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In re In re Related Asbestos Cases

ELR Citation: 13 ELR 20294
Nos. No. C-79-3588 RFP, 543 F. Supp. 1152/(N.D. Cal., 06/02/1982)

Ruling on pretrial motions affecting a number of asbestos cases, the court holds that the market share theory of liability may not be used in asbestos-related products liability actions. Initially, the court rules that plaintifffs may introduce minutes of the Asbestos Textile Institute to prove knowledge of the hazards associated with asbestos dating back to the 1940s, but may not introduce records of workers' compensation awards to defendants' employees. The court grants plaintiffs' request to present claims for punitive damages, holding that plaintiffs have presented sufficient allegations of malice to support such claims, and rejecting defendants' contention that malice in a products liability case is limited to deliberate falsification of information. The court declines to rule at the pretrial stage on defendants' contentions that punitive damages would not serve their deterrent purpose and are unconstitutional in this instance.

The court then rules that the market share theory of liability may not be applied because it is exceedingly difficult to identify an accurate division of liability concerning asbestos. Asbestos fibers are of several types and are found in varying quantities in defendants' products. The numerous uses of asbestos make relevant product and geographic markets difficult to identify. Unlike plaintiffs in the DES case, in which the market share theory was created, plaintiffs in the asbestos cases have information as to the identity of the defendants who caused their alleged injuries.

The court holds that plaintiffs state a claim for concert of action but that plaintiffs may not introduce evidence of any concert of inaction, nonfeasance, or cover-up without first obtaining the court's permission. The court also holds that plaintiffs must request court permission before making reference to other asbestos-related lawsuits or, unless the individual plaintiff has contracted cancer, to the cancer-causing effects of asbestos products. Finally, the court denies without prejudice defendants' motion to exclude evidence on claims for breach of implied warranty. The court states that each pretrial order will apply to all related asbestos cases in the Northern District of California where counsel have had notice and an opportunity to participate in the hearings on these issues, subject to new developments in the law or to factual inapplicability of the rulings to specific asbestos cases.

The full text of this opinion is available from ELR (9 pp. $1.75, ELR Order No. C-1291).

Counsel for Plaintiffs
Kenneth W. Carlson, Burke W. Bradley, John Gigounas
Gigounas & Glover
Suite 1080, 201 California St., San Francisco CA 94111
(415) 391-4900

Norman B. Hendricks
2275 Shattuck Ave., Berkeley CA 94704
(415) 848-1777

Gerald C. Sterns
Pacific-Montgomery Bldg., 490 Pacific Ave., San Francisco CA 94133
(415) 788-3900

Counsel for Defendants
Arthur J. Moore
Moore, Clifford, Wolfe, Larson & Trutner
201 19th St., Oakland CA 94612
(415) 444-6800

Frank E. Bondonno
Popelka, Allard, McCowen & Jones
Suite 800, One Almaden Blvd., San Jose CA 95113
(408) 298-6610

George W. Ball
Low, Ball & Lynch
21st Floor, 601 California St., San Francisco CA 94108
(415) 981-6630

Peckham, J.