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Ferris v. Gatke Corp.3/28/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Does Sindell's burden-shifting "market share" theory of tort liability apply in litigation seeking recovery for personal injury and wrongful death from inhalation of asbestos fibers? (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 (Sindell).) As will appear, while the answer to that general proposition has been the subject of uncertainty, we conclude the circumstances presented by this record make it unnecessary for us to resolve the issue vel non. It is sufficient, we decide, that assuming Sindell relief may under some circumstances be available to plaintiffs in asbestos-related tort litigation, the record in this appeal fails to furnish the requisites necessary to establish that species of group tort liability. In light of that conclusion, we hold the superior court did not err here when it barred plaintiffs from pursuing Sindell relief at trial. For not unrelated reasons, we also conclude the trial court was correct when it granted a defense motion for non-suit on plaintiffs' civil conspiracy claims. Given these dispositions, we will affirm the ensuing judgment for defendant from which this appeal is taken.
FACTUAL AND PROCEDURAL BACKGROUND
Asserting he had been employed in naval shipyards and around other sources of asbestos exposure during his working life and regularly had replaced the friction brake shoes on his own and his neighbors' automobiles for close to 40 years, in December 1998, Harley Ferris and his wife Augusta filed suit for damages in tort against numerous manufacturers, suppliers, and distributors of asbestos, including manufacturers of friction brake products containing that mineral. The original complaint sought damages for personal injury and loss of consortium on theories of negligence, strict liability, fraud and deceit, and civil conspiracy. Not long thereafter, Mr. Ferris died from the effects of mesothelioma, an incurable pulmonary cancer associated with and thought to be caused by inhalation of asbestos particles. Joined by the Ferris's two sons, Augusta pressed on with the lawsuit, amending the complaint to plead an additional cause of action for wrongful death.
The cause was called for trial on August 8, 2000. The defense filed an in limine motion to exclude evidence supporting a market share theory of liability, contending plaintiffs had not and could not establish that friction brake products containing asbestos were fungible, and had not and could not join defendants with a substantial share of the national friction products market. This was denied by the trial court without prejudice to its renewal following a hearing under Evidence Code section 402. Following such a hearing on August 22, 2000, defense motions in limine to exclude evidence supporting a theory of market share liability were renewed. At a hearing held on August 31, 2000, the trial court granted those motions. Somewhat later in the trial court proceedings, on September 7, 2000, the court granted Gatke's motion for non-suit on plaintiffs' claims in negligence and strict products liability, as well as their civil conspiracy claims, founded on negligence and products liability. After judgment for defendant was entered on November 17, 2000, this timely appeal followed.
ANALYSIS
1. On this record, the trial court did not err in barring plaintiffs from pursuing Sindell relief.
In Sindell
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