Sparks v. Owens-Illinois, Inc.
38 Cal. Rptr. 2d 739, 32 Cal. App. 4th 461, 1995 Cal. App. LEXIS 140 (1995)
Rule of Law:
A product is defectively designed under the 'consumer expectation test' if it fails to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner, particularly when its everyday use results in latent dangers like serious illness. In multi-exposure toxic tort cases, the defendant bears the burden to prove alternative causes for fault allocation, and failure to present such evidence or request appropriate jury instructions can waive a defense for proportionate liability under Proposition 51.
Facts:
- Between 1948 and 1958, Owens-Illinois, Inc. (Owens-Illinois) manufactured and sold an asbestos-containing thermal insulation product called Kaylo, made with 13 to 20 percent asbestos, intended for industrial high-temperature thermal insulation.
- Charles Sparks joined the United States Navy in 1959 and was assigned to the heavy cruiser U.S.S. Bremerton.
- In January or February of 1960, the Bremerton underwent a six-month decommissioning overhaul, during which Sparks's duty was to remove and inspect valves, requiring insulation to be sawed or cut and removed from pipes, generating a great deal of dust.
- Lowell Erwin, an insulator, worked on the Bremerton around mid-1957, removing old asbestos insulation and installing new, including large amounts of Kaylo block and pipe covering, which he preferred to use.
- Workers, including Ralph David and Owens-Illinois employee Samuel Schillaci (who oversaw the Kaylo division in the 1950s), observed Kaylo being sawed and handled, generating dust, without respirators or awareness of danger, assuming it was innocuous.
- Sparks was later exposed to asbestos as a sheet metal worker aboard the U.S.S. Frontier for 18 months, and from 1966 to 1974, as a civilian employee in the Long Beach Naval Shipyard where he was occasionally exposed to pipefitters' asbestos dust.
- Sparks developed mesothelioma, and medical experts testified that his exposure on the U.S.S. Bremerton was the first, most intense, and by itself, sufficient to have caused his mesothelioma.
- The removal process of Kaylo insulation, which was friable and had to be cut and shaped, foreseeably generated large amounts of asbestos-laden dust during normal installation, inspection, and removal processes.
Procedural Posture:
- Charles and Betty Sparks filed a complaint for personal injuries and loss of consortium against Owens-Illinois, Inc. and over 40 other defendants in San Francisco Superior Court on April 11, 1991.
- A first amended complaint was filed on April 16, 1991.
- Owens-Illinois answered the first amended complaint on May 29, 1991.
- The trial court (San Francisco Superior Court, Honorable Roy L. Wonder, presiding) granted plaintiffs’ motions in limine to exclude evidence of the Navy’s knowledge regarding asbestos exposure (related to a superseding cause defense) and to exclude a “state-of-the-art” defense (as the case proceeded solely on a “consumer expectation” theory).
- The trial court denied defendant Fibreboard Corp.’s motion in limine to limit expert testimony on causation to only “more-probable-than-not” causes.
- The trial court ruled that Proposition 51 would apply to the case, limiting defendants’ liability for noneconomic damages to their proportionate share of fault.
- A jury trial commenced on October 21, 1991.
- The jury returned a verdict in favor of the plaintiffs and allocated 100 percent of the fault to defendant Owens-Illinois.
- Owens-Illinois, Inc. timely appealed the judgment.
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Issue:
1. Does substantial evidence support a jury's finding that an asbestos-containing insulation product was defectively designed under the 'consumer expectation test' and was the sole legal cause of the plaintiff's mesothelioma, despite evidence of other asbestos exposures? 2. Did the defendant waive its right to seek allocation of fault to a non-party employer under Proposition 51 by failing to present evidence or request jury instructions on that issue at trial?
Opinions:
Majority - Phelan, J.
1. Yes, substantial evidence supports the jury's finding that Kaylo was defectively designed under the consumer expectation test and was the sole legal cause of Sparks's mesothelioma, despite other exposures. The court found that the 'consumer expectation test' was appropriately applied because Kaylo was a simple, stationary product that, in its ordinary and foreseeable use and maintenance (cutting, shaping, removal), emitted highly toxic, respirable asbestos fibers, leading to a fatal lung disease after a long latency period. This failure was beyond the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers, who did not expect to develop a fatal disease from breathing Kaylo dust. The court cited Soule v. General Motors Corp. (1994) which clarified that this test applies when the product's failure violates minimum safety assumptions based on everyday experience, regardless of expert opinion on design merits. Here, witnesses testified that ordinary users freely handled Kaylo, assuming it was harmless, without special precautions. Regarding causation and fault allocation, the court held that substantial evidence supported the jury's finding that Kaylo was a legal cause, based on expert testimony that Sparks's exposure on the Bremerton was the most intense and, by itself, sufficient to cause mesothelioma. While Sparks had other exposures, Owens-Illinois failed to carry its burden to prove that these other exposures involved defective products, that those defects were legal causes of injury, or to establish a percentage of fault attributable to other companies. The jury was entitled to conclude that Owens-Illinois's product was the sole cause given the evidence presented and Owens-Illinois's failure to prove otherwise. 2. Yes, Owens-Illinois waived its claim to have a portion of the plaintiffs’ noneconomic damages allocated to Sparks’s employer, the United States Navy, under Proposition 51. The court reasoned that at the time of trial, the issue of whether a third-party tortfeasor could seek allocation of fault to an immune employer under Proposition 51 was an open question in California law (the California Supreme Court had granted review of DaFonte I but not yet decided DaFonte II). Owens-Illinois, despite having the opportunity, made no attempt to offer evidence, jury instructions, or special verdict forms to seek such an apportionment of fault to the Navy. The trial court was free to disagree with the then-prevailing appellate interpretation and allow the issue to go to the jury. By failing to preserve this issue at trial, Owens-Illinois waived its claim.
Analysis:
This case clarifies the application of the 'consumer expectation test' for design defects, particularly in complex toxic tort cases involving latent dangers like asbestos. It reaffirms that expert testimony is not a barrier to using this test if the product's failure violates basic safety expectations of ordinary consumers. The ruling also underscores the defendant's burden in multi-tortfeasor cases to prove alternative causes for fault allocation, and the importance of preserving legal arguments and presenting evidence at the trial level to avoid waiver, even when legal interpretations are unsettled.
