Products Liability Law Daily Wrap Up, TOP STORY—ASBESTOS—Wash.App.: $13.5M verdict upheld in asbestos exposure action, (Feb 23, 2022)

By Wendy Biddle, J.D.

Evidence of a worker’s exposure to a manufacturer’s asbestos-containing joint compound was sufficient to sustain the jury’s findings.

In an asbestos exposure case against a manufacturer of joint compound, a Washington appeals court affirmed a $13.5 million verdict in favor of a worker who had alleged he developed mesothelioma caused by his over a decade’s long exposure to the manufacturer’s asbestos-containing joint compound. The company raised several arguments on appeal, including lack of proximate causation, lack of medical causation, improper jury instructions, and failure to link the worker’s asbestos exposure to the manufacturer’s product. The Washington Court of Appeals found that a reasonable jury could find that the joint compound was the proximate and medical cause of the worker’s injuries and held that given the lenient standard in asbestos cases due to mesothelioma’s long latency period, there was sufficient evidence supporting the jury’s verdict (Budd v. Kaiser Gypsum Co., Inc., February 22, 2022, Chun, J.).

The injured worker had worked for his father’s drywall business from 1962 to 1972. Kaiser Gypsum Company, Inc. manufactured drywall products, including joint compound, from the 1950s to the 1970s. Kaiser’s joint compound contained chrysotile, a type of asbestos. Years later, the worker was diagnosed with mesothelioma. He and his wife sued Kaiser and others in Washington state court for negligence and strict liability, asserting failure to warn and defective design theories. A jury awarded the couple $13.5 million after a trial. Kaiser appealed the verdict on several grounds.

Proximate cause. Among its objections, Kaiser argued that the trial court erred in denying its post-trial motion because the worker failed to prove proximate cause. According to Kaiser, the worker failed to produce evidence of what an adequate warning would have been and failed to show that the worker would have heeded the warning had it been given. The worker countered that although no evidence was submitted regarding the warning, his expert testified as to what an adequate warning would be, and he asserted that he had testified that he would have heeded such a warning. The court concluded that the trial court did not err. The Washington Product Liability Act (WPLA) requirement that a plaintiff show what an adequate warning would have looked like did not apply because the worker’s exposure ended in 1972 and the WPLA only applies to events occurring after 1981. Furthermore, the court found that the testimony by the worker’s expert was substantial evidence showing what an adequate warning would have contained. The worker also provided testimony that he followed the instructions on the joint compound, and it was reasonable for the jury to conclude he also would have heeded a warning had there been one on the joint compound. Therefore, the appellate court ruled that the trial court did not err in denying Kaiser’s post-trial motion because substantial evidence and reasonable inferences based on that evidence supported a finding of cause in fact.

Medical causation. Kaiser also argued that the trial court erred in denying its post-trial motion because the worker failed to produce epidemiological and toxicological studies showing causation between the types of chrysotile in the joint compound and mesothelioma. The worker’s expert testified that epidemiology is the wrong tool to investigate whether drywall work can lead to mesothelioma. Epidemiologists have studied chrysotile generally, rather than just among drywall workers, and have found that chrysotile asbestos can cause mesothelioma. Kaiser’s expert testified that three toxicological studies showed there was no link between one of the specific types of chrysotile used in the joint compound and increased risk of disease in rats and primates. The appeals court, however, was not persuaded by Kaiser’s argument. Kaiser’s expert only addressed one type of chrysotile found in the joint compound. The worker offered evidence that epidemiological studies showed that chrysotile causes mesothelioma in humans. The trial court’s decision, based on all of the record evidence, was not “manifestly unreasonable or based upon untenable grounds or reasons,” the appellate court concluded. Therefore, the trial court did not abuse its discretion.

Jury instructions. Kaiser argued that the trial court erred by giving the jury a design defect instruction when the claims at issue in the joint statement of the case were negligent failure to warn and strict liability failure to warn. Kaiser did not cite any law supporting its allegation that a joint statement can limit a party’s claims. The appellate court noted that even if the allegation was supported, the joint statement of the case could be interpreted to include a design defect claim because of the language in the joint statement coupled with the verdict form, which included three claims: strict liability failure to warn, strict liability design defect, and negligent failure to warn. While the trial court may have failed to “properly inform the jury of the applicable law” by providing only partial instructions on the design defect claim but still including the claim on the verdict form, Kaiser did not object on this basis. Moreover, even if Kaiser had preserved the issue, the appellate court determined that any error was harmless. The jury awarded its verdict, the court noted, based on the worker’s injuries. Those injuries related to all three claims. The jury’s award of damages did not turn on its design defect decision. The appellate court found that the jury concluded that the worker’s injuries were caused by failure to warn and a design defect. The appellate court rejected Kaiser’s contention that any instructional error was prejudicial because a finding of product defect likely made the jury believe a warning was thus required. However, the appeals court ruled that the trial court fully instructed the jury on the law for the failure to warn claims and the jury is presumed to have followed the instructions. As such, the appeals court found no error on the part of the trial court.

Post-exposure evidence. During the trial, Kaiser had moved in limine to exclude any post-exposure evidence, but the trial court denied that motion because Kaiser was arguing that its joint compound was not toxic, which opened the door to all evidence on that subject after 1971. Kaiser argued that the only basis for admitting post-exposure evidence was to support a continuing duty to warn claim which was unsupported. Because Kaiser’s position at trial was that if the joint compound were sold today it would be safe, the appellate court found that the company opened the door to contrary evidence. The appeals court found that the trial court acted within its discretion by admitting the post-exposure evidence at trial and denying Kaiser’s post-trial motion on that basis.

Exposure to Kaiser’s product. Kaiser additionally argued that the trial court erred in denying its post-trial motion because the worker failed to prove that he was exposed to Kaiser’s joint compound. The worker testified that he used Kaiser Gypsum compound and it came in white bags with a blue stripe and red lettering. A Kaiser corporate representative testified that a 1969 interoffice memo discussed the joint compound packaging changing to a kraft bag with black print and red trim, but she did not know how long before September 1969 that the old design had been used. The court of appeals found that the evidence supported the jury’s verdict. The worker testified he used Kaiser’s compound and that he worked with the product for 10 years. Further, while his description of the packaging differed from the 1969 interoffice memo’s description, the jury reasonably rejected that as a basis for questioning the worker’s credibility. Also, the memo did not say how long Kaiser used the prior version of the packaging, nor was there testimony or evidence specifying how certain prominent design elements in the trademark, which had been the topic of a 1953 memorandum, remained in use during the timeframe of the worker’s exposure and possibly being another identifying piece of evidence. The appellate court stated that the worker’s description of the packaging did not necessarily conflict with or exclude the possibility of certain trademark design elements on the packaging. The joint compound was shown to be sold where the worker lived and worked in the relevant time period. Washington courts apply a lenient standard of proof in asbestos cases because the long latency period from asbestos exposure to an asbestosis diagnosis means that a plaintiff’s ability to recall certain details can be impaired. The appeals court found that the evidence was sufficient to sustain the jury’s verdict. Therefore, it affirmed the verdict.

The case is No. 81918-6-I.

Attorneys: David Albert Shaw (Williams Kastner & Gibbs PLLC) for Kaiser Gypsum Co., Inc. Alexandra Brett Caggiano (Weinstein Caggiano PLLC) for Raymond Budd and Vickie Budd.

Companies: Kaiser Gypsum Co., Inc.

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