Opinion
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
Superior Court of Alameda County, No. 607494-2, John Sutter, Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Morgenstein & Jubelirer, Lee Ann Huntington, Eliot S. Jubelirer, Samantha J. Smith, Bjork, Lawrence Posechl & Kohn, Robert D. Bjork, Jr., and Mark P. Epstein for Defendants and Appellants.
Heather McKee, W. Ruel Walker, Charles Bond, Jackson & Wallace and John Wallace as Amici Curiae on behalf of Defendants and Appellants.
Jeffrey B. Harrison, John C. Robinson and Bryce C. Anderson for Plaintiff and Respondent.
OPINION
WHITE, P. J.
Frank J. Coughlin filed suit on January 16, 1986, against 20 named defendants for asbestos-related personal injuries. By the time the jury was empaneled, all but two of the defendants-appellants Owens-Illinois, Inc., and The Celotex Corporation-had settled with Coughlin. The case against Owens-Illinois and Celotex was tried in two phases. In the first phase the jury determined the amount of Coughlin's compensatory damages, which they set at $411,359 in economic damages and $1 million in noneconomic damages. In the second phase, which focused on the defendants' liability, the jury found that each defendant was a legal cause of Coughlin's injury. The jury determined that Celotex was the legal cause of 2 percent of Coughlin's damages while Owens-Illinois was the legal cause of 1 percent. The court deducted the amount Coughlin had received from the earlier settlements and entered a joint and several judgment against Owens-Illinois and Celotex for $891,359. This amount consisted of $259,798.26 in economic damages, and $631,560.74 in noneconomic damages. These timely appeals followed.
On appeal, both defendants contend the trial court erred when it refused to apply Proposition 51 to this case. Proposition 51, effective June 4, 1986, modified the common law rule of joint and several liability by limiting a tortfeasor's liability for noneconomic damages to the proportion of such damages which equals the tortfeasor's own percentage of fault. It applies only to causes of action which accrued on or after its effective date. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1192-1193, fn. 2 [246 Cal.Rptr. 629, 753 P.2d 585] (Evangelatos).)
Owens-Illinois makes two additional arguments which Celotex does not join. First, Owens-Illinois contends the trial court erred when it instructed the jury pursuant to Alameda County Complex Asbestos Litigation General Order No. 7.07 (amended) (Alameda General Order No. 7.07). This instruction shifts the burden to defendants in asbestos cases to prove that their products were not a legal cause of the plaintiff's injuries, provided the plaintiff establishes certain predicate facts. Second, Owens-Illinois contends the jury improperly awarded certain damages.
We conclude the trial court acted properly when it gave the burden shifting instruction and that there was no error regarding the amount of damages. However, we believe the trial court applied an inappropriate test to determine when plaintiff's cause of action accrued for the purpose of applying Proposition 51. Consequently, we reverse the judgment and remand with instructions to permit the fact finder to determine the date of accrual.
I. Facts
A. Procedural Background.
Coughlin filed his complaint for asbestos-related personal injuries on January 16, 1986. The complaint named 20 defendants, including Owens-Illinois and Celotex. Coughlin alleged in his complaint that asbestos products manufactured by the defendants "cause or contribute to pulmonary diseases commonly known as asbestosis and a wide variety of cancers, including mesothelioma." He also alleged he had been exposed to each of the defendants' asbestos products in the course of his employment from 1951 to the present, and that as a result "is now suffering and will in the future suffer injury from asbestos-related disease."
As previously indicated, by the time the jury was selected, all other defendants had settled with Coughlin and were no longer in the case.
The case was specially set for trial in early 1990 after Coughlin learned he had peritoneal mesothelioma, a fatal asbestos-related cancer. The court trifurcated the trial, with compensatory damages being tried in the first phase, liability issues in the second phase, and, if necessary, punitive damages in the third phase. At the beginning of the first phase of trial, Coughlin asked the court to find that Civil Code section 1431.2 (enacted by Prop. 51) did not apply to his lawsuit. This section limits a defendant's responsibility for noneconomic damages to several liability. The trial court agreed that Proposition 51 did not apply to plaintiff's case because "the complaint is broad enough that it includes asbestos injury and isn't contained to asbestosis."
Because plaintiff waived his right to punitive damages by requesting a burden shifting instruction, the third phase was not held.
At the beginning of the first phase of trial the parties stipulated that Coughlin was dying from peritoneal mesothelioma, and that this disease was caused by his exposure to asbestos. Following 18 days of trial, the jury determined that Coughlin's peritoneal mesothelioma had resulted in the following damages: (1) $411,359 in economic damages (including $74,743 for "lost household services"); and (2) $1 million in noneconomic damages (pain and suffering).
Although plaintiff believed he had asbestos-related lung disease at the time he filed his complaint in 1986, he did not seek damages for that disease at trial.
A new jury was empaneled to hear the second (liability) phase of the trial. Pursuant to Alameda General Order No. 7.07, Coughlin waived his right to seek punitive damages against the defendants in exchange for the burden shifting instruction permitted by that order.
Under Alameda General Order No. 7.07, the plaintiff in an asbestos case is entitled to a burden shifting instruction provided he has joined all of the known suppliers of the asbestos to which he was exposed, except for those suppliers who have settled or are subject to a bankruptcy stay order. If the plaintiff meets this condition and further proves, among other things, that plaintiff was actually exposed to asbestos or asbestos containing products manufactured or supplied by the defendants, then the burden of proof shifts to each defendant to prove by a preponderance of the evidence that its product was not a legal cause of any of the plaintiff's injuries.
Based on this instruction, the second phase jury found Celotex was responsible for 2 percent of the legal cause of Coughlin's injury, while Owens-Illinois was responsible for 1 percent.
B. The Evidence.
Neither defendant has challenged the sufficiency of the evidence to support the verdicts. Consequently, we do not review the voluminous record in detail. Instead, we focus on the evidence which is most relevant to the issues defendants have raised on appeal.
1. Coughlin's Work History.
Coughlin, who was 65 at the time of trial, first started working with asbestos in 1951. From 1951 to 1953 he worked at Bethlehem Steel's Fore River Shipyard in Massachusetts, where he installed asbestos insulation in new ships. He was exposed to asbestos every day on this job. He left the shipyard in 1953 and spent the next two years as a wheelman aboard ship. In 1955 he quit sailing and went to work at Norton Air Force Base in California.
Coughlin had several jobs at Norton Air Force Base which did not involve asbestos. However, from August of 1960 through March of 1963 he worked at the base as an insulator, installing and ripping out asbestos on a daily basis. He was promoted to labor foreman in 1963, but returned to his asbestos work in 1968 when he became a pipefitter/insulator. From 1968 through 1971, Coughlin again worked installing and removing asbestos insulation on a daily basis.
In 1972, Coughlin was transferred to Hunters Point Naval Shipyard where he worked for a year installing and removing insulation from ships which were being repaired or modernized. In 1973 the Hunters Point Naval Shipyard closed and Coughlin transferred to the Long Beach Naval Shipyard where he worked as an insulator and insulation foreman until 1979. In 1979 he transferred to the naval shipyard at Bremerton in Washington state where he worked until 1986. This was the last place he worked with asbestos products.
There is no question Coughlin's work as an insulation installer and remover brought him into contact with airborne asbestos. For example, in describing his work at the Long Beach Naval Shipyard, Coughlin stated that "it would get dusty-as a matter of fact, different people would complain to knock it off, you're making too much dust .... [¶] But ... all the insulators were responsible for cleaning. At the end of the day, they were responsible for cleaning up all their mess. And insulation is a very messy material to work with.... [¶] It is very dusty ...."
2. Evidence of Exposure to Specific Brands of Asbestos.
The second phase of trial focused on the extent to which Coughlin was exposed to specific brands of asbestos products, including those produced by Owens-Illinois and Celotex or their predecessors in interest.
Coughlin used a variety of asbestos products during the years he worked as an insulator. Those products included preformed block and tubular insulation as well as asbestos "mud" (i.e., cement). Coughlin remembered that at the Fore River Shipyard in Massachusetts he used Johns-Manville, Pabco, Eagle-Picher, and Kaylo asbestos products. Kaylo is an Owens-Illinois preformed tubular insulation which contains chrysotile and amosite asbestos fibers. During the time Coughlin worked at Fore River (1951 to 1953) he used the same materials that were being used by the other insulators at that site. Armand Consalve, who worked at the Fore River Shipyard from 1940 to 1963, remembered that from 1950 to 1955 the company used both Johns-Manville and Carey asbestos cement and pipe coverings, as well as asbestos products known as "Kaylo" and "Eagle 66." Carey products were produced by Celotex's predecessor in interest, Philip Carey Corporation.
When Coughlin worked at the Long Beach and Hunters Point Naval Shipyards, he used "Carey Temp" pipe insulation and "Carey blue mud."
Three basic types of asbestos fibers are used in thermal insulation: amosite, crocidolite, and chrysotile. Both amosite and crocidolite are amphobile type fibers; amphobile fibers are most clearly linked to peritoneal mesothelioma. The Kaylo pipe insulation contained between 5 to 10 percent amosite fibers and 10 to 15 percent chrysotile fibers. Carey "85 mag" cement contained 5 percent crocidolite, 5 percent amosite and 10 to 15 percent chrysotile fibers.
3. Coughlin's Asbestos Related Injuries.
In April of 1983, while he was working at the shipyard in Bremerton, Washington, Coughlin took a lung function test which indicated he had mild chronic obstructive pulmonary disease. This disease could have been caused by asbestos inhalation, cigarette smoking, or a combination of both. Despite his lung problem, Coughlin remained in relatively good health until 1989 when he was diagnosed as having peritoneal mesothelioma.
Peritoneal mesothelioma is a cancer of the membrane surrounding the intestinal organs. It can only be caused by exposure to asbestos fibers. Research has clearly established that peritoneal mesothelioma is caused by amphobile (amosite and crocidolite) asbestos, although chrysotile asbestos may also be a contributing cause.
There is a long latency period between the time a person is exposed to asbestos and the time he or she develops peritoneal mesothelioma. Plaintiff's expert epidemiologist testified that most cases of peritoneal mesothelioma develop more than 15 years after a person is first exposed to asbestos fibers. According to the epidemiologist, in Coughlin's case the process leading to the mesothelioma probably became irreversible at least five years before Coughlin was diagnosed with that disease. He opined that the cancer was most likely caused by the asbestos exposure occurring between 1951 and 1974 (15 years before diagnosis). In addition, one of Coughlin's medical experts testified that the first cancer cell almost certainly appeared three to ten years before Coughlin was diagnosed with peritoneal mesothelioma, and suggested that the first cancer cell most likely developed between seven and eight years before diagnosis.
With respect to peritoneal mesotheliomas in insulators, the epidemiologist testified that "[m]ost of them occurred after 30 years from first exposure, and they're still occurring in the groups studied beyond 50 years from first exposure. The exact average I'm not sure. It could be beyond 40 years."
Plaintiff's medical experts testified that even incidental contact with asbestos can cause mesotheliomas, and consequently there is no safe level of exposure to asbestos. However, peritoneal mesothelioma is a "dose-response relationship" disease, meaning the more an individual is exposed to asbestos over time the greater his risk for developing mesothelioma. Consequently, according to plaintiff's expert epidemiologist, all of Coughlin's occupational exposure to the amphibole types of asbestos between 1951 and 1974 made a "meaningful and important contribution" to causing his mesothelioma. Plaintiff's expert pathologist testified that all asbestos exposure before a tumor forms is a "substantial factor" in causing peritoneal mesothelioma. However, because of the cause-effect relationship between asbestos exposure and peritoneal mesothelioma, it is impossible to determine that a particular exposure did or did not cause the disease.
II. Discussion
A. The Burden Shifting Instruction.
Owens-Illinois first contends we must reverse the second (liability) phase verdicts because the trial court improperly shifted the burden to defendants to prove that their products were not a legal cause of Coughlin's injury. This argument is supported by amicus curiae Plant Insulation Company (hereafter amicus), but is not joined by codefendant Celotex. Upon Coughlin's request, the trial court instructed pursuant to Alameda General Order No. 7.07. Under this order, the plaintiff in an asbestos case is entitled to a burden shifting instruction provided he has joined all of the known suppliers of the asbestos to which he has been exposed, except for those suppliers who have settled or are subject to a bankruptcy stay order. If the plaintiff meets this condition, the court must give the following instruction: "The plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues. [¶] 1) each defendant's status as a manufacturer or seller of an asbestos-containing product; [¶] 2) that the product failed to perform as safely as an ordinary consumer of such product would expect; [¶] 3) that the design and asbestos content of the product existed when the product left defendant's possession; [¶] 4) that the product was used in a manner reasonably foreseeable by the defendant; [¶] 5) that plaintiff was exposed to asbestos or asbestos containing products manufactured, supplied or distributed by defendants; [¶] 6) that plaintiff's exposure to, and inhalation of, asbestos fibers was a legal cause of plaintiff's injury; [¶] 7) the nature and extent of plaintiff's injuries and damages. [¶] If the plaintiff establishes by a preponderance of evidence that plaintiff was exposed to asbestos containing products of the defendants, then the burden of proof shifts to each defendant to prove by a preponderance of the evidence that its product was not a legal cause of any of the injury or damages to plaintiff." The court defined "legal cause" as "a cause which is a substantial factor in bringing about the injury."
Our initial reading of the record caused us to suspect that Owens-Illinois may have invited the burden shifting instruction or at least failed to object to it. We therefore requested letter briefs on this issue. Based on the letter briefs, we have concluded that Owens-Illinois clearly preserved this issue for appeal by requesting its own instruction on causation, which the trial court rejected. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal section 313, p. 325; Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 333-334 [5 Cal.Rptr.2d 594].)
In the present case, the court modified the instruction so that it was limited to exposure to amphibole asbestos fibers (amosite or crocidolite). The court instructed the jury that plaintiff must prove by the preponderance of the evidence: "Fifth, that the plaintiff was exposed to amphibole asbestos fibers (amosite or crocidolite) from a product or products manufactured, supplied or distributed by the defendant. [¶] Six, that plaintiff's exposure to and inhalation of amphibole asbestos fibers (amosite or crocidolite) was a legal cause of plaintiff's injury."
Owens-Illinois asserts that the above instruction made it virtually impossible for it to prevail on the causation issue. Here, the evidence established that plaintiff worked with Owens-Illinois asbestos insulation products for a substantial period (from 1951 to 1953). Moreover, the medical experts unanimously agreed it was impossible to exclude any of the asbestos exposure occurring between 1951 and 1974 as a cause of plaintiff's mesothelioma. In these circumstances, we agree it was extremely difficult, if not impossible, for Owens-Illinois to prevail on the causation issue. However, this does not mean the instruction was improper. Alameda General Order No. 7.07 is explicitly based on the celebrated case of Summers v. Tice (1948) 33 Cal.2d 80 [199 P.2d 1, 5 A.L.R.2d 91]. As all first year law students know, and most seasoned attorneys have long forgotten, Summers involved a hunting accident in which two hunters negligently fired shotguns in the direction of the plaintiff. It was impossible to determine which of the negligent hunters had fired the single pellet that actually caused the injury to the plaintiff's eye, but it was clear only one of the hunters was responsible for the injury. Nevertheless, the California Supreme Court held both hunters jointly and severally liable. The Supreme Court reasoned that both hunters were wrongdoers, both were negligent toward the plaintiff, and that it would be unfair to require the plaintiff to prove which hunter actually caused the damage in order to recover. In these circumstances, the Supreme Court held, the burden of proof shifts to the defendants to prove they did not cause the damage. This doctrine is sometimes referred to as "alternative liability." (Summers v. Tice, supra, at pp. 82-84, 86; Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 598-599 [163 Cal.Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061].) It has been said that the "real reason" for the Summers v. Tice burden shifting rule is " 'the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each [defendant] did, when it is certain that between them they did all ....' " (Summers v. Tice, supra, 33 Cal.2d at pp. 85-86; Pereira v. Dow Chemical Co. (1982) 129 Cal.App.3d 865, 873 [181 Cal.Rptr. 364].)
This does not mean that all defendants will find it impossible to prevail under the burden shifting instruction. For example, even if the plaintiff proves he was exposed to a particular defendant's asbestos products, the defendant might still prove that the exposure was so minimal (e.g., one day) that the jury could reasonably conclude it was not a legal cause of the plaintiff's injury. Alternatively, the jury might accept expert testimony that a particular exposure was not a substantial factor causing the injury.
There are no published California appellate opinions which discuss the Summers doctrine in the context of an asbestos personal injury case. (But see Menne v. Celotex Corp. (10th Cir. 1988) 861 F.2d 1453, 1464-1470 [approving Summers-type burden shift under Nebraska law].) Perhaps the most closely analogous California application of Summers occurred in Pereira v. Dow Chemical Co., supra, 129 Cal.App.3d 865. There, the plaintiff developed a kidney disorder after he spilled a toxic resin (DER 599) on his skin in the course of his employment. The plaintiff sued the manufacturer of DER 599 and also sued three other manufacturers who supplied other toxic chemicals to his employer (Midcor). (Id., at pp. 868-869, 872.) As an alternative to the theory that his renal failure was caused by the single DER 599 spill, the plaintiff alleged that his injuries were caused by cumulative exposure to four separate chemicals supplied to his employer by the four defendants during a five-year period. (Id., at p. 872.) The trial court granted summary judgment for failure to establish causation, but the Court of Appeal reversed. The appellate court stated: "Under the circumstances, it is not plaintiffs' duty to identify which of the vapors caused or contributed to the chronic renal failure but, rather, it is the duty of the defendants who supplied Midcor with their products to prove the contrary." (Id., at p. 873, citing Summers v. Tice, supra, 33 Cal.2d at pp. 85-86.)
As interpreted by the Pereira court, the Summers doctrine appears to be sufficiently flexible to apply in asbestos cases where the plaintiff has identified multiple defendants who may have caused his injuries. Here, as in Pereira, the plaintiff proved by a preponderance of the evidence that he was actually exposed to defective products manufactured by each of the defendants, and that each of those products was a possible sole or concurrent cause of his injuries. It was only then that the burden shifted to each defendant to prove that its product was not a legal cause of the injury. In our view, this case cannot be meaningfully distinguished from Pereira.
Nevertheless, Owens-Illinois and amicus curiae have dissected Summers v. Tice with the skill of microsurgeons in an effort to convince us that Summers should not apply in asbestos cases. If the issue in this case were whether Summers could be distinguished from the case at bench we would declare victory for Owens-Illinois and end our analysis here. However, that is not the issue. In our view, the genuine issue is whether a variation of a Summers-type burden shift is appropriate in this case. (See Menne v. Celotex Corp., supra, 861 F.2d at p. 1467, fn. 21.) More narrowly, the issue is whether the precise instruction under review is justified by the equities in this case and in asbestos cases in general.
This is not the first time a California court has used a variation of Summers to impose liability on a defendant. For example, in Sindell v. Abbott Laboratories, supra, 26 Cal.3d 588, the California Supreme Court held that pure Summers-type liability was not appropriate where a plaintiff injured by the antimiscarriage drug DES was unable to identify the manufacturer of the drug that injured her. (Id., at pp. 593-594, 602-603, 610.) Instead of exonerating the defendants, however, the Supreme Court modified the Summers doctrine to permit the plaintiff to sue substantially all of the manufacturers of DES and to have them share liability in proportion to their market share. (Id., at pp. 611-612.) Plaintiff is not arguing that a market share theory is appropriate in this case. (But see Wheeler v. Raybestos-Manhattan (1992) 8 Cal.App.4th 1152, 1154, 1158 [11 Cal.Rptr.2d 109] [market share theory may be appropriate to damages based on exposure to asbestos from brake pads].)
Many of the arguments made by Owens-Illinois and amicus curiae are based on the mistaken premise that the instruction under review is a "pure" application of the Summers burden shift doctrine. That is not the case. Instead, Alameda General Order No. 7.07 addresses the particular problems and concerns present in asbestos cases. Most important, in the typical Summers case, two or more defendants act negligently toward a plaintiff but only one of the defendants causes the harm. (BAJI No. 3.80 (7th ed. 1986) [Plaintiff must prove that the injury could only result from the negligent act of one of the defendants.].) If the plaintiff cannot prove which of the defendants in fact caused the harm, equitable considerations place the burden on the negligent defendants to exonerate themselves if they can.
By contrast, in the typical asbestos case (at least those involving peritoneal mesotheliomas) it is far more likely that the defendants are concurrent causes of the harm. As indicated, peritoneal mesothelioma is a "dose-response relationship" disease, meaning the more an individual is exposed to asbestos over time the greater his risk for developing mesothelioma. Thus, unlike the typical Summers case where there is one "innocent" defendant and one "guilty" defendant, it is far more likely that all the asbestos defendants in this case bear some responsibility for causing plaintiff's peritoneal mesothelioma. (See Menne v. Celotex Corp., supra, 861 F.2d at p. 1466.)
Although there is apparently no established scientific explanation for the mechanism which causes mesothelioma, plaintiff's expert pathologist laid out "one pretty good idea of how it may happen." According to the pathologist, there are small openings in the mesothelium (membrane) lining the abdominal cavity. These openings are part of the lymphatic system. Experiments have shown that asbestos fibers get trapped in these lymphatic openings, plug them up, and cause an inflammatory reaction. The fibers then attract a type of white blood cell known as "macrophages." Macrophages are large cells which engulf and consume foreign material in the body. (Webster's New Collegiate Dict. (1977) pp. 689, 858.) Macrophages also secrete a growth factor which causes the cells in the mesothelium to divide and proliferate. Although this reaction is benign at first, it is thought that asbestos fibers penetrate the nuclei of the dividing mesothelium cells and cause them to become malignant. In sum, the pathologist testified that malignant mesothelioma is caused by the trapped asbestos and growth factor acting together on the mesothelium cells.
In Menne, the Tenth Circuit approved the concept of a burden shifting instruction in an asbestos mesothelioma case. The court recognized that the burden shift was a "variation" of Summers-type liability because the defendants were concurrent rather than alternative possible causes of the injuries. Consequently, the court referred to the burden shift as "concurrent liability" rather than "alternative liability." (Menne v. Celotex Corp., supra, 861 F.2d at pp. 1467, fn. 21, 1468.)
1. Failure to Join all Defendants.
With that clarification in mind, we turn to the specific objections raised by Owens-Illinois and amicus. [2] First, both Owens-Illinois and amicus contend it was error to shift the burden of proof in this case because not all of the potential defendants were before the court. Some cases suggest that a prerequisite of "pure" Summers v. Tice liability is that all parties who were or could have been responsible for the harm must be joined as defendants. (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 602; Vigiolto v. Johns-Manville Corp. (W.D.Pa. 1986) 643 F.Supp. 1454, 1457; Goldman v. Johns-Manville Sales Corp. (1987) 33 Ohio St.3d 40 [514 N.E.2d 691, 697]; but see Vahey v. Sacia (1981) 126 Cal.App.3d 171, 177 [178 Cal.Rptr. 559] ["Summers applies to multiple tortfeasors not to multiple defendants, and it is immaterial in this case that the matter went to trial only as against respondent, ..."] italics in original, fn. omitted.) The reason for this rule is that it would be inequitable to shift the burden if the defendant who caused the harm could escape liability because he was not joined, while "innocent" defendants might bear the full burden of liability. (See Sindell v. Abbott Laboratories, supra, at pp. 602-603.)
However, the equitable considerations present in a pure Summers v. Tice case are not present here because the defendants are more properly viewed as concurrent tortfeasors and thus it is likely none are wholly innocent. (Menne v. Celotex Corp., supra, 861 F.2d at p. 1466 ["Asbestos cases citing the requirement that all possible defendants must be before the court ignore" this difference.].)
Moreover, Alameda General Order No. 7.07 provides that the court will give the burden shifting instruction only where "all the known suppliers of asbestos or asbestos-containing products to which plaintiff was exposed are present, save those who may have settled or are subject to a bankruptcy court stay order." Thus, the plaintiff is required to join all potential defendants to the extent it is reasonably possible to do so.
The Restatement Second of Torts specifically contemplates that Summers-type liability might apply in situations where all of the actors are not before the court: "The cases thus far decided in which the [Summers rule] has been applied all have been cases in which all of the actors involved have been joined as defendants.... It is possible that cases may arise in which some modification of the rule stated may be necessary because of complications arising from the fact that one of the actors involved is not or cannot be joined as a defendant .... The rule stated in Subsection (3) is not intended to preclude possible modification if such situations call for it." (Rest.2d Torts, section 433B, com. h, p. 446; Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 602, fn. 16.)
Where, as here, the plaintiff in an asbestos case has joined all identifiable defendants except those who have settled or are bankrupt, he should not be precluded from shifting the burden of proof on causation to the defendants. First, a plaintiff cannot bring a defendant before the court if the defendant is subject to a bankruptcy stay. In our view, it would be fundamentally unfair to deny a plaintiff the benefit of the burden shifting instruction due to circumstances (the bankruptcy of the defendant) which are wholly beyond his control. Second, the public policy in favor of settlements suggests that we should not deny a plaintiff the benefit of the burden shifting instruction if he has settled with one or more defendants. As a practical matter, if we required the plaintiff to bring all defendants to trial in order to gain the benefit of the burden shifting instruction, this would be a strong disincentive to settle with individual defendants. In sum, we hold that where a court has before it all identifiable asbestos defendants except those who have settled or declared bankruptcy, the court may give the instruction quoted in this opinion. (See Menne v. Celotex Corp., supra, 861 F.2d at p. 1466 ["We are convinced that in cases of concurrent causation such as this, if all or substantially all of the available and identifiable, implicated [asbestos] manufacturers are before the court ... then all potential defendants need not be before the court."], italics in original.)
2. Plaintiff's Ability to Prove Actual Cause.
Next, both Owens-Illinois and amicus curiae contend it was improper to shift the burden of proof in this case because plaintiff could prove legal causation as to some of the defendants sued. In order to fully address this argument, it is important to note that there are two elements of causation in this case:
First, the plaintiff had to establish he was exposed to asbestos manufactured or supplied by a particular defendant. Under Alameda General Order No. 7.07 the plaintiff retained the burden of proof on this issue. If he failed to carry this burden as to a particular defendant, that defendant would prevail.
The plaintiff also had the burden to prove that his injuries were caused by exposure to asbestos. The defendants in this case stipulated that plaintiff's mesothelioma was caused by asbestos.
Many of the out of state cases amicus cites as rejecting Summers in the asbestos context are not very helpful because they involve attempts by plaintiffs to invoke a Summers burden shift to prove exposure to a particular defendant's asbestos products. Those cases are analytically distinct from this case where the plaintiff retains the burden of proving exposure. (See, e.g., Vigiolto v. Johns-Manville Corp., supra, 643 F.Supp. at pp. 1455-1456 [plaintiff conceded she was unable to identify any of the asbestos products to which decedent was exposed]; Goldman v. Johns-Manville Sales Corp., supra, 514 N.E.2d at p. 693 [plaintiff unable to identify manufacturer of any product]; Lohrmann v. Pittsburgh Corning Corp. (4th Cir. 1986) 782 F.2d 1156, 1162-1163.)
Second, it was necessary to establish that a particular exposure or series of exposures was a "legal cause" of plaintiff's mesothelioma. This second element of causation-which is distinct from proving exposure-concerns the biological processes which cause peritoneal mesothelioma. As to this issue, the medical experts agreed it was impossible to determine whether a particular exposure did or did not cause plaintiff's mesothelioma. It cannot be emphasized too strongly that the burden shifted to defendants as to this second element of causation only.
In this case the plaintiff could (and did) prove the first part of legal causation: namely, that he was exposed to asbestos products manufactured by the particular defendants. Thus, there was no reason to shift the burden as to this element of causation.
However, with respect to the second element of causation-what we will call "biological causation"-we believe the burden was properly shifted to defendants. The medical testimony established that none of the various brands of asbestos could be ruled out as a substantial factor in causing the mesothelioma. At the same time, because of the cause-effect relationship between asbestos exposure and mesothelioma it was impossible to determine that a particular exposure actually caused the disease. Indeed, Owens-Illinois' own expert testified that he could not say that any one company was the "probable cause" of a mesothelioma unless it was responsible for about 50 percent of the asbestos exposure. Consequently, as to the "biological cause" issue it is not clear plaintiff could establish substantial cause as to any one defendant. In these circumstances, a burden shift is justified by the "real reason" underlying Summers v. Tice: namely, " 'the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each [defendant] did, when it is certain that between them they did all; ...' " (Summers v. Tice, supra, 33 Cal.2d at pp. 85-86; Pereira v. Dow Chemical Co., supra, 129 Cal.App.3d at p. 873; see also Mason v. Texaco, Inc. (D.Kan. 1990) 741 F.Supp. 1472, 1481-1482, fn. 5.)
Moreover, even if plaintiff could prove that at least one defendant was a legal biological cause of his injury, we still believe the burden shift is appropriate in this case. As the Menne court observed: "In concurrent cause cases involving just two or three wrongdoers, a plaintiff frequently can demonstrate the substantiality of each defendant's contribution even though the exact proportion of each's contribution to the single harm may not be ascertainable. As the number of wrongdoers mounts, however, it becomes increasingly difficult to demonstrate each's substantial contribution to the whole. It is under such circumstances that a burden shift with respect to causation can be usefully employed." (Menne v. Celotex Corp., supra, 861 F.2d at p. 1466, fn. 19.) Even if plaintiff could prove legal causation as to some of the defendants sued, "[s]hifting the burden seems at least as fair where some, if not all, defendants are shown to have contributed some of the harm as where only one of them is thought to have caused all the harm: in the former situation a liable defendant will be shown at least to have actually caused some harm; in the latter a defendant who is entirely innocent of causing any of the ... injury can be found liable." (Id., at p. 1467, italics in original; see also Sholtis v. America Cyanamid Co. (1989) 238 N.J.Super. 8 [568 A.2d 1196, 1205, fn. 13].)
In sum, where, as here, the defendants are most likely concurrent causes of the plaintiff's harm, we do not believe a burden shift should be barred simply because a plaintiff can prove by a preponderance of the evidence that one or more of the defendants was a legal cause of his harm.
-603.) Nothing in Summers or Sindell suggests that alternative liability is limited to cases involving a set number of defendants. Moreover, once again, we are applying a variation of Summers-type liability, not a pure form of that doctrine. Owens-Illinois also suggests that Summers only applies to cases involving a small number of defendants. Owens-Illinois's sole citation of authority for this proposition is Sindell v. Abbott Laboratories, supra, where the Supreme Court found "pure" Summers-type liability inappropriate because the defendant had not joined all potentially liable defendants. (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 602
3. San Francisco General Order No. 32.
Finally, both Owens-Illinois and amicus suggest that the correct approach to this issue is found in San Francisco Superior Court General Order No. 32 (San Francisco General Order No. 32). In that order, the San Francisco Superior Court refused to issue a general order in complex asbestos cases to shift "the burden of proof to the defendant to establish that its product was not a legal cause of a plaintiff's injury." Instead, the court placed the burden of proof of legal causation on the plaintiff, but shifted the burden to apportion causation and damage to the defendants.
San Francisco General Order No. 32 provides: "It is ordered that where the plaintiff has met his proof burden and established a defendant's product as defective and [a] legal cause of plaintiff's injury, the plaintiff is not then required to apportion the amount of injury among the several tortfeasors. The burden of proof as to apportionment shifts to the defendants."
First, we note that the San Francisco general order is not before us in this case, and we cannot-and do not-pass on its validity. Second, from the materials amicus and Owens-Illinois have supplied, it is impossible to determine the nature of the burden shift requested by the San Francisco asbestos plaintiffs. In other words, it is not clear whether the San Francisco asbestos plaintiffs were requesting a burden shift on the issue of exposure, biological cause, or both. As indicated, the burden shift in this case is limited to biological cause only. Consequently, it is difficult to analyze the San Francisco order based on our analysis in this case.
Second, although we do not pass on the validity of the San Francisco order, we note that the practical difference between the San Francisco instruction and the one in this case is far less significant than amicus or Owens-Illinois believe. Under the San Francisco order, a plaintiff is required to prove that a defendant's product is a legal cause (i.e., substantial factor) producing the injury. Once the plaintiff carries his burden on this issue, the burden shifts to the defendants to apportion the fault among themselves. There is no question plaintiff produced substantial evidence in this case to prove that Owens-Illinois and Celotex products were substantial factors causing his mesothelioma. Thus, we do not believe it is reasonably probable Owens-Illinois would have obtained a more favorable result under the San Francisco order. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Instead, we believe it is far more probable plaintiff would have prevailed even under the San Francisco instruction.
The fact that plaintiff might also have prevailed under the San Francisco order does not mean that Alameda General Order No. 7.07 is improper. Cases may arise where the burden shift is critical to the plaintiff's case. The fact that it was not critical in this case does not render the order in general nor its application here improper.
The real distinction between Alameda General Order No. 7.07 and the San Francisco order is that the Alameda order creates a rebuttable presumption of biological cause as to a particular defendant if the plaintiff can prove he was exposed to the defendant's asbestos products; or more precisely in this case, if he can prove he was "exposed to amphibole asbestos fibers" from the defendant's products. This is not the first time a court has adopted such a rebuttable presumption.
As the Menne court recognized, some jurisdictions have permitted a burden shift similar to that in this case-without calling it such-by "interpret[ing] their concurrent cause standards [to allow] exposure to constitute proof of injury. See, e.g., Lockwood v. AC & S Inc. (1987) 109 Wash.2d 235 [744 P.2d 605, 612-13] (jury instruction on concurrent causes required that each be a substantial factor; since exposure has cumulative effect in contributing to asbestosis, evidence of exposure to a defendant's asbestos dust established prima facie case of causation, i.e., in effect, exposure even at unknown levels is a substantial factor)..." (Menne v. Celotex Corp., supra, 861 F.2d at p. 1467; see also Sholtis v. American Cyanamid Co., supra, 568 A.2d at pp. 1205-1206, fn. 14.)
Whether the instruction in this case is viewed as a rebuttable presumption or a burden shift, it is clear that it only applies to the issue of biological causation. It is in this area that the defendants may find it impossible to carry their burden of proof, not because of any fault on their part, but because of the limits of medical science. Moreover, the plaintiff is in no better-and indeed may be in a worse position-than defendants to prove biological cause. (See Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 600-602 [fact that defendants do not have greater access to information that might establish identity of defendant causing harm does not per se prevent application of Summers].) In these circumstances, we believe it is wholly appropriate to shift the burden of proof to defendants to prove that their products were not a substantial cause of the plaintiff's injuries, once plaintiff has proved he was exposed to those products.
We note also that the Alameda court order requires the plaintiff to waive his or her right to punitive damages in order to gain the benefit of the burden shifting instruction. The San Francisco order does not require a similar waiver. Thus, the defendant gains as well as loses under the Alameda order. Indeed, this may explain defendant Celotex's decision not to challenge the order.
B. Proposition 51.
Next, defendants and amicus contend the trial court should have applied Proposition 51 to the damages awarded for plaintiff's mesothelioma. As previously indicated, Proposition 51 limits a joint tortfeasor's liability for noneconomic damages to the proportion of such damages which is commensurate with the tortfeasor's own percentage of fault. However, our Supreme Court has held that Proposition 51 does not apply to causes of action which "accrued" before its effective date (June 4, 1986). (Evangelatos, supra, 44 Cal.3d at pp. 1193-1194, fn. 2.) Thus, the issue in this case is whether plaintiff's cause of action for damages arising from his peritoneal mesothelioma accrued before June 4, 1986.
Again, although plaintiff believed he had asbestos-related lung disease at the time he filed his complaint in 1986 he did not seek damages for that disease at trial.
Proposition 51 was designed to address a situation which can arise in comparative fault liability systems. In such a system, a defendant who bears only a small share of fault for an injury can be left with the obligation to pay all or a large share of the plaintiff's damages if more culpable tortfeasors are insolvent. The drafters of Proposition 51 attempted to alleviate the perceived inequity arising from this situation. [5] "While recognizing the potential inequity in a rule which would require an injured plaintiff ... to bear the full brunt of the loss if one of a number of tortfeasors should prove insolvent, the drafters of the initiative at the same time concluded that it was unfair ... to require a tortfeasor who might only be minimally culpable to bear all of the plaintiff's damages. As a result, the drafters crafted a compromise solution: Proposition 51 retains the traditional joint and several liability doctrine with respect to a plaintiff's economic damages, but adopts a rule of several liability for noneconomic damages, providing that each defendant is liable for only that portion of the plaintiff's noneconomic damages which is commensurate with that defendant's degree of fault for the injury." (Evangelatos, supra, 44 Cal.3d at p. 1198, italics in original.)
Civil Code section 1431.2, which is the heart of Proposition 51, provides: "(a) In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount."
In Evangelatos, supra, our Supreme Court held that Proposition 51 applies prospectively only. (44 Cal.3d at p. 1227.) More specifically, Evangelatos held that Proposition 51 does not apply to a cause of action which has "accrued" before the measure's effective date. (Id., at pp. 1193, 1205.)
Unfortunately, Evangelatos does not provide much guidance to help courts determine the date on which a cause of action involving a latent injury accrues for the purpose of applying Proposition 51. This is understandable because there was no question in Evangelatos that the cause of action there accrued well before the effective date of the proposition. In Evangelatos, the plaintiff was injured while attempting to make fireworks with chemicals supplied by the defendants. The alleged wrongful acts and the injury both occurred years before the effective date of Proposition 51. Moreover, there was no issue of delayed discovery of the injury. (Evangelatos, supra, 44 Cal.3d at pp. 1194-1195.)
Here, by contrast, it is more difficult to determine the date on which plaintiff's cause of action for mesothelioma-related injuries accrued. Peritoneal mesothelioma is a latent disease. Decades often pass between the time a person is first exposed to asbestos and the time he first develops a mesothelioma. Moreover, it may be years before a mesothelioma tumor becomes large enough to be detected. Consequently, there are at least three possible "accrual" dates: the date plaintiff was first exposed to asbestos (plaintiff's position); the date plaintiff first suffered sufficient harm to establish a cause of action (the position we will adopt in this opinion); and the date plaintiff discovered he had mesothelioma (defendants' position).
1. For the Purpose of Applying Proposition 51, the Cause of Action Accrues on the Date of Injury.
Evangelatos strongly suggests that, for the purpose of determining retroactivity, the date of "injury" is the critical date for fixing the time of accrual in a latent disease case. Although the Evangelatos court did not need to determine the precise point at which a cause of action accrues for the purpose of applying Proposition 51, the court did deal with a related argument. The Supreme Court's legal analysis of this point sheds considerable light on the issue in this case.
In Evangelatos, certain amici curiae argued that applying Proposition 51 to causes of action which accrued prior to its effective date but which did not come to trial until after such effective date constituted a prospective rather than retroactive application of the measure. The Supreme Court rejected this argument and held that the key date in determining retroactivity is the date of accrual, not the date the case is brought to trial. In doing so, the court quoted from Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388 [182 P.2d 159], which rejected a similar argument. The Evangelatos court stated: "In Aetna Cas., this court, speaking through Chief Justice Gibson, emphatically rejected the argument, explaining that ' " '[a] retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.' " ' (30 Cal.2d at p. 391.) 'Since the industrial injury is the basis for any compensation award, the law in force at the time of the injury is to be taken as the measure of the injured person's right of recovery.' (Id., at p. 392.)" (Evangelatos, supra, 44 Cal.3d at p. 1206, italics added; see also Kizer v. Hanna (1989) 48 Cal.3d 1, 7, fn. 4 [255 Cal.Rptr. 412, 767 P.2d 679].)
The general principle cited in Aetna and Evangelatos has been applied in at least one other state to establish that an asbestos personal injury action is governed by the law in effect at the time of the injury. In Owens-Illinois v. Armstrong (1992) 326 Md. 107 [604 A.2d 47] the Maryland Supreme Court held that a 1986 statutory limit on noneconomic damages did not apply to a preexisting asbestosis condition even though that condition was diagnosed only after the statute's effective date. Although the Maryland decision turned to some degree on the precise wording of the statute, the court's analysis is nevertheless instructive: "[A] cause of action in negligence or strict liability arises 'when facts exist to support each element.' ... In a negligence claim, the fact of injury would seemingly be the last element to come into existence.... Likewise in a strict liability claim, the existence of the defective product and the causal connection will precede the resultant injury. Therefore, Armstrong's noneconomic damages should be reduced [under the relevant statute] only if his 'injury' came into existence on or after [the effective date of the statute]." (Id., at p. 54; see also Koker v. Armstrong Cork, Inc. (1991) 60 Wn.App. 466 [804 P.2d 659, 662-664] [construing meaning of "arising" in tort reform statute].)
The statute applied to "any action for damages for personal injury in which the cause of action arises on or after July 1, 1986." (Owens-Illinois v. Armstrong, supra, 604 A.2d at p. 53, italics in original.)
In sum, we conclude that for the purposes of Evangelatos, a cause of action "accrues" on the date of injury. 2. Injury Occurs When a Plaintiff Suffers "Appreciable Harm."
Although we have concluded that, for the purpose of applying Proposition 51, a cause of action for asbestos-related injuries "accrues" on the date of injury, we still must determine what constitutes "injury" within the context of a latent disease such as peritoneal mesothelioma. We conclude that in this context a cause of action accrues on the date the plaintiff suffers "appreciable harm," regardless of the date he discovers the injury. (Larcher v. Wanless (1976) 18 Cal.3d 646, 656, fn. 11 [135 Cal.Rptr. 75, 557 P.2d 507]; Steingart v. White (1988) 198 Cal.App.3d 406, 414 [243 Cal.Rptr. 678].)
In order to understand why we have selected the date of "appreciable harm" as the key date for determining whether Proposition 51 has been applied retroactively, it is perhaps best to explain our reasons for rejecting the more extreme positions advocated by plaintiff and defendants.
First, plaintiff argues that, for the purpose of applying Proposition 51 in a mesothelioma case, a cause of action accrues on the date the plaintiff is first exposed to asbestos. In effect, plaintiff contends the date of exposure is the date of injury. We disagree. As indicated, Evangelatos held that a retrospective law is one which affects rights and conditions which exist prior to the adoption of the statute. The Evangelatos court further noted that since an industrial injury is the basis for a workman's compensation claim, the law in force at the time of the injury is to be taken as the measure of the injured worker's right to recovery. (Evangelatos, supra, 44 Cal.3d at p. 1206.)
Here, the mere fact plaintiff was exposed to asbestos did not give rise to a compensable "condition" or create rights in plaintiff against the defendants. In California, injury to the plaintiff is an essential element of a cause of action in negligence or strict liability. (See BAJI Nos. 3.00, 9.00 (7th ed. 1992 pocket pt.) pp. 17, 194; Sinai Temple v. Kaplan (1976) 54 Cal.App.3d 1103, 1113 [127 Cal.Rptr. 80].) Thus, the fact plaintiff was exposed to asbestos products did not give him a cause of action against the defendants. That right arose only when plaintiff suffered appreciable harm. (Larcher v. Wanless, supra, 18 Cal.3d at p. 656, fn. 11; Steingart v. White, supra, 198 Cal.App.3d 406, 413-414; Alhino v. Starr (1980) 112 Cal.App.3d 158, 176 [169 Cal.Rptr. 136]; see Owens-Illinois v. Armstrong, supra, 604 A.2d at pp. 53-54.) Thus, in our view, it would be nonsensical to select the date of first exposure as the date for determining retroactivity. Many-indeed most-persons who are exposed to asbestos will never suffer a compensable injury and will never have a cause of action. (See Todd Shipyards Corp. v. Black (9th Cir. 1983) 717 F.2d 1280, 1289-1290.) In short, as in a workers' compensation claim, the plaintiff's compensable injury is the ultimate basis for a cause of action in negligence or strict liability, and the law in force at the time of the compensable injury should be the measure of the plaintiff's right to recovery. (Evangelatos, supra, 44 Cal.3d at p. 1206.)
Defendants and amicus curiae take an equally extreme position which we find equally inappropriate. They contend a cause of action accrues for the purpose of determining retroactivity only when the injury (disease) is diagnosed or discovered. In this case, appellant's mesothelioma was not diagnosed until 1989, long after Proposition 51 became effective. However, the cancer itself began many years before diagnosis, most likely before the effective date of the proposition.
Defendants' argument that the date of discovery should control is based in large measure on cases which hold that a cause of action does not accrue for the purpose of applying the statute of limitations until the plaintiff discovers, or reasonably should have discovered, his injury. (Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 883, 887-888 [159 Cal.Rptr. 113]; Steingart v. White, supra, 198 Cal.App.3d at p. 415.) However, we believe those cases were not meant to determine the date of "accrual" for the purpose of deciding whether a statute has been applied retroactively.
A similar argument was rejected by an Illinois appellate court in Fetzer v. Wood (1991) 211 Ill.App. 70 [115 Ill.Dec. 626, 569 N.E.2d 1237]. There, the court had to determine whether the plaintiff's medical malpractice action based on a latent injury "accrued" before the effective date of a statute modifying Illinois' comparative fault doctrine. (Id., at p. 1240.) The defendants argued that "where the time of injury is not readily ascertainable, the only other basis for determining when a cause of action accrues is when it may be 'discovered.' " (Id., at p. 1243.) There, as here, the defendants relied on statute of limitations cases involving latent injuries. In rejecting this argument, the Illinois court noted that the defendants misrepresented the point made in the statute of limitations cases: " 'We do not agree that a cause of action is nonexistent prior to the time of accrual [for the purpose of the statute of limitations]. Logic dictates that a plaintiff cannot bring a cause of action until he knows or reasonably should know of his injury, and also knows or reasonably should know that the injury was caused by the wrongful acts of another. However, that does not mean that the plaintiff does not have an existing cause of action of which he is unaware.' ... [¶] In addition, we feel compelled to point out that too much reliance by defendants on the 'discovery rule' is misplaced. First, statutes of limitations, like other statutes, must be viewed in light of their objectives. [Citations.] The purpose of the statute of limitations is certainly not to shield a wrongdoer; rather, it is to discourage the presentation of stale claims and to encourage diligence in the bringing of actions. [Citation.] Second, the discovery rule concerns charging a plaintiff with knowledge of an injury and its wrongful cause for purposes of the running of a statute of limitations. Such is not at issue here. Rather, this case concerns if and when facts existed to support a cause of action for purposes of determining the applicability of the modified comparative negligence statute. Moreover, the discovery rule does not actually provide for new accrual rules; it instead tolls the running of the statute of limitations, until a plaintiff's 'discovery,' of an existing cause of action." (Ibid., italics in original.)
We wholeheartedly agree with the court's analysis in Fetzer. The rationale underlying the "discovery" rule-which is designed to address problems related to the statute of limitations-is simply inapplicable to this case. Here, we are not concerned with the policies underlying the statute of limitations, but are instead concerned with the distinct rules for determining whether a statute has been applied retroactively. As indicated, a law has been applied retroactively if it affects rights which exist prior to the adoption of the statute. (Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 391.) As the Fetzer court pointed out, a plaintiff may have an existing right of action even if he is unaware of it, and even though it has not "accrued" for the purpose of the statute of limitations.
Having rejected the positions advocated by the parties (and amicus), we come, finally, to what we believe is the correct answer to the problem before us: namely, that for the purposes of determining whether a statute has been applied retroactively, the cause of action accrues on the date the plaintiff suffers "appreciable harm."
Although plaintiff did not advocate this approach as his primary position, he essentially suggests it as an alternative.
Our Supreme Court has indicated that the "appreciable harm" test is appropriate to determine when a cause of action accrues in a medical malpractice case involving latent injuries. In Larcher v. Wanless, supra, 18 Cal.3d at p. 656, fn. 11, the court stated: "As we noted in Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], 'The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm-not yet realized-does not suffice to create a cause of action for negligence.' Budd was an attorney malpractice case, but its rationale seems equally applicable to medical malpractice. Until the patient 'suffers appreciable harm' as a consequence of the alleged act of malpractice, he cannot establish a cause of action." (See also Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 54 [210 Cal.Rptr. 781, 694 P.2d 1153]; Brown v. Bleiberg (1982) 32 Cal.3d 426, 437, fn. 8 [186 Cal.Rptr. 228, 651 P.2d 815]; Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 542-543 [279 Cal.Rptr. 51]; Steingart v. White, supra, 198 Cal.App.3d at p. 414; Alhino v. Starr, supra, 112 Cal.App.3d at p. 176.)
We believe that a qualified "appreciable harm" approach is also appropriate here. That is, plaintiff's cause of action for damages resulting from his peritoneal mesothelioma did not accrue until he suffered appreciable harm from that disease. Nominal damages, speculative harm, or the threat of future harm-not yet realized-cannot suffice to create a cause of action. However, it is essential to note in this context that the key date is not when plaintiff discovered his injury, or even when he should have discovered the injury. Instead, the key inquiry is: When did plaintiff suffer sufficient injury such that, had he been aware of it, he could have established a cause of action?
Our discussion is limited to peritoneal mesothelioma. We do not express any opinion as to when "appreciable harm" may arise with respect to any other asbestos related condition. Asbestosis is, of course, a distinct disease which is not at issue in this case. Determining when "appreciable harm" occurs in asbestosis (or other diseases) will involve considerations not presently before us. (See Owens-Illinois v. Armstrong, supra, 604 A.2d at pp. 54-55; Abex Corp. v. Maryland Cas. Co. (D.C. Cir. 1986) 790 F.2d at p. 127, fn. 36.)
A similar-though analytically distinct-approach has been adopted by some courts to determine when liability insurance coverage applies to cover damages for asbestos-related bodily injury. [6] Under this so called "injury-in-fact" approach to insurance liability, coverage is triggered by '"a real but undiscovered injury, proved in retrospect to have existed at the relevant time ... irrespective of the time the injury became [diagnosable].' " (American Home Products Corp. v. Liberty Mut. Ins. (2d Cir. 1984) 748 F.2d 760, 766.) Under this approach, "[r]eal injury need not have been compensable or diagnosable during the policy period if its existence during that period can be proved in retrospect. Thus, ... under the injury-in-fact trigger the central issue is when injury actually occurred. Injury need not be manifest, but it must exist in fact." (Abex Corp. v. Maryland Cas. Co., supra, 790 F.2d at pp. 124-125, italics in original.) In the context of asbestos-related diseases, the trier of fact determines when the injury-in-fact occurred. However, "the trier of fact need not pinpoint the exact date of injury. Instead, 'all that is necessary is reasonably reliable evidence that the injury ... more likely than not occurred during a period of coverage.' " (Id., at p. 128.)
Division One of this district recently adopted the "injury-in-fact" test in the insurance liability context. (Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co. (1993) 20 Cal.App.4th 296, 348-359, 397-398 [26 Cal.Rptr.2d 35].)
The key difference between the "injury-in-fact" approach described above and the test we adopt here, is that we focus on the date of "compensable" injury. For insurance purposes, the courts have concluded that "injury-in-fact" may exist even if the injury is not compensable. By contrast, a cause of action accrues (for the purpose of determining the retroactive application of Proposition 51) only when the injury reaches the point that it is "compensable"; i.e., when the plaintiff suffers "appreciable harm" and would therefore be entitled to commence an action for damages. In making this determination, however, the trier of fact need not pinpoint the exact date when the plaintiff suffers "appreciable harm." Instead, all that is necessary is reasonably reliable evidence that the plaintiff suffered appreciable harm before the effective date of the proposition.
3. Application of the Appreciable Harm Test to This Case.
Unfortunately, the trial court did not ask the jury to determine the date plaintiff first suffered appreciable harm in this case. This was because the trial court determined that as a matter of law the complaint, which had been filed before the effective date of Proposition 51, was broad enough "that it includes asbestos injury and isn't contained to asbestosis." It was for this reason the court did not apply Proposition 51 to plaintiff's case.
Nevertheless, there was expert testimony concerning the progress of plaintiff's disease and the point at which the cancerous condition began. According to plaintiff's epidemiologist, the process leading to the mesothelioma probably became irreversible at least five years before plaintiff was diagnosed with that disease. In addition, one of plaintiff's medical experts testified that the first cancer cell almost certainly appeared three to ten years before Coughlin was diagnosed with peritoneal mesothelioma, and suggested that the first cancer cell most likely developed between seven and eight years before diagnosis (which occurred in 1989). Thus, there is a strong possibility plaintiff suffered appreciable harm before the effective date of Proposition 51.
Unfortunately, the jury never made the necessary finding, and as a reviewing court we have no power to make findings of fact where the case has been tried to a jury. (Code Civ. Proc., section 909; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, section 651, pp. 631-632; Robinson v. Wada (1935) 10 Cal.App.2d 5, 7 [51 P.2d 171].) Moreover, even if we had the power to make such a finding, we believe it would be inappropriate to do so here. The parties did not treat the issue of appreciable harm as an important consideration below, and they should be given a chance to fully litigate that issue before the finder of fact.
Consequently, we reverse the judgment below and remand the matter to the trial court for the limited purpose of determining the date plaintiff first suffered appreciable harm (i.e. compensable injury) related to the peritoneal mesothelioma. We leave it to the experts and trier of fact to determine when that point occurred, whether it be at the time the cancerous condition began or at some other point. As indicated, the fact finder need not determine the precise date plaintiff suffered appreciable harm; instead, the fact finder must merely decide (by the preponderance of the evidence) whether plaintiff suffered appreciable harm before or after the effective date of the statute. C. Damages for Lost Family Services.
The fact the trial court concluded the complaint in this case was broad enough to include a cause of action for peritoneal mesothelioma is irrelevant to our analysis. Interestingly, even plaintiff does not defend the trial court's analysis of the problem. The date the complaint was filed does not determine the date upon which plaintiff's cause of action for damages related to mesothelioma "accrued" for the purpose of determining whether Proposition 51 has been applied retroactively. Apparently, the trial court was relying on the rule which prohibits a plaintiff from splitting a cause of action. The judge apparently believed the cause of action for damages for lung related asbestos disease was the same cause of action as that for damages resulting from peritoneal mesothelioma. Since the complaint was filed before the effective date of the statute, the court apparently concluded the cause of action for peritoneal mesothelioma must have "accrued" before that date. However, even in cases which concern the prohibition against splitting a cause of action, courts have held that a single wrong may, in certain circumstances, give rise to multiple causes of action when the wrong causes separate diseases or injuries. (Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316, 319-320, 324, fn. 7, 327 [164 Cal.Rptr. 591]; Zambrano v. Dorough (1986) 179 Cal.App.3d 169, 173-174 [224 Cal.Rptr. 323].) There is no question that asbestosis and peritoneal mesothelioma are separate and distinct diseases which result in separate and distinct injuries. (Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1990) 219 Cal.App.3d 1265, 1267 [268 Cal.Rptr. 699].)
Finally, Owens-Illinois contends the trial court erred when it permitted the jury to award plaintiff compensation for "lost household services" which plaintiff would have supplied had he lived to his full life expectancy. We find no error.
During the first phase of trial the court instructed the jury (over Owens-Illinois's objection) that it could award plaintiff damages for "future household services" which would be lost because of his premature death. The jury awarded $74,743 for loss of future household services.
The element of damages to which Owens-Illinois objects involves a melding of two distinct concepts. The first is the rule which permits plaintiff to recover for lost earnings attributable to plaintiff's so-called "lost years"; i.e., the period of time by which plaintiff's life expectancy has been reduced as a result of defendant's negligence. (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153 [211 Cal.Rptr. 368, 695 P.2d 665].) Under the prevailing American rule, which the Supreme Court adopted in Fein, " 'a tort victim suing for damages for permanent injuries is permitted to base his recovery "on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury." [Citations.]' " (Id., at p. 153, italics in original.) In the present case, plaintiff's undiminished life expectancy at the time of trial was approximately 14 years.
Although Owens-Illinois criticizes Fein, defense counsel admits we are bound by that decision.
The second concept is that a plaintiff is entitled to recover for services he would have supplied to the family but for his injury. "Damages may be recovered for the detriment suffered by family members when injury prevents a person from contributing some or all of his or her customary services to the family unit.... [¶] Damages for loss of services may be recovered by the injured person as a part of that person's damages." (Cal. Tort Damages (Cont.Ed.Bar 1988) section 1.64, p. 44, italics added.)
We believe that damages were properly awarded for the value of plaintiff's household services during the "lost years." As Owens-Illinois admits, "[t]he theory behind [compensation for household services] appears to be that the plaintiff will be obligated to obtain-or would at least be justified in securing-someone else to provide those services, and therefore [he] should be awarded the value of that performance." In our view, this theory applies whether appellant is alive but so injured he is unable to provide household service, or whether he dies prematurely and thus cannot provide services for the balance of his life expectancy. If we were to accept Owens-Illinois's argument, we would essentially be granting defendants a windfall for shortening a plaintiff's life. Under Owens-Illinois's analysis, a defendant would be required to provide compensation for lost household services if a plaintiff survives in a vegetative state, but not if he dies prematurely. In either case, however, the household services are lost. In short, we refuse to reward a defendant because he kills rather than wounds a plaintiff.
D. Disposition.
We reverse the judgment below and remand the matter to the trial court for the limited purpose of determining the date of compensable injury as defined in this opinion. If the fact finder determines that compensable injury occurred before the effective date of Proposition 51, then the court shall reinstate the judgment in full. If the fact finder determines that compensable injury occurred on or after the effective date of Proposition 51, then the trial court shall proceed in the manner it believes best suited to serve the ends of justice.
Costs to respondent.
Chin, J., and Werdegar, J., concurred.
More fundamentally, however, the reasons for prohibiting a plaintiff from splitting a cause of action are simply inapposite to the issues in this case. "The rule against splitting a cause of action is based upon two reasons: (1) That the defendant should be protected against vexatious litigation; and (2) that it is against public policy to permit litigants to consume the time of the courts by relitigating matters already judicially determined, or by asserting claims which properly should have been settled in some prior action." (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 895 [151 P.2d 846]; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, section 34, p. 76.)
Here, of course, we are not concerned with an attempt by a plaintiff to "split" a cause of action. Thus, the policy considerations mentioned above do not come into play. Instead, in this case, we are attempting to determine when a cause of action has accrued for the purpose of applying a newly enacted statute. As we have indicated, the key to that inquiry is the date of compensable injury.