California appeals court affirms $6.5 million asbestos verdict

By Heather Isringhausen Gvillo | Mar 25, 2014

LOS ANGELES (Legal Newsline) - A California appeals court has upheld a Los Angeles County Superior Court's jury verdict in a commercial plumber's asbestos lawsuit.

Justice Walter Croskey of the California Second District Court of Appeals delivered his opinion Feb. 21, affirming a jury verdict of more than $6.5 million in non-economic damages and $398,635 in economic damages and denying defendant Crane Co.'s request for a further setoff to adjust for future settlements.

Justices Joan Klein and Richard Dennis Aldrich concurred with Croskey.

Plaintiff William Paulus, who died from mesothelioma, had previously settled with other defendants for a total of $5,150,000. When the jury entered its judgment, it was asked to allocate liability among 46 different entities, all of which settled before reaching the jurors except defendant Crane Co. The jury found Crane Co. 10 percent responsible for Paulus' damages.

The jury concluded that Crane was negligent and its negligence was a substantial factor in causing harm to Paulus.

Crane appealed the jury conclusions, contending that when calculating the final judgment, the trial court should have also considered future setoffs the plaintiffs may obtain through asbestos bankruptcy trusts.

"Trial court rejected Crane's argument that some setoff should be made for amounts plaintiffs could recover from asbestos bankruptcy trusts," Croskey wrote. "The court concluded that any recovery from such trusts was wholly speculative. The court further stated that it had no authority to direct plaintiffs to report on, and account for, any future recoveries."

Crane also argued in its appeal that the plaintiffs failed to introduce expert testimony proving that Crane's asbestos-containing gaskets alone acted as a substantial contribution in the development of Paulus' mesothelioma

"The court denied the motion, concluding that sufficient evidence existed to support the jury's conclusion that Crane's asbestos was a substantial factor," Croskey added.

According to the lawsuit, Paulus was a commercial plumber who worked regularly with Crane gaskets and valves.

The plaintiffs allege Crane was partially responsible for Paulus' death.

During the trial, a co-worker testified that, in the 1960s and 1970s, Paulus used Garlock and Cranite asbestos-containing materials to hammer out flange and bonnet gaskets to help keep valves water-tight.

Paulus would make gaskets for nearly every job he performed, and typically used Cranite rather than Garlock. The plumbers would use Crane gasket material to go with Crane valves during repair work.

"In short, decedent worked with Cranite for 'many, many years' and punched hundreds, if not thousands, of gaskets from it," Croskey stated.

Croskey wrote that the evidence in trial showed that Paulus' greatest asbestos exposure was in the form of asbestos-cement pipe, which was allocated 80 percent of the liability by the jury. The appeals court is not looking at the "relatively smaller exposure" due to valve work.

Exposures occurred when Paulus attached valves to pipe by welding them together and attaching them to flange gaskets. Gaskets inside the valves were used to ensure that the attachments were water tight. The plumbers would have to make those flange gaskets primarily out of Cranite and Garlock. Cranite was distributed by Crane and was 75 to 85 percent asbestos. When Paulus punched out the gaskets to attach to the valves, asbestos would be freed into the air allowing for inhalation, the opinion states.

Paulus was also exposed to asbestos through valve work when the valves were leaking, which required him to do repair work. While repairing the valves, Paulus would clean out old bonnet gasket materials by scraping them with a piece of threaded rod, releasing the asbestos into the air.

Croskey added that there was also evidence that when Paulus worked on Crane valves, they may have been insulated with asbestos materials, which would have been released when he cut into them during repair work.

In Crane's appeal, it raised two issues: the trial court should have granted its motion for judgment notwithstanding the verdict because the plaintiff's expert testimony was insufficient to establish that Paulus' work with Cranite and Crane bonnet gaskets constituted a substantial factor in causing his mesothelioma; and the trial court erred in not reducing the judgment against Crane to account for settlements plaintiffs may in the future obtain from asbestos bankruptcy trusts.

Croskey wrote that Crane's first appeal regarding its motion for judgment notwithstanding the verdict challenges the sufficiency of the evidence to support the jury's verdict. The standard of review for such appeals requires the appellate court to read the record "'in the light most advantageous to the plaintiff, resolve all conflicts in his favor and give him the benefit of all reasonable inferences in support of the original verdict.'"

He added that causation in asbestos-related cancer cases can be proven by claimants by demonstrating that the plaintiff's exposure to Crane's asbestos-containing product was a substantial factor; but plaintiff's do not have to prove that the defendant's product was the actual, or only, cause of asbestos-related cancer.

"The connection, however, must be made between the defendant's asbestos products and the risk of developing mesothelioma suffered by the decedent," Croskey wrote.

In other words, Crane cannot be held liable for Paulus' exposure to replacement asbestos bonnet gaskets used in its valves that were manufactured by another company as well as insulation manufactured by a third-party used on or near its valves.

Croskey points out that the dispute in the case can be narrowed down to one word of testimony given by Dr. Edwin Holstein, who spoke on behalf of the plaintiff in preventative medicine and occupational medicine.

He testified that it was his opinion that "Cranite and Crane Co. valve work was a substantial factor in causing [Paulus'] mesothelioma."

Holstein's testimony, Croskey stated, referred to exposures from Crane valves, which could have "encompassed exposures from non-Crane replacement bonnet gaskets and non-Crane insulation."

"In other words, Crane argues that Dr. Holstein did not testify that decedent's exposures to Cranite and Crane gaskets alone constituted a substantial factor, but included non-Crane asbestos in the exposures which cumulatively constituted a substantial factor causing decedent's mesothelioma. We disagree," Croskey added.

According to the opinion, court concludes that Holstein's testimony should be interpreted to refer to exposures for which the defendant alone is liable.

The court also concluded that Holstein's other testimony was sufficient to give rise to the inference that Paulus' exposures to Crane asbestos was a substantial factor in increasing his risk of developing mesothelioma.

Croskey clarified, stating that Holstein was the first to testify and referenced deposition testimonies of witnesses who would later testify. Also, he specifically referred to Cranite material, not Garlock, making it clear that he was not charging Crane with exposures to Garlock gasket material.

Holstein also testified that Paulus frequently worked with Crane valves, which came supplied with gaskets when new. He added that the plumbers knew whether the gaskets were original or replacement parts. During his testimony, Holstein was referring to original Crane valves with Crane asbestos gaskets preinstalled.

"To the extent there is any possible ambiguity in Dr. Holstein's reference to Crane valves, we draw all reasonable inferences in favor of the verdict," Croskey wrote. "Dr. Holstein was properly referring only to Crane asbestos products."

Croskey stated that the court also considered whether there was sufficient evidence for the jury to infer that Paulus' exposure to Crane's asbestos-containing products alone provided a substantial contribution to mesothelioma development.

In Holstein's testimony, he said all exposures increase the risk, but only large exposures provide a substantial factor.

Given Paulus' job duties, Croskey wrote that his work was "not a brief, fleeting exposure, but a repeated exposure to hazardous concentrations of asbestos over many years."

According to the order, evidence proved that a majority of the bonnet gaskets removed and replaced were Crane gaskets, saying that it was standard to put Crane gaskets in Crane valves.

"Considering the amount of fibers released per cubic centimeter of air and the frequency with which decedent cut gaskets from Cranite and removed work Crane bonnet gaskets over many years, the jury had a sufficient basis on which to conclude that decedent's exposure to Crane's asbestos products constituted a substantial factor in increasing his risk of mesothelioma," Croskey wrote.

As for Crane's request for a further setoff, Croskey stated that the Code of Civil Procedures provides for a setoff when a settlement has been awarded before a verdict or judgment but does not apply to post-judgment settlements.

"Crane's argument is based on nothing more than speculation about future events," Croskey wrote.

"[T]he judgment against Crane does not constitute a double recovery in any way; all other settlements in existence have been properly taken into account. If a later settlement subsequently allows plaintiffs a double recovery, that does not retroactively make the instant judgment improper," Croskey added.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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