State Justices Increase Burden of Proof for Asbestos Victims

The California Supreme Court ruled Thursday that a victim of an asbestos-related disease who sues manufacturers must prove in court that a particular company’s product substantially caused or contributed to the illness.

The ruling may make it more difficult for an asbestos victim to win compensation from a manufacturer when the disease was caused by exposure to numerous products made by different companies.

Although the 6-to-1 decision applied specifically to victims of asbestos-related cancer, lawyers said it could open the door for similar requirements of proof in lawsuits over environmental contamination caused by more than one company.

It is not impossible for an asbestos victim to demonstrate that “exposure to [a company’s] products was, in reasonable medical probability, a substantial factor in causing or contributing to his risk of developing cancer,” Justice Marvin R. Baxter wrote for the court.

Victims of asbestos-related disease often were exposed to many asbestos products and may have difficulty proving which products were most responsible for the illness, lawyers for asbestos victims said.

Before the ruling, some trial judges were instructing juries that the burden fell to manufacturers to prove that their products had not contributed to the plaintiff’s disease. Asbestos makers complained that this requirement put them at a strong disadvantage in lawsuits.

“All the plaintiffs had to do was show they had been exposed to a particular defendant’s product, and boom, the burden shifted to the other side to prove they were not the cause,” said Bruce Wagman, an attorney for Owens-Illinois Corp., a glass manufacturer and the defendant in the case.

The court, recognizing the difficulty of proving which of many dangerous products caused a disease, gave victims some leeway. A victim will be allowed to establish that the disease was “cumulative in nature,” with each separate exposure causing a substantial risk of injury, Baxter said. But, the victim will still have to prove that harm was caused by exposure to a particular company’s product.

Justice Stanley Mosk dissented, arguing that many victims will no longer be fully compensated for their injuries because assessing particular blame is difficult in such situations.

“It would appear that many innocent plaintiffs who were unknowingly exposed to products . . . in the workplace would face serious, even insurmountable, difficulties in establishing that exposure to a specific defendant’s defective product was a substantial cause of injury,” Mosk wrote.

He said the court majority had established a “formidable burden” in requiring the victims to determine who caused the disease by examining such factors as frequency and regularity of exposure to a particular product.

The court’s decision was its second asbestos ruling in a week. Last week, the court decided to limit monetary compensation for some victims. Mosk also dissented in that case.

Thursday’s ruling came in a lawsuit filed by Charles Rutherford, who had been a metal worker at a Northern California shipyard for 40 years. From 1949 to 1950, he worked on ships around asbestos insulators. He died of lung cancer in 1988.

He won a total of $119,000 in a trial and in pretrial settlements. The money will now go to his widow and daughter. Although the trial judge erred by putting the burden on Owens-Illinois to prove its product did not cause Rutherford’s cancer, the error did not substantially affect the jury’s decision and the trial verdict should not be overturned, the Supreme Court held.

John C. Robinson, Rutherford’s attorney, said the ruling probably will spark many more trials because companies will be less likely to settle complaints out of court.

In another case decided Thursday, the Supreme Court limited the impact of last year’s major three-strikes ruling that said judges can strike prior felonies to spare some defendants harsh sentences.

Even though that three-strikes ruling was retroactive, inmates are not entitled to have their sentences automatically reviewed if the subject of striking a felony was never raised in the trial court, the justices held 4-to-3.

Justice Kathryn Mickle Werdegar, who wrote last year’s ruling on the 1994 ballot initiative, penned Thursday’s dissent, calling the new limitation “unjust.”

Under the three-strikes law, defendants who have been found guilty of a third felony face 25 years to life in prison if they have committed two serious or violent felonies in the past.