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From Products Liability Law Daily, April 19, 2013

EVIDENTIARY ISSUES—ASBESTOS—CalCtApp: Testimony Sufficient to Establish Causation in Asbestos Case under Rutherford Standard

By John W. Scanlan, J.D.

A trial court erred in granting nonsuit on negligence and strict liability claims brought by the widow of a construction worker because there was sufficient evidence to meet the Rutherford standard for establishing causation in asbestos cases, the California Court of Appeals, Second District, held (Hernandez v. Amcord, Inc., April 18, Chavez, V.). The court also reversed the lower court’s decision to exclude evidence of the manufacturer’s government lobbying activities regarding the continued use of asbestos in construction products as evidence of the company’s knowledge of the hazards of asbestos.

Background. Arnulfo Hernandez worked as a carpenter and roofer from the 1960s to the 1980s. He contracted malignant mesothelioma in 2008 and died in 2009. Testimony from Hernandez’s brother, Alfredo Hernandez, who often worked with him, indicated that Arnulfo Hernandez frequently used 94-pound bags of powered Riverside gun plastic cement, often getting cement dust on his face and clothing. The Riverside plastic cement contained a small amount of asbestos. The product carried no warning that use of the product could cause cancer, but was in compliance with the requirements applicable to asbestos-containing products. Amcord, Inc. manufactured the Riverside plastic cement. Hernandez and his wife, Natalia Hernandez, brought, inter alia, negligence and strict liability claims against Amcord and other defendants. By the time the trial took place, Arnulfo Hernandez had died and Amcord was the only remaining defendant. The claims were nonsuited on the ground that insufficient evidence had been presented to show that the Riverside plastic cement was a substantial factor in causing Arnulfo Hernandez’s mesothelioma. Natalia Hernandez appealed.

Causation in Asbestos Cases. The appellate court found that Natalia Hernandez met the Rutherford standard by providing sufficient evidence that Arnulfo Hernandez had received a threshold exposure to Riverside gun plastic cement, and that this exposure was a substantial factor in contributing to his risk of developing cancer. The trial court erred when it said that Rutherford requires that a medical doctor must explicitly link the evidence of substantial factor causation, according to the appellate court. There were no specific words that the expert had to recite, nor was it necessary that the testifying expert always be a medical doctor. Therefore, the trial court should not have excluded the testimony of Richard Lemen, Ph.D., who was an epidemiologist, former Assistant U.S. Surgeon General, and former deputy director of the National Institute of Occupational Safety and Health (NIOSH), the court stated.

The testimony of Alfredo Hernandez was sufficient to establish the threshold level of exposure. Regarding causation, Natalia Hernandez presented Lemen, who testified that each of the asbestos-containing products that a worker was exposed to would contribute to an increased risk of asbestos-related disease, and (hypothetically) that a worker pouring 94-pound bags of powdered Riverside gun plastic cement would be at increased risk as long as the asbestos fibers remained airborne. Dr. Richard Kradin, M.D., who was board certified in anatomic pathology, pulmonary medicine, and internal medicine, reviewed Arnulfo Hernandez’s work records, medical records, and histological materials, and confirmed in his report that he had malignant mesothelioma of the pleura. Kradin also gave his medical opinion that, to a reasonable degree of medical probability, the illness was caused by asbestos exposure. The appellate court noted that the evidence provided in this case was nearly identical to that accepted in Rutherford. The testimony of Alfredo Hernandez and Lemen, along with Kradin’s report, was sufficient to meet the burden of showing that the plastic cement was, within reasonable medical probability, a substantial factor in contributing to Arnulfo Hernandez’s risk of developing the illness.

The case number is B238408.

Attorneys: John Langdoc (Baron & Budd) for Natalia Hernandez; Jerry C. Popovich (Selman Breitman) for Amcord, Inc.

Companies: Amcord, Inc.

Cases: CourtDecisions EvidentiaryNews ExpertEvidenceNews AsbestosNews CaliforniaNews

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