LEGAL NEWS


New Face to Mesothelioma Litigation in California


Court Holds that Contractors Can Face Strict Liability For Injuries Decades After Completing Construction


By Kevin P. Gilliland, Sedgwick LLP, Los Angeles


to strict liability claims on California construction projects. In Hernandezcueva v. E.F. Brady


A


Co., Inc., 243 Cal. App. 4th 249 (2015), as modified (Jan. 15, 2016), review denied (Mar. 9, 2016), the plaintiff was a janitor at a building where a drywall subcontractor installed materials containing asbestos during the 1970s. Decades later, the plaintiff was diagnosed with mesothelioma and filed a products liability lawsuit against the subcontractor. Even though the subcontractor did


not manufacture products containing asbestos, the court found that it financially benefited from supplying and installing those products, and that it could be strictly liable for the plaintiff’s damages under this “stream- of-commerce” theory. On March 9, 2016, the California


Supreme Court declined the subcon- tractor’s petition for review and allowed the decision to stand as binding law in California. Tis article analyzes the court’s decision and discusses steps contractors can take to mitigate potential liability in connection with strict liability lawsuits arising from long-since-completed projects.


Potentially Hazardous Materials Installed


E.F. Brady Company, Inc. (subcon-


tractor) is a drywall subcontractor who learned that the materials it installed may have been hazardous because of asbestos in the early 1970s. In 1974, the subcontractor entered into a


16 July/August 2016


recent court of appeal decision drastically expanded contractors’ potential exposure


$2,024,272 fireproofing, framing, and drywall subcontract (subcontract) with the prime contractor on a project for the Fluor Corporation (the project). Te subcontract required that


the subcontractor furnish and install drywall and related materials pursuant to the project’s plans and specifications. Te specifications designated some asbestos-free materials, but not asbestos- free drywall or joint compound. Te subcontractor bought and installed drywall and joint compound from a material supplier who delivered the materials to the project, but those materials did not contain asbestos warnings. Te subcontractor completed its portion of the project. Plaintiff Joel Hernandezcueva


worked as a janitor on the project during the early 1990s. By then, the project was under renovation. Te plaintiff cleaned up drywall debris from areas where the subcontractor had previously worked, but the subcontractor was not involved in the renovation. In 2011, the plaintiff was diagnosed with mesothelioma, allegedly from exposure to asbestos on the project. Te plaintiff and his wife filed suit against the subcontractor and numerous suppliers of asbestos-laden products for various claims, including negligence and strict products liability. At trial, only the subcontractor and two suppliers remained as defendants.


Jury Finds Sub Not Negligent Te plaintiff’s experts testified that


the subcontractor installed products containing asbestos, which caused the plaintiff’s mesothelioma. Te trial court granted the subcontrac- tor’s motion for partial nonsuit on his claim for strict liability and the jury found that the subcontractor was not


negligent. Te plaintiff appealed (the plaintiff


died during the appeal, so his wife shall be referred to as plaintiff), arguing that the subcontractor was strictly liable for the plaintiff’s injuries. Te court of appeal reversed, concluding the trial court erred in granting nonsuit on the plaintiff’s strict liability claim. In California, manufacturers of


defective products — and those who place those products in the stream of commerce — are subject to strict liability for injuries to consumers arising from those products. Tose who place products into commerce can be liable because they are “able to bear the cost of compensating for injuries,” and “play[ed] a substantial part in insuring that the product [was] safe or ... [were] in a position to exert pressure on the manufacturer to that end.” Bay Summit Community Assn. v. Shell Oil Co., 51 Cal.App.4th 762, 772–773 (1996). However, defendants “will not be


held strictly liable unless doing so will enhance product safety, maximize protection to the injured plaintiff, and apportion costs among the defendants.” Arriaga v. CitiCapital Commercial Corp., 167 Cal.App.4th 1527, 1537 (2008). Typically, the doctrine of strict


liability does not apply to transactions where the “service aspect predomi- nates and any product sale is merely incidental” to providing that service. Pierson v. Sharp Memorial Hospital, Inc., 216 Cal.App.3d 340, 344 (1989).


Appellate Court’s Reversal Te court of appeal found that the


subcontractor benefited from supplying approximately $500,000 materials and profiting on its labor in installing


California Constructor


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