULED. The authenticity of these documents is not reasonably subject to dispute. They
are not offered for the truth of facts stated therein, but to show when notice was provided.
Plaintiffs' evidentiary objections to the declaration ofRapore, p. 3:7-9, and Exhibit I, the deposition of
Dr. Richard Lemen taken on April5, 2005, are SUSTAINED. Hearsay.
Plaintiffs' evidentiary objections to the declaration of Rapore, p. 3: I 0-12, and Exhibit J, the deposition
of Dr. Richard Lemen taken on January 14, 2005, are SUSTAINED. Hearsay.
Plaintiffs' evidentiary objections to the declaration ofRapore, p. 3:13-15, and Exhibit K, the deposition
of Steven Paskal, taken on November 16,2010, are SUSTAINED. Hearsay.
Plaintiffs' evidentiary objections to the declaration of Rapore, p. 3:16-18, and Exhibit L, the deposition
of Dr. Victor Roggli, taken on August 31,2005, are SUSTAINED. Hearsay.
Plaintiffs' evidentiary objections to the declaration ofRapore, p. 3:19-21, and Exhibit M, the trial
testimony of Dr. Barry Castleman, given on October 18, 2010, are SUSTAINED. Hearsay.
Plaintiffs' evidentiary objections to the declaration of Rapore, p. 3:22-25, and Exhibit N, the trial
testimony of Dr. Edwin Holstein, taken on September 22, 2003, are SUSTAINED. Hearsay.
Plaintiffs' evidentiary objections to the declaration ofRapore, p. 3:26-4: I, and Exhibit 0, an order dated
January 18, 2012, Order Granting Owens-Illinois's Motion to Disiniss at the Close of Plaintiffs' Case in
Thomas Wilkoski, eta!. v. Building Service Industrial Sales Co., dated January 18, 2012, Circuit Court
of Milwaukee County, Wisconsin, are SUSTAINED to the extent this opinion is offered for the truth of
the court's factual findings. Those factual findings arc hearsay. Plaintiffs objections to 0-l's request
for judicial notice of the same order is DENIED.
Plaintiffs' objections to the declaration ofWilliams in 0-I's reply papers are OVERRULED
Plaintiffs' objections to the declaration of Dr. James Lockey in Plaintiffs' reply papers are
SUSTAINED.
Plaintiffs' objections to the declaration of Peter Neushul in Plaintiffs' reply papers are SUSTAINED.
The court considered the supplemental opposition filed by Plaintiffs and supplemental reply filed by 0I. 0-I has not objected to the filing of supplemental briefing following continuance of hearing of this
motion.
Dated: 03/18/2013
Judge Jo-Lynne Q. Lee
Order