Hernandez v. Amcord, Inc.

Filed 4/18/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
NATALIA HERNANDEZ, B238408
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC402779)
v.
AMCORD, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Mary
Ann Murphy, Judge. Reversed.
Baron & Budd, John Langdoc and Denyse F. Clancy for Plaintiff and Appellant.
Selman Breitman, Jerry C. Popovich, Craig R. Maki, and N. Asir Fiola for
Defendant and Respondent.
Natalia Hernandez (appellant), individually and as successor in interest to Arnulfo
Hernandez, deceased (Mr. Hernandez or decedent), appeals from a judgment of nonsuit
in favor of respondent Amcord, Inc. (respondent).1 Appellant and Mr. Hernandez
brought suit against respondent and other defendants for negligence and strict liability
after Mr. Hernandez was diagnosed with mesothelioma in 2008, at the age of 62. At the
start of trial, respondent was the only remaining defendant in the case.2 Nonsuit was
granted in favor of respondent after the appellant‟s presentation of evidence, on the
ground that appellant failed to present evidence that respondent‟s product, Riverside‟s
asbestos-containing gun plastic cement, was a substantial factor in causing
Mr. Hernandez‟s mesothelioma to a reasonable degree of medical probability. The trial
court cited Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford), and
Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078 (Whitmire), in support of
its decision.
We find that the evidence presented by appellant at trial, evaluated in a light most
favorable to appellant, meets the standard set forth in Rutherford and its progeny.
Therefore we reverse the judgment of nonsuit. We further find that the trial court erred in
excluding evidence of respondent‟s lobbying activities under the Noerr-Pennington
doctrine. The evidentiary ruling was based on a misapplication of law and therefore
constituted an abuse of discretion. The evidentiary ruling is also reversed.
CONTENTIONS
Appellant contends that the trial court erred in granting nonsuit because appellant
presented sufficient evidence to meet the Rutherford standard for proving causation in
asbestos cases.
Appellant further contends that the trial court erred in excluding evidence of
respondent‟s lobbying activities under the Noerr-Pennington doctrine.
1
Amcord was sued individually and as successor in interest to Riverside Cement.
2
Mr. Hernandez was deceased at the time of trial.
2
FACTUAL BACKGROUND
Mr. Hernandez was diagnosed with malignant mesothelioma in 2008, when he
was 62 years old. He died one year later. He left behind his wife of 37 years, three
daughters and two sons.
Mesothelioma is a fatal cancer that develops in the lining of the lungs. It occurs
when asbestos fibers get into the pleural area and cause irritation. As the cancer spreads,
it grows thicker and ultimately pushes in the lung, causing it to collapse, which in turn
ruins the capacity of the lung to exchange carbon dioxide with oxygen. The victim
ultimately suffocates from the tumor. The latency period between exposure to asbestos
and mesothelioma is usually 30 to 35 years or longer.
Mr. Hernandez was exposed to asbestos while working as a carpenter and
construction worker in southern California during the 1960‟s through 1980‟s. Alfredo
Hernandez (Alfredo), Mr. Hernandez‟s younger brother, worked with Mr. Hernandez for
about 10 to 12 years beginning in 1969. They did not constantly work together; they
worked apart during the week but worked together on the weekends to earn extra money.
During this time period, the brothers worked together on about 20 houses and a few
apartment buildings. They never built houses from the ground up, only additions on
existing homes. They also worked together on commercial construction sites.
The majority of the brothers‟ work during this time was interior, as opposed to
exterior work. However, they did perform some work on the outside of houses. Alfredo
described the work as “stucco[ing] the houses.” Riverside gun plastic cement was one of
the stucco products the brothers used on the exterior of homes during the time period
from 1969 through the 1970‟s. While there were other products available, Riverside gun
plastic cement held better and was easier to apply. Although it cost a few dollars more,
Alfredo and the decedent would buy Riverside gun plastic cement because it would make
the job “faster and easier” and they could move on to a different job more quickly. They
applied Riverside gun plastic cement “all the time” or about 75 percent of the time.
Riverside gun plastic cement was packaged in 94-pound bags. In order to open a
bag of Riverside gun plastic cement, Mr. Hernandez would cut the bag in the middle,
3
which created visible dust around his face and clothing. Mr. Hernandez would then
dump the bag of Riverside gun plastic cement into a mixer, which also created “a little
bit” of dust that got on his face and clothing. Mr. Hernandez did not apply the Riverside
gun plastic cement with a gun, because it was too expensive. Alfredo was not able to
come up with an approximate number of times that Mr. Hernandez used Riverside gun
plastic cement, however, when asked how often the brothers worked with Riverside gun
plastic cement, Alfredo replied: “A lot of times.”
Riverside gun plastic cement was manufactured from 1959 to 1979. It contained a
small amount of asbestos. There was no warning on the Riverside gun plastic cement
that it could cause cancer. Riverside gun plastic cement was the only product
manufactured by respondent which contained asbestos. Respondent was in full
compliance with the regulations and requirements with respect to asbestos-containing
products.
PROCEDURAL HISTORY
The pleadings
Appellant and Mr. Hernandez brought suit against respondent and 11 other
defendants on November 26, 2008, alleging negligence, strict liability, and related claims.
Respondent filed an answer on January 26, 2009.
Mr. Hernandez died on April 18, 2009. In October 2009, appellant filed a second
amended complaint for wrongful death and survival, naming respondent and several other
defendants. After the trial court granted an omnibus motion to strike in favor of
respondent and other defendants, appellant filed a third amended complaint on April 15,
2010. The third amended complaint alleged causes of action for negligence and strict
liability against respondent and others.
Trial
Trial commenced on November 14, 2011, with respondent the only remaining
defendant.
4
Testimony of Richard Lemen, Ph.D.
At trial, appellant presented Richard Lemen, Ph.D., an epidemiologist, former
Assistant Surgeon General of the United States, and former deputy director of the
National Institute of Occupational Safety and Health (NIOSH). Dr. Lemen described
epidemiology as “a field of medicine that is the study of disease patterns and
populations.” He explained that an epidemiologist studies what causes diseases, and then
uses that information to implement disease prevention. Dr. Lemen explained that his
testimony would concern “the health effects and our knowledge of those health effects as
they relate to risks from exposure to asbestos.”
Dr. Lemen studied asbestos since 1970. As part of his research, he wrote a
position paper which was adopted as the official position of the World Health
Organization. The paper took the position that asbestos caused lung cancer,
mesothelioma, and several other types of cancers, and that all forms of asbestos were
carcinogenic. He also wrote the NIOSH criteria document with respect to asbestos,
which concluded that there was no safe level that could be identified for exposure to
asbestos that would eliminate the risk of developing cancer. Dr. Lemen testified that
mesothelioma is a cancer specifically associated with asbestos exposure, and that the
major cause of mesothelioma is exposure to asbestos.
Dr. Lemen opined that if a worker poured a 94-pound bag of Riverside gun plastic
cement containing asbestos, the worker would be at increased risk for developing
mesothelioma as long as the asbestos fibers were respirable and airborne. Dr. Lemen also
opined that if a worker were exposed to many different asbestos-containing products,
each of those products would contribute to an increased risk of asbestos-related disease,
as long as the asbestos was inhaled and retained in the worker‟s body.
Dr. Lemen is not a medical doctor. He did not diagnose Mr. Hernandez, and was
not his treating physician. He could not testify as to the specific cause of
Mr. Hernandez‟s mesothelioma. Dr. Lemen did not review any case-specific information
or any of Mr. Hernandez‟s medical records, and he was not asked to give any specific
opinions about Mr. Hernandez.
5
Testimony of Richard Kradin, M.D.
Dr. Richard Kradin is a medical doctor, the Director of Pulmonary Immunology
and Molecular Biology and a pulmonary pathologist at Massachusetts General Hospital,
as well as a professor at Harvard Medical School. He is board certified in anatomic
pathology, pulmonary medicine, and internal medicine.
Dr. Kradin reviewed the medical records, work history, and histological materials
of Mr. Hernandez.3 Pursuant to a stipulation between the parties, Dr. Kradin did not
appear live. Instead, his report was read into evidence.
Dr. Kradin confirmed that Mr. Hernandez had malignant mesothelioma of the
pleura. As to Mr. Hernandez‟s exposure, Dr. Kradin stated:
“Mr. Hernandez was repeatedly exposed to asbestos while working
as a carpenter, construction worker, and production worker from 1963
through the 1990‟s at various sites. He worked directly with asbestos-
containing materials and in proximity to other tradesmen who cut, sawed,
mixed, applied, sanded, and swept-up asbestos containing materials.”
Dr. Kradin stated: “It is my opinion, to a reasonable degree of medical
probability, that his malignant mesothelioma was caused by asbestos.”
Appellant’s proposed evidence of respondent’s government lobbying activity
At trial, appellant advised the court that she intended to introduce evidence of
respondent‟s government lobbying activities. Specifically, appellant intended to present
evidence that respondent successfully lobbied for an exemption to a 1975 amendment to
the California Health and Safety Code banning asbestos spray construction products.
Appellant argues that this evidence of respondent‟s lobbying activity was relevant and
admissible to show negligence, in that respondent took steps to continue selling its
Riverside gun plastic cement despite knowledge that the product was harmful.
The trial court granted respondent‟s motion to exclude this evidence of its
lobbying and petitioning activities, and ordered that “[n]o evidence of lobbying activity
3
“Histological materials” refers to Mr. Hernandez‟s lung tissue.
6
or any other advocacy before the state Legislature will be allowed.” The court‟s ruling
was based on the Noerr-Pennington doctrine.
The trial court’s grant of nonsuit
Appellant concluded her presentation of evidence on November 21, 2011. After
the conclusion of appellant‟s evidence, respondent immediately made an oral motion for
nonsuit pursuant to Code of Civil Procedure section 581c, Rutherford, and related
authorities.
Respondent argued that appellant failed to establish the required element of
specific causation. Respondent‟s position was that Dr. Lemen did not offer specific
causation testimony, and that Dr. Kradin did not state to a reasonable degree of medical
probability that respondent‟s product was a substantial factor in causing the decedent‟s
illness.
The trial court granted respondent‟s motion for nonsuit. The court found that
appellant failed to show that respondent‟s product caused Mr. Hernandez‟s mesothelioma
to a reasonable degree of medical probability, as required by Rutherford and related
authorities. The court explained its belief that the relevant authorities required that “a
doctor of some kind, somebody with an M.D. after his name, has got to say with a
reasonable degree of medical probability that [respondent‟s] product was a substantial
factor in causing his injuries.”
The trial court questioned whether Dr. Lemen‟s degree of Ph.D., rather than M.D.,
rendered him unqualified to provide the causation testimony required by Rutherford:
“Reasonable degree of medical probability, you think someone with a Ph.D. in
epidemiology can say that?” The court also expressed concern that Dr. Lemen used the
words “reasonable scientific certainty” and did not “utter the words „reasonable degree of
medical probability.‟” The court felt that “[t]he experts, just like in medical malpractice,
say that there‟s causation, that it is my opinion that X caused Y with a reasonable degree
of medical probability. That‟s the normal, customary way they say it, and nobody said
that here.”
7
The trial court made reference to CACI No. 435, which states: “[Plaintiffs] may
prove that exposure to asbestos from [defendant‟s product] was a substantial factor
causing [decedent‟s] illness by showing, through expert testimony, that there is a
reasonable medical probability that the exposure was a substantial factor contributing to
[decedent‟s] risk of developing cancer.”
The trial court also relied on the following quote from Whiteley v. Philip Morris,
Inc. (2004) 117 Cal.App.4th 635, 701 (Whiteley):
“Increased risk alone is not actionable. In toxic tort cases generally,
„plaintiffs must establish, to a reasonable medical probability, their
illnesses were caused by the toxic exposure. The fact that chemicals
increased the possibility of sickness in the overall population does not
suffice to provide a causal link with plaintiff‟s illnesses.‟ [Citation.]”
Finally, referring to Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1384
(Cottle), the court stated, “„[m]ere possibility alone is insufficient to establish a prima
facie case. That there is a distinction between a reasonable medical “probability” and a
medical “possibility” needs little discussion.‟”
The court evaluated the testimony of each of appellant‟s experts. The court
pointed out that appellant‟s epidemiologist, Dr. Lemen, did not specifically testify that
decedent‟s exposure to respondent‟s product was a cause of the decedent‟s illness. The
court stated: “I think you need reasonable degree of medical probability, and the
epidemiologist doesn‟t do it.” The court also noted that appellant‟s medical doctor,
Dr. Kradin, “didn‟t testify that this defendant‟s product caused the mesothelioma by a
reasonable degree of medical probability.” Because Rutherford appeared to require such
testimony, the trial court granted the motion for nonsuit.
DISCUSSION
I. Nonsuit
A. Standard of review
“A nonsuit in a jury case or a directed verdict may be granted only when
disregarding conflicting evidence, giving to the plaintiffs‟ evidence all the value to which
8
it is legally entitled, and indulging every legitimate inference which may be drawn from
the evidence in plaintiffs‟ favor, it can be said that there is no evidence to support a jury
verdict in their favor. [Citations.]” (Elmore v. American Motors Corp. (1969) 70 Cal.2d
578, 583.) Nonsuit is appropriate where the plaintiff‟s proof raises nothing more than
speculation, suspicion or conjecture. (Helm v. K.O.G. Alarm Co. (1992) 4 Cal.App.4th
194, 198, fn. 1.)
In reviewing a grant of nonsuit, the appellate court evaluates the evidence in the
light most favorable to the plaintiff. (Nally v. Grace Community Church (1988) 47
Cal.3d 278, 291.) The judgment of nonsuit will be affirmed if a judgment for the
defendant is required as a matter of law, after resolving all presumptions, inferences and
doubts in favor of the plaintiff. (Ibid.) The review of a grant of nonsuit is de novo.
(Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542.)
B. The standard for proving causation in asbestos cases
In order to determine whether appellant set forth sufficient evidence of causation,
we must first discuss the applicable standards set forth in the relevant case law.
Rutherford involved an individual who sued an asbestos manufacturer (Owens-
Illinois) and 18 other defendants alleging that he had contracted lung cancer as a result of
his exposure to asbestos products while on the job. After he died, the complaint was
amended to allege wrongful death. (Rutherford, supra, 16 Cal.4th at pp. 958-959.) At
trial, plaintiffs presented medical evidence that Rutherford had died of asbestos-related
lung cancer, and that he had been exposed to respirable asbestos dust on a daily basis
during periods of his employment on a Naval shipyard. (Id. at p. 960.) After the liability
phase of trial, nearly all the defendants except Owens-Illinois settled with the plaintiffs.
(Ibid.)
In the next phase of trial, the court instructed the jury that if the plaintiff has
proved that a particular asbestos supplier‟s product was “defective,” that the plaintiff‟s
injuries or death were legally caused by asbestos exposure generally, and that he was
exposed to the defendant‟s product, the burden shifted to the defendant to prove that its
9
product was not a legal cause of the plaintiff‟s injuries or death. (Rutherford, supra, 16
Cal.4th at p. 961.)
The Supreme Court determined that the burden-shifting instruction was erroneous,
and that a burden-shifting instruction was unnecessary in asbestos cancer cases.
(Rutherford, supra, 16 Cal.4th at p. 978.) Instead, the high court held:
“In the context of a cause of action for asbestos-related latent
injuries, the plaintiff must first establish some threshold exposure to the
defendant‟s defective asbestos-containing products, and must further
establish in reasonable medical probability that a particular exposure or
series of exposures was a „legal cause‟ of his injury, i.e., a substantial
factor in bringing about the injury. In an asbestos-related cancer case, the
plaintiff need not prove that fibers from the defendant‟s product were the
ones, or among the ones, that actually began the process of malignant
cellular growth. Instead, the plaintiff may meet the burden of proving that
exposure to defendant‟s product was a substantial factor causing the illness
by showing that in reasonable medical probability it was a substantial factor
contributing to the plaintiff‟s or decedent‟s risk of developing cancer. The
jury should be so instructed.”
(Rutherford, supra, 16 Cal.4th at p. 982-983, fns. omitted.)4
However, the Rutherford court held that the instructional error was harmless in
that case. The plaintiffs had presented the testimony of Dr. Allan Smith, a professor of
epidemiology. Dr. Smith testified that asbestos-related lung cancers are dose-related
diseases, and that all occupational exposures through the latency period can contribute to
the risk of contracting the diseases. (Rutherford, supra, 16 Cal.4th at p. 961). Owens-
Illinois presented a competing expert, who testified that a very light or brief exposure
could be considered “„insignificant or at least nearly so‟” in the „“context‟” of other, very
heavy exposures. (Ibid.) There was no evidence that Rutherford had been exposed
predominantly to any one kind or brand of asbestos product. (Ibid.)
4
Notably, the Rutherford court made no distinction between general causation and
specific causation. Therefore, despite respondent‟s use of these terms, we decline to
evaluate the evidence in terms of general versus specific causation, and instead evaluate
appellant‟s evidence as a whole.
10
In addition, both parties presented evidence relevant to the determination of the
proportion of asbestos-containing insulation used at the defendant‟s workplace during
plaintiff‟s period of employment that was supplied by the defendant. (Rutherford, supra,
16 Cal.4th at p. 984.) Both parties also presented expert medical testimony on the
relationship between asbestos exposure and lung cancer. (Ibid.)
After reviewing the evidence and arguments of counsel, the Supreme Court
concluded that the erroneous instruction in no way impaired the defendant‟s ability to
present its full case on substantial factor causation to the jury. (Rutherford, supra, 16
Cal.4th at p. 983.)
The Rutherford court made reference to Lineaweaver v. Plant Insulation Co.
(1995) 31 Cal.App.4th 1409 (Lineaweaver). In Lineaweaver, three individuals brought
claims against numerous asbestos suppliers seeking recovery for injuries arising from
their repeated exposure to asbestos products. The trial court granted the respondent‟s
nonsuit motion on the issue of liability, concluding that appellants failed to present
sufficient evidence of their exposure to the respondent‟s product. The Lineaweaver court
reversed the judgment of nonsuit as to appellant Lineaweaver only, concluding that there
was sufficient circumstantial evidence to support a reasonable inference of exposure. (Id.
at pp. 1412-1413.)
The Lineaweaver court discussed a plaintiff‟s burden in asbestos litigation. First,
“a plaintiff must demonstrate exposure to a defendant‟s product and biological processes
from the exposure which result in disease.” (Lineaweaver, supra, 31 Cal.App.4th at pp.
1415-1416.) In evaluating whether an exposure was a substantial factor in causing
asbestos disease, the Lineaweaver court concluded that the standard should be: “is there
a reasonable medical probability based upon competent expert testimony that the
defendant‟s conduct contributed to plaintiff‟s injury. [Citations.]” (Id. at p. 1416, fn.
omitted.) The Lineaweaver court explained:
“Many factors are relevant in assessing the medical probability that
an exposure contributed to plaintiff‟s asbestos disease. Frequency of
exposure, regularity of exposure, and proximity of the asbestos product to
plaintiff are certainly relevant, although these considerations should not be
11
determinative in every case. [Citation.] Additional factors may also be
significant in individual cases, such as the type of asbestos product to
which plaintiff was exposed, the type of injury suffered by plaintiff, and
other possible sources of plaintiff‟s injury. [Citations.] „Ultimately, the
sufficiency of the evidence of causation will depend on the unique
circumstances of each case.‟ [Citation.]”
(Lineaweaver, supra, 31 Cal.App.4th at p. 1416-1417.)
The Lineaweaver court concluded that this substantial factor test did not place too
great a burden on an asbestos plaintiff. “Plaintiffs are free to demonstrate that a
particular asbestos disease is cumulative in nature, with many separate exposures
contributing to their injuries. Prima facie evidence of causation may consist of proof that
exposure to a particular defendant‟s asbestos product aggravated the character or extent
of the plaintiff‟s disease. [Citation.]” (Lineaweaver, supra, 31 Cal.App.4th at p. 1417.)
The Lineaweaver court held that appellant Lineaweaver‟s evidence of causation
was adequate to survive a motion for nonsuit. He presented sufficient evidence of
exposure at his workplace. In addition, a physician expert in occupational medicine
(Dr. Cohen) concluded that Lineaweaver‟s exposure to the defendant‟s product was “„a
very substantial factor‟” in causing Lineaweaver‟s asbestosis. In fact, the physician went
so far as to opine that it was “more likely than not that Lineaweaver would have
developed asbestosis-related disease from the exposure to [respondent‟s] products alone.”
(Lineaweaver, supra, 31 Cal.App.4th at p. 1420.)
Significantly, however, the Lineaweaver court felt that even without this
physician‟s analysis, Lineaweaver presented sufficient evidence to support a finding that
the respondent‟s product was a substantial factor in contributing to his asbestosis. Noting
that the defendant objected to the methodology used by Lineaweaver‟s physician expert,
the court stated:
“[Defendant] disputes the validity of these opinions as based on
unsupported quantification in „fiber-years‟ of [plaintiff‟s] exposure to
Pabco. But the opinions of plaintiffs‟ experts and an inference of Pabco
exposure as a substantial factor in contributing to [his] asbestosis may be
12
drawn from evidence independent of Dr. Cohen‟s quantification
methodology. As discussed above, [plaintiff] presented evidence of
exposure to [defendant]-supplied Pabco on a regular basis over more than
30 years of working with and near asbestos insulation products. [Plaintiff]
was exposed to pipe covering and block insulation which is friable and
„very powdery,‟ and created visible dust reminiscent of a „snow storm.‟
While there are other possible sources of [plaintiff‟s] asbestosis given his
exposure to many different asbestos products, it is significant that Pabco
products were prominent and prevalent at his work site. Viewing this
evidence in [plaintiff‟s] favor, it was sufficient to support a jury‟s inference
that exposure to Pabco products was a substantial factor in causing
[plaintiff‟s] asbestosis.”
(Lineaweaver, supra, 31 Cal.App.4th at p. 1420.)
More recently, the Court of Appeal considered the issue of causation in asbestos
litigation in Whitmire. In Whitmire, the widow of an electrician who died of
mesothelioma brought suit against Bechtel, among others, alleging that the decedent
contracted mesothelioma from exposure to asbestos-containing products produced by the
defendants at various power plants where he worked. Bechtel brought a motion for
summary judgment on the issue of causation, arguing that the plaintiff had not produced,
and could not produce, evidence that he was ever exposed to asbestos attributable to
Bechtel, much less that Bechtel-attributable asbestos was a substantial factor in causing
the plaintiff‟s injury. (Whitmire, supra, 184 Cal.App.4th at pp. 1082-1083.) The motion
was granted, and affirmed on appeal. The Whitmire court applied the standard set forth
in Rutherford, explaining that the plaintiff bore the burden of “„demonstrating that
exposure to [Bechtel‟s] asbestos products was, in reasonable medical probability, a
substantial factor in causing or contributing to [Whitmire‟s] risk of developing cancer.‟
[Citation.]” (Whitmire, at p. 1084.) The Whitmire court further explained the plaintiff‟s
obligation as follows:
“„[Plaintiffs] cannot prevail against [Bechtel] without evidence that
[Whitmire] was exposed to asbestos-containing materials manufactured or
furnished by [Bechtel] with enough frequency and regularity as to show a
13
reasonable medical probability that this exposure was a factor in causing
the plaintiff‟s injuries.‟ [Citations.]”
(Whitmire, supra, 184 Cal.App.4th at p. 1084.)
The Whitmire court made no reference to the type of expert testimony required,
nor did it suggest that Rutherford requires “a person with an M.D. after their name” to
expressly state that the defendant‟s product caused the plaintiff‟s injury to a reasonable
degree of medical probability.
C. Application of the Rutherford standard to the evidence in this case
Based on the authorities discussed above, we apply the following standard in
determining whether appellant set forth sufficient evidence of causation in this matter:
(1) first, appellant must establish some threshold exposure to Riverside gun plastic
cement; and (2) appellant must further establish in reasonable medical probability that the
exposure to Riverside gun plastic cement was a “legal cause” of Mr. Hernandez‟s injury,
i.e., a substantial factor in bringing about the injury. Appellant may meet the burden of
proving that exposure to Riverside gun plastic cement was a substantial factor causing the
illness by showing that in reasonable medical probability it was a substantial factor
contributing to Mr. Hernandez‟s risk of developing cancer. (Rutherford, supra, 16
Cal.4th at pp. 982-983.) Further, we bear in mind the Supreme Court‟s instruction that
“[t]he substantial factor standard is a relatively broad one, requiring only that the
contribution of the individual cause be more than negligible or theoretical.” (Id. at p.
978.)
We find that appellant met this standard. As to the first requirement that appellant
show a threshold exposure to Riverside gun plastic cement, Mr. Hernandez‟s brother‟s
testimony was sufficient. As set forth above, Alfredo worked with decedent for 10 to 12
years, starting in 1969. They did not constantly work together; they worked apart during
the week but worked together on the weekends to earn extra money. During this time
period, Mr. Hernandez used Riverside gun plastic cement “a lot of times,” or “all the
time.”
14
Riverside gun plastic cement was packaged in 94-pound bags. In order to open a
bag of Riverside gun plastic cement, Mr. Hernandez would cut the bag in the middle,
which created visible dust around his face and clothing. Mr. Hernandez would then
dump the bag of Riverside gun plastic cement into a mixer, which also created “a little
bit” more dust that got on his face and clothing.
This testimony meets the threshold requirement of exposure to the respondent‟s
product.5
Further, appellant presented sufficient evidence that respondent‟s product was a
substantial factor in bringing about Mr. Hernandez‟s illness. First, as in Rutherford,
appellant presented an epidemiologist who testified generally that if a worker were
exposed to many different asbestos-containing products, each of those products would
contribute to an increased risk of asbestos-related disease, as long as the asbestos was
inhaled and retained in the worker‟s body. (See Rutherford, supra, 16 Cal.4th at p. 961
[“Dr. Allan Smith, a professor of epidemiology, testified that asbestos-related lung
cancers are dose-related diseases, and that all occupational exposures through the latency
period can contribute to the risk of contracting the diseases”].) Appellant‟s
epidemiologist also testified, hypothetically, that if a worker poured a 94-pound bag of
Riverside gun plastic cement, the worker would be at increased risk for developing
mesothelioma as long as the asbestos fibers were respirable and airborne.
Dr. Kradin‟s testimony was also a source of evidence regarding causation.
Dr. Kradin reviewed the medical records, work history, and histological materials of the
decedent and confirmed that Mr. Hernandez had malignant mesothelioma of the pleura.
Dr. Kradin also confirmed that the decedent “„worked directly with asbestos-containing
5
For the first time on appeal, respondent argues that there was insufficient evidence
that the decedent was exposed to its product with sufficient frequency, regularity, and
proximity to constitute a substantial factor in bringing about Mr. Hernandez‟s injury.
Because this ground was not presented in respondent‟s motion for nonsuit, it is forfeited
for the purposes of this appeal. (Lawless v. Calaway (1944) 24 Cal.2d 81, 92 [“on appeal
from an order granting a nonsuit, the court will only consider the grounds specified in the
motion at the trial”].)
15
materials and in proximity to other tradesmen who cut, sawed, mixed, applied, sanded,
and swept up asbestos-containing materials.‟” Dr. Kradin gave his professional opinion
that there was a direct connection between Mr. Hernandez‟s work history and his illness:
“„It is my opinion, to a reasonable degree of medical probability, that [the decendent‟s]
malignant mesothelioma was caused by asbestos.‟”
Considering the testimony of Alfredo, Dr. Lemen, and Dr. Kradin, appellant met
her burden of showing that, within reasonable medical probability, Riverside gun plastic
cement was a substantial factor contributing to Mr. Hernandez‟s risk of developing
cancer. (Rutherford, supra, 16 Cal.4th at pp. 982-983.)
The trial court‟s rationale for granting respondent‟s motion for nonsuit was that
appellant failed to show that respondent‟s product caused Mr. Hernandez‟s mesothelioma
to a reasonable degree of medical probability. The court explained its belief that the
relevant authorities required that “a doctor of some kind, somebody with an M.D. after
his name, has got to say with a reasonable degree of medical probability that
[respondent‟s] product was a substantial factor in causing his injuries.”
We disagree with the trial court‟s view that Rutherford mandates that a medical
doctor must expressly link together the evidence of substantial factor causation. The
Rutherford court did not create a requirement that specific words must be recited by
appellant‟s expert. (See also Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12 [“„No
recitation of “specific words or phrases mirroring statutory language” is necessary to
establish causation‟”].) Nor did the Rutherford court specify that the testifying expert in
asbestos cases must always be “somebody with an M.D. after his name.” The Rutherford
court agreed with the Lineaweaver court that “the reference to „medical probability‟ in
the standard „is no more than a recognition that asbestos injury cases (like medical
malpractice cases) involve the use of medical evidence.‟ [Citation.]” (Rutherford, supra,
16 Cal.4th at p. 976, fn. 11, citing Lineaweaver, supra, 31 Cal.App.4th at p. 1416, fn. 2.)
The Supreme Court has since clarified that medical evidence does not necessarily have to
be provided by a medical doctor. (See People v. Catlin (2001) 26 Cal.4th 81, 131-132
[“[q]ualifications other than a license to practice medicine may serve to qualify a witness
16
to give a medical opinion”].) To the extent that it concluded that Dr. Lemen‟s testimony
did not qualify as medical evidence, the trial court erred.
Furthermore, the evidence set forth at trial in Rutherford appears nearly identical
to the evidence that the appellant presented in the trial court below. In Rutherford, the
causation evidence included factual evidence of the decedent‟s exposure to respondent‟s
product, expert testimony from an epidemiologist who opined as to the cause of
mesothelioma generally, and expert medical testimony on the relationship between
asbestos exposure and lung cancer. Pursuant to Rutherford, such evidence is sufficient
for a jury to determine the issue of causation. (Rutherford, supra, 16 Cal.4th at p. 984
[“Both parties introduced evidence relevant to determining the proportion of asbestos-
containing insulation used at Mare Island, during the period of decedent‟s employment
there, that was supplied by defendant. Both parties also presented expert medical
testimony on the relationship between asbestos exposure and lung cancer. . . . Plaintiff‟s
expert presented [the] opinion[] to the effect that each exposure, even a relatively small
one, contributed to the occupational „dose‟ and hence to the risk of cancer”].)
Here, as in Rutherford, the appellant set forth evidence of the decedent‟s exposure
to respondent‟s product, along with testimony regarding the dust which would become
airborne and settle on Mr. Hernandez‟s face and clothing. In addition, appellant
presented expert testimony from an epidemiologist suggesting that if an individual is
exposed to many different asbestos-containing products, each of those products would
contribute to an increased risk of asbestos-related disease, as long as the asbestos was
inhaled and retained in the worker‟s body. And finally, appellant presented expert
testimony that Mr. Hernandez‟s illness was caused by asbestos to a reasonable degree of
medical probability.
Viewing this evidence in appellant‟s favor -- as we must -- it was sufficient to
support a jury‟s inference that exposure to respondent‟s product was a substantial factor
contributing to the decedent‟s risk of developing mesothelioma. (Lineaweaver, supra, 31
17
Cal.App.4th at p. 1420; Nally v. Grace Community Church, supra, 47 Cal.3d at p. 291.)
The judgment of nonsuit was improper.6
II. Exclusion of evidence of lobbying activity
At trial, appellant advised the court that she intended to introduce evidence of
respondent‟s government lobbying activities. The evidence appellant sought to introduce
dealt with respondent‟s lobbying of California elected officials with respect to the
continued use of asbestos in certain construction products. In 1975, California amended
6
The trial court cited two additional cases in support of its judgment of nonsuit,
Whiteley and Cottle. We find these cases inapplicable to the analysis.
Whiteley involved claims filed by a smoker who developed lung cancer against
tobacco companies. The tobacco company argued that Whiteley‟s design defect cause of
action was not sustainable on appeal because Whiteley failed to prove that any negligent
design feature was a cause of her illness. (Whiteley, supra, 117 Cal.App.4th at p. 694.)
The defendants argued that the Rutherford standard for causation was inapplicable as it
was specifically formulated for asbestos cases. The Whiteley court ultimately determined
that it “need not determine whether the Rutherford variant on proof of causation applies
here,” because it was clear that the evidence was insufficient to support the jury‟s finding
even under that standard. (Whiteley, supra, at p. 701.) However, because it was a design
defect case, the Whiteley court reformulated the Rutherford standard to state: “The
question here is whether plaintiff has shown „in reasonable medical probability‟ that the
alleged negligent design of those cigarette products was a substantial factor contributing
to the dose of carcinogens Whiteley inhaled or ingested, and hence to her risk of
developing lung cancer.” (Whiteley, at p. 701.) The court concluded that Whiteley‟s
evidence on this point was insufficient. (Ibid.)
Cottle was a complex toxic tort case involving tenants, former tenants and non-
resident property owners of a residential subdivision that was built on a site that had been
previously used as a dumping ground for hazardous waste and other by-products. The
plaintiffs alleged that their injuries were caused by the defendants‟ failure to disclose the
prior use of the property. (Cottle, supra, 3 Cal.App.4th at p. 1371.) The Court of Appeal
affirmed the trial court‟s order precluding plaintiffs from putting on evidence at trial that
their personal injuries were caused by exposure to chemicals at the residential
subdivision. The Court of Appeal concluded that the plaintiffs were required to put on
some expert testimony on causation, and explained: “Had petitioners presented evidence
that the chemicals in the ground at the Dunes were in some degree a cause of petitioners‟
physical injuries to a degree of reasonable medical probability, then there would have
been a factual question for the jury to resolve.” (Id. at p. 1385.) This toxic tort case pre-
dates Rutherford, and was not discussed in Rutherford, thus it presents no clarification of
the Rutherford standard as it applies in asbestos cases.
18
its Health and Safety Code to ban the sale of asbestos spray construction products.
Appellant alleges that respondents lobbied for an exemption from this rule, despite the
fact that it knew asbestos exposure was hazardous.7
The trial court granted respondent‟s motion to exclude evidence of its lobbying
and petitioning activities, holding that “[n]o evidence of lobbying activity or any other
advocacy before the state Legislature will be allowed . . . .” The court‟s ruling was based
on “the Noerr-Pennington doctrine and the California cases thereon.”8
A. Standard of review
A trial court‟s exercise of discretion in admitting or excluding evidence is
reviewable for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201).
Abuse of discretion may be found if the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1124.) In addition, evidentiary rulings which are based on a misunderstanding of the law
are an abuse of discretion. (See, e.g., Brown v. County of Los Angeles (2012) 203
Cal.App.4th 1529, 1534-1535.)
7
The items of evidence at issue were, among other things: a letter to a state senator,
dated August 6, 1975, requesting a meeting to discuss scientific studies regarding the
hazards of asbestos; and inter-office correspondence, dated June 4, 1975, referring to the
results of meetings with various elected officials.
8
The parties suggest that the trial court‟s ruling was also based, in part, on Code of
Civil Procedure section 425.16 (the anti-SLAPP statute). However, there is no indication
that the anti-SLAPP statute formed a basis for the trial court‟s ruling, therefore we
decline to address it. While the trial court did discuss the anti-SLAPP statute, it indicated
that the discussion was “just a little footnote on the SLAPP statute to show that our
Legislature‟s particularly concerned with people being sued.” The court made it clear
that the “ruling is not changing on Noerr-Pennington.” However, we note that the anti-
SLAPP statute does not provide a ground for exclusion of evidence in a products liability
action. Instead, it provides that a cause of action is subject to a special motion to strike if
the cause of action (1) arises from protected speech; and (2) lacks minimal merit.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 87-89). The anti-SLAPP statute is not a rule of
evidence, and is not designed to prohibit admission of relevant evidence in trials where
the causes of action alleged are not based on protected speech.
19
B. The Noerr-Pennington doctrine
“The Noerr-Pennington doctrine provides that there is no antitrust liability under
the Sherman Act for efforts to influence government which are protected by the First
Amendment right to petition for redress of grievances, even if the motive behind the
efforts is anticompetitive. [Citations.]” (Hi-Top Steel Corp. v. Lehrer (1994) 24
Cal.App.4th 570, 575 (Hi-Top).) The doctrine originated with the United States Supreme
Court case Eastern R. Presidents Conference v. Noerr Motor Freight, Inc. (1961) 365
U.S. 127 (Noerr). In Noerr, plaintiff truckers alleged a conspiracy in restraint of trade in
violation of the Sherman Act by the defendant railroads. In sum, the truckers alleged that
the railroads had conducted a campaign to foster legislation designed to destroy the
trucking industry as a competitor. (Id. at pp. 131-132.) The Supreme Court concluded
that the Sherman Act is not violated by attempts to influence the passage or enforcement
of laws. (Id. at p. 135.) Nor could the Sherman Act prohibit associations from
attempting to persuade the Legislature or the executive branch to take actions with
respect to laws that would result in restraint of trade. (Id. at p. 136.) In particular, since
the Bill of Rights protects the right of petition, the Sherman Act could not be interpreted
to invade this right. (Id. at p. 138.)
United Mine Workers v. Pennington (1965) 381 U.S. 657 (Pennington) was an
antitrust case brought by small coal mine operators who opposed an industry-wide
collective bargaining agreement on the ground that it was an illegal attempt to force some
employers out of business. The larger coal companies and the union jointly and
successfully approached the Secretary of Labor to obtain a minimum wage for companies
selling to the Tennessee Valley Authority -- a wage much higher than many smaller
companies could afford to pay. (Id. at pp. 659-660.) The Pennington court clarified the
meaning of the holding in Noerr, holding that “Noerr shields from the Sherman Act a
concerted effort to influence public officials regardless of intent or purpose.”
(Pennington, supra, at p. 670.) The high court concluded, “Joint efforts to influence
public officials do not violate the antitrust laws even though intended to eliminate
20
competition. Such conduct is not illegal, either standing alone or as part of a broader
scheme itself violative of the Sherman Act.” (Ibid.)
Thus, the Noerr-Pennington doctrine is a doctrine of substantive law which shields
defendants from liability based on their legitimate right to petition government officials.
While the Noerr-Pennington doctrine “was formulated in the context of antitrust cases,”
it has been applied in cases involving other types of civil liability, including cases
regarding interference with contractual relations or prospective economic advantage, and
unfair competition. (Hi-Top, supra, 24 Cal.App.4th at pp. 577-578.)
However, the Noerr-Pennington doctrine is not a rule of evidence. As the
Supreme Court clarified in Pennington:
“It would of course still be within the province of the trial judge to
admit this evidence [of efforts to influence public officials], if he deemed it
probative and not unduly prejudicial, under the „established judicial rule of
evidence that testimony of prior or subsequent transactions, which for some
reason are barred from forming the basis for a suit, may nevertheless be
introduced if it tends reasonably to show the purpose and character of the
particular transactions under scrutiny.‟ [Citation.] [Citations.]”
(Pennington, supra, 381 U.S. at p. 670, fn. 3.)
In other words, while a corporation‟s petitioning of government officials may not
itself form the basis of liability, evidence of such petitioning activity may be admissible if
otherwise relevant to show the purpose and character of other actions of the corporation.
Federal courts have confirmed that the Noerr-Pennington doctrine is not a rule of
evidence. For example, in In re Brand Name Prescription Drugs Antitrust Litigation (7th
Cir. 1999) 186 F.3d 781, 789, Judge Posner wrote for the Seventh Circuit: “The district
judge thus erred in . . . treating the [Noerr-Pennington] doctrine as a rule of evidence that
forbids the introduction of evidence . . . relating to efforts to obtain governmental
protection . . . . Such evidence can be excluded under [Federal Rules of Evidence, rule]
403 if confusing or unduly prejudicial, [citation], but there is no blanket rule of
inadmissibility.” (See also Wolfe v. McNeil-PPC, Inc. (E.D.Pa. Jan. 6, 2012, Civ. No. 07-
21
348) 2012 U.S. Dist. LEXIS 2160 at *17-19 [rejecting defendants‟ argument that the
Noerr-Pennington doctrine compelled exclusion of two petitions submitted to the FDA,
and noting that the defendants were unable to “identify a single case in which a court
applied Noerr-Pennington to exclude evidence”]; Mason v. Texaco, Inc. (D.Kan. 1990)
741 F.Supp. 1472, 1500-1501 [refusing to exclude evidence of positions taken by Texaco
with respect to OSHA‟s efforts to lower exposure limits to benzene on the basis of the
Noerr-Pennington doctrine, noting that “courts have invoked the doctrine only where the
cause of action itself is based on the act of lobbying or filing a lawsuit”].) We find these
cases to be persuasive, and agree that the Noerr-Pennington doctrine does not create a
rule of evidence that forbids the introduction of evidence of governmental petitioning
activity in this case.9
C. The trial court abused its discretion by relying on Noerr-Pennington to
exclude evidence of governmental petitioning activity
Action that transgresses the confines of the applicable principles of law is outside
the scope of discretion and is considered an abuse of discretion. (Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th 359, 393.) In addition,
when a trial court misunderstands or misapplies the applicable legal standard, it has not
properly exercised its discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 31.)
The trial court‟s reliance on the Noerr-Pennington doctrine to exclude evidence in
this negligence/strict liability case is a misapplication of the doctrine. As discussed
above, the Noerr-Pennington doctrine shields defendants from liability for their actions in
petitioning government officials. It does not provide a basis for exclusion of evidence of
lobbying activities that might be relevant to show a defendant‟s knowledge of the
9
Though we are not bound by federal authority, we may consider it persuasive on
issues of federal or constitutional law. (Tichinin v. City of Morgan Hill (2009) 177
Cal.App.4th 1049, 1064, fn. 7 [“Many of the Noerr-Pennington cases are decisions from
lower federal appellate and district courts. „While we are not bound by decisions of the
lower federal courts, even on federal questions, they are persuasive and entitled to great
weight.‟ [Citations.]”].)
22
dangerous nature of its product or a failure to exercise ordinary care. The evidentiary
ruling is therefore reversed.
The parties have set forth in their briefs competing arguments as to whether the
evidence at issue is relevant, probative, and/or unduly prejudicial. Because the trial court
made no analysis of this evidence pursuant to Evidence Code sections 350, 352, or any
other relevant section of the Evidence Code, we decline to address these arguments. We
make no assessment of the relevance, probative value, or prejudicial nature of the
evidence at issue. These arguments should be made in the trial court on remand.
DISPOSITION
The judgment is reversed. Appellant is awarded costs of appeal.
CERTIFIED FOR PUBLICATION
_____________________________, J.
CHAVEZ
We concur:
___________________________, Acting P. J.
ASHMANN-GERST
___________________________, J.*
FERNS
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
23