California Asbestos Defendants Are On A Roll In The Appellate Courts

It’s been a very good few weeks in the California appellate courts for asbestos defendants and perhaps the beginning of a broader trend towards leveling the playing field in the unrelenting asbestos litigation that continues to overwhelm California courts.

On May 21, 2012, the Second District, Division Seven, issued a decision in Campbell v. Ford Motor Company (No. B221322) holding that a premises owner and employer owes no duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer’s business – a new bright line rule that should significantly limit take-home exposure liability in California.

The next day, May 22, Division Two of the Second District affirmed summary judgment for the manufacturer of a brake-grinding machine in Barker v. Hennessy Industries Inc. (No. B232316), holding that the manufacturer owed no duty to warn of the hazards of asbestos even if it was foreseeable that its machines would be used in conjunction with asbestos-containing products, like brakes. The case followed the California Supreme Court’s recent decision in O’Neill v. Crane Co. (2012) 53 Cal.4th 335, which held that a manufacturer of non-asbestos containing products may not be held liable for injuries caused by exposure to another manufacturer’s asbestos containing products without a showing of some direct responsibility for the harm. (Interestingly, on May 4, 2012, the First District, Division Five, reversed judgment on the pleadings for Hennessy Industries in Bettencourt v. Hennessy Industries (No. A131071), though the decision is distinguishable from Barker based on the different standard of review governing judgment on the pleadings.)

And on June 13, 2012, in Casey v. Perini Corporation (No. A131881), the First District, Division Four, affirmed summary judgment for a general contractor that oversaw jobsites allegedly involving asbestos use, holding that the plaintiffs failed to meet their burden to make a prima facie showing of causation. Specifically, the Court rejected the expert declaration of Kenneth Cohen, which was based on the “presumption” that all surfacing material present in buildings constructed before 1980 contained asbestos. Without a factual showing that the specific jobsites where plaintiff worked contained asbestos at the time he worked there, the Court held the declaration was speculative and without foundation and did not raise a triable issue of fact.

Whether these cases are part of a broader trend towards limiting asbestos liability in California remains to be seen. But it’s certainly been a good few weeks for defendants.