Justia California Court of Appeals Opinion SummariesArticles Posted in Products Liability
Gibbons v. Johnson & Johnson Consumer Inc.
Plaintiff and her spouse filed suit alleging that the Shower to Shower cosmetic powder and Johnson's Baby Powder plaintiff used for two decades were contaminated with asbestos and a substantial factor in causing her mesothelioma. The Court of Appeal affirmed the district court's grant of summary judgment in favor of JJCI, holding that JJCI's expert's declaration -- that JJCI's talcum powder and the talc from its source mines did not contain asbestos -- shifted the burden to plaintiff to produce evidence of threshold exposure to asbestos from JJCI's products. The court also held that plaintiff failed to demonstrate the existence of a triable issue of fact as to the presence of asbestos in the JJCI talc products plaintiff used. In this case, plaintiff failed to present expert testimony to counter JJCI's expert's opinion, and failed to offer verified admissions or interrogatory answers by JJCI. View "Gibbons v. Johnson & Johnson Consumer Inc." on Justia Law
Berg v. Colgate-Palmolive Co.
After he developed mesothelioma, Berg sued Colgate-Palmolive, whose predecessor, Mennen, manufactured shaving talc he had used in 1959 to 1961 or 1962. During that period he used a total of four to six containers of the talc. Colgate’s expert opined that Mennen Shave Talc was “free of asbestos” and, even if some of the raw talc sourced to make the product was contaminated with asbestos, there was no legitimate scientific basis on which to conclude that any particular container of shave talc was contaminated. Berg’s expert opined that, “to a reasonable degree of scientific certainty, . . . repeated use of Mennen Shave Talc products such as those tested and reported here in a manner consistent with the intended use would cause respirable asbestos fibers to become airborne and inhalable,” creating “airborne asbestos concentrations . . . hundreds if not thousands of times greater than background or ambient levels.” The court of appeal affirmed summary judgment for Colgate. Berg failed to create a triable issue of material fact of whether the Mennen product Berg used contained asbestos. Berg’s expert identified no evidence and set forth no demonstrably scientifically accepted or logical rationale by which he could determine what percentage of the cans of Mennen talc sold in the relevant period contained talc from lots contaminated with asbestos. View "Berg v. Colgate-Palmolive Co." on Justia Law
Chen v. Los Angeles Truck Centers, LLC
The Supreme Court remanded this case after finding that the trial court was not required to reconsider the choice of law after the Indiana defendant settled out. The Supreme Court concluded that the trial court may revisit a choice-of-law decision, and there may be cases in which the trial court is obligated to reconsider the decision, but this was not one of them. On remand, the Court of Appeal affirmed the trial court's application of Indiana products liability law. The court held that California's interest in applying its law is hypothetical, since no actual harm occurred in California giving rise to an interest to deter conduct or compensate victims; plaintiffs' assertion that Indiana had no interest in having its products liability law applied was mistaken; and, because Indiana had a real interest in applying its law, and California's interest was only hypothetical, there was no true conflict. The court reasoned that, even if there was a true conflict, the court would be required to conclude, under the governmental interest test, that Indiana law applies because its interest would be more impaired if its policy were subordinated to the policy of California. View "Chen v. Los Angeles Truck Centers, LLC" on Justia Law
Posted in: Products Liability
Lopez v. Hillshire Brands Co.
Lopez was diagnosed with epithelioid mesothelioma with a deciduoid pattern at the age of 59. He died from his disease at the age of 61. The physician who diagnosed him believed his mesothelioma was caused by exposure to asbestos. His survivors sued Hillshire, a sugar refinery that used a great deal of asbestos insulation. The plaintiffs argued that Lopez had been exposed to asbestos as a child in three ways when his father worked at the refinery owned by Hillshire’s predecessor: he visited his father and grandfather at the refinery itself several times; he lived from 1954-1964 in a company-owned town, where asbestos drifted from the refinery; and his father inadvertently brought asbestos from the refinery into the family home. The jury awarded plaintiffs $1,958,461 in economic damages and a total of $11 million in noneconomic damages but did not award punitive damages. The court of appeal affirmed, rejecting Hillshire’s challenges to the sufficiency of the evidence, the jury instructions given, and the failure of the jury to apportion any fault to the companies that manufactured asbestos used in the refinery. View "Lopez v. Hillshire Brands Co." on Justia Law
Echeverria v. Johnson & Johnson
This case is one of several coordinated actions alleging that talcum powder products manufactured by defendants caused them to develop ovarian cancer. In 2017, bellwether plaintiff's case was tried to a jury on a single claim and the jury returned a verdict in her favor. Defendants filed motions for judgment notwithstanding the verdict (JNOV) as to liability and punitive damages, as well as a joint motion for a new trial. After the trial court granted the motions, both sides appealed. The Court of Appeal affirmed the JNOV in favor of Johnson & Johnson, but partially reversed as to JJCI. The court held that there was no substantial evidence to support a finding of liability as to Johnson & Johnson, a parent company that stopped manufacturing Johnson's Baby Powder in 1967, several years before there were any investigations or studies about a link between genital talc use and ovarian cancer. Furthermore, the evidence failed to support a finding of malice as required for a punitive damages award. The court affirmed the JNOV for JJCI on that ground, but held that there was substantial evidence to support the jury's other findings as to JJCI. The court reversed the JNOV in favor of JJCI as to liability, but affirmed the trial court's order granting JJCI's motion for a new trial. View "Echeverria v. Johnson & Johnson" on Justia Law
Hernandez v. Enterprise Rent-A-Car Co. of S.F.
In 2004, Hernandez, age 11, was a passenger in a 1992 Oldsmobile Cutlass that was involved in a head-on collision; she was seriously injured. Hernandez alleged that the Cutlass was not designed to be crashworthy and did not provide adequate protection to children riding in the back seat when the vehicle was involved in a frontal collision. Hernandez did not attempt to hold the manufacturer liable but sued Enterprise. Hernandez argued that a rental car company, NCRS, was strictly liable because NCRS placed the Oldsmobile “into the stream of commerce.” NCRS has sold its business in 1995 and, after a series of transactions, Enterprise became a successor in 2003. The case was stayed while Hernandez litigated an unsuccessful identical legal claim against other alleged NCRS affiliates. The trial court granted Enterprise summary judgment. The court of appeal affirmed. Enterprise did not succeed to any liability NCRS would have had for Hernandez’s injuries. After the sale of NCRS’s assets plaintiffs such as Hernandez could have sought recourse against General Motors. In addition, one of the successor owners entered bankruptcy through no fault of the acquiring entities, so the subsequent owners do not come within an exception to the general rule against successor liability in an asset sale. View "Hernandez v. Enterprise Rent-A-Car Co. of S.F." on Justia Law
Mettias v. The Pep Boys
After Philip and Febi Mettias died from complications associated with mesothelioma, their children brought a wrongful death action against various defendants. The jury returned a special verdict in favor of Honeywell and Pep Boys, and plaintiffs appealed the verdict solely as to Pep Boys. The Court of Appeal held that any error in denying plaintiffs' request to instruct the jury pursuant to negligence instructions was harmless where it was not reasonably probable that a different result would have been reached. In this case, there was no evidence to support a theory of negligence against Pep Boys other than its alleged violation of its duty of care as a supplier of asbestos-containing brakes. The court also held that plaintiffs' contention that the trial court's oral reading of certain instructions was erroneous and prejudicial was without merit. View "Mettias v. The Pep Boys" on Justia Law
Burch v. CertainTeed Corp.
Burch contracted mesothelioma following many years of installing asbestos-cement (A/C) pipe throughout California. Burch sued CertainTeed, an A/C pipe manufacturer, and won a verdict on claims for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation. The court entered a judgment holding CertainTeed 100 percent liable for Burch’s economic damages and 62 percent liable for the noneconomic damages according to the jury’s fault apportionment. The court later granted judgment notwithstanding the verdict (JNOV) on the intentional misrepresentation claim and denied JNOV on the intentional concealment claim. The court of appeal affirmed the JNOV order and upheld the trial court’s refusal to give a special jury instruction on the duty of Burch’s employers to provide a safe workplace and refusal to compel Burch to execute an acknowledgment of partial satisfaction of the judgment. The court reversed the original judgment and remanded with directions to enter a new judgment for Burch, holding CertainTeed jointly and severally liable for all of Burch’s economic and noneconomic damages. The trial court erred in allocating noneconomic damages according to CertainTeed’s proportion of fault because Civil Code section 1431.21 (Proposition 51) does not eliminate an intentional tortfeasor’s joint and several liability for noneconomic damages. View "Burch v. CertainTeed Corp." on Justia Law
Etcheson v. FCA US LLC
Plaintiffs-appellants Jamie and Kelly Etcheson brought an action under the Song-Beverly Consumer Warranty Act (commonly known as the "lemon law") against defendant and respondent FCA US LLC (FCA) after experiencing problems with a vehicle they had purchased new for about $40,000. After admitting the vehicle qualified for repurchase under the Act, FCA made two offers to compromise under Code of Civil Procedure section 998: one in March 2015, to which plaintiffs objected and the trial court found was impermissibly vague, and a second in June 2016, offering to pay plaintiffs $65,000 in exchange for the vehicle's return. Following the second offer, the parties negotiated a settlement in which FCA agreed to pay plaintiffs $76,000 and deem them the prevailing parties for purposes of seeking an award of attorney fees. Plaintiffs moved for an award of $89,445 in lodestar attorney fees with a 1.5 enhancement of $44,722.50 for a total of $134,167.50 in fees, plus $5,059.05 in costs. Finding the hourly rates and amount of counsels' time spent on services on plaintiffs' behalf to be reasonable, the trial court tentatively ruled plaintiffs were entitled to recover $81,745 in attorney fees and $5,059.05 in costs. However, in its final order the court substantially reduced its award, concluding plaintiffs should not have continued to litigate the matter at all after FCA's March 2015 section 998 offer. It found their sought-after attorney fees after the March 2015 offer were not "reasonably incurred," and cut off fees from that point, awarding plaintiffs a total of $2,636.90 in attorney fees and costs. Pointing out their ultimate recovery was double the estimated value of FCA's invalid March 2015 section 998 offer, which they had no duty to counter or accept, plaintiffs contended the trial court abused its discretion by cutting off all attorney fees and costs incurred after that offer. The Court of Appeal agreed and reversed the order and remanded back to the trial court with directions to award plaintiffs reasonable attorney fees for their counsels' services, including those performed after FCA's March 2015 offer, as well as reasonable fees for services in pursuing their motion for fees and costs. View "Etcheson v. FCA US LLC" on Justia Law
Modisette v. Apple Inc.
The Modisettes were traveling in their car on Interstate 35W in Denton County, Texas. Wilhelm was also driving on I-35, while using the FaceTime application on his Apple iPhone. Wilhelm crashed into the Modisettes’ car, which had stopped due to police activity. The accident caused severe injuries to each of the Modisettes; Moriah, age five, subsequently died. Police found Wilhelm’s iPhone at the scene with FaceTime still activated. The Modisettes sued, alleging that Apple’s failure to design the iPhone to lock out the ability of drivers to use the FaceTime application while driving resulted in their injuries. The complaint incorporated data that show the compulsive/addictive nature of smartphone use and concerning the number of accidents that involve smartphone use. They alleged that Apple had failed to warn users and that Apple applied for a patent for its lockout technology in 2008, to disable the ability of a handheld computing device to perform certain functions, such as texting, while one is driving. The patent issued in 2014. Apple released Wilhelm’s iPhone 6 model in September 2014; FaceTime was a “factory-installed, non-optional application.” The court of appeal affirmed the dismissal of the action. Apple did not owe the Modisettes a duty of care. The Modisettes cannot establish that Apple’s design of the iPhone constituted a proximate cause of their injuries. View "Modisette v. Apple Inc." on Justia Law