Clemmer v. Thorpe Insulation Company (2009)

Our plain-English summary of Clemmer v. Thorpe Insulation Company (California Court of Appeal, September 17, 2009).

Charlton Clemmer, a Navy machinist mate, developed mesothelioma. He and his wife Kay sued Thorpe Insulation Company, among others. Clemmer served on the USS Wilkinson in the 1950s and until March 1960, and on the USS Yorktown in about 1963. Both ships were repaired or overhauled at the Long Beach Naval Shipyard. He worked with valves, gaskets and packing, and was near boiler and turbine insulation work. A retired insulator testified that Thorpe supplied asbestos insulation to the shipyard almost daily and was the main outside supplier. The jury assigned Thorpe 20 percent of the fault and awarded Kay Clemmer $250,000 for loss of consortium. On appeal Thorpe argued there was no evidence its products were used on Clemmer's ships. The Court of Appeal disagreed. It held the circumstantial evidence of Thorpe's regular supply at the shipyard during the relevant years allowed the jury to infer exposure. It treated a misconduct argument, raised first in the reply brief, as waived, and affirmed the judgment.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: California Court of Appeal, 1st Appellate District, 4th Division
• Decided: September 17, 2009
• Stage: Appeal from judgment after trial
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: California

Outcome. The Court of Appeal affirmed the judgment against Thorpe Insulation Company, holding the evidence supported the jury's finding that Thorpe's asbestos insulation exposed Clemmer, so the Clemmers won and Thorpe lost.

What the court held. A plaintiff may prove exposure to a defendant's asbestos product through circumstantial evidence that the product was sufficiently prevalent at the work site to support a reasonable inference of exposure.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Loss of Consortium, Maritime Law and Navy Ships, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Charlton Clemmer: mesothelioma

The defendants

• Thorpe Insulation Company (supplier)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rutherford v. Owens-Illinois, Inc. (California Supreme Court, 1997). The California Supreme Court reversed the Court of Appeal's judgment, which had ordered a new trial for Owens-Illinois. It held that the burden-shifting instruction was error but harmless, and that the tobacco company defense issue was controlled by Richards, so the plaintiffs' judgment against Owens-Illinois was not overturned.
• Dumin v. Owens-Corning Fiberglas Corp. (California Court of Appeal, 1st Appellate District, 1st Division, 1994). The Court of Appeal affirmed the judgment for Owens-Corning Fiberglas, holding that the trial court correctly directed a verdict against Dumin on exposure to OCF Kaylo aboard the Pocono because the evidence was insufficient.

Amounts in the opinion

• $250,000 (other)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

CHARLTON CLEMMER et al., Plaintiffs and Respondents,

v.

THORPE INSULATION COMPANY, Defendant and Appellant.

A114714

September 17, 2009

Not to be Published in Official Reports

Court of Appeals of California, First Appellate District, Division Four

RIVERA, J.

In this asbestos litigation, Thorpe Insulation Company (Thorpe) appeals from a judgment against it for damages. Thorpe contends that there is insufficient evidence to support the judgment because there was no evidence that it supplied asbestos products that were used on any ships on which plaintiff Charlton Clemmer served. We affirm. I. FACTUAL BACKGROUND

Clemmer began his naval career in 1952 in San Diego. Following boot camp, the Navy assigned him to the machinist mate school where he was trained to run an engineering plant aboard a ship. He received instruction regarding boilers, turbines, evaporators, pumps, injectors, economizers, blowers, steam generators, and condensers. He subsequently served on several ships but only two docked in California—the USS Wilkinson and the USS Yorktown. Clemmer began his service on the Wilkinson in about mid-1953 as a fireman apprentice. He was aboard the Wilkinson when it underwent a major overhaul at the Long Beach Naval Shipyard (LBNS). The overhaul included upgrades and repairs in the fire and engine rooms, the water and steam lines, and repair or replacement of the insulation throughout the ship.

During his service on the Wilkinson at the LBNS, Clemmer was a first class machinist mate in charge of the engine room. Clemmer's duties included removal or installation of valves, gaskets, and pumps; overhaul and repairs to pumps; and rebuilding and repacking of valves. The packing material he used on the Wilkinson looked like asbestos braid around a compressed square. The packing materials were kept in the engine room. In the course of removing and installing gaskets, Clemmer was also exposed to sheets of asbestos. At times, Clemmer was present when work was being done on the boilers and the after-engine room turbine housing. He was present when the insulation to the exterior of the turbine was applied and removed at the LBNS. He also slept onboard the ship while it was docked at LBNS. Clemmer testified he left the Wilkinson in March 1960.

Clemmer served as the chief machinist mate in charge of the hydraulic division on the Yorktown in about 1963 and was aboard the ship for approximately one year. During that period, the Yorktown docked at LBNS for repairs. Clemmer visited the boiler room and engine room during the repairs, and observed work being done on boilers and a lot of hard pipe insulation that was disturbed. In addition, he repaired the hydraulic pumps for the elevators on the Yorktown. Charles Ay, a retired asbestos insulator, testified that he worked on the Wilkinson beginning on April 1, 1960, when it was at the LBNS undergoing an overhaul. His responsibilities included installation of thermal insulation for the purposes of conservation of heat and frost. During his employment at the LBNS, Thorpe supplied insulation material including asbestos cloth on a regular and continuing basis. Ay further testified that Clemmer's work involving valves, pumps, and application of thermal insulation would have resulted in significant exposure to asbestos. Ay stated that Thorpe and Metalclad were the two main suppliers of thermal insulation products at the LBNS. Thorpe was at LBNS "almost daily." John Knutsen, treasurer of Thorpe, testified by deposition that Thorpe was supplying thermal insulation to LBNS when he began working with the company in 1953.

At the time of his deposition on October 27, 2004, Clemmer had been diagnosed with mesothelioma, an asbestos cancer, and had been told that he had a maximum of six months to live. His videotaped deposition was played for the jury because Clemmer, who lives in North Carolina, was too ill to travel.

II. DISCUSSION

In an asbestos action, the plaintiff bears the burden of proving causation "by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff. . . inhaled or ingested, and hence to the risk of developing asbestos-related cancer. . . ." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976-977, fn. omitted.) Direct evidence of exposure is not required; rather the plaintiff may show from circumstantial evidence that defendant's product was "sufficiently prevalent" at his work site to warrant a reasonable inference of exposure. (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1420 (Lineaweaver).)

Relying on Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650 (Dumin) and Lineaweaver, supra, 31 Cal.App.4th 1409, Thorpe contends there is insufficient evidence that Clemmer was exposed to insulation products it supplied on the Wilkinson or the Yorktown. In Dumin, the court determined there was insufficient circumstantial evidence that the plaintiff was exposed to asbestos aboard a ship when there was no evidence that defendant's asbestos insulations products were used on the ship during 1953 and 1954, the period of plaintiff's service on the ship. (Dumin, supra, 28 Cal.App.4th at pp. 655-656.) While there was some evidence that the defendant's product was "customarily used" around the early 1950's, the defendant did not begin distributing the products until 1953 and was then not the lone distributor. (Ibid.) In Lineaweaver, the court concluded there was insufficient evidence to permit the inference that one of the plaintiffs was exposed to the defendant's asbestos products when there was no evidence that the products were actually used or "or even probably used" on any of the ships on which he served. (Lineaweaver, supra, 31 Cal.App.4th at pp. 1420-1421.) As to another plaintiff, the court determined the evidence was lacking since the defendant's products were used only incidentally at the shipyards at which plaintiff worked. (Id. at p. 1421.)

Here, by contrast, there was evidence that Thorpe supplied insulation products to the Yorktown and the Wilkinson at the LBNS during the precise period in which Clemmer was aboard the ships. Thorpe was one of the main suppliers of insulation products[1] in the early 1960's and its trucks were present at the LBNS almost daily. Ay acknowledged that the federal government's General Services Administration (GSA) was the larger supplier; but Thorpe was the predominant supplier among the outside companies supplying insulation material at LBNS, and supplied asbestos materials on a regular and continuing basis throughout the 1960's. GSA supplied material for scheduled work, whereas the outside vendors supplied the material for unscheduled work such as repairs. In either event, the materials were "all fungible" and intermingled when they were distributed for particular jobs. And, there were times when outside vendors supplied more material than GSA. The evidence further demonstrated that since 1957, Thorpe was primarily a Johns Manville distributor. As a distributor, Thorpe benefited by being able to obtain the best price and good service from Johns Manville. Johns Manville insulation materials comprised approximately 50 percent of the product used at LBNS.

Thorpe argues that there is no evidence Clemmer was exposed to any product it sold, and that there was no evidence from which the jury could infer Thorpe was a dominant or significant supplier to LBNS. The evidence, however, showed to the contrary. Thorpe ignores the evidence that it was the predominant outside supplier of asbestos materials at the LBNS in the 1960's and had been a consistent provider of product to LBNS since at least 1953. Thorpe trucks were at the LBNS almost daily. Even though Ay did not begin work at the LBNS until April 1960, a month after Clemmer's service on the Wilkinson ended, the jury could reasonably infer from the evidence that Thorpe product was used on the ship as Thorpe had consistently been a major supplier at LBNS for several years. The evidence, while circumstantial on the issue of timing, supported a reasonable inference that Thorpe product was used in the Wilkinson overhaul in late 1959 and early 1960. Ay testified that when ships were brought into LBNS for overhauls, it was customary for LBNS to use GSA supplied material and that supplied by outside vendors interchangeably. And, an overhaul involved replacement or repair of insulation throughout the ship. In addition, for all unscheduled work on ships, Thorpe, not GSA, was the predominant supplier. In sum, the evidence showed that Clemmer was exposed to asbestos in the engine rooms or fire rooms he frequented during the repairs made to the Wilkinson and the Yorktown, as fibers were released during installation or repair even when he did not directly work on the insulation replacement. Hence, based on the evidence before it, it was reasonable for the jury to infer that Clemmer was exposed to Thorpe asbestos insulation materials during his service at LBNS. The evidence supports the jury's verdict assigning Thorpe 20 percent liability for the Clemmers'[2] injuries.[3]

Finally, for the first time in its reply brief, Thorpe contends that Clemmer's trial counsel committed misconduct by mischaracterizing and distorting the evidence in his argument to the jury. It is well settled that points raised for the first time in the reply brief will ordinarily not be considered absent a showing of good cause for not previously raising the issue. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, pp. 790-791.) It is unfair to withhold a point until the reply brief and deprive the respondent of an opportunity to counter the argument. (Ibid.) Thorpe has not shown good cause; we deem the issue waived. Even if the issue were properly preserved for our review on appeal, trial counsel committed no misconduct. His argument was fair comment on the evidence. III. DISPOSITION

The judgment is affirmed. The Clemmers shall recover their costs on appeal.

We concur:

RUVOLO, P.J.

REARDON, J.

[1] These products included asbestos cloth, pipe covering, insulating cements, and block insulation. [2] The jury awarded Kay Clemmer $250,000 for loss of consortium.

[3] Thorpe also argues that the trial court properly granted nonsuit on the Clemmers' claim for punitive damages. The issue of punitive damages was not before the jury; we do not consider it here.

Sources

• The opinion on Google Scholar
• California asbestos laws
• California asbestos exposure sites