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Horvitz & Levy persuaded the California Court of Appeal that the trial court erred in directing a verdict against an asbestos defendant on its sophisticated user affirmative defense, and in omitting other entities from the verdict form for fault allocation purposes.
Steven Watts operated an auto repair shop in the early 1980s. He developed mesothelioma later in life and sued numerous defendants, including joint compound manufacturers and automotive product suppliers. Brake lining manufacturer Pneumo Abex was the last defendant remaining at trial. Because Watts was the owner/operator of a licensed California auto repair shop subject to Cal-OSHA regulations concerning asbestos, Abex pursued a sophisticated user defense, alleging that as a trained auto technician subject to government workplace safety regulations, Watts should have known to take precautions when working with asbestos-containing products. Abex also requested that the trial court instruct the jury that Watts—as an employer of others—owed a higher duty of care to investigate workplace hazards to protect himself and others.
Watts moved for a directed verdict on Abex’s sophisticated user defense and objected to Abex’s employer duty of care instruction. The trial court sided with plaintiffs and sent neither instruction to the jury. Further, the trial court sustained Watt’s objections to Abex’s requests to put joint compound manufacturers on the verdict form and to admit into evidence Watts’ interrogatory responses identifying other asbestos-containing products to which he claimed exposure. The trial court reasoned that there was insufficient evidence to support a fault allocation to joint compound manufacturers and that Watts was not competent to identify which other companies exposed him to asbestos. The jury assigned 60% fault to Abex, 25% to all other brake manufacturers, and 15% to Watts.
Abex retained Horvitz & Levy during the trial to provide support preserving issues for appeal, and to handle the appeal. In a published opinion the Court of Appeal agreed with Horvitz & Levy’s argument that Abex had presented triable issues of fact on whether Watts was a sophisticated user in light of his training and role as an operator of a licensed repair shop subject to Cal-OSHA regulations. The court further agreed that the trial court erred in excluding joint compound manufacturers from the verdict form, in light of plaintiffs’ own experts’ testimony that every exposure to an asbestos containing product, including joint compound, contributed to causing plaintiff’s disease. The court also agreed with Horvitz & Levy that a plaintiff’s own verified discovery admissions are admissible regardless whether the plaintiff is “competent” to offer the testimony against himself. The court remanded for a full new trial.
