Regulation

Under California law, 8 CCR § 1529 applies to employers and provides safety regulations to protect the employees from asbestos exposure. (See, also 8 § 1502(a)).

Causes of Action

Potential causes of action primarily arise out of tort law, such as negligence and wrongful death claims.

In product exposure cases, a “threshold issue in asbestos litigation is exposure to the defendant's product." (McGonnell v. Kaiser Gypsum Co, Inc. (2002) 98 Cal.App.4th 1098, 1103). McGonnell “requires plaintiff to prove (1) exposure to the defendant’s asbestos-containing product, and (2) that exposure was, in reasonable medical probability, a substantial factor in causing the injury.” (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103; also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 976-977).

Conversely, "[i]f there has been no exposure there is no causation." (McGonnell v. Kaiser Gypsum Co, Inc. (2002) 98 Cal.App.4th 1098, 1103, citing Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655).

Liability

Regarding Affirmative Actions of Employees

In Biles v. Exxon Mobil Corp., the “court found that there was a triable issue of fact regarding whether the oil company was liable based on the affirmative acts of its own employees that allegedly contributed to the plaintiff’s asbestos exposure.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1331– 1332).

Regarding a Duty to Protect Workers’ Family Members

In Campbell v. Ford Motor Co., as modified on June 19, 2012, the court “concluded a property owner has no duty as a matter of law to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner's business” by applying the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, as clarified by Cabral v. Ralph's Grocery (2011) 51 Cal.4th 764. (Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 37).

Causation

Exposure and Substantial Factor

In the context of product exposure, “a plaintiff must demonstrate exposure to a defendant’s product ‘so that exposure is a possible factor in causing the disease’ before the court evaluates whether the exposure was a ‘substantial factor’ in causing the plaintiff’s alleged harm.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415-1416).

For hazardous material and toxic substance litigation, “a plaintiff must demonstrate exposure to a defendant’s product and biological processes from the exposure which result in disease.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th at p. 1415-1416.) “[T]he proper analysis is to ask whether the plaintiff has proven exposure to a defendant’s product, of whatever duration, so that exposure is a possible factor in causing the disease and then to evaluate whether the exposure was a substantial factor.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th at 1416.)

“Many factors are relevant in assessing the medical probability that an exposure contributed to plaintiff's asbestos disease. Frequency of exposure, regularity of exposure, and proximity of the asbestos product to plaintiff are certainly relevant, although these considerations should not be determinative in every case.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th at p. 1416, internal quotation marks omitted.)

Asbestos-related Cancer

“In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant's product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff's . . . risk of developing cancer.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982–983; also Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 493).

Damages

Punitive Damages

Punitive damages, under California Civil Code § 3294, may be awarded where a company does not “share its knowledge of the dangers of asbestos with its customers or with individuals who would, predictably, be exposed to dust from its products, and that it instead sought to downplay the risk.” (Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34.) A “conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896).

Furthermore, in Bankhead v. ArvinMeritor, Inc., the Court of Appeals found that “intentionally marketing a defective product knowing that it might cause injury and death is ‘highly reprehensible’.” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal. App. 4th 68, 85-86). The “prolonged failure to take adequate measures to protect people who worked with its products against a known hazard to their health and safety justifies the jury’s conclusion that its conduct towards workers exposed to the hazards in its products was malicious, fraudulent, or oppressive.” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal. App. 4th 68, 86).

Other Sources

The following are California regulations regarding asbestos, as provided by the State of California’s Department of Industrial Relations’ Asbestos and Carcinogen Unit:

• 8 CCR § 1529. Asbestos (Asbestos Standards in Construction);
• 8 CCR § 8358. Asbestos (Asbestos Standards in Shipyards);
• 8 CCR § 5208. Asbestos (Asbestos Standards in General Industry);
• 8 CCR § 5208.1. Non Asbestiform Tremolite, Anthophyllite, and Actinolite (General Industry Standards relating to Non-Asbestiform Tremolite, Anthophyllite, and Actinolite);
• Labor Code §§ 6501.5-6510 and 9020-9022 (Asbestos Contractor Registration, Asbestos Consultant and Technician Certification, and Asbestos Trainers Approval Requirements); and
• Labor Code §§ 9030-9032 and 8 CCR § 5203 (Required Notifications by Employers Regarding Carcinogens)