Early Cases: 1986-1999

The insidious disease known as mesothelioma first reached the California Supreme Court in 1986 in the case of General Foundry Service versus Workers’ Compensation Appeals Board. (General Foundry Serv. v. Worker’s Comp Appeals Bd., 42 Cal.3d 331 (1986)). In this early case, a molder for a foundry was exposed to asbestos and silica dust for 29 years while on the job. The California’s Supreme Court defined mesothelioma as “a disease of the mesothelioma surface lining (i.e. chest and stomach lining). . [that is] a diffuse malignancy which spreads across the serous surfaces.” (General Foundry Serv. at pg 335).

The primary legal issue before the high court was whether the Workers’ Compensation Board applied the correct determination for temporary status when a worker has a progressive disease such as mesothelioma. The court held that the board could tentatively rate the permanent disability of the injured worker with a progressive disease, and it could order advances based on that tentative rating. The court also stated the Board may reserve jurisdiction on a final determination of permanent disability, waiting to learn if the employee’s condition becomes permanent and stationary, or when the employee’s permanent disability is total and further deterioration by the progressive disease would be irrelevant. (General Foundry Serv.)

It wasn’t until eleven years later that another case regarding mesothelioma would reach California’s High Court. In this case a gentlemen sued Owens-Corning Fiberglas Corporation for his exposure to asbestos some 30 years prior. (Buttram v. Owens-Corning Fiberglas Corp., 16 Cal.4^th 520 (1997)).

In 1986, California had passed a law that changed the popular law rule of joint and several liability by limiting the defendant tortfeasor’s damages to only the direct percentage section that can be attributed to the defendant. (Buttram at pg 524). This means if a defendant is found to be only 42% at fault, they only have to pay 42% of the noneconomic damages, such as pain and suffering.

What made this case unique is that the trial court ruled on testimony that the plaintiff probably already had cancerous cells formed before this law went into effect. Therefore, the new law did not apply because the disease had “accrued” before the passage of the new law. (Buttram).

The Supreme Court of California held that for the purposes of determining accrual of a latent and progressive asbestos-related disease such as mesothelioma, it accrues when the plaintiff is either diagnosed with the disease for which damages are being sought or otherwise discovered the illness or injury. (Buttram at pg 525).

In that same year, the California Supreme Court heard another case involving an asbestos-related mesothelioma plaintiff. (Rutherford v. Owens-Illinois, Inc., 16 Cal.4^th 953 (1997)). At issue there was whether a trial court’s instruction to the jury regarding defendant’s burden of proof in a mesothelioma lawsuit was so prejudicial as to reverse the lower court and remand the case wait on to the trial court for further proceedings. (Rutherford).

The Supreme Court concluded that the burden-shifting jury instruction was an error on the fragment of the trial court. However, it held that for cases of asbestos-related cancers such as mesothelioma, proof of the cause in such cases will always bring practical difficulties because of the long latency period and the occupational settings that a worker is exposed to with multiple forms or brands of asbestos products and varying degrees of toxicity. (Rutherford at pg 957).

Instead, a mesothelioma plaintiff can demonstrate that exposure to the defendant’s asbestos product was “in reasonable medical probability” a substantial cause or contributed to the plaintiff’s risk of getting the disease. (Rutherford at pages 957-958).

In the last case before the turn of the century and new millennium, Chevron U.S.A. Inc. brought an appeal all the way to California’s Supreme Court. (Chevron U.S.A., Inc., v. Workers’ Compensation Appeals Board, 19 Cal.4^th 1182 (1999)). This was another Workers’ Compensation-related case where an individual died from mesothelioma that was diagnosed after his retirement. Although the plaintiff was originally diagnosed with parenchymal asbestosis due to asbestos inhalation, the plaintiff was diagnosed 10 years later, after his retirement, with peritoneal mesothelioma, which is an asbestos-related cancer of the lining of the abdominal cavity. (Chevron at pages 1186-1187).

At the heart of this long and complex mesothelioma litigation was how much death benefit the surviving spouse should receive based on the amount of support loss after the death of the plaintiff. On one of Chevron’s many appeals, the Court of Appeal interpreted a statute that put a limitation on the type of support that could be considered for the purposes of establishing the death attend. (Chevron).

The statutory scheme allows for a death benefit of four times the amount of earnings devoted to the support of the decedent’s dependents, and the statute puts a cap on the amount of the defendant’s liability based on the year the case is decided. (Chevron at page 1192). The Court of Appeal ruled that the back must be based on the amount of support actually lost or affect by the plaintiff’s death, and it could not include income and investments that did not end or change as a result of the death. (Chevron).

California’s Supreme Court reversed the lower court and held that the statutory language does not preclude the exhaust of other earnings after retirement. It explained that the Court of Appeal’s decision was wrong, and “such an interpretation is extremely harsh, especially in cases of death from employment-related injuries, like mesothelioma, that occur after retirement, when the employee is no longer receiving any earnings from employment.” (Chevron at pg 1198). Therefore, the death benefit under Workers’ Compensation cases can be based on income other than earnings from the employer, after retirement and subsequent death from a latent disease such as mesothelioma.

Cases from 2000 to 2007

In the new millennium it didn’t take long for a mesothelioma case to reach the Supreme Court in California. (Hamilton v. Asbestos Corporation, LTD., 22 Cal.4^th 1127 (2000). At issue in this case is when the statute of limitation in latent diseases such as mesothelioma. (Hamilton at pg 1132).

In California there is a special statute of limitations law for injuries or diseases caused by exposure to asbestos. The lower court held the mesothelioma lawsuit was not grand because it was beyond the statute of limitations – the plaintiff had filed a lawsuit for a different disease arising from the same asbestos exposure. (Hamilton).

What makes this statute relevant is the long latency period of up to thirty to forty years before the cancerous mesothelioma is diagnosed. In this case, the plaintiff discovered a different asbestos-related disease, asbestosis, and filed a lawsuit. Two years later, the plaintiff was diagnosed with malignant peritoneal mesothelioma, and the court consolidated the lawsuits. The medical testimony established that the asbestosis found in 1979 and the malignant mesothelioma found in 1996 were two separate and distinct disease. (Hamilton at pgs 1135-1136).

Because the malignant mesothelioma was a separate and distinct disease not discovered until 1996, the Supreme Court reversed the lower court, holding that it was not “discovered” for the purposes of the statute of limitations until 1996. (Hamilton at pgs 1146-1147).

In 2005, the Supreme Court once again heard a case involving asbestos-related mesothelioma; however, instead of an employee contracting this insidious disease, it was an independent contractor’s employee. (Kinsman v. Unocal Corporation, 37 Cal.4^th 659 (2005). In this case, a carpenter was an independent contractor hired to work for defendant’s premises where he was exposed to asbestos. Years later the carpenter was diagnosed with mesothelioma. At issue was when is a defendant landowner liable to an independent contractor’s employee who is injured as a result of hazardous conditions on the defendant’s property. (Kinsman at pg 664).

Here, the High Court held that a landowner could be held liable to an independent contractor’s employee, regardless if the defendant retained control over the work, if: “it knows or reasonably should know of a concealed, preexisting dangerous condition on its premises. . . the contractor does not know and could not reasonably ascertain the condition. . . and the landowner fails to warn the contractor.” (Kinsman at pg 675).

In one of California’s most recent Supreme Court cases, mesothelioma is only raised as a comparison in two lawsuits brought against the tobacco companies for the latent diseases contracted due to smoking addiction. (Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4^th 623 (2007). In this case there were amicus curiae (meaning friends of the court) briefs filed arguing that different injuries can manifest at different times caused by the same exposure to a toxic substance. (Grisham at pg 643). The Supreme Court opined that this issue was raised in one of its prior decisions, the Hamilton cased discussed above. However. The Hamilton decisions was centered around the issue captivating mesothelioma and asbestosis injuries formed at two separate times, and it involved a statute of limitations question. (Grisham).

At the heart of the tobacco case, the squawk focused on an earlier manifestation of economic injury and a later manifestation of a physical injury. The court held that the economic lawsuit based on smoking addiction did not start the running of the statute of limitations for the later discovered physical injury.

Like the Hamilton mesothelioma case, the court ruled that the physical injury cause of action did not begin to accrue until the disease or physical injury was discovered, or reasonably should have been discovered. (Grisham at pages 645-646).

As you can see, asbestos-related cases provocative mesothelioma are complex litigation cases that sometimes take many years to work their way through the courts. However, California’s Supreme Court has addressed major legal issues provocative mesothelioma litigation. Anyone who wishes to learn more about these cases should read the cases in their entirety, which can be found from the references below, or seek advice from a licensed attorney in your state.

General Foundry Serv. v. Worker’s Comp Appeals Bd., 42 Cal.3d 331 (1986).

Buttram v. Owens-Corning Fiberglas Corp., 16 Cal.4^th 520 (1997).

Rutherford v. Owens-Illinois, 16 Cal.4^th 953 (1997).

Chevron U.S.A., Inc. v. Worker’s Comp. Appeals Bd., 19 Cal.4^th 1182 (1999).

Hamilton v. Asbestos Corp., 22 Cal.4^th 1127 (2000).

Kinsman v. Unocal Corp., 37 Cal.4^th 659 (2005).

Grisham v. Philip Morris U.S.A., 40 Cal.4^th 623 (2007).

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