Firms Cannot Be Collective Target of Asbestos Suit
In a decision with potentially far-reaching impact, a state Court of Appeal ruled Wednesday that asbestos manufacturers may not be sued as a group for the cost of removing the suspected cancer-causing substance from an estimated 4 million homes in California.
The appeal panel unanimously upheld the dismissal of a class-action lawsuit filed in behalf of the owners of homes built from 1912 to 1978. About 40 companies that manufacture or supply asbestos were the targets of the suit.
The court, in the first ruling of its kind, held that the manufacturers could not be sued collectively and held liable on the basis of their share of the market.
The so-called “market-share” theory of liability--established by the state Supreme Court in a landmark 1980 case involving the drug DES--may not be applied to asbestos-removal cases, the appeal court said. Unlike the drug, the Court of Appeal said, the uses and potential dangers of asbestos products vary widely.
The cost of removing asbestos from residences that contain the substance was estimated at more than $1 billion by the plaintiffs in the lawsuit but at a staggering $42 billion by the Kaiser Cement Corp., one of the defendants.
Must Identify Manufacturer
Attorneys in the case said that as a result of the ruling, only homeowners who can identify the manufacturer of the asbestos in their residences can sue for damages for the cost of its removal. Because such identification is often quite difficult, the burden of removal of the suspected carcinogen will fall largely on the homeowner, the lawyers said.
“The net result is, unless you can name the manufacturer--and I’ve not been in a home yet where that could happen--you’re out of luck,” said A. Curtis Sawyer of San Francisco, an attorney for the plaintiffs.
“Putting the legal debate aside, this means that the California homeowner is going to have to live with the risk of cancer, or pay for the removal out of his own pocket,” he said.
Sawyer said an appeal of the ruling to the state Supreme Court was “under consideration.” Unless the decision is overturned by the state high court, it remains binding on trial courts throughout the state. Meanwhile, Sawyer said, homeowners should review their insurance policies to see if they cover removal costs.
Patrick Hagan of Oakland, an attorney for Kaiser, hailed the ruling and denounced the lawsuit, saying the claims of potential injury from asbestos were premature and “highly speculative.”
“Their lawsuit says that asbestos may be getting in the air, that it may be breathed by occupants and that maybe some day it will make you sick,” said Hagan. “But that’s not what our legal system is all about. . . . There has to be injury first before there is a suit, and here we don’t have that injury.”
The ruling could have some effect on other cases involving schools and other public buildings faced with asbestos clean-up problems, as well as personal injury suits by shipyard workers and others with asbestos-related diseases, attorneys said. But in cases where manufacturers have been identified, the decision is likely to have little impact, they said.
The suit was brought in Contra Costa County Superior Court, alleging that asbestos was a “known human carcinogen.” As it deteriorated in its use in insulation, fireproofing and decoration, the substance had contaminated curtains, walls, floors, carpets, ceilings and other parts of millions of houses, condominiums and mobile homes, the suit said.
The plaintiffs sought compensatory damages for the costs of inspection and removal of the substance from their homes. And because it would be virtually “impossible” to identify individual manufacturers in each case, the plaintiffs contended that manufacturers should be forced to split liability in proportion to the share of the market they held.
The suit was dismissed by Superior Court Judge Richard L. Patsey and the appeal court, following the lead of courts in several other states that have considered the issue, upheld the trial court action.
