Construction, especially commercial construction, often involves a large number of subcontractors that are each responsible for completing a limited portion of the work. It can therefore sometimes be difficult for a court to determine who is liable for asbestos-containing materials used in the construction. A California appeals court recently held that a drywall subcontractor could be liable for strict product liability due to its involvement in the stream of commerce as to the drywall and joint compound.
In Hernandezcueva v. E.F. Brady Company, Inc., a former janitor and his wife filed suit against several parties, alleging the defendant involved in the appeal had distributed products containing asbestos that caused the man’s mesothelioma. The trial court granted the defendant’s motion for nonsuit on the strict liability and related claims. By the time the case went to the jury, this defendant was the only defendant remaining, and the jury found in favor of the defendant on the negligence claims. The plaintiffs moved for a new trial, but the trial court denied the motion.
The wife proceeded with an appeal after her husband’s death.
In the 1970s, the defendant was involved in constructing a particular building complex. The man had worked in the complex as a janitor in the 1990s, and he was diagnosed with mesothelioma in 2011 or afterward. The plaintiffs filed suit in 2011 against several defendants and subsequently added the defendant involved in this appeal as a Doe defendant. The amended complaint included claims for negligence, strict liability, misrepresentation, intentional failure to warn, premises liability, and loss of consortium against the defendants.
The defendant had become aware that asbestos was potentially dangerous in 1972 or 1973. It did not test its materials for asbestos. Construction of the complex began in August 1974, and the defendant received the contract to install the drywall. The contract required the defendant to select the drywall and other materials according to the general contractor’s specifications. The fire-proofing and insulation were not to contain asbestos, according to the specifications, but the specifications did not require that the drywall and joint compound be asbestos-free.
A material scientist testified that the drywall and joint compound contained asbestos, although neither had labels indicating they contained asbestos. The man who supervised the respondent’s work on the complex testified that he did not know the drywall and joint compounds contained asbestos.
Portions of the complex were remodeled during the man’s time as a janitor. He was exposed to asbestos dust when he cleaned up the drywall debris. There was expert testimony that the man’s exposure to asbestos from the products installed by the defendant significantly contributed to the risk he would develop mesothelioma.
The defendant presented evidence that the use of the asbestos-containing drywall and joint compound was not prohibited by the uniform building code at the time the complex was constructed. It further offered testimony from a competitor that had placed an unsuccessful bid on the project. The employee from the competitor testified that he did not learn about asbestos causing cancer until the early 1980s and that asbestos was not a “hot topic” in the area until that time.
The defendant argued in its motion for nonsuit that it was merely a subcontractor that had installed products purchased from others. Its bid, however, included the materials. Generally, the selection of materials would be limited by the project’s specifications, which would often require the use of a particular brand or its “equal.” At the time in question, the defendant ordered materials through supply houses. The appeals court found that a jury could reasonably find that the defendant was more than an “occasional seller” of the joint compounds and drywall. Supplying these products was necessary for it to obtain subcontracting jobs. There was testimony that it could not have obtained work without providing the materials and including their costs in the bids. Those costs were ordinarily about 25% of the bid, and in this case they were about $500,000. Additionally, the defendant had an ongoing relationship with the manufacturers.
The appeals court found that the defendant was involved in the stream of commerce as to the defective products. The defendant specialized in large commercial projects, made large purchases of the defective products, and passed the material costs to the user, and therefore it could bear the cost of compensating for injuries arising from those products. The ongoing relationship with the manufacturers put the defendant in a position to pressure the manufacturers to increase the safety of the products. The appeals court found that these facts supported imposing strict liability on the defendant and that the trial court erred in granting the nonsuit on the strict liability claims.
The plaintiff also appealed the trial court’s denial of her motion for a new trial in front of another judge. She argued that the trial judge engaged in misconduct by reading newspapers and magazines, sorting mail, engaging in weight training, and once falling asleep in open court. The appeals court ultimately affirmed the denial of the motion for a new trial, finding the plaintiff had failed to object at the time, and there was no evidence that doing so would have been futile.
California law allows strict liability to be imposed upon a party that did not manufacture a product but was involved in placing it into the stream of commerce. Our mesothelioma attorneys understand the importance of understanding state product liability law to identify all the potential defendants.
Help for mesothelioma victims can be found at The Ferraro Law Firm by calling 1-800-275-3332. Offices in Miami and Washington, D.C.
Hernandezcueva v. E.F. Brady Company, Inc., December 22, 2015, Court of Appeal of California, Second Appellate District , Division Four
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