Products Liability Law Daily Special verdict favoring Pep Boys in mesothelioma liability case stands
Wednesday, May 15, 2019

Special verdict favoring Pep Boys in mesothelioma liability case stands

By Leah S. Poniatowski, J.D.

The decedents’ surviving children could not show substantive issues with jury instructions in light of evidence proffered in wrongful death case against the manufacturer and seller of automobile brakes.

A jury siding with the manufacturer and seller of automobile brakes in a special verdict was presented the correct jury instructions and any potential error arising from a corrected oral instruction was harmless, a California state appellate court ruled in an unpublished opinion, affirming the judgment of no liability for the deaths of a married couple from mesothelioma (Mettias v. Pep Boys Manny, Moe & Jack of California, May 14, 2019, Willhite, T.).

Following the deaths of their parents from mesothelioma, a couple’s surviving children filed a wrongful death lawsuit against several manufacturers. Honeywell International and The Pep Boys—Manny, Moe & Jack (Pep Boys) ultimately remained as the only defendants, allowing the claims of strict liability and negligence with respect to Bendix brakes that contained asbestos to go to trial. The jury’s special verdict sided with Honeywell and Pep Boys. The children appealed the trial court’s decision only with respect to Pep Boys, which had sold the brakes.

Children’s evidence. The children alleged that their father routinely changed the brakes on their family car for several years beginning in 1987 and that their mother laundered his clothes following the brake repairs. Honeywell manufactured the brakes, and the company’s representative stated that Bendix brakes contained asbestos until 1983 and came with a warning. The children’s engineer expert testified that he examined several sets of brakes from the same brand, and testing showed the presence of both chrysotile asbestos and tremolite asbestos. However, he could not determine if the brakes tested had been manufactured before or after 1987. An employee and executive of Pep Boys confirmed that it sold the Bendix brakes, and the employee testified that her store sold the brakes from 1983 to 1994, but she did not recall seeing a warning or knowing that the brakes contained asbestos. The children also provided the testimony of a doctor who opined that the brake repairs were a substantial factor in causing mesothelioma, based on the assumptions that the parents had used asbestos-containing brakes and that the repair work had exposed them to asbestos dust.

Jury’s verdict. The jury returned a special verdict, finding that the brakes “ha[d] potential risks that were known or knowable in light of the scientific and medical knowledge that was generally accepted in the scientific community on or after 1987.” However, the jury did not find that the potential risks of the brakes posed “a substantial danger to persons using or misusing defendants’ products in an intended or reasonably foreseeable way.” Thus, the jury did not find in favor of the children on the design defect or the negligence claims. The jury had been presented with three pattern jury instructions—CACI Nos. 1220, 1221, 1222—which covered the first negligence theory that Pep Boys was liable for providing the asbestos-containing brakes. The children were denied pattern jury instructions for general negligence—CACI Nos. 400 and 401.

General negligence jury instructions. The appellate court held that the children were not entitled to the general negligence jury instructions. The court clarified that the only viable theory of negligence against Pep Boys was for allegedly violating a duty of care as a supplier of brakes. The lower court instructed in specific terms relating to the theory of negligence supported by the evidence. The children’s assertion that they had produced evidence supporting the general negligence theory premised on being present in the Pep Boys store where brake repairs were performed was insufficient. Specifically, there was no evidence of how customers would be exposed to asbestos from returned brake cores or that such exposure was a substantial factor in any later illness they developed. Moreover, even if the court should have provided the additional jury instructions, it was not probable that the jury would return a different verdict.

Oral instructions misstatements. The appellate court also was not persuaded that the lower court’s reading of any particular jury instructions was erroneous and prejudicial. The court had read CACI No. 1203, the design defect-consumer expectation test, to include consideration of the “plaintiffs’ harm” in addition to that of their parents. The children’s attorney requested a sidebar to clarify that because it was a wrongful death action, the requirement that there be proof of the plaintiffs’ harm was incorrect. The trial court agreed and re-read the instructions without the reference to the plaintiffs and explained to the jury the error in the first reading. The children’s concern that the jury was confused vis-à-vis the other instructions was “farfetched” and, even if erroneous, was not prejudicial in light of the jury’s special verdict. Therefore, the judgment was affirmed.

The case is No. B287831.

Attorneys: Benjamin H. Adams (Dean Omar Branham Shirley, LLP) for Jimmy Mettias. Lisa L. Oberg (Dentons US) for Pep Boys Manny, Moe & Jack of California, Inc.

Companies: Pep Boys Manny, Moe & Jack of California, Inc.

MainStory: TopStory JuryVerdictsNewsStory SCLIssuesNews WarningsNews DesignManufacturingNews CausationNews AsbestosNews CaliforniaNews

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