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Court of Appeal of California, Second Appellate District, Division One
August 27, 2010, Filed
[**155] JOHNSON, J.—Plaintiffs appeal from a judgment in favor of defendants Bondex International, Inc. (Bondex), 2 RPM, Inc., and Crown Cork & Seal Company, Inc. (Crown), in their action for wrongful death. Plaintiffs' decedent William Saller died of mesothelioma, an asbestos-related disease, in February 2006. Mr. Saller asserted two sources of exposure to asbestos: his employment at Standard Oil where he was exposed to pipe insulation containing asbestos manufactured by Crown, and his personal use of joint compound manufactured by Bondex for home repair. At trial, the court refused to give plaintiffs' requested [***2] jury instructions on the consumer expectations test and failure to warn. We reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Background Facts
William Saller was diagnosed with mesothelioma in June 2005, and died in 2006. 3 Mr. Saller was born in 1937, and joined the Marines in 1954. In August 1959, he went to work for Standard Oil at its El Segundo refinery. He worked there for seven and a half years, and worked for the Los Angeles County Sanitation District from 1967 until 1993. Although Saller did not work with asbestos-containing products at his employment, he worked in close proximity with those who did.
In June 2005 he began to experience shortness of breath, and pain in his left arm and elbow. He went to his family doctor, believing [***3] he was having [*1226] heart problems. Saller had a CAT scan, which disclosed fluid in his lungs. He underwent a lung biopsy and was diagnosed with [**156] mesothelioma. A doctor at UCLA (University of California, Los Angeles) told Saller he was a good candidate for lung surgery because he was in otherwise good health. In September 2005, doctors removed a large tumor from his lungs. After his surgery, Saller had radiation treatment, which he completed in December 2005.
Saller believed he was exposed to asbestos when he worked at Standard Oil and from his use of home repair products containing asbestos. 4
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
187 Cal. App. 4th 1220 *; 115 Cal. Rptr. 3d 151 **; 2010 Cal. App. LEXIS 1495 ***
DONNA SALLER, Individually and as Personal Representative, etc., et al., Plaintiffs and Appellants, v. CROWN CORK & SEAL COMPANY, INC., Defendant and Respondent.
Subsequent History: Review denied by Saller (Donna) v. Crown Cork & Seal Company, Inc., 2010 Cal. LEXIS 12061 (Cal., Dec. 1, 2010)
Decision reached on appeal by Saller v. Crown Cork & Seal Co., 2017 Cal. App. Unpub. LEXIS 1062 (Cal. App. 2d Dist., Feb. 15, 2017)
Prior History: [***1] APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC342363, Robert H. O'Brien, Judge. (Retired Judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
asbestos, insulation, warn, consumer expectation, manufactured, strict liability, Oil, plant, pipe, failure to warn, products, barrel, ordinary consumer, exposure, dust, design defect, disease, asbestos exposure, mesothelioma, instruct, fibers, reconditioning, expectations, filling, consumer, trial court, asbestos-containing, safely, cases, risks
Torts, Products Liability, Types of Defects, Design Defects, Theories of Liability, Strict Liability, General Overview, Civil Procedure, Jury Trials, Jury Instructions, Environmental Law, Hazardous Wastes & Toxic Substances, Asbestos, Pleadings, Amendment of Pleadings, Conforming Pleadings to Evidence, Judgments, Appeals, Standards of Review, Reversible Errors, Marketing & Warning Defects, Duty, Affirmative Duty to Act, Creators of Foreseeable Peril, Failure to Act