IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT DIVISION ONE
Georgia-Pacific, LLC, Defendant and Appellant,
Joan Mahoney and Daniel Mahoney, Plaintiffs and Respondents.
Appeal from the Superior Court of San Francisco County
The Honorable Thomas J. Mellon, Jr. Case No. CGC-06-458140
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Respondents Joan and Daniel Mahoney filed a certificate of interested entities on January 16,2009, pursuant to rule 8.208(d) of the California Rules of Court.
In July 2006, at the age of sixty-eight, Joan Mahoney (“Mrs. Mahoney”) was diagnosed with mesothelioma, a fatal cancer caused by exposure to asbestos. (4 RT 779.) She was exposed to asbestos from 1971-79 while working in her family’s residential construction business in Lake Tahoe, CA. (4 RT 772-73.) Mrs. Mahoney’s primary exposures to asbestos occurred on hundreds of occasions from sanding and cleaning up asbestos joint compound which was used to smooth the seams between sheetrock used to create walls in homes. (4 RT 750; 4 RT 757, 760; 4 RT 772-73; 3 RT 608; 3 RT 609.) Georgia-Pacific joint compound was the brand used predominantly by Mrs. Mahoney. (3 RT 508.)
The jury determined that Georgia Pacific joint compound, Bondex joint compound, Kaiser Gypsum joint compound, Durabond joint compound, Certainteed sewer pipe, and other asbestos products were all substantial factors in contributing to her mesothelioma (AA 691.) The jury allocated responsibility as follows: Georgia-Pacific was 30% responsible; Bondex was 25% responsible, Certainteed was 20% responsible; Durabond was 10% responsible; Kaiser Gypsum was 10%responsible; and Mrs. Mahoney was 5% responsible. (AA 691.)
Georgia-Pacific now appeals the judgment against it in this case, arguing four issues:
(i) Plaintiffs’ damages must be retried in their entirety;
(ii) misconduct by Plaintiffs’ counsel in closing argument resulted in a verdict affected by passion and prejudice of the jury;
(iii) Plaintiffs did not meet the California causation standard required by Rutherford v. Owens-Illinois, Inc. (1997) 16 Ca1.4th953; and (iv) Plaintiffs’ causation experts should have been excluded.
With respect to the first issue, Georgia-Pacific argues that Judge Thomas Mellon (“Judge Mellon”) abused his discretion by ordering a new trial, or in the alternative remittitur, of medical expenses, without a corresponding retrial of non-economic damages. Georgia-Pacific’s position that economic medical expenses are “inseparable” from non-economic damages -is not supported by case law. Further, there was substantial evidence in this case that supported the awards of non-economic damages without reference to the medical expenses.
Georgia-Pacific’s second argument is equally without merit. There was no misconduct by Plaintiffs’ counsel at closing argument. Plaintiffs were seeking punitive damages in this case, and Plaintiffs’ counsel’s arguments were permissible given Plaintiffs’ burden to show malice and oppression by clear and convincing evidence. Further, Georgia-Pacific is unable to meet its burden that it would have had a better result absent the closing arguments of Plaintiffs’ counsel. Specifically, the jury, rather than reacting with passion or prejudice against Georgia-Pacific, instead denied Plaintiffs’ claims for punitive damages.
Third, Georgia-Pacific’s argument that Plaintiffs’ failed to meet the standards for substantial factor causation enunciated by Rutherford v. Owens Illinois, Inc. (1997) 16 Cal.4th953 is contradicted by the evidence in this case. The evidence is overwhelming that Mrs. Mahoney was exposed to asbestos from Georgia-Pacific joint compound, and that it substantially contributed her risk of developing mesothelioma.
Finally, Georgia-Pacific claims that Judge Mellon abused his discretion by (i) not applying federal evidentiary standards for admission of expert testimony to the underlying data relied on by Plaintiffs’ experts; and (ii) not subjecting Plaintiffs’ medical causation opinions to a Kelly/Frye test. As to the first point, the California Supreme Court has expressly rejected applying a foundational analysis of the epidemiological and scientific evidence underlying Plaintiffs’ experts’ opinions. (See People v. Leahy (1994) 8 Cal. 4th 587.) As to the second point, a Kelly/Frye test is only appropriate where the expert is using a device or methodology that is new to science or law. There is nothing novel in science or law in ascribing causation to asbestos for a person diagnosed with mesothelioma. Accordingly, Judge Mellon did not abuse his discretion.
For these reasons, Plaintiffs request that this Court deny Georgia Pacific’s appeal in this case, and affirm the judgment of the trial court.
STATEMENT OF THE CASE
Plaintiff Joan Mahoney was diagnosed with asbestos cancer on July 31, 2006 (4 RT 779.) Plaintiffs Joan and Daniel Mahoney filed this action on November 22,2006 against Georgia-Pacific and thirty-five other defendants, claiming, inter alia, negligence, products liability, and gross negligence for their sale and marketing of asbestos-containing products used by Mrs. Mahoney. (AA 0068-0111.) At the time of trial, Plaintiff had dismissed or settled with the other defendants, and trial proceeded against Georgia-Pacific on February 22, 2008. (2 RT 250.)
On March 10,2008, the jury returned a verdict in favor of Plaintiffs, awarding damages as follows: $7,000,000 for pain and suffering and $2,050,000 in economic damages to Mrs. Mahoney, and $11,000,000 to Mr. Mahoney for past and future loss of consortium. (AA 0689.) The jury found that Georgia-Pacific did not act with malice and oppression, thus denying Plaintiffs the opportunity to seek punitive damages. (AA 0689.) The jury found Georgia-Pacific 30% responsible, other entities 65% responsible, and Mrs. Mahoney 5% responsible. (AA 0691.)
Post trial, Judge Mellon determined that while Plaintiff had entered evidence that Plaintiffs’ medical expenses were substantial, there was not sufficient evidence to show quantification of these expenses (6 RT 1655.) Judge Mellon gave Plaintiffs an opportunity to remit the $1.2 million in past and future medical expenses, in lieu of retrying the issue, which Plaintiffs’ elected to do. (AA 1129-1133; 6 RT 1654-1659.)
On March 28, 2008, Judge Mellon entered the judgment on the Jury’s Verdict, upholding all damages except for the agreed reduction of$I.2 million for medical expenses. (AA 906-918.)
STATEMENT OF FACTS
A. Mrs. Mahoney had extensive exposure to asbestos from Georgia-Pacific joint compound. From 1971 to 1985, Mrs. Mahoney and her husband owned a construction business called Mahoney Construction. (3 RT 501; 4 RT 737738.) The family business performed ‘just about any kind of construction needed” in residential and small commercial buildings, with primarily residential work and a lot of remodel work. (3 RT 698.) While Mrs. Mahoney’s original career was a singer and performer, when her husband Daniel began the construction business in Lake Tahoe, CA in 1971, she cut back on her singing engagements. (3 RT 575.) During the 1970’s, she helped on the family construction business for seven out of twelve months of the year. (4 RT 744.)
From 1971 through 1979, Joan and Daniel Mahoney performed construction work on approximately 100 homes in Lake Tahoe. (3 RT 501-502; 4 RT 742, 737-738, 739, 741.)11 During the 1970s, Mrs. Mahoney oversaw the construction projects during the first half of the day while Mr. Mahoney was teaching school. (4 RT 742-743.) In the 1970’s, there were usually “two or three jobs going at a time;” it was “busy.” (3 RT 503.)
In conjunction with her construction duties, Mrs. Mahoney was exposed to extensive amounts of asbestos joint compound. One of the steps on virtually every construction job was the application of joint compound between the seams in the sheetrock. (4 RT 745-746, 750; 3 RT 699-700, 705.) Mrs. Mahoney’s daughter Deborah testified that one of Mrs. Mahoney’s regular jobs for the company was “finish work,” which included preparing the walls with joint compound between the seams of the sheet rock (3 RT 503; 3 RT 504-505.) Mrs. Mahoney’s son Sean testified that “while Dad was doing the big, heavy tasks, Mom would be … sanding and finishing…” (3 RT 576.)
Mrs. Mahoney described her work with joint compound: “I would use the joint compound, and I would use a knife to put the compound on the joints between the drywall, and then I would sand it and smooth it and put it on again, and then sand it again…” (4 RT 750.) Mrs. Mahoney estimated that each sanding took her about an hour. (4 RT 760.) This work created “usually a big cloud of white dust. The whole house was actually filled with it.” (3 RT 505.) “It went everywhere. It went in your hair and on your clothes, and on your skin, and on the floor, and on the windows.” (3 RT 505-506.)
In addition to sanding, Mrs. Mahoney was also exposed to asbestos from the cleanup of joint compound. She was always responsible for cleanup on the family’s construction projects. (4 RT 755; 3 RT 509; 3 RT 579,579, 580, 582.) Mrs. Mahoney estimated that she cleaned dust in houses almost 100 times during the 1970s. (4 RT 757, 760.) It would take her three or four hours to clean construction debris from the whole house. (Id. at 760-761.) Sean testified that Mrs. Mahoney was in charge of the cleanup for every house; “every job, my mom would sweep and clean every house after -for every inspection, she was in there, including sweeping, scraping all the joint compound of the floor, and cleaning it up, putting it into bags.” (3 RT 57980; 3 RT 609.)
Georgia-Pacific joint compound was the one used most predominantly by Mrs. Mahoney in the 1970’s. (3 RT 508.) Mrs. Mahoney testified that she used Georgia-Pacific joint compound the most, “because it was the most available at Meeks Lumber.” (4 RT 763.) Mrs. Mahoney used Georgia Pacific joint compound “dozens and dozens and dozens of times throughout the 70’s.” (4 RT 772-773; see also 3 RT 608.) Georgia-Pacific joint compound was stored in the family’s garage more than other brands, and that Mrs. Mahoney used it “well over fifty times.” (3 RT 608; 3 RT 609.)
There was no warning about the hazards of asbestos on the Georgia Pacific joint compounds used by Mrs. Mahoney. (4 RT 783; 4 RT 836.) Mrs. Mahoney never wore a mask while performing this work. (4 RT 754.)
Plaintiffs’ expert Richard Hatfield, an industrial hygienist, testified that the Georgia-Pacific joint compounds sold in the 1970’s contained 8% asbestos. (3 RT 616, 625, 639.) Mr. Hatfield tested Georgia-Pacific joint compound, and found that sanding releases asbestos in quantities ranging from 1.4 fibers per cubic centimeter (“fibers/cc”) to 6.6 fibers/cc. (3 RT 631-632.) For purposes of comparison, the highest background level of asbestos in urban areas has been reported as 0.0005 fibers/cc. (3 RT 640.) The published, peer reviewed literature of joint compound work performed in the 1970’s corroborates Mr. Hatfield’s findings, showing ranges of asbestos exposure from sanding joint compound from 0.3 to 24.2 fibers/cc, with an average of fibers/cc. (3 RT 633.)
In addition to testing sanding, Mr. Hatfield also measured the asbestos released from cleaning up joint compound, and documented numbers ranging from 2 to 7 fibers/cc. (3 RT 635-636.) The published literature showed even higher results, finding that cleanup of joint compound releases asbestos in amounts ranging from 4 to 26.5 fibers/cc. (Id.) Mr. Hatfield’s tests revealed that asbestos released in the air from work with joint compound caused two billion to twenty-three billion asbestos structures on a square foot of clothing. (3 RT 682.)
Georgia-Pacific’s experts admitted that exposure to asbestos from working with Georgia-Pacific joint compound would be thousands of times higher than the urban background level of.0005fibers/cc. Dr. Kim Anderson, Georgia-Pacific’s industrial hygienist, admitted that the maximum levels of exposure for each of the categories of mixing, sanding, and sweeping asbestos joint compound would exceed the OSHA 1976 permissible exposure limit of 2 fibers/cc. (4 RT 1163.)
Dr. William Hughson, Georgia-Pacific’s medical expert, testified that an average exposure from sanding joint compound is 10 fibers/cc. (5 RT 1254.)
B. There was substantial medical evidence that Mrs. Mahoney’s exposure to Georgia-Pacific’s asbestos joint compound was a substantial contributing factor in contributing to the risk of developing mesothelioma.
Dr. Eugene Mark is a physician and professor of pathology at the Harvard Medical School. He is also is in charge of lung pathology, heart pathology, and the autopsy service at Massachusetts Hospital, in Boston, MA. (2 RT 301-02.) He has studied asbestos-related disease since 1964. (2 RT 303; see also RA 090-124.) He is a director of a course at Harvard on asbestos related lung disease. (2 RT 301-02.) He is invited to lecture both nationally and internationally to medical doctors on mesothelioma. (2 RT 328.) He has reviewed approximately two thousand files of patients with mesothelioma. (2 RT 342.)
Dr. Mark testified that according to the International Agency for Research on Cancer, the National Cancer Institute, OSHA, the EPA, the World Health Organization, the American Cancer Society, and the World Trade Organization, “if there is a safe level [of asbestos exposure], it is so low that we do not know what it is.” (2 RT 310.) However, Dr. Mark explained that while there is no known safe level of exposure to asbestos, he was not of the opinion that “any exposure” to asbestos would increase the risk of developing disease. Rather, Dr. Mark testified that in his medical opinion an exposure to asbestos must rise to the level of a “special exposure,” meaning “that sort of exposure for which there is scientific reason that there is a risk,” before the exposure contributed to the risk of developing mesothelioma. (2 RT357.) He stated, for example, that he would not consider bystander exposure to repair of an asbestos cable to scientifically increase the risk of developing mesothelioma. (2 RT 357.) In contrast, repeated work by electricians with asbestos cable would scientifically increase the risk. (2 RT 358.)
Dr. Mark testified that based on his review of Mrs. Mahoney’s work history sheets, and from speaking with her personally, that Mrs. Mahoney worked with her husband in “Mahoney Contracting,” and that they worked as a team in general construction putting up the frame of a house, finishing it with the interior which would include wall board, and finishing off the wall board and drywall. (2 RT 352.) He had reviewed the literature on the work practices of putting on drywall, he knew that joint compound contained chrysotile asbestos, and that exposure to asbestos arises from these products when you sand the coats of drywall product to make a smooth finish, because the sanding creates dust. (2 RT 254-55.) Further, he testified that he was aware from the literature that sweeping up the dust on the floor after completion of a drywall project would create further exposure to asbestos dust. (2 RT 355.)
Dr. Mark testified that Mrs. Mahoney’s mesothelioma was caused by her exposure to asbestos, and that the disease will kill her. (2 RT 346f Dr. Mark testified that if the evidence at trial showed that Mrs. Mahoney sanded and swept Georgia-Pacific asbestos joint compound, then that would be a substantial contributing factor to her risk of developing mesothelioma:
Dr. Richard Lemen, former assistant surgeon general of the United States, former deputy director of the National Institute for Occupational Safety and Health (3 RT 406), testified for Plaintiffs on the carcinogenicity of asbestos and mesothelioma. He has a Ph.D. in epidemiology, and has published multiple articles in the peer-reviewed literature on the subject of chrysotile asbestos, the type of asbestos in Georgia-Pacific joint compound, including in the American Journal of Public Health, which is the largest journal of public health in the United States. (3 RT 407-408.) He has been invited to speak before the United States Congress over a dozen times on the subject of asbestos hazards. (3RT418.) He testified that all types of asbestos cause mesothelioma, with amphibole asbestos on a dose by dose basis estimated to be in the range of two to four times greater potency then chrysotile asbestos. (3 RT 408-409.)
A. (2 RT 307.) c. If Mrs. Mahoney sanded and swept Georgia-Pacific asbestos containing joint compound, would that … be a substantial contributing factor in the development of her cancer?
Yes. It’s the asbestos in these various dusts that causes the cancer.
The science of asbestos cancer medicine and causation is not new to science, and is not based on any technique, process, or theory that is new to science.
Dr. Lemen testified that approximately forty countries around the world, including the European Union Countries, Scandinavian countries, and Brazil have banned asbestos. Dr. Lemen testified that “there has not been a dose [of asbestos] identified below which individuals are not at risk of disease.” (3 RT 431.) Some published epidemiological studies have found exposures lasting as little as one day can cause mesothelioma. (3 RT 434.)
Dr. Lemen testified that in the 1940’s the Journal of American Medical Association reported the association between asbestos and cancer. (3 RT 43738.) By 1952, it was so well known that exposure to asbestos dust causes cancer, that it was published in home editions of the Encyclopedia Britannica.
(3 RT 438.) By 1964, one year prior to Georgia-Pacific entering the business of asbestos joint compound, the associated press widely reported Dr. Irving Selikoffs epidemiological studies demonstrating increased risk of mesothelioma upon exposure to asbestos. (3 RT441.) By 1965, there had been approximately a thousand publications on the subject of asbestos and its hazards. (3 RT 442.) Dr. Lemen testified that there are multiple epidemiological studies showing that construction workers are at risk of developing mesothelioma. (3 RT 494.)
Dr. Lemen testified that in 1977, asbestos joint compound products were banned for use in the United States by the Consumer Product Safety Commission “on the basis that airborne asbestos fibers present the hazards of cancer, including lung cancer and mesothelioma.” (2 RT 395; see also RA 077-089.)
Dr. Hughson, Georgia-Pacific’s medical expert, agreed that chrysotile asbestos exposure can cause mesothelioma in humans. (5 RT 1237-38; 5 RT 1238.) He agreed that “clinical and epidemiologic studies have established incontrovertibly that chrysotile causes malignant mesothelioma.” (5 RT 1244.)
Dr. Hughson admitted that he has previously provided the opinion that: “As far as companies in North America, the relationship [between asbestos and cancer] was clearly defined by the publications of Selikoff, in 1964, so that in my opinion, continued exposure to asbestos following that time period could not really be justified.” (5 RT 1234.)
D. Plaintiffs’ damages consisted of discrete categories of economic and non-economic damages.
1. While Plaintiff entered evidence that the medical bills were substantial, Judge Mellon held that this evidence did not properly quantify the medical bills, and thus he remitted this element of damages from the judgment.
Dr. Mark reviewed Mrs. Mahoney’s medical bills, and found that the medical bills billed to Mrs. Mahoney of $300,932.00 were reasonable and necessary:
Q. Were these bills of 300,000 – $300,932 reasonable and necessary in your opinion, sir?
A. Yes. (2 RT 344.)
Dr. Mark stated that those bills were “within the realm of what I’ve seen in other cases,” given the “lead-up to the diagnosis before the diagnosis, a sequence of fluid removal, and biopsy, and then a sequence of chemotherapy, and a sequence of pain management….” (2 RT 344.) Dr. Mark further testified that future medical expenses for a mesothelioma patient such as Mrs. Mahoney could be estimated at double or triple the past medical expenses. (2 RT345.)
While Judge Mellon found that there was evidence that Plaintiffs’ medical expenses were substantial, he held that the specific question posed to Dr. Mark was not sufficient to show the quantification of the expenses. Judge Mellon stated: “Without question, the evidence supports the conclusion that plaintiff did incur medical expenses prior to the date of trial, and that those expenses were substantial, but no evidence permits any quantification of those expenses.” (6 RT 1655.)
2. Plaintiffs’ economist calculated loss of domestic services, inclusive of the domestic services provided by Mrs. Mahoney in the care of her invalid husband.
Dr. Robert Johnson, Plaintiffs’ economist, testified that based on statistics from the National Center for Health Statistics, Mrs. Mahoney’s life expectancy would have been for sixteen more years, if she had not had asbestos cancer. (4 RT 873.)
In the summer of 2006, the same summer that Mrs. Mahoney was diagnosed with mesothelioma, her husband of forty-two years, Daniel, had a stroke. (3 RT 514.) The stroke left him paralyzed on his right side, and he cannot speak. (3 RT 515.) Mrs. Mahoney was his primary caregiver: “She feeds him and gets him drinks throughout the day, or helps him with whatever he needs during the day, gets his glasses or to change the television sometimes … talks to him.” (3 RT 515.) Mrs. Mahoney testified: “I have to cook and prepare the meals. I have to give him therapy on his right leg and arm because he is paralyzed, and I don’t want … for the arm and leg to be stiff.” (4 RT 776.)
Dr. Johnson calculated the loss of household services provided by Mrs. Mahoney, including the cost of the value of the domestic services that she provided in caring for her husband during his remaining expected lifetime of
5.9 years. During Daniel Mahoney’s expected lifetime, until 2012, the loss of household services, including spousal care services, ranged from $440,224 to $578,200. (4 RT 891-93.) For the remainder of Mrs. Mahoney’s expected lifetime (after her husband would have passed away), Dr. Johnson calculated that the net present value of the loss of Mrs. Mahoney’s household services was $193,053. (4 RT 882.)
3. Plaintiffs presented evidence of extraordinary physical and mental pain and suffering.
Dr. Mark explained that pain is one of the most common problems of a patient with mesothelioma cancer, because the tumor is in the chest, and as it grows it catches the “very rich nerve supply” along the ribs. (2 RT 333.) Dr. Lemen testified that mesothelioma is a “devastating disease” that consists of a “very aggressive tumor” that grows to the point that it compresses the lung such that the victim cannot get enough air to breath. (3 RT 415.)
On July 31, 2006, Mrs. Mahoney was diagnosed with mesothelioma, an asbestos cancer. (4 RT 779.) She had to have thousands of milliliters of fluid drained from her chest, at three different times. (2 RT 334-37.) In order to stop the fluid build-up, the doctors fused the lining of the pleura to the lung so that it would stop filling up with fluid so that she could breathe. (3 RT 510.) Mrs. Mahoney was in continual pain, she could no longer work, and she experienced “slow failure to thrive due to her cancer.” (2 RT 338.) She had five chemotherapy treatments, and each one made her very ill. (4 RT 780.)
Prior to getting sick with mesothelioma, Mrs. Mahoney worked six to eight hours a day as a real estate agent. (4 RT 776.) She was “really strong;” she took family trips to amusement parks and would go camping and fishing. (3 RT 512.) She was “always going.” (3 RT5l3.) She played with her three grandchildren. (3 RT 514; 4 RT 777.) Joan Mahoney testified: “The three grandsons, have a seven year old, a ten year old, and 14 year old, and I love them all very dearly, and we have –I’m use –we use to swim together in the pool together, and we can’t do that anymore. I can’t take them fishing with Dan. Grandpa loved to do that with them, and he can’t do that anymore. There is a lot of things that Dan and I can’t do with grandchildren anymore.” (4 RT 777-778.) Mrs. Mahoney’s son explained the extraordinary role that Mrs. Mahoney played in their family: “She has always been a patriarch to our family, meaning, many of us look up to her because she has always been’ giving.” (3 RT 716.)
Daniel Mahoney, Ir. testified that his father, Daniel Mahoney, was aware that Mrs. Mahoney was terminally ill. (3 RT 717.)
E. Despite the fact that Georgia-Pacific knew that asbestos was “harmful,” it chose to place profits over safety.
By 1970, Georgia-Pacific recognized that asbestos was “very harmful,” and that distributing asbestos joint compound would cause a “monetary consequence” in terms of product liability. (RA 066.) Georgia-Pacific’s safety supervisor proposed that in order to protect Georgia-Pacific’s money, Georgia-Pacific make the contractor the ”whipping boy,” by placing the entire blame on the contractor, “for not insisting on respirators and dust masks when sanding.” (Id.)
By 1974, Georgia-Pacific distributed for internal company use documents showing that “mesothelioma, a rare and rapidly fatal cancer that attacks the membrane lining of the chest cavity, lung, or abdominal cavity, is associated almost exclusively with asbestos exposure.” (RA 073-074.)
In 1975 Georgia-Pacific outlined its strategy to use its asbestos containing products to competitive advantage over those manufacturers attempting to market asbestos-free joint compound: “We are benefitting from various manufacturers attempting to get asbestos-free ready mix into the market. Eventually the others will probably find a way to make it, and something acceptable, but the damage will have already been done, and they will have no business. (RA 069; 3 RT 727.)
Georgia-Pacific’s strategy of avoiding asbestos-free products to get a competitive advantage paid off: in 1976, Georgia-Pacific reported in “Walls and Ceiling Magazine” its best six months in history for both sales and earnings. (RA 075-076; 3 RT 727.) Company officials from Georgia-Pacific stated that “this momentum promises to continue.” (RA 075-076; 3 RT 727.)
In 1977, Eugene Burch, the Sales Manager for Georgia-Pacific, assured a concerned customer that there was no danger posed in using Georgia-Pacific asbestos joint compound, despite the fact that Mr. Burch had seen “actual cases” of workers harmed by asbestos in 1974. (RA 067-068; RA 070-072.)
THE DAMAGES AWARD WAS PROPERLY ENTERED AS A JUDGMENT AGAINST GEORGIA-PACIFIC.
A. Judge Mellon did not commit an abuse of discretion by ordering that Plaintiffs remit the medical expenses, or in the alternative, conduct a new trial limited to medical expenses.
1. Judge Mellon’s order that Plaintiffs remit the medical expenses, or in the alternative, conduct a new trial limited to medical expenses, cannot be overturned absent an abuse of discretion.
The primary reasons to order a new trial limited to an issue, or issues, that can be determined separately without prejudice to any party are to relieve the trial court and the parties of the unnecessary burden of relitigating issues that have been decided, and to respect and preserve the results of a trial on issues as to which the appellant has not shown error. .(See Bullock v. Phillip Morris (2008) 159 Cal.AppAth655, 696.)
Even if the parties had not agreed to remit the medical expenses, the decision to grant a new trial, on all or some issues, appropriately rests in the discretion of the trial court. It is presumed that in considering the motion the court has weighed the evidence and the possibility of prejudice to either side. The decision of the trial court will not be reversed on appeal absent an abuse of discretion. (See Leipert v. Honold (1952) 39 Cal.2d 462.) If a new trial is granted on some but not all oft he issues, an abuse of discretion lies only if one issue is “substantially inseparable” from another. (Liodas v. Sahadi (1977) 19 Ca1.3d 278, 285.)
2. It is well-settled law that economic and non-economic damages are discrete awards to be considered with separate criteria by the jury, which was reflected on the special verdict form submitted to the jurors in this case.
Economic and non-economic damages are defined by statute to be two entirely separate items of recovery, each based on wholly separate criteria for determination. “The important distinction between ‘economic’ and ‘non-economic’ damages is carefully defined by the statute. ‘Economic’ damages encompass all ‘objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.’ ‘Non-economic’ damages are such ‘subjective, non-monetary losses [as] pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.”, (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 600 [quoting Cal. Civ. Code § 1431.2 (b)(1)-(2)].)
Non-economic damages may be awarded even in the absence of economic damages: “In fact, there is no specific requirement that any special damages be awarded before general damages may be awarded. For example, Sommer v. Gabor [(1995)] 40 Cal.App.4th 1455, upheld a $2,000,000 general damages award despite the absence of special damages.” (Westphal v. Wal-martStores, Inc. (1998) 68 Cal.App.4th 1071, 1078-9 [citations omitted].)
Here, the jury was given a special verdict form, clearly defining the difference as between economic and non-economic damages, and instructing the jury to consider the two categories of damages separately: “The damages claimed by Joan and Daniel Mahoney for the harm they claim was caused by Georgia-Pacific fall into two categories called economic and non-economic damages. You will be asked on the verdict form to state the two categories of damages separately.” (AA 659). The jurors were provided clear instructions as to the definitions and criteria for consideration of economic damages and non-economic damages. (AA 660-664.)
It is fundamental to our jury system that jurors are expected and indeed trusted to follow the law. “Jurors are routinely instructed to make … fine distinctions concerning the purposes for which evidence may be considered, and we ordinarily presume they are able to understand and follow such instructions…. Indeed, we and others have described the presumption that jurors understand and follow instructions as ‘the crucial assumption underlying our constitutional system of trial by jury.”, (People v. Yeoman (2003) 31 Cal.4th 93, 139 [citations and internal quotation marks omitted].)
Judge Mellon concluded that the jury’s award of non-economic damages was entirely independent of the jury’s award of medical expenses: “[T]he non-economic damages, unlike perhaps the average case, were not a function of medical expense, economic damages, or probably economic damages in to. The evidence in this case of pain, suffering, past and future was so strong that my conclusion would be the jury’s award of non-economic damages would have been the same, whatever the proof of medical expenses might have been.” (6 RT 1606.) Georgia-Pacific provides no evidence other than speculation that the medical expenses were “impossible” for the jury to separate in making its determination as to non-economic damages. Georgia Pacific’s argument contradicts the presumption that the jury followed the law, and separately considered these items of damages as instructed. Accordingly, Georgia-Pacific’s wholly unsupported surmise that the medical expenses are “inseparable” from the non-economic damages must be rejected.
3. The only instances in which issues determined by a jury have been found to be “substantially inseparable” involve cases for which there was a compromise verdict on liability, or for which it is not possible to calculate damages without redetermining liability.
In support of its novel argument that economic damages are “substantially inseparable” from non-economic damages, Georgia-Pacific cites only to inapposite cases showing that it was an abuse of discretion to grant a new trial as to damages only, where the jury awarded low damages as a result of a compromise liability, or where the damages could not be calculated apart from a retrial on liability.
The central case on which Georgia-Pacific relies, Liodas v. Sahadi, (1977) 19 Ca1.3d 278,285, stands only for the proposition that if the damages cannot be computed absent a reconsideration of liability, then both issues must be retried. In Liodas, the plaintiff brought an action based on two theories of liability: (i) damages for fraud and (ii) damages for breach of fiduciary duty. However, despite the two different theories of liability and over defendant’s objections, the jury was given only one measure of damages: the “measure of damages where a person has been defrauded or otherwise wrongfully deprived of property by his fiduciary.” (Id. at 284). The failure of the court to give an instruction on the measure of damages for ordinary, or nonfiduciary, fraud, was error, because the jury had no alternative but to apply the fiduciary standard, even if it only found liability for ordinary, nonfiduciary fraud. (See id.)
While the Liodas court recognized that the “power of a trial court to grant a new trial as to some issues, while refusing as to others, is well established,” a new trial limited to a damage issue can only be ordered where it can reasonably be said that the liability issue has been determined by the jury. (Id. at 285.) The Liodas court was “hesitant to find” an abuse of discretion, but because of the erroneous damages instructions, it was not possible to determine on what basis liability was predicated. (See id.) Thus, the California Supreme Court stated that where a new trial on damages is ordered, any doubts as to whether a new trial “limited to damages” is appropriate should be resolved in favor of a complete new trial. (Id. at 28586.) However, the California Supreme Court’s emphasis was on whether the damages alone could have been recalculated absent a recalculation of liability. As such, the court determined that “the matter of liability is substantially inseparable from that of damages in the present posture of the case.” (Id. at 286.)
Indeed, the only instances in which California courts have found that issues determined by a jury are “substantially inseparable” from each other involve instances in which the damages cannot be recalculated by the jury without a reassessment of liability. (See e.g. Wallace v. Miller (1938) 26 Cal.App.2d 55, 59 [holding that it was an abuse of discretion to grant a new trial on damages alone where it was “inevitable that nine jurors did not agree on the most important questions of defendant’s negligence and its proximate cause of the collision”]; Keogh v. Maulding (1942) 52 Cal.App.2d 17 [holding that a new trial limited to damages was an abuse of discretion where the inadequate damages were the result of a compromise verdict on liability];
Leipert v, Honold (1952) 39 Ca1.2d 462 [holding that damages must be retried with liability because the liability was the result of a compromise verdict.]) Because there is no issue here that the damages cannot be retried absent a trial on liability, Liodas and its progeny are inapplicable.
4. Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 and Hanifv. Housing Authority (1988) 200 Cal.App.3d 635 do not hold that economic and noneconomic damages are “impossible to separate.”
Georgia-Pacific argues that is “impossible to separate” the jury’s award of medical expenses from the jury’s award of non-economic damages to Joan Mahoney. In support of this argument, Georgia-Pacific cites a series of cases that do not stand for this proposition. (See Georgia-Pacific Motion at 18-19.) Specifically, Georgia-Pacific cites to Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th298 and Hanifv. Housing Authority (1988) 200 Cal.App.3d 635, which stand for the principal of law that a plaintiffs recovery for medical expenses should be limited to “the actual amount he paid or for which he incurred liability for past medical care and services.” (Hanif, supra, 200 Cal.App.3d at 640; see also Nishihama, supra, 93 Cal.App.4th at 306). Incredibly, Georgia-Pacific cites to Hanif and Nishihama and their progeny for the proposition that economic damages are “impossible to separate” from non-economic damages. This is not the holding of either Hanif or Nishihama. In fact, because Nishihama and Hanifallowed for there to be a remittitur with respect to medical expenses without any corresponding need to retry non-economic damages, these cases stand for the opposite tenet: it is acceptable to remit or reduce economic damages without retrying the issue of the separate matter of non-economic damages.
5. Georgia-Pacific can show no manifest abuse of discretion required to set aside the Judge Mellon’s determination that there was sufficient evidence to support the jury’s verdicts for non-economic damages.
Georgia-Pacific’s unsupported argument that non-economic damages are “inseparable” from economic damages is an attempt to avoid the heavy burden it has to show that Judge Mellon committed a manifest abuse of discretion in finding sufficient evidence for the jury’s verdict on non-economic damages. (In re Evert’s Estate (1912) 163 Cal. 449, 452.)
It is well settled that appellate review of the sufficiency of the evidence is uncontradicted, which supports the conclusion reached by the trier of fact, the judgment must be affirmed. (Halliard v. A.H Robins Company (1983) 148 Cal.App.3d 374,406.) Factual matters will be viewed most favorably to the prevailing party. (Id. at 406.)
A trial court’s determination of whether damages were excessive “is entitled to great weight” because it is bound by the “more demanding test of weighing conflicting evidence than [the appellate] standard of review under the substantial evidence rule…” (Id. at 414, fn. 28.)
Georgia-Pacific cannot meet the high burden of showing that there was not substantial evidence for the non-economic damages found by the jury in this case. Judge Mellon weighed all evidence. He analyzed the jury’s basis for awarding Mrs. Mahoney’s damages for her pain and suffering, and determined that substantial evidence existed for the pain and suffering damages, past and present, awarded to Mrs. Mahoney: “It is simply the case that the trier of fact had ample evidence before it , apart -quite apart from the medical expenses to determine to award the very, very substantial non-economic damages to both Joan and Daniel Mahoney that they did. They had abundant evidence of – of the pain and suffering and loss of consortium that had been suffered and was going to be suffered in the amount.” (6 RT 1564.) Judge Mellon explained that the evidence for the non-economic damages was supported “by the ability of the finder of fact to draw conclusions from listening to Joan Mahoney’s testimony, Daniel, Jr., Sean’s and Deborah’s. It was devastating testimony.” (6 RT 1565.)
Judge Mellon’s discretion in this matter must be given “great weight.” It was his determination, after weighing all the evidence and the credibility of the witnesses, that the testimony in this case supported the non-economic damages found by the jury: “The amount of non-economic damage for pain and suffering, for better or for worse, does depend immensely on the -the ability of a plaintiff to effectively communicate with the jury on all kinds of levels, and I have never seen a plaintiff who was as effective in communicating with the jury as Mrs. Mahoney. Extraordinary person, extraordinary ability, tragic situation. It was – it was unique.” (6 RT 1653.)
6. As Georgia-Pacific never objected nor offered contrary evidence to Plaintiffs’ medical expenses evidence, Georgia Pacific has waived the right to argue that this evidence in any way tainted the other components of the verdict.
It is Georgia-Pacific’s speculation that the jury’s “undisputed starting point” for all non-economic damages awarded in this case where the Plaintiffs’ medical expenses. (Georgia-Pacific Brief at 22.) However, Georgia-Pacific has waived the right to argue that this evidence has prejudicially affected any other portion of the verdict, because Georgia-Pacific never objected at any point during the trial or at closing statement that Plaintiffs’ evidence of medical expenses billed was insufficient as a matter of law, and thus prejudicial.
Absent a timely objection, any error in the admission of secondary evidence is waived. (See Stenseth v. Wells Fargo, NA. (1995) 41 Cal.App4th 457,462.) Georgia-Pacific did not object that the amount of medical expenses billed was incorrect. Nor did Georgia-Pacific object at the time of Dr. Mark’s testimony that the amount of medical expenses was inadmissible. Georgia-Pacific did not cross-examine Dr. Mark on his qualifications to testify as to the medical bills, nor did Georgia-Pacific cross-examine Dr. Mark as to the reasonableness and necessity of the $300,932.00 in medical bills. (2 RT 347404.) Georgia-Pacific’s medical expert, Dr. William Hughson, did not comment on the amount of medical bills billed to or paid by Mrs. Mahoney. (5RT1169-1294.) At the close of evidence, Georgia-Pacific did not move for a directed verdict with respect to Mrs. Mahoney’s medical expenses. Georgia-Pacific did not object to inclusion of lines for past and future medical expenses on the Special Verdict Form; indeed, Georgia-Pacific’s proposed Jury Instructions included instructions as to the definition of medical expenses past and future. (RA 031-032). During closing by Plaintiffs’ counsel, Georgia-Pacific did not object when Plaintiffs’ counsel stated that the evidence was $300,000 for past medical expenses, and between $600,000-$900,000 in future medical expenses. (5 RT 1364.) During Georgia-Pacific’s one and one-half hour closing, counsel for Georgia-Pacific never mentioned nor contradicted Plaintiffs’ statements with respect to past and future medical expenses (5 RT 1377-1410.)
At the close of Plaintiffs’ case-in-chief, it was Georgia-Pacific’s burden to object that the medical expenses billed were not properly supported by data, and thus object to any further reference, and certainly to any submission to the jury, on this issue. As Georgia-Pacific remained not only silent, but itself proposed that the medical expenses be submitted to the jury, Georgia-Pacific cannot now deem the medical expenses to be secondary evidence that tainted the other components of the verdict.
B. Georgia-Pacific provides no basis for its pure speculation that the amount awarded to Mr. Dan Mahoney for loss of consortium had any ties whatsoever to the medical expenses awarded to the jury.
Under California law, a spouse has independent damages for loss of consortium damages caused by a negligent or intentional injury to the other spouse by a third party. (Rodriguez v. Bethlehem Steel (1974) 12 Ca1.3d 382, 408.) Judge Mellon instructed the jury to keep separate the amount awarded to Joan Mahoney for economic damages and non-economic damages from loss of consortium damages: “Do not include in your award for loss of consortium any compensation which you have awarded as economic damages or for the loss of financial support for Joan Mahoney.” (5RT1332). As set forth above, it is a fundamental presumption of our jury system that the jury followed these instructions. (Yeoman, 31 Ca1.4th at 139.)
Under the substantial evidence rule, Judge Mellon’s determination in this matter must be given “great weight,” and overturned only with a manifest abuse of discretion. Judge Mellon recognized the extraordinary loss suffered by Mr. Mahoney that justified the jury’s verdict for loss of consortium damages, wholly separate and apart from any award of medical expenses: “I see Mr. Mahoney’s situation as sui generis through no fault of anybody connected with this case. His situation is horrible, and his deprivation from Mrs. Mahoney’s inability to care for him is tragic … and huge, and the jury understood it completely, and … the normal loss of consortium when the spouse is … bereaved but healthy, just doesn’t have anything to do with this case.” (6 RT 1639-40.)
C. California law clearly allows for the recovery of the cost of obtaining substitute domestic services, including spousal care, as an element of economic damages.
In an attempt to avoid liability for the cost of the domestic services that Mrs. Mahoney would have provided as a caregiver to her spouse during Mr. Mahoney’s lifetime, Georgia-Pacific disingenuously states that it has done a search for the term “spousal services,” and could find no such term referenced in case law. (Georgia-Pacific Briefat23.) Georgia-Pacific’s word game is an attempt to obfuscate the simple fact that Mrs. Mahoney’s estate is entitled under the law to recovery of those domestic services provided to her household, including cooking and caring for her invalid spouse.
Georgia-Pacific’s argument that spousal care is an element of loss of consortium contradicts established case law. California law clearly defines the difference between damages awarded for domestic care and damages awarded for loss of consortium. Loss of consortium is an item of non-economic damages, while spousal care services is an item of economic damages. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 600 [quoting Cal. Civ. Code § 1431.2 (b)(1),(2)] [economic damages compensate for all “objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.”][Emphasis added].) Insofar as loss of consortium damages address the loss of a spouse’s assistance in operating the household, these damages are not intended to include the cost of obtaining household services. (Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1408 [“Although the trial court labeled the damages awarded Mrs. Kellogg as being for ‘loss of consortium’ (a non-economic damages item under Proposition 51), much of the testimony at trial actually involved the ‘costs of obtaining substitute domestic services’ on her behalf (an economic damage item in the statute). (See Civ. Code, § 1431.2, subd. (b)(1), (2).)”].)
The Court instructed the jury that spousal care damages “should be considered separate and apart from, and should not be confused with, Daniel Mahoney’s claim for Loss of Consortium [an item of non-economic damages].” (5 RT 1330-1331; CACI 39038.) As described, supra, the jury is presumed to understand and follow the court’s instructions. Georgia-Pacific’s misstatement of the applicable law and conjecture that the jury confused the law cannot withstand scrutiny.
D. Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 170 makes clear that household services are to be calculated based on the life expectancy of the injured party.
Georgia-Pacific cites to Overly for its argument that the calculation for household services must end at the date of Mrs. Mahoney’s death, when in fact Overly holds exactly the opposite. As set forth in Overly, economic damages are awarded to compensate for the “loss of future economic benefits that [the injured party] would have earned during the period by which [her] life expectancy was shortened, Le., ‘lost years’ damages, in the form of … ‘household services’ benefits.” (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 170.) The court in Overly explained the public policy behind this tenet: “[L]imiting household services damages to the period of actual life expectancy would grant the defendant a windfall for shortening a plaintiffs life as opposed to permanently disabling him.” (Overly, 74 Cal.App.4th at 170 fn.
5.) Thus, a proper calculation of loss of household services does not take into account the estimated life-span of the injured party’s spouse or children. (See McKinney v. California Portland Cement Co., (2002) 96 Cal.App4th 1214, 1227-29.) Rather, the calculation looks to the loss of household services to the injured party’s estate as a result of the injury. (See id.)
Because Mr. Johnson properly calculated economic damages through the expected lifetime of Mrs. Mahoney, Georgia-Pacific’s request to remit household exposure damages must be denied.
II. CLOSING ARGUMENT WAS ENTIRELY PROPER, GIVEN THAT IT WAS PLAINTIFFS’ COUNSEL’S BURDEN TO PROVE MALICE AND OPPRESSION.
A. Plaintiffs’ counsel properly argued his case at closing based on the submission to the jury of the preliminary punitive damages determination as to whether Georgia-Pacific acted with malice and prejudice.
In this case, Judge Mellon had denied Georgia-Pacific’s motion for directed verdict on the issue of punitive damages, and allowed this question to proceed to the jury. (5 RT 1307). As such, part of Plaintiffs’ counsel’s burden in closing argument was to show with “clear and convincing evidence” that Georgia-Pacific acted with malice or oppression. (AA 692.) In order to show that Georgia-Pacific acted with malice or oppression, Plaintiffs’ counsel was required to argue at closing that Georgia-Pacific’s conduct was committed or adopted by its managing agents, and that the conduct was “willful,” “despicable,” cruel,” “vile,” “base,” and “contemptible.” (AA 665-66.) Thus, the comments of Plaintiffs’ counsel throughout the closing in this case were at all points proper, given what Plaintiffs were required to show as a matter of law in seeking punitive damages.
B. Counsel is granted wide latitude in closing argument.
In closing argument, counsel is granted wide latitude to discuss the merits of the case, both as to law and facts, and is entitled to argue his or her case vigorously and to argue all reasonable inferences from the evidence. (See Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 798.) The California Supreme Court recognizes that counsel can make very wide deductions from the evidence: “The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning is faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.” (Cassim v. Allstate (2004) 33 Cal.4th 780,795.) “The ultimate determination of [whether to grant a new trial] rests upon this court’s ‘view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.” (Nishihama v. City and County of S.F. (2001) 93 Cal. App. 4th 298,305 [quoting Simmons v. Southern Pacific Transportation Co. (1976) 62 Cal.App.3d 341].)
In Nishihama, the plaintiff sued the City of San Francisco after she tripped and fell in a crosswalk maintained by the City. Even though punitive damages were not at issue in Nishihama, Plaintiffs’ counsel at closing exhorted, over defendant’s objections, that the jury to “send a message” to the City. Further, Plaintiffs’ counsel argued that “there is a constitutional amendment that says we are all suppose[d] to be free from unusual, cruel and unusual punishment. So if someone was to torture someone, everyone would agree that is a crime, that is something you cannot do in our society. So what do you do to try to say what is it worth to compensate someone for pain.” (Nishihama, 93 Cal.App4th at 304.) The Court in Nishihama held that Plaintiffs’ comments were “not particularly egregious.” (Id. at 305.)
C. At the time of trial, Georgia-Pacific only objected to four statements made by Plaintiffs’ counsel in closing, none of which rise to the level of attorney misconduct.
The California Supreme Court is unequivocal that to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial. (Cassim v. Allstate (2004) 33 Cal.4th 780, 794.) Counsel for Georgia-Pacific only objected during trial to four instances of alleged attorney misconduct: (i) Plaintiffs’ counsel’s reference to Georgia-Pacific executives ”waiting to see if they can protect their money;” and (ii) Plaintiffs’ counsel’s rhetorical questions as to whether Mrs. Mahoney or the expert witnesses were the best person to talk about what product she used; (5 RT 1340; 5 RT 1415.); (iii) Plaintiffs’ counsel’s rhetorical question as to whether Mrs. Mahoney should apologize to Georgia-Pacific for suggesting that Georgia-Pacific chooses money over people (5 RT 1418); and (iv) Plaintiffs’ counsel statements that he believed the evidence showed that the asbestos industry constructed a litigation defense that chrysotile asbestos is safe despite scientific evidence to the contrary (5 RT 1413).
With respect to the first statement that Georgia-Pacific executives were “waiting to see if they can protect their money,” this was supported by the evidence in this case, which showed unequivocally that Georgia-Pacific’s most senior executives acted consistently to place money over safety, and protect their money. Georgia-Pacific knew since 1970 that exposure to asbestos is “very harmful,” and plotted that it would make the contractor the “whipping boy” in order to avoid losing its own money in the anticipated product liability lawsuits. (RA 066.) Despite its clear knowledge as to asbestos hazards, Georgia-Pacific continued to market asbestos joint compound in order to gain a monetary competitive advantage over its competitors who were marketing non-asbestos joint compound. (RA 069; 3 RT 727.) Moreover, as discussed above, Plaintiffs’ counsel was seeking punitive damages in this case, and his arguments mirrored the jury instructions on the punitive damages claim, which required that the jury find that the conduct of Georgia-Pacific was “despicable,” “vile,” “base.” (AA 665-666.) Thus, the arguments of Plaintiffs’ counsel that Georgia-Pacific’s senior executives were looking to “protect their money” was entirely consistent with the evidence, and an appropriate argument in a case in which punitive damages were submitted to the jury.
In the second and third instances, the Court ruled that the rhetorical questions were not improper. (5 RT 1415.) Such questions were entirely inoffensive and consistent with Plaintiffs’ burden to persuade the jury that Mrs. Mahoney was the more credible witness in terms of how often Mrs. Mahoney would have used Georgia-Pacific joint compound, as opposed to Georgia-Pacific’s expert witnesses’ opinions. The rhetorical question posed as to whether protecting profit was more important to Georgia-Pacific than protecting consumers was entirely consistent with the evidence, as discussed supra.
Finally, with respect to the fourth instance, the Court noted that it was a “fair argument based on the evidence” that the asbestos industry had created a litigation defense that chrysotile was safe in contradiction to the mainstream scientific community. (5 RT 1413.) As discussed supra, it is widely accepted in the medical and scientific community that chrysotile asbestos causes mesothelioma even at small doses, yet Georgia-Pacific’s experts Dr. Hughson and Dr. Anderson, both of whom testify frequently for asbestos companies, claimed to the contrary that the chrysotile asbestos in the Georgia-Pacific joint compound could not have contributed to Mrs. Mahoney’s risk of developing mesothelioma. (5 RT 1214-17,20: 4 RT 1080).
Taking into consideration the evidence in this case with respect to Georgia-Pacific’s actions, Plaintiffs’ counsel’s closing argument fairly summarized Georgia-Pacific’s conduct, and was acceptable given that Plaintiffs’ counsel was seeking a verdict that Georgia-Pacific had acted with malice.
Georgia-Pacific misquotes Judge Mellon out of context in claiming that Judge Mellon found Plaintiffs’ counsel arguments “beyond the permissible.” What Judge Mellon said, in response to Georgia-Pacific’s claims in post-trial hearings that Plaintiffs’ counsel commented on the size of Georgia-Pacific, is that such comments would, if made, be “beyond the permissible.” (6 RT 1653.) However, to the extent any comments on size were made, Georgia-Pacific did not preserve objection. Morever, as any comment with respect to Georgia-Pacific’s size would be relevant to punitive damages, given that punitive damages were not awarded, it cannot be said that the absence of such comments would have caused the result to be more favorable to Georgia-Pacific.
D. Georgia-Pacific cannot meet its burden to show that a different result would have been reached in the absence of these statements made by Plaintiffs’ counsel in closing.
Even if Georgia-Pacific could show that misconduct had occurred in Plaintiffs’ counsel’s closing argument, it is Georgia-Pacific’s burden to show that it is reasonably probable that Georgia-Pacific would have obtained a more favorable verdict in the absence of such argument. (Cassim v. Allstate (2004) 33 Ca1.4th 780 [holding that attorney misconduct in closing argument was not prejudicial error, considering the brevity of the comment, the judge’s instructions to the jury, and that defendant did not meet its burden to show that it was reasonably probable that it would have obtained a more favorable verdict in the absence of the argument.].)
As set forth above, the statements made by Plaintiffs’ counsel at issue in this appeal were entirely consistent with the evidence, and not misconduct.
But more importantly, even assuming arguendo that reminding the jury that Georgia-Pacific seeks to “protect its money” was misconduct, this argument was directed towards obtaining a verdict that Georgia-Pacific acted with “malice or oppression” in order to obtain punitive damages. Because the jury found that Georgia-Pacific did not act with malice or oppression, and thus the Plaintiffs were not entitled to punitive damages, the argument was thus shown to have been ineffective with the jury in the first instance. Judge Mellon recognized that Georgia-Pacific could not show that it would have obtained a more favorable result in the absence of Plaintiffs’ counsel’s alleged misconduct, because the jury did not award punitive damages: “The jury rejected the claim of punitive damages. That rejection in light of the award of very substantial compensatory damages both economic and non-economic both to Joan Mahoney and Daniel Mahoney shows a very high degree of discriminating judgment on the jury’s part… and diminishes almost to the vanishing point the possibility that they were driven by passion and prejudice.” (5 RT 1540-1541.)
E. The size of the award in and of itself does not render it suspect; the court must look to the individual facts of this case to see if the award was the result of passion or prejudice.
“[T]he fact that an award may set a precedence by its size does not in and of itself render it suspect. The determination of the jury can only be assessed by examination of the particular circumstances involved.” (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 654-55.) Pursuant ‘to the California Supreme Court, jury verdicts must be analyzed on a case-by-case basis: “For a reviewing court to upset a jury’s factual determination on the basis of what other juries awarded to other plaintiffs for other injuries in other cases based upon different evidence would constitute a serious invasion into the realm of fact finding. Thus, we adhere to the previously announced and historically honored standard of reversing as excessive only those judgments which the entire record, when viewed most favorably to the judgment, indicates were rendered as a result of passion or prejudice on the part of the jurors.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, fn. 12.)
As set forth above, the harms suffered by Joan and Daniel Mahoney were “extraordinary.” As a result of her exposure to asbestos, Mrs. Mahoney was condemned to slow and certain death by suffocation. Her bed-ridden husband Daniel, dependent on her not only for care but for company, lost not only his life partner but his primary caregiver.
Taking into consideration her pain and suffering, invasion of bodily integrity, impaired enjoyment of life, and shortened life expectancy of sixteen years, the jury’s award to Mrs. Mahoney was in accord with the evidence presented. With respect to the loss of consortium damages awarded to Mr. Mahoney, given that Mr. Mahoney’s life expectancy is for six more years, and that he is entirely dependent on his wife for his nurture and support, the jury’s award was reasonable and consistent with the evidence. (4 RT 890-891.)
The jury further showed that it did act with passion and prejudice in the reasoned manner in which it allocated liability in this case: the jury found Georgia-Pacific only 30% responsible, with other entities 65% responsible, and Mrs. Mahoney 5% responsible. (AA 0691.) Further, the jury found that Georgia-Pacific did not act with malice and oppression, thus denying Plaintiffs the opportunity to seek punitive damages. (AA 0689.)
Finally, looking to actual verdicts rendered in California between January 1, 2004 and April 5, 2009, there were at least 5 verdicts in similar cases with non-economic damages ranging from $13.2 millionto$35 million. While these verdicts reflect the amounts awarded by jury’s in similar cases, not an appellate court’s review of those awards, the law holds that such a consideration is appropriate. (Daggett v. Atchison, Topeka & Santa Fe Railway Co. (1957) 48 Cal.2d 655, 666 [“[A] reviewing court, in passing upon the question [of whether damages awarded were excessive], may consider amounts awarded in similar cases…”] [Citations omitted].) The jury’s verdict in this case clearly comports with verdicts in similar California cases during this five-year period. Georgia-Pacific’s claim to the contrary is simply false.
III. THE EVIDENCE AT TRIAL WAS SUFFICIENT TO ESTABLISH CAUSATION.
“The test on appeal is whether substantial evidence supports the conclusion of the trier of fact …” (People v. Johnson (1980) 26 Cal.3d 557, 576.) Reviewing courts look to the entire record for substantial evidence supportive of the trial court’s findings of fact and “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (Id. [citations and internal quotation marks omitted].)
A. Plaintiffs satisfied the substantial factor test as set forth in Rutherford v. Owens-Illinois, Inc. (1997) 16 Ca1.4th 953.
The California Supreme Court in Rutherford admonished courts to be wary of the misapplication of the substantial factor test. (Rutherford, supra, (1997) 16 Cal.4th at 969; see also Jones v. John Crane, Inc. (2005) 132 Cal.App4th 990, 1000 [“We heed the admonition in Rutherford to be wary of the misapplication of the substantial factor test.”].) Here, Georgia-Pacific, in citing repeatedly to cases outside of California, asks this Court to rewrite established principles of California law as to the meaning of “substantial factor” in an asbestos case. (See Georgia-Pacific’s Brief at 46-47 [citing to state cases from Texas and Pennsylvania, and a federal case from Northern District of Ohio].)
The California Supreme Court in Rutherford was clear in its definition of what the Plaintiffs’ burden is for specific causation under California law: the plaintiff must show that the exposure to defendant’s product was, in reasonable medical probability, a substantial factor in contributing to the risk of developing cancer. (Rutherford, supra, 16 Cal.4that 957-58.) The court in Rutherford defined “substantial factor” to be broad in its application: “The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (ld. at 978.) Further, the court cautioned that “[u]ndue emphasis should not be placed on the term ‘substantial.,,, (ld. at969.) Plaintiff does not need to prove with medical exactitude that fibers from a particular defendant’s asbestos~ containing products were those, or among those, that actually began the cellular process of malignancy. (ld. at 958.) Further, Rutherford only requires that plaintiff show that the defendant’s asbestos product “contributed to the risk;” Rutherford does not require that the defendant’s product independently caused plaintiffs injury, or that, but for that exposure, the plaintiff would not have contracted the injury. (See Jones v. John Crane, Inc., 132 Cal.App4th 990,998 fn. 3.)
Thus, in Rutherford, even though the jury only ascribed to Defendant Owens-Illinois 1.2% of the fault, the California Supreme Court held that this was sufficient to constitute a substantial contributing factor. (Rutherford, supra, 16 Ca1.4th at 962.) Similarly, in Jones v. John Crane, Inc., the court concluded that plaintiff met his burden to show substantial factor where the jury ascribed 1.95% of the fault to John Crane. The Court in Jones v. John Crane recognized that because small amounts of asbestos have been shown to cause disease, even if the exposure to defendant’s product was comparable to those found in ambient air, it did not render the exposure “negligible or theoretical.” (Jones, 132 Cal.App4th at 1000 [“As Dr. Hammar recognized, even if a person were exposed to six different products, each with a release level similar to the asbestos levels recorded in ambient air, the combined concentration in the total dose would contribute substantially to the increased risk of cancer.”].)
Under no standard in California is a plaintiff required to prove “length, frequency, proximity, and intensity of exposure,” as Georgia-Pacific argues. (Georgia-Pacific Brief at p. 45 [citing Rutherford, supra, 16 Cal.4th at p. 975; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App4th 96, 102].) Rather, these are merely factors to consider in assessing whether a particular exposure contributed to the plaintiffs disease. (See Rutherford, 16 Cal.4th at 975; Andrews, 138 Cal.App4th at 102; Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App4th 1409, 1416.) These factors are relevant but not “determinative.” (Lineaweaver, 31 Cal.App4th at 1416-417.)
Georgia-Pacific’s argument that Plaintiff failed to establish “anything more than a theoretical possibility” that exposure to Georgia-Pacific joint compound was a substantial contributing factor to the risk of Mrs. Mahoney’s mesothelioma completely ignores the evidence in this case.
At the outset, Georgia-Pacific does not contend that it was impermissible for Dr. Mark to testify on substantial contributing factor based on posited hypotheticals. California “law permits the examination of an expert witness with hypothetical facts.” (People v. Boyette (2002) 29 Cal.4th 381, 449.) An expert may render an opinion based on facts given in hypothetical questions, as long as the questions assume facts shown by the evidence, (People v. Ward (2005) 36 Cal.4th 186,209; see also People v. Sims (1993) 5 Cal.4th 405, 436 fn. 6 [quoting 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1848 at p. 1804].) It is for the jury to decide whether facts assumed in hypothetical questions to an expert have been proven. (People v. Lucas (1995) 12 Cal.4th 415, 474.)
Here, Dr. Mark testified that assuming that Mrs. Mahoney sanded and cleaned up Georgia-Pacific asbestos joint compound work, her exposure to Georgia-Pacific joint compound would have been a substantial contributing factor to her risk of developing mesothelioma. (2 RT 306-307.) As set forth at length above, there was overwhelming evidence at trial establishing those very facts. Further, there was substantial evidence that even if Mrs. Mahoney had only sanded and swept Georgia-Pacific joint compound once, such exposures would be “more than negligible or theoretical.” Even sporadic consumer use of joint compounds was deemed to be so dangerous that asbestos-containing joint compound consumer patching products were banned by the Consumer Product Safety Commission “on the basis that airborne asbestos fibers present the hazards of cancer, including lung cancer and mesothelioma.” (2 RT 395.) According to Mr. Hatfield’s testing of Georgia-Pacific joint compound products, Mrs. Mahoney’s exposure from sanding would have been in the range of1.4 to 6.6 fibers/cc and exposure from cleanup would have been in the range of2 to 7 fibers/cc (with the published literature showing much higher ranges.) (3 RT 631-632, 635-636.) Moreover, she would have had literally billions of asbestos structures on every square foot of her clothing after sanding. (Id. at 681, 682.)
In Jones, the Court held that even if an exposure was at comparable levels to the exposure to asbestos in ambient air, it could rise to the level of being a substantial contributing factor. Clearly Dr. Mark’s opinion that Mrs. Mahoney’s work sanding and sweeping asbestos-containing joint compound, which was thousands of times above background and even, by Georgia-Pacific’s own admission, above OSHA permissible exposure levels, meets the substantial factor standard of Rutherford.
Further, contrary to Georgia-Pacific’s assertions that Dr. Mark opined as to substantial contributing factor without reference to the facts, he reviewed Mrs. Mahoney’s work history sheets, interviewed Mrs. Mahoney, and read the applicable literature with respect to asbestos joint compound. (2 RT 351-2; 2 RT 254-55.)
Relying on exposure evidence much greater than the evidence presented in Rutherford and Jones, the jury in this case was entitled to find that Mrs. Mahoney’s exposure to asbestos from Georgia-Pacific joint compound constituted a substantial contributing factor to her risk of developing mesothelioma. The evidence established that Mrs. Mahoney was repeatedly exposed to asbestos from Georgia-Pacific joint compound during mixing, sanding, and cleanup activities throughout most of the 1970s. (4 RT 750, 752, 753-754,755,757,760-761, 764-765.) This evidence, along with Dr. Mark’s medical opinions that Georgia-Pacific asbestos joint compound contributed to her risk of mesothelioma if she sanded and cleaned up this joint compound, more than satisfies the Rutherford substantial factor standard.
B. Plaintiffs’ experts did not rely on the “any exposure” theory of causation in this case.
Finally, inexplicably, Georgia-Pacific insists repeatedly, with literally no basis in the record, that Plaintiffs are relying on an “any exposure” theory in adducing proof that exposure to Georgia-Pacific’s joint compound was a substantial contributing factor in causing Mrs. Mahoney’s mesothelioma. (Georgia-Pacific Brief at 43-47.) As discussed at length supra, Dr. Mark testified quite clearly that while there is no known safe level of exposure to asbestos, in his medical opinion an exposure to asbestos must rise to the level of a “special exposure,” meaning “that sort of exposure for which there is scientific reason that there is a risk,” before the exposure contributed to the risk of developing mesothelioma. (2 RT 357.) Thus, Dr. Mark was exactly echoing the standards set forth by Rutherford, that require that the exposure be more than “negligible or theoretical.” At no point does Dr. Mark say that “any exposure” causes mesothelioma. While, as Rutherford allows, he does not define with “medical exactitude” the exact number of fibers required to be a “special exposure,” he does require that an exposure rise to more than theoretical before it will “scientifically increase the risk.”
Even assuming arguendo that Dr. Mark had testified that “every exposure contributes to the risk of developing mesothelioma,” such testimony meets the causation standard as set forth by Jones v. John Crane and Rutherford. Georgia-Pacific attempts to gloss over this point. While Georgia-Pacific recognizes that causation testimony in Jones v. John Crane that “every exposure… contributed to the risk of developing lung cancer,” was found to meet the substantial contributing factor standard set forth by Rutherford, Georgia-Pacific attempts to differentiate this case by stating that the “experts in Jones actually considered evidence of plaintiffs asbestos exposure in forming their opinions.” (Georgia-Pacific Brief at 47, note 12.) Given that Plaintiffs here used permissible hypotheticals, later supported by overwhelming evidence, such a distinction cannot stand.
IV. PLAINTIFFS’ EXPERT TESTIMONY EMPLOYED GENERALLY ACCEPTED METHODOLOGIES.
Georgia-Pacific has waived any objection to Dr. Mark and Dr. Lemen’s testimony regarding causation by failing to seek a ruling on any motion with respect to this testimony. (Wagner et aI., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2008) ~ 8:3277.) Georgia-Pacific initially filed a motion in limine seeking to exclude Dr. Mark and Dr. Lemen’s causation testimony, but ultimately withdrew the motion from consideration. (6 RT 1490.) Where counsel withdraws an objection regarding testimony before receiving a ruling on that objection, he thereby waives any objection he has made to the admissibility ofthe testimony. (Cal. Jur. 3d Evidence §198 [citing George v. City of Los Angeles (2d Dist. 1942) 51 Cal.App.2d 311,316].) Further, Georgia-Pacific did not object at any point during the course of Dr. Mark or Dr. Lemen’s testimony that their testimony lacked foundation under Rule 801 or was novel under Kelly/Frye. Having failed to seek a ruling on any motion regarding admissibility of Dr. Mark and Dr. Lemen’s causation testimony, Georgia-Pacific may not now seek to challenge this evidence on appeal.
However, in an abundance of caution, Plaintiffs address each point below. The trial court’s admission of evidence is reviewed for abuse of discretion. (Employers Reinsurance Co. v. Superior Court (2008) 161 CaI.App4th 906, 919).
A. Dr. Mark’s opinion was based on actual evidence of exposure, and is not “circular assumption.” In a redundant manner, Georgia-Pacific again urges that Dr. Mark’s testimony “rests on guess, surmise or conjecture,” and was based on a circular assumption that because Mrs. Mahoney has mesothelioma, the asbestos to which Mrs. Mahoney was exposed caused her disease. (Georgia-Pacific Brief at 49.)
As set forth at length above, Dr. Mark’s medical testimony was not based on assumption but rather the facts of this case. Dr. Mark testified that if Mrs. Mahoney used asbestos-containing joint compound, a known carcinogen so dangerous it was banned by the Consumer Products Safety Commission, in a manner that would release abundant quantities of asbestos dust, such as sanding and sweeping, then this exposure would contribute to her risk of developing mesothelioma. (2 RT 307.) Also as set forth above, hypotheticals are clearly permissible under California law, and Georgia-Pacific does not contest this basic legal principal. Dr. Mark’s specific factual requirement of proof in order for the Georgia-Pacific exposure to rise to the level of substantial contributing factor was later met by the Plaintiff with overwhelming evidence.
B. Georgia-Pacific asks to apply a foundational analysis to the epidemiological and scientific evidence underlying Plaintiffs’ experts’ opinions that the California Supreme Court has expressly rejected. (See People v. Leahy (1994) 8 CaI.4th 587)
Georgia-Pacific argues that this court should apply the foundational analysis employed in the federal courts to all expert testimony, which is an analysis that the California Supreme Court has expressly rejected. (See People v. Leahy (1994) 8 Cal.4th 587.) Specifically, the federal rule established in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 subjects all expert scientific and technical opinion to a threshold reliability test (under rule 702 of the Federal Rules of Evidence, which superseded the Frye test in federal courts as of 1993). What Georgia-Pacific asks this court to do is a Daubert analysis of all studies relied on by plaintiffs’ experts. (See Georgia-Pacific Brief at 50-55.) Use of the Daubert threshold reliability test contradicts the well-settled law in California. (See People v. Leahy (1994) 8 Cal.4th 587 [refusing to adopt the federal reliability test derived from Federal Rules of Evidence rule 702 established in Daubert]; see also Roberti v. Andy’s Termite & Pest Control (2004) 113 Cal.App.4th893, 835.)
In Roberti, the Court rejected the same arguments presented herein by Georgia-Pacific. Plaintiffs expert, in Roberti, offered testimony that the plaintiffs autism was caused by exposure to pesticides. Defendants filed a motion in limine contending the experts lacked foundation for their causation testimony, because “this is a case of low-level, unmeasured, and unknown ‘chronic’ exposure; that no peer-reviewed scientific literature was presented that demonstrates autism or brain damage can occur from such minimal exposure; that the scientific studies are unreliable as foundation because none of the studies involved exposures, dosages, or other circumstances similar to this case…” (Id. at 899.) Rejecting the Defendants’ arguments, Roberti held that an analysis of the underlying studies was contrary to California law, and because the medical testimony of plaintiffs experts had the tendency to prove causation, and was based on studies and protocol of a type reasonably relied on by an expert witness, the plaintiffs expert’s opinion was admissible. (See id. at 906.) The Roberti court stated “[u]nless and until our Supreme Court determines that the Daubert analysis is applicable in California, we will adhere to the rule of People v. Kelly and its progeny, and refuse to apply a more extensive preliminary admissibility test as in Daubert to expert medical opinion concerning causation.” (Id. at 906.)
When the underlying information is of a type reasonably relied on by experts, the issue of whether the information adequately supports a particular conclusion is “for the jury to determine.” (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 463.) Here, Georgia-Pacific’s challenges to Plaintiffs’ experts’ causation opinions should be rejected because those opinions were supported by the factual record and based on scientific literature that is of a type reasonably relied on by experts in asbestos cases. As set forth at length above, it has been accepted in the medical and scientific literature that exposure to asbestos causes mesothelioma (3 RT 441.) Asbestos joint compound, the very product at issue in this case, was deemed to be so hazardous because of its asbestos content, that it was banned in 1977 by the United States Government. (2 RT 395; see also RA 077-89.) Plaintiffs’ experts rely on literature and studies promulgated by the National Cancer Institute, the World Health Organization, and the Environmental Protection. Agency for the consensus scientific conclusion that very low levels of asbestos exposure increase the risk of mesothelioma. (2RT310.) This is undisputedly information of a type that may be “reasonably relied upon.”
Georgia-Pacific’s reliance on In re Lockheed Litigation Cases (2004) 115 Cal.App4th 558, is entirely misplaced. In Lockheed, the Plaintiff was exposed to acetone, toluene, methyl ethyl ketone (MEK) and isopropyl alcohol supplied by Exxon, and MEK and super flash naptha supplied by Union Oil. (See id. at 561.) The Court in Lockheed excluded Plaintiffs expert under Rule 801, because Plaintiffs expert was unable to opine whether the specific chemicals supplied by Exxon and Union Oil in and of themselves increased a person’s risk of developing cancer. (See id. at 564-65.) In contrast, asbestos is an accepted cause of mesothelioma (3 RT 441.) Even Georgia-Pacific’s medical expert Dr. Hughson agreed that “clinical and epidemiologic studies have established incontrovertibly that chrysotile causes malignant mesothelioma.” (5 RT 1244.) The only dispute in this case is as to the conclusions drawn as between Plaintiffs and Defendants’ experts as to the dose required to cause mesothelioma, and disagreement over an expert’s conclusion “does not make [the challenged expert’s] methodology a new scientific technique.” (Roberti, 113 Cal.App.4th at 903 [quoting People v. Bui (2001) 86 Cal.App.4th 1187, 1195-96] [alteration in original].)
C. Plaintiffs’ experts’ employed a generally accepted methodology that is not subject to the Kelly-Frye test for scientific reliability.
Despite California case law that medical scientific opinion is not subject to the Kelly/Frye test, and despite the fact that there is nothing novel in analyzing causation in a case of a person with mesothelioma exposed to asbestos, Defendant urges this Court to apply the Kelly/Frye test and reject Plaintiffs’ methodology as not generally accepted.
Kelly/Frye does not apply to scientific methodologies unless they are truly novel and have never before been considered by a California court. The California Supreme Court has explained that “Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or in part, on a technique, process, or theory which is new to science and, even more so, the law.” (People v. Stoll (1989) 49 Ca1.3d 1136, 1156.) Given that the methodology for ascribing causation in an asbestos case is so well-accepted that the California Supreme Court in Rutherford set forth the accepted legal parameters for such methodology, Georgia-Pacific cannot now claim that Plaintiffs’ experts are employing a novel technique for ascribing causation.
Further, in keeping with the purposes of Kelly/Frye, California courts have held that the test does not apply to expert medical opinions. (People v. McDonald (1984) 37 Ca1.3d 351, 372-73; People v. Ward (1999) 71 Cal.App.4th 368, 373.) Moreover, “medical theories of causation are not subject to the Kelly rule when they are based entirely upon generally accepted diagnostic methods and tests, including statistical studies that are not definitive.” (Roberti, supra, 113 Cal.App4th at 903 [citing Wilson v. Phillips (1999) 73 Cal.App4th 250; Bui, 86 Cal.App4th at 1187].)
Georgia-Pacific alludes repeatedly to a supposed method of “downward linear extrapolation” employed by Plaintiffs’ experts, without citation to Plaintiffs’ experts showing that Plaintiffs’ experts actually employed such a method. Plaintiffs’ experts quite simply relied on the generally accepted medical and scientific principles that a person exposed to even low doses of asbestos is at risk for mesothelioma, including studies that showed that only one day of exposure to asbestos increases the risk of mesothelioma. On the basis of this generally accepted medical and scientific literature, Plaintiffs’ medical expert opined that if Mrs. Mahoney was occupationally exposed to Georgia-Pacific joint compound in meaningful ways such as sanding and sweeping, then this would have contributed to her risk of developing mesothelioma. (2 RT 307.) There is nothing novel about these opinions, nor the methodology used to derive these opinions.
Georgia-Pacific has merely disagreed with the conclusions that Drs. Mark and Lemen have drawn from the scientific literature. Plaintiffs’ experts’ methodology of relying on published scientific literature on the hazards of asbestos is not novel, and, as demonstrated by the Rutherford and Jones cases, neither are their conclusions. Thus, Kelly/Frye cannot apply to exclude the expert medical opinions of Drs. Mark and Lemen.
Judge Mellon’s order that Plaintiffs either agree to remit the medical expenses or consent to a new trial on the issue of medical expenses was not an abuse of discretion. Economic and non-economic damages are not “inseparable” from each other, and Georgia-Pacific cites no case law holding that it is an abuse of discretion to order remittitur of medical expenses without a subsequent retrial of non-economic damages. There was substantial evidence in this case to support the award of non-economic damages, absent any consideration of the medical expenses.
Further, Plaintiffs’ counsel’s argument at closing was not misconduct, given that it was Plaintiffs’ burden to prove that Georgia-Pacific acted with malice and oppression. Morever, any alleged misconduct could not have resulted in a verdict distorted by passion and prejudice, as the jury in this case denied Plaintiffs’ efforts to seek punitive damages.
Third, Georgia-Pacific’s claim that Plaintiffs did not· meet the substantial factor causation test as set forth by Rutherford v. Owens-Illinois, Inc. (1997) 16 Ca1.4th 953 is without merit. The evidence is overwhelming in this case that Mrs. Mahoney was exposed to asbestos from Georgia-Pacific joint compound, and that it was a substantial contributing factor towards her risk of developing mesothelioma.
Finally, Judge Mellon did not abuse his discretion in not applying federal evidentiary requirements to experts presented in California state law claims. Nor did Judge Mellon abuse his discretion in not applying the Kelly/Frye test to medical experts in an asbestos case. Nothing in the in ascribing causation to asbestos for a person with mesothelioma presents a methodology that is new to science or the law.
For these reasons, Plaintiffs respectfully request that the Court affirm the judgment of the trial court in this case. Date: April 8, 2009 BARON & BUDD, PC