Alameda Judge Enforces “No-PID” Stipulation Against Plaintiffs

On August 15, 2014, Alameda Superior Court Asbestos Coordination Judge Jo-Lynne Q. Lee enforced a “no-PID” stipulation that a plaintiff spouse would not provide product identification (PID) testimony, and sanctioned plaintiffs’ counsel for trying to un-do the stipulation.

Plaintiffs’ counsel stipulated at Mr. Leeper’s deposition that Mrs. Leeper would not provide product identification testimony.  In exchange, the defendants agreed not to seek to continue the trial date (advanced due to Mr. Leeper’s health) based on the fact that Mrs. Leeper’s deposition was delayed.  At Mrs. Leeper’s deposition months later (and only two months before trial), plaintiffs’ counsel sought to withdraw the prior no-PID stipulation because Mrs. Leeper recalled four specific, separate products affecting five defendants. The defense objected and moved for a protective order. Judge Lee ordered that Mrs. Leeper not be allowed to give product identification testimony.

The stipulation … was freely entered into by Plaintiffs’ counsel, on behalf of Plaintiffs, and it is an enforceable waiver of the right of [Mrs. Leeper] to offer product identification testimony.  [Citation omitted.] Plaintiffs do not argue that there are grounds for rescinding the stipulation, they provide no evidence that would justify that relief; they merely offer counsel’s representations that counsel entered into the stipulation “in good faith.”

The court recognized that the “obvious and severe prejudice to the defendants affected.” “Defendants have relied upon the stipulation in conducting discovery, preparing witnesses, and generally preparing a defense at trial.”  The court also awarded $1,800 in sanctions against plaintiffs’ counsel.

Attached are the moving papers, the plaintiffs’ opposition, and Judge Lee’s order.  The defendant’s counsel waived reply.

Given this recent order, will plaintiffs’ counsel refrain from entering into future no-PID stipulations?  That remains to be seen, but this order is a welcome recognition that such stipulations should be enforced.

California Decision Requires Product Identification Proof, But Nixes Sophisticated User Again

A California Court of Appeal recently issued an interesting decision affirming summary judgments for two asbestos defendants on product identification grounds, but reversing a summary judgment that had been awarded to a third defendant on “sophisticated user” grounds.

Collin v. CalPortland Co. (C063875, C065180, certified for publication July 30, 2014) affirmed summary judgment for CalPortland. The company sold two cements during the same time period: one called plastic cement that did not contain asbestos, and a second product called Colton gun plastic cement that did contain asbestos. Both were packaged and used similarly, the only difference being the one with asbestos was labeled Colton gun plastic cement. The plaintiff argued that even though he couldn’t recall the word “gun” on the packaging, the similarities between the two products were sufficient to raise an issue of fact. The court said this was speculative, rejecting the plaintiff’s product similarity argument. “Plaintiff does not claim that further discovery may produce evidence of exposure to Colton gun plastic cement, as opposed to the asbestos-free plastic cement. … [¶] Although a party may rely on reasonable inferences drawn from direct and circumstantial evidence to satisfy its burden on summary judgment, we do not draw inferences from thin air.”

Collin also affirmed summary judgment for Kaiser Gypsum. The plaintiff testified he saw Kaiser Gypsum pre-mixed joint compound at construction sites from the 1950s to 1995, but could not pinpoint any particular year. Kaiser submitted evidence that it started selling asbestos containing pre-mixed joint compound in 1959, began selling an asbestos-free joint compound in 1974, and stopped selling products with asbestos by early 1976. The plaintiff argued that based on probabilities, there was a greater than 50 percent chance that the joint compound he encountered contained asbestos, since Kaiser Gypsum used asbestos for the first 17 years of his work history (1959-1974) and asbestos-free only for a couple of years thereafter. Collin said this was speculative and rejected the plaintiff’s probability argument.

Collin reversed the grant of summary judgment to J-M Manufacturing Co. and Formosa Plastics Corporation USA (alleged alter egos and makers of Transite pipe). These defendants argued that the plaintiff was a sophisticated user because he owned two construction businesses; had obtained information from the Contractors State License Board that working with asbestos products could be hazardous; and from 1976-1980, he saw notices specific for asbestos posted at job sites. Collin found this insufficient to bar liability under the sophisticated user defense. Unlike the HVAC technician in Johnson v. American Standard, there was no evidence that the plaintiff had specialized knowledge or training with regard to Transite pipe, or ever read a material safety data sheet (MSDS) concerning Transite. There was no expert testimony that the plaintiff should have known of the dangers associated with Transite pipe, nor did the plaintiff recall ever seeing any warnings about the dangers of asbestos on any Transite pipe.

This is a hopeful decision on product identification grounds, and another in a series of California cases finding the sophisticated user defense inapplicable. It came from the Court of Appeal, Third Appellate District (Sacramento), which is a less frequent venue for asbestos cases than the First (San Francisco) and Second (Los Angeles) Districts.