Molina v. Shell Oil Co.
Filed 10/5/10 Molina v. Shell Oil Co. CA2/8
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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
>
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 >.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
WILLIAM MOLINA et al.,
Plaintiffs and Appellants,
v.
SHELL OIL COMPANY et al.,
Defendants and Respondents.
B213451
(Los Angeles
County
Super. Ct.
No. BC367800)
APPEAL from a judgment of the Superior
Court of Los Angeles
County. Carolyn B.
Kuhl, Judge. Affirmed.
Paul & Hanley, Deborah R.
Rosenthal, and Dean A. Hanley for Plaintiffs and Appellants.
Horvitz & Levy, David M. Axelrad,
Dean A. Bochner, Mary-Christine Sungaila; Steptoe & Johnson, Lawrence P.
Riff, and Ruth D. Kahn, for Defendants and Respondents.
________________
Plaintiffs William and Angela
Molina appeal from the judgment entered after a jury found that chemicals in
solvents made by three oil companies that William Molina had used while working
at a tire company did not cause him to incur non-Hodgkins lymphoma. We hold that the trial court did not err by
refusing to give a causation instruction geared toward multiple-defendant toxic
tort cases where the defendants contest whether exposure to their particular
products actually contributed to a plaintiff's illness. Instead, because the defendants in this case
conceded exposure to their products, and their proportionate share of their
contribution, but claimed their products were not capable of causing William
Molina's illness at all, the trial court properly gave the standard pattern
instructions on causation. The Molinas
also contend that the trial court's pretrial ruling eliminating the consumer
expectations theory of product liability was error. We need not address the issue because the
jury's finding that defendants' products did not cause William Molina's illness
would have been the same regardless of which products liability theory was
presented to the jury.
>FACTS AND PROCEDURAL HISTORY
William
Molina sued Chevron, U.S.A.,
Shell Oil Company, and Unocal, alleging that exposure to chemicals in petroleum
distillate solvents they sold to his employer, Firestone Tire Co., caused him
to incur non-Hodgkins lymphoma during the 17 years he worked at Firestone. >[1] Molina alleged various theories of product
liability. The trial court granted
defendants' motion in limine to prevent Molina from seeking recovery under the consumer
expectation theory of product liability, and the case was tried under the
product liability theories of defective design and the failure to warn of known
dangers inherent in the use of defendants' products. >[2]
Defendants
were represented by the same lawyer and presented a joint defense: although the chemicals in their products –
primarily benzene and toluene – had been scientifically linked to leukemia and
other diseases, they did not cause non-Hodgkins lymphoma. The evidence showed that from the 1960's
through 1980, defendants sold chemical solvents containing 2 percent or less
benzene to Firestone. As part of
defendants' opening statement, they conceded the amounts each sold to Firestone
during the relevant time period: 1.4
percent each by Shell and Unocal, and the rest, approximately 97 percent, by
Chevron. The solvents were a necessary
part of the tire manufacturing process, and were also used by Firestone
employees to clean machinery and wash their hands, although their use for
handwashing was not recommended. Molina
worked at Firestone from 1963 to 1980 in various capacities, where he was
directly and indirectly exposed to defendants' solvents. In 2006, he was diagnosed with non-Hodgkins
lymphoma, a type of cancer that affects the immune system.
A
pathologist with expertise in the causes of cancers such as lymphoma and
leukemia testified for Molina that exposure to chemical solvents was a
substantial contributing cause of Molina's illness. An epidemiologist testifying for Molina also
stated that exposure to mixed petrochemical solvents caused Molina to contract
non-Hodgkins lymphoma. On
cross-examination, Molina's expert admitted that non-Hodgkins lymphoma was the
fifth most common cancer in the United States,
and its incidence was increasing at epidemic proportions. In half the cases, the causes were unknown,
but risk factors included age, being male, being greatly overweight, smoking,
and pesticide exposure.
Defendants'
toxicology expert testified that although high doses of benzene have been shown
to cause a particular form of leukemia, studies showed no increase in
non-Hodgkins lymphoma among those workers.
No amount of benzene exposure has been shown to cause, or increase the
risk of contracting, non-Hodgkins lymphoma.
He believed that the amount of benzene to which Molina was exposed
during his years at Firestone was significantly less than that required to
increase the risk of developing leukemia.
Even though benzene was known to cause leukemia, that disease was very
different from non-Hodgkins lymphoma and involved completely different organ
systems. He did not believe Molina's
illness was caused by exposure to defendants' chemical solvents. Instead, he believed Molina fell into that
large group of persons for whom there was no known cause of the disease. According to the toxicologist, Molina had
several of the risk factors for the illness:
obesity, a longtime history of smoking, and lengthy use of non-steroidal
anti-inflammatory pain medications.
Molina had
various physical ailments that he did not attribute to defendants'
products: obesity, kidney cancer, heart
disease, and diabetes. He smoked
cigarettes for 25 years, but quit in 1989.
His kidney tumors were surgically removed in 2008 and he was free of
that cancer. Molina began receiving
chemotherapy for his non-Hodgkins lymphoma within a month of the
diagnosis. By the time of trial, the
disease was in remission.
The jury found by special verdict
that: (1) in regard to the design defect
claim, defendants' products did not cause Molina's disease; and (2) in regard
to the failure to warn claim, that Shell had adequately warned of its products'
cancer risks, and that Chevron's and Unocal's failure to give a proper warning
did not cause Molina's disease.
Molina had
asked the trial court to instruct the jury with pattern instruction CACI 435,
which was designed to address the causation issue when multiple defendants were
sued for exposure to toxic substances they had manufactured and the plaintiff
could not show with certainty that any particular product actually caused the
onset of a disease. The trial court
refused, and instead gave pattern instructions dealing with causation
generally. Molina contends this was
error. He also contends the trial court
erred by using a motion in limine as the procedural device by which it
eliminated the consumer expectations theory, and that, regardless of the
procedure used, the ruling was wrong on the merits.
>DISCUSSION
1.
The Court
Properly Instructed on Causation
A.
The
Instructions Given, and Those Requested but Denied
Under California
law, a product manufacturer may be held strictly liable for injuries caused by
its product if it was: (1) manufactured
with a defect; (2) designed with a defect; or (3) distributed without adequate
warnings or instructions of its potential for harm. (Arnold
v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, 715.) There are two ways of showing a design
defect. The risk-benefit test balances
the risk of harm inherent in the product's design against the feasibility and
cost of a safer design and the degree of potential harm. The consumer expectations test requires proof
that the product did not perform as safely as an ordinary consumer would expect
when using the product in an intended or reasonably foreseeable manner. The failure to warn test looks to whether the
manufacturer failed to warn of any known or knowable dangers inherent in the
product. (Id. at pp. 715-716.) As
with most tort claims, product liability plaintiffs bear the burden of proving
that a defendant's product caused their injuries under the substantial factor
test. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968
(Rutherford).) Under that test, a cause in fact of a
plaintiff's injuries is something that was a substantial factor in bringing
them about. Although a precise
definition is neither possible nor desirable, the concept excludes forces that
play no more than an infinitesimal or theoretical part in bringing about
injury. (Id. at p. 969.)
The jury in
this case was given pattern instruction CACI No. 430, the general instruction
on the substantial factor test: â€
Description | Plaintiffs William and Angela Molina appeal from the judgment entered after a jury found that chemicals in solvents made by three oil companies that William Molina had used while working at a tire company did not cause him to incur non-Hodgkins lymphoma. We hold that the trial court did not err by refusing to give a causation instruction geared toward multiple-defendant toxic tort cases where the defendants contest whether exposure to their particular products actually contributed to a plaintiff's illness. Instead, because the defendants in this case conceded exposure to their products, and their proportionate share of their contribution, but claimed their products were not capable of causing William Molina's illness at all, the trial court properly gave the standard pattern instructions on causation. The Molinas also contend that the trial court's pretrial ruling eliminating the consumer expectations theory of product liability was error. Court need not address the issue because the jury's finding that defendants' products did not cause William Molina's illness would have been the same regardless of which products liability theory was presented to the jury. |
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