Even the CA Supreme Court's "Take-Home" Asbestos Decision Cannot Stop This Selman Win!
Nonsuit Judgment Upheld on Appeal in Petitpas v. Ford Motor Company
In 2012, Selman lawyers were asked to take this case over 60 days before trial. We found ourselves in trial in downtown Los Angeles against very tough adversaries who had banded together to prosecute a living mesothelioma case on behalf of Marline and Joseph Petitpas against Selman's client, a very large developer of retirement homes in Orange County.
After weeks of trial, including all of plaintiffs' case-in-chief, the Selman trial team relied on new case law, Campbell v. Ford Motor Company, which found no duty in "take-home" exposure claims, to argue a nonsuit motion. Selman also argued that its client not be responsible for Mrs. Petitpas' claim that her mesothelioma was caused by asbestos brought home from her husband's work for Selman's client, because there was insufficient evidence to show that dust on Mr. Petitpas' clothing was asbestos attributable to the client's products. The result was a judgment of nonsuit granted by the trial court. The court specifically held that the motion was granted based on all arguments raised orally and in the papers, which became an important factor. The plaintiffs appealed.
During the appeal, the Campbell v. Ford Motor Company appellate court opinion came under fire. The Supreme Court accepted Kesner v. Superior Court, which placed the Campbell decision in jeopardy. Since the Supreme Court was going to make a decision on whether Campbell was properly decided in the Kesner decision, the court of appeal issued a stay on the Petitpas appeal. This stay lasted for years until Kesner was decided in late 2016. The Kesner decision was issued by the Supreme Court, and it could not have been worse for Selman's client. The Campbell decision was directly reversed, and the court found that there is a duty for a premises owner to protect not only those who might come onto the property from being exposed to asbestos, but such a defendant also owes a duty to those in the household of the person coming onto the property, who may be exposed to asbestos brought home on clothes or in the car. The primary argument of Selman's client in obtaining the nonsuit was now a complete loss. The appeal did not look good.
Selman's team was led by partners Jerry Popovich and Asir Fiola. They went to work on developing an alternative basis to keep the nonsuit judgment. In supplemental briefing, after the stay was lifted, the Selman team asserted the "no causation" argument as a basis for the court to affirm the trial court's grant of nonsuit. Based on the supplemental briefing primarily drafted by Asir, and Jerry's oral argument, the Second District Court of Appeal agreed that there was insufficient evidence that Mrs. Petitpas' disease was caused by exposure to asbestos-containing dust from the client's premises, and affirmed the judgment of nonsuit. Even the Supreme Court's Kesner decision could not derail this win, which shows the need for touching all the bases at the trial court to preserve the best arguments on appeal.
Plaintiffs' counsel: Farrise Firm by Simona Farrise and Law Offices of Tony Vieira by Tony Vieira at trial; The Arkin Law Firm by Sharon Arkin on appeal.
Defense counsel for the appeal: Jerry Popovich and Asir Fiola, Selman Breitman LLP
Los Angeles Superior Court, Downtown Los Angeles
Petitpas v. Ford Motor Company
Nonsuit granted on July 16, 2012