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Chavers v. Gatke Corporation3/28/2003
CERTIFIED FOR PUBLICATION
This appeal requires us to consider the vitality of the idea of "group" or "collective" legal accountability in the products liability context. For well over a quarter century, courts across the nation have struggled with a variety of novel theories under which manufacturers of a defective product could assertedly be held liable in damages to plaintiffs injured by use of or exposure to it. Litigation involving asbestos, tobacco, and DES are prominent examples. Owing to circumstances, the plaintiffs in such cases often were unable to identify the specific manufacturer of the product that allegedly produced their injuries. The rule at common law, of course, placed tort litigants under an unwaivable requirement of proving not only a compensable injury but also the identity of the offending manufacturer whose acts caused the plaintiff's injury. Proof of causation, in other words, is an essential condition for liability in tort.
In the struggle to adjust traditional notions of tort liability to the changing realities of national business practices, five more or less distinct theories have arisen. Under all of them, product manufacturers can be held collectively-and jointly and severally-liable in tort without proof of "causation" as conventionally understood in tort law. These doctrines, going under such names as "alternative liability," "industry-wide (or `enterprise') liability," "market share liability," "concert of action" and "conspiracy," have received a mixed reception in American courts. We consider here whether respondent, formerly a manufacturer of friction brake products containing asbestos, can be held liable in tort to plaintiffs husband and wife for injuries caused by asbestos inhalation where, plaintiffs conceded, they possessed no evidence husband had been exposed to products manufactured by defendant. Plaintiffs contend defendant manufacturer was liable to them in strict liability and for negligence on theories of civil conspiracy and concert of action, and that the trial court erred when it refused to instruct the jury on those issues. Having concluded both instructions proffered by plaintiffs were inappropriate as a matter of law and that the trial court thus did not err in declining to give them, we will affirm.
FACTUAL BACKGROUND
With his wife Mary as coplaintiff, Bernie Chavers, who worked for several years as an automobile and truck mechanic repairing friction brakes, filed a complaint for damages for injuries allegedly caused by prolonged inhalation of asbestos-laden particles. Brake work of the type Chavers performed required that brake shoes-composed in part of asbestos because it resists the extreme heat generated by stopping a multi-ton vehicle-be sanded with high speed machines, a process that gives off dust particles which, unless the operator wears a mask or other appropriate protection, are inhaled into the lungs. The theory underlying plaintiffs' complaint was that while working around automotive brakes, Mr. Chavers contracted a form of pulmonary cancer-mesothelioma-caused by the inhalation of asbestos particles. The Chavers' complaint joined as defendants scores of manufacturers, suppliers, and distributors of friction brake products containing asbestos-59 named defendants and 800 "Doe" defendants-asserting, in the fourteenth cause of action, that all were jointly and severally liable for plaintiffs' injuries under two theories of group liability. Prior to trial, plaintiffs reached settlement agreements with all but two of the defendants-respondent Gatke Corporation (Gatke), a dissolved, bankrupt company that had in the past manufactured automotive brakes and clutches, and Owens-Illinois, Inc.
A ju
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