Asbestos Alert: A Single Exposure May Be “Substantial,” and Evidence of Lobbying Is Not Excluded Under The Noerr-Pennington Doctrine

by Low, Ball & Lynch

Hernandez v. Amcord, Inc.
Second District Court of Appeals, Action #B238408 (April 18, 2013)
____ Cal.App.4th ____

The Court of Appeal has reversed a nonsuit in favor of Amcord based on an epidemiologist’s testimony that a hypothetical worker who poured a bag of gun plastic cement would be at an increased risk for developing mesothelioma. The Court also ruled that the Noerr-Pennington doctrine, which shields defendants from liability for their actions in petitioning government officials, does not provide a basis for excluding evidence that might be relevant to a defendant’s knowledge of the nature of its product or of a failure to exercise ordinary care.

Arnulfo Hernandez was a career carpenter and construction worker who was exposed to asbestos-containing products from the 1960s through the 1980s. He died from mesothelioma. Plaintiffs’ primary witness against Amcord, the maker of Riverside gun plastic cement, was Alfredo Hernandez, decedent’s younger brother, who worked with decedent on weekends. The brothers worked together on additions to about 20 houses and on a few apartment buildings and on some commercial construction sites. Alfredo testified that he and decedent routinely used Riverside gun plastic cement in stuccoing houses, although the majority of the work they did together was other, non-stuccoing work. Decedent would open the Riverside bags and dump them into a mixer, creating “a little bit of dust that got on his face and clothing.” This happened “a lot of times.” Riverside gun plastic cement contained “a small amount” of asbestos.

Richard Lemen, Ph.D., an epidemiologist, testified for plaintiffs. He opined that “if a worker poured a 94-pound bag of Riverside gun plastic cement containing asbestos, the worker would be at increased risk for developing mesothelioma as long as the asbestos fibers were airborne and respirable.” Dr. Lemen also testified that “if a worker were exposed to many different asbestos-containing products, each of those products would contribute to an increased risk of asbestos-related disease, as long as the asbestos was inhaled and retained in the worker’s body.” The trial court granted nonsuit on the ground that plaintiffs had failed to show specific causation – that is, plaintiffs had failed to show a reasonable degree of medical probability that Amcord’s product was a substantial factor in causing the decedent’s illness.

The Court of Appeal reversed, holding that it was not necessary to show specific causation. It reviewed the seminal cases of Rutherford v. Owns-Illinois, Inc. (1997) 16 Cal.4th 953, Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409 and Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078 and, based thereon, set forth a standard for determining whether sufficient evidence of causation has been set forth. The Court stated that the substantial factor standard is broad, and that Dr. Lemen’s testimony was a sufficient basis upon which a finding of causation could have been based, and specifically referenced Dr. Lemen’s hypothetical about a worker pouring “a 94-pound bag” of product resulting in an increased risk for developing mesothelioma.

The Court also ruled that Noerr-Pennington is a doctrine of substantive law which shields defendants from liability based on their right to petition government officials, but is not a rule of evidence and cannot be a basis for excluding evidence of petitioning activity.


As the range of viable defendants in asbestos actions moves toward smaller and smaller defendants who are responsible for ever-smaller exposures to asbestos, a battle has begun to rage in U.S. court rooms over whether any level of exposure is too small to support liability against the defendant responsible for that very small exposure. This case answers the question in the negative, and is likely to be criticized and challenged by defendants. The opinion seems to unnecessarily express sympathy for the plaintiffs, for instance by beginning with a discussion of how mesothelioma causes a very unpleasant death. Further, the opinion fails to address the trial court’s role as a gatekeeper and fails to address other authority and arguments about what constitutes “substantial” exposure to asbestos (which is needed to support liability) as opposed to negligible exposure (which is insufficient to support liability).

The Hernandez court reasoned that once some threshold exposure to the defendant’s asbestos-containing product is shown, a plaintiff can establish causation by showing a reasonable medical probability that the exposure was a substantial factor contributing to the injured person’s risk of developing a disease. While this is hardly an earth-shattering holding, an issue arises from the manner in which the Hernandez court chose to express itself. While the evidence supported findings of multiple exposures to Riverside gun plastic cement over a period of time, the Court chose to rely on and use as an example of sufficient testimony an expert’s hypothetical statement relating to a single exposure. This will embolden plaintiffs to argue that even the most minute exposure can be “substantial” enough to support liability. Low-dose defendants will continue to argue based on other cases – cases not addressed by the Hernandez court – that the word “substantial” modifies the word “exposure” in the jury instructions and that interpretations of the law such as the Court of Appeal has issued in Hernandez cannot be reconciled with the sentence construction of the current CACI jury instructions. However, the publication of this case will give credence to the plaintiffs’ position.

Defendants will point out that Hernandez totally fails to address the issues raised in the recent unanimous California Supreme Court decision in of Sargon Enterprises v. University of Southern California (2012) 55 Cal.4th 747. Sargon stressed the trial court’s gatekeeper role and the need to test the scientific validity of expert testimony before it is presented to the jury. Dr. Lemen’s testimony is set forth in Hernandez in conclusory fashion – we wonder whether it will hold up under a Sargon evaluation? Can Dr. Lemen scientifically prove that any Amcord fibers actually got past decedent’s defense mechanisms and were actually retained in his lungs, thereby contributing to his risk? Can he show that Amcord’s fibers contributed to an increase in decedent’s risk in more than a theoretical way? This type of questioning is likely to be the more productive path for defendants wishing to preclude plaintiff expert testimony, which may then result in a successful nonsuit motion.

The Hernandez decision also abrogates the use of the Noerr-Pennington doctrine as a basis for precluding introduction of evidence about a defendant’s lobbying activities. Defendants seeking to exclude evidence of lobbying activities will have to rely on other arguments, such as the argument under Evidence Code 352 that the evidence is more prejudicial than probative. Trial courts are not noted for their consistency when they rule on the basis of Evidence Code section 352.

In all, the Hernandez decision increases litigation risk for defendants while decreasing it for plaintiffs.

For a full copy of the Hernandez decision, click here.

Written by:

Low, Ball & Lynch

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