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Horvitz & Levy represented defendant Kaiser Gypsum in this wrongful death action, in which the Court of Appeal reversed a multi-million dollar award (including $15 million in noneconomic damages) that had been based on the decedent’s exposure to asbestos. The appellate decision, while not published, has been much discussed among attorneys handling asbestos cases, because the opinion addresses the not uncommon situation of a jury verdict that assesses a high degree of fault against a non-settling defendant who participates at trial, while assigning far less fault to others who would appear from the evidence to bear far greater responsibility for the plaintiff’s injury.

Plaintiffs sued Kaiser Gypsum, along with a number of other manufacturers of asbestos-containing products, for the wrongful death of their husband and father, Salvatore Silvestro. For thirty years, Mr. Silvestro worked as a cement mason, boilermaker and general laborer in the San Francisco area where he was exposed to a variety of asbestos-containing products, most notably while working on Navy ships. Plaintiffs attempted at trial to downplay Mr. Salvatore’s extensive direct exposure to asbestos from products other than Kaiser Gypsum’s joint compound (which is not used aboard Navy ships, but instead is used when installing drywall). Before his death, however, Mr. Salvatore made clear his exposure to joint compound was almost exclusively as an occasional bystander to construction work being performed by others, and he couldn’t offer any approximation of the amount of time he may have spent near such work. Moreover, plaintiffs’ experts said they couldn’t quantify the level of exposure he might have experienced from Kaiser’s product. There was evidence of one 10-day remodeling project that Mr. Silvestro performed on his own home in the 1960's, when he said he used Kaiser Gypsum joint compound. When compared against his total occupational exposure to asbestos, the level of exposure from this small project was minuscule. Under the circumstances, the Court of Appeal ruled that the jury’s allocation of 30% fault to Kaiser could not be reconciled with the evidence. Accordingly, the court reversed the judgment and ordered a new trial.