Rutherford

I dissent.

As in the companion case, Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520 [ 66 Cal.Rptr.2d 438 , 941 P.2d 71 ], the majority’s holding will deprive numerous innocent plaintiffs suffering from so-called “latent” diseases caused by exposure to asbestos in the workplace of full *986 compensation for injuries inflicted by tortfeasors. In my view, the burden-shifting instruction at issue is generally consistent with state law and was properly given in this matter. Although the point is not technically at issue here, I would also observe that use of the burden-shifting instruction should not require waiver of any punitive damages claim.

I.

Charles Rutherford worked as a sheet metal worker at the Mare Island Naval Shipyard for 40 years. During 10 of those years, from 1940 to 1950, he worked on ships around asbestos insulators. He brought this action, against various manufacturers of asbestos, including Owens-Illinois, Inc. (hereafter Owens-Illinois), after he discovered that he had contracted lung cancer; after his death, the action was amended by his wife and daughter to allege wrongful death. Owens-Illinois manufactured the product “Kaylo,” containing…

*957 Opinion

I. Introduction.

In this consolidated action for asbestos-related personal injuries and wrongful death brought and tried in Solano County, defendant Owens-Illinois, Inc. (Owens-Illinois) contends the trial court erred in instructing the liability phase jury pursuant to Solano County Complex Asbestos Litigation General Order No. 21.00. This instruction shifts the burden of proof to defendants in asbestos cases tried on a products liability theory to prove that their products were not a legal cause of the plaintiff’s injuries, provided the plaintiff first establishes certain predicate facts, chief among them that the defendant manufactured or sold defective asbestos-containing products to which plaintiff was exposed, and that plaintiff’s exposure to asbestos fibers generally was a legal cause of plaintiff’s injury. The Court of Appeal concluded the trial court erred in giving the burden-shifting instruction.

The Court of Appeal further held that the judgment in this case must be reversed because the trial court erred in refusing to permit Owens-Illinois to present a “tobacco company defense.” The Court of Appeal’s judgment in this regard was error requiring reversal…