Facts

The plaintiffs are Debora, Dina and Frederick Rosen, Sharon Lieb and the estate of Sherwin Rosen. The defendants are the Regents of the University of California and Kerr Corp. Sherwin Rosen, who is now deceased, attended the University of California San Francisco School of Dentistry (UCSFSD) from 1958 to 1962. He was diagnosed with mesothelioma in 2001 and later died from the disease.

A key dispute in this case was whether the level of asbestos released from the dental tape was hazardous or not.

PLAINTIFFS' CONTENTIONS:
Rosen's widow, plaintiff Debora, along with the couple's children, alleged that Rosen was exposed to asbestos contained in the dental tape he used when he learned how to make crowns in dental school. They opined that over a four year span, Rosen used the tape about 20 to 40 times. Further, he used it for five to 15 seconds each time. The plaintiffs sued defendant Kerr, which sold the dental tape, for products liability. They claimed the tape was defectively designed because it contained chrysotile asbestos. Further, they claimed that defendant Kerr was negligent for selling the tape. Defendant Kerr had a duty to warn students about the dangers connected to asbestos.

The plaintiffs also sued defendant Regents, which resold the tape to students. The plaintiffs asserted that defendant Regents had a duty to warn students that the tape contained asbestos.

A microscopy expert for the plaintiffs tested the tape. He found that it contained chrysotile fibers. The plaintiffs opined that the defendants knew or should have known this fact. An expert in occupational medicine testified that the literature and medical knowledge regarding asbestos was available when Rosen was a UCSFSD student.

A pulmonologist expert testified, and a cell biologist agreed, that each instance of exposure to the asbestos contributed to the development of Rosen's mesothelioma. (Per defense counsel, the pulmonologist stated he did not know enough about the tape to state whether it was a cause, however).

DEFENDANTS' CONTENTIONS:
The defendants asserted that they were not negligent for selling or reselling the tape. Further, they opined that it was not their responsibility to warn the students. The defense presented an industrial hygienist, who testified that the tape was a state-of-the-art product at the time and the technology for detecting asbestos in the air did not exist. Further, there was insufficient knowledge regarding the dangers of such tape. Thus, warnings about its use could not be required. The industrial hygienist also testified that the students were only exposed to unharmful background levels of asbestos. In the four years of dental school, such exposure only amounted to a total of 10 minutes. Further, a defense medical expert testified that the link between asbestos and mesothelioma was not established at the time decedent was in dental school.

The defense further argued that Rosen's meothelioma was caused from his asbestos exposure as a child. Rosen's father worked as an asbestos upholsterer at a shipyard. A marine industrial hygienist testified that amosite asbestos was rampant in shipyards during that time. Further, Rosen's father brought home amosite fibers on his clothes. Per defense counsel, plaintiff's medical experts Dr. Horn and Dr. Hammer conceded the take home exposure was sufficient in and of itself to cause the mesothelioma.

Lung tissue analyzed from Rosen's autopsy revealed that the largest number of asbestos fibers were amosite and richtonite/winchyte fibers. The defendants asserted that they came from his father's exposure to the shipyards. An epidemiologist expert for the defense agreed that secondary exposure to amosite resulted in Rosen's mesothelioma. Further, experts for both sides conceded that such exposure as a child is more significant to mesothelioma causation than adult exposure. They also agreed that amosite is more toxic than chrysotile.

Specials in Evidence

The plaintiffs sought $150,000 in past medical costs.

Damages

The plaintiffs sought $700,000, in part, for lost earnings and social security benefits. They also claimed an unspecified figure to cover loss of comfort, consortium and society. The defendants computed the overall wage loss to be $200,000 to $300,000. This was based, in part, on a predicted shortened life expectancy from heart disease, which was verified by a cardiologist expert. According to the cardiologist, even if Rosen had not had mesothelioma, he would not have survived past 2010.

Result

At the end of the plaintiff's case, the judge granted a partial non-suit as to the negligence claim. The jury then found that the tape was not defective in design. Further, the defendants did not unreasonably fail to warn students about the potential risks connected to use of the tape.

Other Information

The plaintiffs filed a motion for a new trial and an appeal based upon the court's granting of defendants' motion of nonsuit on the negligence cause of action and the denial of plaintiffs' motion for JNOV, motion for a new trial and cost bill.

Deliberation

two hours

Poll

11-1 (defective product action for Regents), 10-2 (for Kerr)

Length

35 days