IN THE COURT OF APPEAL
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Case No. B196031
PEGGY IRENE NORRIS, Individually and as Successor in Interest
to the Estate of JOSEPH HENSON NORRIS, Deceased;
KAREN LEE NORRIS FRANCIS; KATHY LYNN NORRIS RIGGS;
and PATRICIA ROBIN NORRIS MATTHEWS,
Appeal from the Superior Court of California, County of Los Angeles
Hon. Victor E. Chavez, Presiding; Case No. BC 340413
October 19, 2007
STATEMENT OF THE CASE
Mr. Norris had significant exposure to asbestos from Crane’s products while serving as a gunner aboard the USS Bremerton (CA-130) from 1955 to 1957. After his honorable discharge, Mr. Norris went on to serve in the National Guard and the Reserves. (JA 112:15-24, 140:20-21.) There is no evidence that he was exposed to asbestos after his service on the Bremerton. As a result of that exposure, Mr. Norris contracted mesothelioma, a painful and incurable cancer of the lining of the lung caused by asbestos. (JA 148:23-149:7, R.805:4 – 806:4.)
Mr. and Mrs. Norris filed this lawsuit on September 26, 2005. (JA 1-17.) In addition to Mr. Norris’s causes of action, Mrs. Norris sought damages for her loss of consortium. (JA 9-10.) The Norrises were granted a preferential trial setting due to Mr. Norris’s rapidly deteriorating health. (RA 614.) Trial proceedings before the Honorable Victor Chavez began on August 8, 2006. (JA 814.) Jury selection began on August 14, 2006. (R.129.) Mr. Norris died from mesothelioma that morning (JA 728), although his grieving family did not tell counsel of his death until August 17 (JA 72). The court permitted Mrs. Norris to amend her complaint to add a wrongful death cause of action and to add the children as plaintiffs. (JA 730-31.) Plaintiffs offered to produce the Norris children for deposition. (R.510:14 – 511:3.) Crane professed “no interest or intention of putting them through depositions before they take the stand” (R.853:16-17) and represented that if the Norris children were just “going to talk about how they’re going to miss their dad or what they did that was enjoyable with their dad, I think we’re fine” (R.854:1-3).
Trial proceeded against Crane, a large manufacturer of asbestos-containing valves. (RA 4-16.) Crane made numerous types of valves and supplied every type of valve that it made to the Navy. (R.1643:27 – 1645:3.) Crane began to market asbestos-containing valves in 1858 and did not stop using asbestos in its valves until the mid-1980s. (R.1137:12-19, 916:6-11.) In addition to the asbestos packing and gaskets that Crane put in its valves before selling them, from 1920 through 1972 Crane exclusively sold Cranite gaskets and sheet packing, which had 75% to 85% asbestos per Crane’s specifications (RA 11, 121, 217-20, 353; R.915:7-15, 1137:20-23.)
By the time Mr. Norris was exposed to asbestos from Crane products, hundreds of articles had been published on asbestos hazards. (R.604:16-28.) Crane’s representative admitted that in 1950 Crane would have discovered a body of medical research concerning asbestos had it looked. (R.1127:25 – 1128:3.) Crane was a member of several organizations which from 1914 through the 1930s published information on asbestos dangers. (R.1131:20-27, 1137:24 – 1138:19, 1140:1-6, 1661:19 – 1664:25.) Nevertheless, Crane never gave warnings or cautions regarding asbestos and never conducted studies to determine if inhaling asbestos from its products was harmful. (R.917:6-23, 1131:13-19.)
The jury heard testimony from Mr. Norris and six shipmates regarding exposure to Crane’s asbestos products. Crane valves were used throughout the Bremerton. (JA 416(13:20-21, 13:25 – 14:1), 417(15:5-7, 14-15, 17), 632(22:20-23), 648(87:1-17), 594-95(17:24 – 18:1, 18:9-20).) Crane valves used asbestos packing and gaskets for insulation and fluid control. (JA 417(14:7-8, 14:11-15), 568(16:24 – 17:5).) These products contained up to 85% asbestos. (R.917:1.) As Crane anticipated (R.1132:16-24, 1133:13 – 1134:8, 1670:6-12), asbestos packing and gaskets in its valves had to be replaced regularly. (JA 417(14:19 – 15:4), 646(81:13-23), 647(83:15-21).) Old packing and gaskets stuck to the valves, so workers used knives, scrapers, wire brushes, and even sledge hammers to get the material off. (JA 420(29:8-17), 632(22:25 – 23:1, 23:3-11, 23:13-19), 453:16-19, 567(13:13-24), 568(17:6-16).) Old asbestos material produced dust when scraped and ground off, and the men breathed that dust. (Ibid.) New asbestos material produced dust when it was hammered or cut to fit the valve. (E.g., 632(22:25 – 23:1, 23:3-11, 23:13-19).)
Quarters below deck, where Mr. Norris was sixteen hours a day (JA 211:18 – 212:18, 213:3-5), were confined and poorly ventilated. (E.g., JA 131:7-14, 571(27:16-25).) Mr. Norris described being near men working on valves (JA 124:4-11), seeing workers repacking Crane valves (JA 282:18-25), seeing men work on dismantled Crane valves (JA 261:1-5, 262:14-24, 262:11-19, 274:9-14)), having to clean dust from valve work off his bunk (286:6-22), and walking through dust as thick as fog (JA 122:13-16, 124:12-19). Just three or four feet from him, men worked on Crane valves, grinding and putting on new gaskets. (JA 126:24-25, 127:1-7.) Mr. Norris inhaled the dust from the Crane valves. (JA 127:8-10.)
Pathologist James Robb concluded that Mr. Norris’s exposures to Crane’s asbestos above background level would have been a substantial contributing factor to causing his mesothelioma. (R.812:23 – 813:13.) Material scientist Richard Hatfield explained that Mr. Norris’s exposure to Crane’s products exceeded the background level discussed by Dr. Robb. (R.989:14-18, 990:4-8.) By the time the dust concentration is high enough to be seen, as it was on the Bremerton when the men worked on Crane valves, the levels far exceed acceptable limits. (R.953:19-25.) Asbestos fibers are released during maintenance of asbestos-containing valves, as when the gaskets are scraped off. (R.651:8-26.)
Repeatedly citing one line from Mr. Hatfield’s testimony, Crane claims that “Plaintiffs’ own experts [sic] admitted that [insulation] was the primary cause of Mr. Norris’s disease.” (Brief at 5, see also id. at 13, 16.) What Mr. Hatfield actually said was that Mr. Norris’s exposures were “Well, primarily, and I think what I testified to in my deposition, that there was work done in the dry dock, work done dealing with thermal insulations. And there was a lot of work done with gaskets and packing.” (R.1012:15-19.) Neither Mr. Hatfield nor any other Plaintiffs expert testified that insulation was the exclusive or primary cause of Mr. Norris’s disease. Mesothelioma is a cumulative dose disease, with multiple exposures contributing to the formation of cancer. (R.654:16 – 655:12.) Each exposure is a significant contributing factor to the risk of developing mesothelioma. (R.653:14 – 654:4.) There is no known safe level of exposure below which a person will not develop mesothelioma. (R.652:15-19, 666:4-12.)
The evidence at trial proved that all asbestos fiber types, including the type used in Cranite and in Crane’s valves, cause mesothelioma. (R.645:7 – 646:6.) Chrysotile breaks down more rapidly in the lung than other types of asbestos, such that chrysotile fibers move into the tissue forming the sac around the lung, the pleura, where mesothelioma develops. (R.657:3 – 658:13, 808:10 – 809:20.) The National Cancer Institute, NIOSH, OSHA, EPA, IARC, WHO, and the scientific and medical communities concur that chrysotile causes mesothelioma. (R.665:14-21, 672:28 – 673:14, 836:27 – 837:20.)
During closing argument, Plaintiffs acknowledged that Mr. Norris had been exposed to other asbestos products and suggested that the jury apportion fault 50-50 between Crane and the remaining entities. (R.1855:1-21.) Crane urged the jury to apportion fault to the Navy and “insulation companies.” (R.1900:26 – 1901:2, 1954:20-26.)
ACTION OF THE TRIAL COURT
The jury deliberated for five days, twice expressing an inability to apportion fault among the 21 non-trial entities. (R.1975:15-23, 1979:15-22.) After the second note from the jury on this matter, the court instructed the jury to apportion liability between Crane Co. and “all others.” (R.1981:10-17.) The jury returned a verdict in favor of the Norris family, allotting 50% liability to Crane Co. and 50% to “all others.” (JA 851.) The jury found Crane liable in negligence and strictly liable under the consumer expectations test. (JA 848-49.) Plaintiffs submitted a proposed judgment which provided an offset for all prior settlements. (JA 805-12.) Crane argued that Mrs. Norris should be ordered to make future payments to Crane for potential bankruptcy submissions. (JA 814-15.) The superior court rejected this argument and entered judgment. (JA 816-22.)
Crane moved for JNOV on the grounds that the evidence at trial was insufficient to support the jury’s findings that Mr. Norris was exposed to asbestos from Crane’s products, that such exposure was a substantial factor in causing Mr. Norris’s mesothelioma, that Crane was negligent, and that Mr. Norris’s wife of nearly fifty years was entitled to non-economic damages. (JA 827-40.) Crane also filed a motion for new trial, claiming insufficient evidence, excessive damages, and prejudice from the denial of a continuance upon Mr. Norris’s death. (JA 854-74.) The court heard argument and denied both motions. (JA 965-67.)
SUBSTANTIAL EVIDENCE ESTABLISHED THAT MR. NORRIS WAS EXPOSED TO ASBESTOS FROM CRANE’S PRODUCTS, WHICH WAS A SUBSTANTIAL CAUSE OF HIS MESOTHELIOMA AND DEATH.
Under the laws of this state, there was ample evidence of exposure and causation. In reviewing the denial of Crane’s motion for JNOV, this court must view the evidence in the light most favorable to the Norrises. (Ajaxo Inc. v. E*TRADE Group, Inc. (2005) 135 Cal.App.4th 21 [37 Cal.Rptr.3d 221].) The reviewing court’s power “begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162] (emphasis original, citation omitted).) “It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.” (Ibid.)
As an initial matter, “if, as defendants here contend, some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error assigned is deemed to be waived.” (Id. at 881 (emphasis original, citations omitted); see also Ajax, supra, at 49 (“E*Trade’s slanted presentation of the facts reads more like argument. Accordingly, we deem that E*Trade has waived this issue on appeal because of its failure to carry its burden of providing this court with a fair and complete summary of the evidence.”).) Crane’s one-sided presentation of the evidence renders its assignment of error waived. In any event, Crane’s claim of error fails, as the verdict is supported by the record.
This Court Should Not Adopt the Law of Other States on Causation.
Crane relies on “authority from other jurisdictions that have grappled with the intricacies of asbestos litigation,” and ignores the substantial body of California authority regarding this very issue. (Brief at 26-28 (relying on Lohrmann v. Pittsburgh Corning Corp. (4th Cir. 1986) 782 F.2d 1156 (Maryland law), and Borg-Warner Corp. v. Flores (Tex. June 8, 2007) __ S.W.3d __ [2007 WL 1650574]).) In California, a plaintiff must “establish some threshold exposure to the defendant’s defective asbestos-containing product.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982 [67 Cal.Rptr.2d 16].) Although the Supreme Court did not define the threshold, courts have adopted two approaches: the stringent approach requires proof of contact with a product, whereas the more lenient approach requires proof that a product was at the work site. (Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655 [33 Cal.Rptr.2d 702].) Neither approach requires quantification of a plaintiff’s dose of exposure to each particular product.
Cases in which plaintiffs failed to make this threshold showing involve a complete absence of exposure evidence. For example, in Dumin, the plaintiff could not identify Kaylo as a product to which he had been exposed, and circumstantial evidence at best suggested that Kaylo may have been used at the shipyard where plaintiff’s ship was ported. Similarly, in McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105 [120 Cal.Rptr.2d 23], the worker did not know if he had been exposed to Kaiser products, and the best evidence suggested the products “might” have been used once somewhere in the hospital where he worked. Of course, circumstantial evidence can support an inference of exposure, such as where the plaintiff established that the product was sufficiently prevalent at his workplace to warrant an inference that he would have been exposed to it. (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1420 [37 Cal.Rptr.2d 902].) In Greathouse v. Amcord, Inc. (1995) 35 Cal.App.4th 831 [41 Cal.Rptr.2d 561], circumstantial evidence supported the jury’s inference that the decedent had been sufficiently exposed to plastic gun cement, which contained only 2% asbestos, such that it was a substantial cause of his disease.
Under no standard in California is a plaintiff required to prove “sufficient frequency, regularity, proximity, and intensity.” (See Brief at 27 (citing Rutherford, Lineaweaver, and Lohrmann).) These are merely factors to consider: “Taking into account the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, any other potential causes to which the disease could be attributed (e.g., other asbestos products, cigarette smoking), and perhaps other factors affecting the assessment of comparative risk, should inhalation of fibers from the particular product be deemed a “substantial factor” in causing the cancer?” (Rutherford, supra, 16 Cal.4th at 975.) “The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Id. at 978).
In Rutherford the Supreme Court cited Lineaweaver, which held that the Lohrmann factors are relevant but not “determinative.” (Lineaweaver, supra, 31 Cal.App.4th at 1416-417.) Courts in California and other jurisdictions have rejected the use of Lohrmann as a bright-line test for proving causation. Lohrmann is not the law in California, and it has been soundly rejected by other courts. For example, the highest court in Ohio found that Lohrmann “casts judges in an inappropriate role, is overly burdensome, and is unnecessary,” “flies in the face of evidence which indicates that short periods of exposure – from one day to three months – can cause significant damage to the lungs,” and is “pseudoscience in an arena where there is a long tradition of leaving science to the experts.” (Horton v. Harwick Chem. Corp. (Ohio 1995) 653 N.E.2d 1196, 1199-1201; see also Ingram v. AC&S, Inc. (9th Cir. 1992)977 F.2d 1332, 1343-44 (rejecting “frequency, regularity, or proximity” test under Oregon law).)
“[E]ven the jurisdictions that follow the ‘frequency, regularity, and proximity’ test apply it less rigidly when dealing with mesothelioma, because it can be caused by very minor exposures.” (Purcell v. Asbestos Corp. (Or. App. 1998) 959 P.2d 89, 94; see also Tragarz v. Keene Corp. (7th Cir. 1992) 980 F.2d 411, 421 (“mesothelioma can result from minor exposures to asbestos products”).) The “amount of evidence needed to establish the regularity and frequency of exposure will differ from case to case. . . . This case would have been easier had plaintiff been able to testify that he often found himself covered with dust. But that is not a legal requirement, at least where mesothelioma is concerned.” (Kurak v. A.P. Green Refractories Co. (N.J. App. 1997) 689 A.2d 757, 765-66.)
Crane also urges this Court to apply the unprecedented quantitative standard recently adopted by the Texas Supreme Court in Borg-Warner Corp. v. Flores. In Flores, the Texas Supreme Court cited Lohrmann and Rutherford but concluded that cases from other states did not “capture the emphasis our jurisprudence has placed on causation as an essential predicate to liability.” (2007 WL 1650574, at *4 (emphasis added).) The court concluded that “proof of mere frequency, regularity, and proximity is necessary but not sufficient, as it provides none of the quantitative information necessary to support causation under Texas law.” (Id. at *6 (emphasis added).) Applying a much stricter standard than the one described in Rutherford, the Texas Supreme Court held that a plaintiff must provide “[d]efendant-specific evidence” quantifying the dose to which the plaintiff was exposed. (Id. at *7.) Texas courts are certainly entitled to establish their own standards of proof, but this Court is required to follow the law of California.
In Rutherford, the California Supreme Court affirmed a verdict against Owens-Illinois without requiring any quantification of the “dose” attributable to Owens-Illinois products. The evidence against Owens-Illinois was summarized as follows:
Each plaintiff in these consolidated actions sought to show that he . . . had been exposed to asbestos fibers from the asbestos-containing insulation product known as Kaylo that was manufactured by Owens-Illinois from 1948 to 1958. This product, which was produced in block and pipe-covering forms, contained both amosite and chrysotile asbestos fibers. John McKinley, who worked as an electrician at Mare Island, recalled working with Rutherford in the early 1950’s. He testified that Rutherford and he were often required to go down into fire rooms and engine rooms as part of their jobs, and that when they were working in those areas, the asbestos dust looked like a “Texas dust storm.” McKinley specifically remembered working with Rutherford below decks on board ships while the laggers were ripping out insulation. The deposition testimony of Milton Reed was also introduced at the second phase of trial. Reed, an insulator and pipe coverer at Mare Island, testified that during the 1940’s and 1950’s Owens-Illinois’s insulation product Kaylo was used extensively at the shipyard, and that the product gave off visible dust when used.
(Rutherford, 16 Cal.4th at 961.) The plaintiff’s medical expert testified that “asbestos-related lung cancers are dose-related diseases, and that all occupational exposures through the latency period can contribute to the risk of contracting the diseases.” (Ibid.)
The Court found this evidence sufficient to sustain the jury’s determination that exposure to Kaylo contributed “a relatively small amount to decedent’s cancer risk” but was nonetheless a “substantial factor” in causing his disease. (Id. at 985.) The Court explained that “substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. A plaintiff who suffers from an asbestos-related cancer and has proven exposure to inhalable asbestos fibers from several products will not, generally speaking, face insuperable difficulties in convincing a jury that a particular one of these product exposures, or several of them, were substantial factors in creating the risk of asbestos disease or latent injury.” (Id. at 978.) Relying on exposure evidence very similar to the evidence presented in Rutherford, the Norrises have more than satisfied their burden of proof under California law.
Substantial Evidence Established Mr. Norris’s Exposure to Asbestos from Crane’s Products.
California courts have rejected the argument that a plaintiff must prove exposure “extensive enough to cause substantial harm.” (Lineaweaver, 31 Cal.App.4th at 1416; Rutherford, 16 Cal.4th at 977.) In Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 [35 Cal.Rptr.3d 144], the defendant claimed that there was no substantial evidence to support the jury’s finding that a defect in its valve and pump packing was a legal cause of harm to the plaintiff who, like Mr. Norris, was exposed aboard the Bremerton. The defendant argued that “the fiber releases from its product were comparable to ambient levels of asbestos in the community at large. . . .” (Id. at 998.) The court explained that “a level of exposure that is the equivalent of that to which one might be exposed in the ambient air over a lifetime is not necessarily insignificant. . . negligible or theoretical.”(Id. at 1000 (quotation omitted).)
“[H]eed[ing] the admonition in Rutherford to be wary of the misapplication of the substantial factor test,” the court held that an exposure may be a substantial factor in contributing to the plaintiff’s aggregate dose of asbestos, even if it would not be an independent cause of the disease. (Ibid.) “[I]f 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.” (Ibid.) Notwithstanding Mr. Jones’s exposure to other sources of asbestos, the court upheld the jury’s finding that exposure to valve products was a substantial factor in contributing to his risk of injury. In this case, the jury reached a similar conclusion, which was fully supported by the evidence.
i.Mr. Norris described extensive exposure to asbestos from Crane’s products.
When Mr. Norris first went aboard the Bremerton in March 1955, the ship was in dry dock at Mare Island Shipyard: it was being overhauled, pipes were reinsulated, and new gaskets were put in. (JA 121:14-21, 123:1-5, 201:5-14, 252:15-23.) For all but eight hours per day, he was below deck “all the time” to sleep, eat, retrieve tools, and so on. (JA 211:18 – 213:5.) Below deck, one “can’t avoid” seeing other men working on valves and pumps. (JA 123:21-23.) Mr. Norris was “a lot” closer than five feet to men wire brushing old gaskets and putting on new ones. (JA 124:4-11.) The dust was so thick that it was like walking through fog; it was impossible to keep from breathing the dust. (JA 122:13-16, 124:12-19.)
Valves were “all over” the ship (JA 242:5-6), and Mr. Norris specifically recalled seeing the name “Crane” on the valves (JA 126:10-19). Just three or four feet from Mr. Norris, men worked on Crane valves, grinding them down and putting on new gaskets. (JA 126:24 127:7.) Men around Mr. Norris would scrape or grind gaskets, and the use of electric wire brushes would “sling” dust, which Mr. Norris inhaled. (JA 128:8-23.) Mr. Norris inhaled the dust from the work done to the Crane valves. (JA 127:8-10.)
Maintenance at sea was ongoing “day by day.” (JA 130:23 – 131:3.) Mr. Norris stood watch in the engine room (JA 883), and he visited others in the engine room, noticing that dust hung in the air because there was no ventilation (JA 131:7-14). Men scraped and chipped material from valves in the boiler room (JA 216:14-25), men were worked on valves in the engine room (JA 131:7-10), and Mr. Norris breathed the dust in both rooms (JA 131:17-20, 132:5-13, 213:6-18).
In 1957 the ship returned to dry dock for an overhaul in Puget Sound Naval Shipyard. (JA 135:6-13.) As with the prior dry dock, men worked on valves, Mr. Norris continued to sleep on board, and he was exposed to the asbestos. (JA 135:14-24.) Men were reinsulating the pipes, stripping, grinding, wire brushing, and putting in valves “all over the ship.” (JA 247:19-25.) Valves were taken down everywhere – in passageways, bathrooms, galley, dining area. (JA 254:23 – 255:4); the men were “redoing them, regrinding them,” which was “dusty, nasty, filthy.” (JA 253:6-17.) Mr. Norris was present when men were taking valves down, grinding and chipping out old gasketing and packing material, regasketing and repacking the valves, including Crane’s, and working in the interior of valves. (JA 248:16-18, 249:1-21, 268:11-13; 282:18-25.) He saw men putting gaskets in the valves, “grinding the old stuff off,” and repacking them. (JA 249:14-18.) When large valves were dismantled in passageways, Mr. Norris had to stand by while men worked on them. (JA 250:19-22.) Most of the valves were Crane’s. (JA 255:18-21.)
When they were opened and dismantled, stripping and grinding the valves made an “awful dusty mess.” (JA 257:12-22.) A “whole bunch” of valves in Mr. Norris’s sleeping compartment were taken apart and repacked with new packing and gasketing material. (JA 254:3-9.) Crane valves close to Mr. Norris’s bunk were taken down, rebuilt, and put back up. (JA 261:1-5, 262:14-24.) Other valves near his bunk also bore the label “Crane,” which he remembered because he slept there and saw them “all the time.” (JA 262:11-19.) The Crane valves in his sleeping quarters were insulated, and Mr. Norris saw men taking apart, wire brushing, scraping, cleaning, reinsulating, and rebuilding them. (JA 262:14-19, JA 263:15-21, 274:9-14.) Mr. Norris had to clean up the resulting dust, sweeping, dusting off beds, and changing mattress covers. (JA 249:6-9, 286:6-22.) Mr. Norris slept in the resulting dust (JA 249:21), and he had to “breathe all that mess” (JA 249:5-6).
ii.Shipmates corroborated Mr. Norris’s testimony of asbestos exposure from Crane.
Mr. Norris’s description of exposure to asbestos from Crane products was affirmed by six fellow sailors, several of whom personally worked on the valves. From 1955 to 1957, Mr. Cashen worked as a pipefitter, using asbestos gaskets, stem packing, and wrap on pipes and valves. ( JA 415(7:23-25, 8:5-20), 416(10:2 – 11:15, 11:18).) Mr. Cashen explained that the men were on the ship daily, even when in dry dock (JA 415(8:21 – 9:11)), the air was dirty from removing pipes and valves (JA 415(9:16-19, 9:22-24)), and the sailors inhaled that dust (JA 416(11:2-6)). Crane was a main valve manufacturer; there were “probably a hundred or so or more” Crane valves on the Bremerton. (JA 416(13:20-21, 13:25 – 14:1), 417(15:5-7, 14-15, 17).) Crane valves required asbestos, including asbestos gaskets. (JA 417(14:7-8, 14:11-15).) The gasket material used on the Bremerton were orange and brown (JA 428(59:1-4)), and Cranite “undisputedly was an orange-brown color” (JA 834 n.2.)
Mr. Cashen “quite often” had to open up valves, take out old material, and replace it with new rope packing. (JA 417(14:19 – 15:4).) Reinsulation of smaller valves required that the packing be removed and reinstalled at the top of the stem. (JA 418(19:13-24).) Larger valves had to be removed, the gasket material scraped out and cleaned off, and then new gaskets put on. (JA 418(22:4-10).) The men used scrapers, putty knives, and wire brushes to scrape old gaskets from valves. (JA 420(29:8-17).) Some gaskets were not precut and had to be built. (JA 419(23:3-13).) All of this work was done inside the ship. (JA 418(22:16-18).)
Anson Worley recalled serving with Mr. Norris in 1955 and 1956. (JA 682:9-16, 684:13-20.) He worked all over the ship (JA 685:14-24) and saw workers changing out valves and using gasket material (JA 688:6-10). The valves were labeled “Crane.” (JA 689:16-24.)
Robert Ross recalled serving with Mr. Norris from 1955 to 1957. (JA 628(7:19-23, 8:19-25, 9:2-6).) A machinist’s mate, he worked on valves, including asbestos sheet gasket material and rope valve packing. (JA 628(9:20-25), 629(10:11-20).) Mr. Ross used these asbestos materials on many occasions; dust was released when gaskets were hammered, scraped, and wire brushed, and when rope packing was pulled out of valves with pliers and hooks. (JA 630-31(17:5 – 18:2, 19:2 – 20:24).) Valves were all over the ship. (JA 648(87:1-17).) There were several types of Crane valves, and Mr. Ross worked with all of them. (JA 632(22:20-23), 647(85:3-7, 9-16), 648(88:4 – 89:24), 649(91:8-15).) One of his jobs was preventative maintenance of the valves, which included grinding, replacing seats, and repacking stems. (JA 646(81:13-23).) Valve packing had to be replaced regularly. (JA 647(83:15-21).) Mr. Ross worked hands-on with Crane valves, which released asbestos dust into the air when old packing was pulled out and when new packing was cut. (JA 632(22:25 – 23:1, 23:3-11, 23:13-19).)
Chris Mason was in charge of the main engine control from 1951 to 1955. (JA 592(8:16-18, 9:10-18).) Mr. Mason testified to asbestos exposure from gasket and packing material (JA 593(10:9-13)), and he specifically recalled Crane gaskets and packing (JA 593(10:22 – 11:8)). The gaskets, including Crane’s, created dust when old ones were scraped off and when new gaskets were cut and hammered. (JA 594(14:24 – 15:9).) Mr. Mason personally packed valves and recalled that Crane valves required square packing. (JA 594-95(17:24 – 18:1, 18:9-20).) The men used wire brushes to clean packing out of valve chambers before new packing could be put in; this also created dust. (JA 595(19:8-9, 19:12-17).)
James Cole was a machinist mate in the forward engine room. (JA 445:9-12, 449:24 – 450:10.) He worked on steam lines, taking apart valves and replacing gaskets in the valves. (JA 451:11-15, 451:18 – 452:9.) To remove gasket material, the men used wrenches, sledge hammers, “and a lot of manpower,” which they called “bull work.” ( JA 453:16-19.) Old valve gaskets had to be scraped off, which created “quite a bit” of dust. (JA 454:14-16.) Crane valves, especially high pressure ones, “definitely” required asbestos products, including packing. (JA 455:6-16.) Crane rope packing was used (JA 538:24 – 539:3), and pulling old rope packing out of Crane valves “definitely” released “a lot” of dust into the air (JA 456:16-25, 457:5-7, 457:10-13, 460:2-7). The would cut the rope packing (JA 459:1-3), and cut and hammer the sheet packing to make gaskets; this also released asbestos into the air on the ship, as it “couldn’t go anyplace else.” (JA 471:7-14, 471:20-23, 472:2-3, 472:6.)
Boiler operator Richard Marshall remembered working with Mr. Norris from 1956 through 1957 (JA 565-66(5:11 – 6:7, 6:12-17)), and testified that the men were “most definitely” exposed to asbestos (JA 566(6:8-10)). During the 1957 dry dock, valves were repaired and replaced (JA 566-67(9:15 – 10:5)), and the men slept aboard the ship (JA 567(10:6-8)). There were “a lot” of Crane valves, which required asbestos packing and gaskets. (JA 568(16:24 – 17:5).) Crane rope packing was used in Crane valves; when Mr. Marshall cut Crane rope packing, it created dust, which the men breathed. (JA 568(17:6-16).) Mr. Marshall removed and replaced valve gaskets, using a putty knife or scraper to clean the old material. (JA 567(13:13-24).) The ship had poor ventilation, and he was “sure” that Mr. Norris would have been exposed to asbestos. (JA 571(27:16-25).)
The seamen’s testimony was consistent with that of Crane’s witnesses. Crane’s naval expert testified that a heavy cruiser like the Bremerton had thousands of valves. (R.1567:28 – 1568:6.) Crane’s corporate representative testified that since there is no record of the manufacturer of each valve on the Bremerton, the men who were on the ship were in the best position to state whether there were Crane valves and whether they contained asbestos. (R.1648:22 – 1649:22, 1650:15-24.) Naval ship records showed that Crane material was purchased for the Bremerton (RA 226), and documentary evidence showed hundreds of valves throughout the ship that required asbestos components, like asbestos rod braided packing, high pressure asbestos rod, and asbestos sheet compressed gasket (R.1102:26 – 1104:1). The foregoing, coupled with Crane’s admission that their valves were labeled “Crane” (R.1136:21-24; RA 16), corroborates the men’s testimony of seeing, working on, and breathing dust from Crane asbestos-containing products throughout the ship, including the areas where Mr. Norris spent most of his time.
While not required in California, Plaintiffs quantified Mr. Norris’s approximate dose of asbestos from Crane products. Material scientist Richard Hatfield described his gasket studies, in which a worker with 30 years’ experience used the same tools and procedures as used in the field. (RA 361-62.) The results showed that a bystander would have a minimum asbestos exposure of 1.2 to 23.4 fibers per cubic centimeter, hundreds or thousands of times above background levels (RA 363). Others in the area, up to eight feet from where the work occurred, would also have asbestos exposures above background limits, in the range of 0.07 to 0.11 f/cc, versus the EPA-measured background of 0.0005 f/cc (R.982:6-7, 982:16-25, 986:17-20). The jury had substantial evidence from which it could conclude that Mr. Norris was exposed to significant amounts of asbestos from Crane products.
Medical Evidence Established that Asbestos From Crane’s Products Was a Substantial Contributing Factor in Causing Mr. Norris’s Disease and Death.
Pathologist James Robb explained that it is generally accepted in the medical community that exposures to asbestos above background levels are contributing causes of mesothelioma. (R.811:21 – 812:2.) Dr. Robb opined to a reasonable medical probability that Mr. Norris’s exposures to asbestos from Crane’s products above background level would have been a substantial contributing factor to causing his mesothelioma. (R.812:23 – 813:13.) Mr. Hatfield testified that, based on studies he has conducted on asbestos released from the removal of valve packing and gaskets and his review of the depositions in this case, Mr. Norris was exposed to asbestos materials from Crane valves at levels above background limits. (R.989:14-18, 990:4-8.) With respect to bystander or so-called passerby exposure, Dr. Robb explained that walking through a cloud of asbestos fibers is a high exposure and can be sufficient to cause mesothelioma. (R.821:19-22, 823:13-23.) Asbestos exposure is particularly high in confined areas, such as on ships (R.746:18-21), and Mr. Norris had bystander exposure to asbestos aboard the Bremerton (R.773:11).
Attempting to minimize Mr. Norris’s exposure, Crane claims that Plaintiffs agreed not to argue that released asbestos becomes re-entrained in the air. (Brief at 33.) Plaintiffs agreed not to discuss fiber drift from remote parts of the ship (R.921:10-11), but Plaintiffs have never denied the scientific fact that asbestos fibers can stay suspended in the air for prolonged periods of time, particularly below deck on a confined vessel with no ventilation. Indeed, this is one of the ways that someone who does not directly work with a product can nevertheless sustain significant exposure to asbestos. Mr. Hatfield explained that asbestos fibers released in the air can stay suspended and linger for hours. (R.946:1-5, 946:14-16.) By the time asbestos is visible in the air, as it was on the Bremerton when the men worked on Crane valves, the levels far exceed acceptable limits. (R.953:16-25, 989:14-18, 990:4-8.)
Most valves on the Bremerton would have contained asbestos gaskets. (R.968:9 – 969:6.) Crane’s own gaskets and packing were 75% to 85% asbestos (RA 353.) Although Crane makes much of its “encapsulated” asbestos fibers, the fact is that asbestos fibers are released during maintenance of asbestos-containing valves, as when the gaskets are scraped off. (R.651:8-26.)
Crane’s claim that the chrysotile asbestos used in its products does not cause mesothelioma was likewise disproved at trial. Dr. Richard Lemen testified that all asbestos fiber types, including chrysotile, cause mesothelioma. (R.645:17-28.) It is generally accepted in the medical community that all types of asbestos cause disease and that chrysotile can cause mesothelioma. (R.808:26 – 809:4, 833:16-18, 837:6-20.) Virtually every medical and scientific organization in the world – including the National Cancer Institute, NIOSH, OSHA, EPA, IARC, WHO, and the Helsinki Conference of scientists from around the world – has concluded that chrysotile can cause mesothelioma. (R.646:8-16, 672:15-19.) Dr. Lemen is aware of no scientific or regulatory body that is of the opinion that chrysotile does not cause mesothelioma. (R.646:9-12, 672:13-16.) Drs. Lemen and Robb explained that chrysotile breaks down much more rapidly in the lung than other types of asbestos fiber, and chrysotile fibers move out of the lung into the tissue around the lung, the pleura, where the mesothelioma tumor develops. (R.657:3-5, 657:13-18, 657:24-28, 658:1-13, 658:20-28, 809:5-20.) A 2001 study that identified chrysotile in the pleura and animal studies provide further evidence that chrysotile causes mesothelioma. (R.660:11-14, 825:28 – 826:9.)
Crane points out that Mr. Norris was exposed to other asbestos-containing products. This is often true in asbestos cases, where a worker is unknowingly and involuntarily exposed to many different carcinogens; one of the reasons the court articulated the “substantial factor” test was to account for such concurrent causation. (See Rutherford, 16 Cal.4th at 1214.) Defendants should not “escape liability simply because the precise contribution of each exposure to the disease cannot be determined.” (Lineaweaver, 31 Cal.App.4th at 1417.) This is particularly true for mesothelioma, a cumulative dose disease in which the addition of fibers breaks down the body’s natural defense mechanism. (R.654:16 – 655:12.) Each exposure is a significant contributing factor to the risk of developing mesothelioma, and it is not possible to tell which fiber is ultimately responsible. (R.653:14 – 654:4, 666:23-26, 811:11 – 812:2.) The WHO and other organizations that have considered the question have concluded that there is no known safe level of exposure to asbestos. (R.652:15-19, 666:4-12, 673:1-13.) The evidence was more than sufficient to support the jury’s finding that Mr. Norris’s exposure to asbestos from Crane’s products was a substantial factor in causing Mr. Norris’s mesothelioma.
Crane is Liable for Component Parts On its Valves.
Contrary to Crane’s claim that Plaintiffs conceded Crane could not be liable for asbestos affixed to its valves (Brief at 9 & 33-34), Plaintiffs have consistently argued that Crane is liable for such components. (R.49:4-7, 856:18-22, 1609:9 – 1612:11.) As discussed above, Plaintiffs presented ample evidence of exposure and causation based solely on asbestos products supplied by Crane and asbestos products used inside Crane valves. The jury’s verdict is also supported by the evidence of Mr. Norris’s exposure to asbestos affixed to Crane valves. The trial court’s exclusion of evidence of asbestos on the valves’ exterior (JA 1815) was in error. Plaintiffs have not challenged the trial court’s legal error because it was ultimately harmless. In reviewing the evidence, this Court should not be limited by a legally incorrect ruling. (See Central Mfg. Dist., Inc. v. Board of Sup’rs of Los Angeles County (1960) 176 Cal.App.2d 850 [1 Cal.Rptr. 733] (respondent may assert a legal theory which, if found to be sound, should result in affirmance).)
A manufacturer is strictly liable for injuries caused by a defective product it sells even though the defect originated from a component part manufactured by another party. (E.g., Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262 [37 Cal.Rptr. 896] (“regardless of their source . . . a manufacturer of a completed product cannot escape liability by tracing the defect to a component part supplied by another”); Brocklesby v. U.S. (9th Cir. (Cal.) 1985) 767 F.2d 1288, 1295-96 (manufacturer subject to strict liability where it was in position to prevent injuries to users of its product despite the fact that unsafe procedures developed by a third party contributed to the dangerous condition of the product).)
Further, the fact that components are replaced after the manufacture of a product is not relevant unless the hazard was not present when the product was manufactured and the product did not pose a risk prior to an unanticipated modification of the product. (See Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577, 583 [28 Cal.Rptr.3d 744] (reversing sustaining of demurrer based on argument that dust was generated from grinding wheels that were not a foreseeably defective component of the tools that the injured party operated); Wright v. Stang Mfg. (1997) 54 Cal. App.4th 1218, 1236 [63 Cal.Rptr.2d 422]; DeLeon v. Commercial Mfg. & Supply Co. (1983) 148 Cal.App.3d 336, 350 [195 Cal.Rptr. 867]; Torres v. Xomox Corp. (1996) 49 Cal.App.4th 4, 11-21 [56 Cal.Rptr.2d 455] (third party component part’s failure did not obviate liability of manufacturer of valve component for defective initial design); see also Bay Summit Cmty. Assoc. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 772 [59 Cal.Rptr.2d 322] (manufacturer of product that created market for the use of other defective products held strictly liable).) The Second District has recognized that a manufacturer remains liable for injury by the products of another when their use in connection with the defendant’s product is foreseeable. (Tellez-Cordova, 129 Cal.App.4th 577; see also DeLeon, 148 Cal.App.3d 336 (1983) (manufacturer’s duty extends to foreseeable use of product, even if hazard arises from additional or replacement parts manufactured by another company).)
Here, the hazard was present when Crane’s product left the factory floor. Crane valves were manufactured and sold with asbestos components. Crane recommended that the asbestos components originally installed in its valves be removed and replaced with other asbestos materials – which Crane also sold (RA 217 (Cranite asbestos packing “is unhesitatingly recommended”)). Crane intended that asbestos flange gaskets – which Crane sold (RA 218-20) – be affixed to its valves. Given this foreseeable, known use of asbestos components with the Crane valves, the Court should consider the totality of asbestos exposure attributable to Crane’s products.
THE COURT DID NOT ERR IN INSTRUCTING THE JURY ON THE CONSUMER EXPECTATIONS TEST.
Crane does not claim that the jury erred in finding Crane strictly liable under the consumer expectations test. Indeed, Crane’s corporate representative admitted that the men would not have known that Crane’s products could be dangerous if inhaled. (R.1673:9-21.) Crane’s expert and former ship doctor admitted that Mr. Norris could not have expected to develop a disease from working around asbestos (R.1504:10-20), and Plaintiffs’ expert agreed that a consumer would not have expected Crane’s products to cause cancer (R.676:17 – 677:7). Because the jury’s finding was supported by the record, Crane argues that the jury should not have been able to impose liability under the consumer expectations test because (1) Crane’s products are esoteric and (2) Mr. Norris did not personally work on them. Such claims are moot, as the evidence also supported the jury’s finding of Crane’s negligence. See § III, infra. Moreover, the consumer expectations test was proper in this case.
Crane’s Asbestos-Containing Products Are Not Esoteric.
The consumer expectations test is applicable when “the circumstances of the product’s failure permit an inference that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 568-69 [34 Cal.Rptr.2d 607].) The Court rejected the defendant’s simplistic conclusion that the consumer expectations test is improper whenever a complex product or technical questions of causation are at issue. (Id. at 568; see also Bresnahan v. Chrysler Corp. (1995) 32 Cal.App.4th 1559, 1568, [38 Cal.Rptr.2d 446] (test appropriate despite technical novelty of the design and fact that expert testimony necessary to explain the defect).) Crane makes the identical argument, which should be rejected. In Soule, the Court found that “esoteric circumstances of the collision” precluded application of the consumer expectations test (Soule, supra, 8 Cal.4th at 570), where the plaintiff’s theory emphasized “technical and mechanical detail,” and both parties recognized that the accident exceeded the understanding of an ordinary consumer, involved complicated design considerations, and entailed the behavior of obscure components of the car. (Ibid.) Similarly, in Pruitt v. General Motors Corp. (1999) 72 Cal.App.4th 1480, 1483-84 [86 Cal.Rptr.2d 4], the test was inapplicable as the plaintiff’s own expert testified to the complex technical issues. (Id. at 1483-84.) Contrary to Crane’s claim, Pruitt did not construe Soule to limit the consumer expectations test to res-ipsa like cases: the language quoted by Crane (Brief at 41) is from a law review article, which was cited in Pruitt without comment. Unlike the plaintiffs in Soule and Pruitt, the Norrises have never claimed that the maintenance of Crane valves, which involved grinding asbestos material off with saws, wire brushes, and scrapers, was complex or technical.
Although “[a]n ordinary consumer of automobiles cannot reasonably expect that a car’s frame, suspension, or interior will be designed to remain intact in any and all accidents” (Soule, 8 Cal.4th at 570), an ordinary consumer of valves can certainly expect that the routine maintenance of metal valves will not cause cancer. This is the quintessential case in which the consumer expectations test applies, as Crane’s asbestos-containing valves performed “so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers [and] a lay jury is competent to make that determination.” (Soule, 8 Cal.4th at 569.)
The superior court’s application of the consumer expectations test in this case is consistent with every other court that has considered this issue in an asbestos case. (See Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461 [38 Cal.Rptr.2d 739]; Morton v. Owens-Corning Fiberglas Corp. (1995) 33 Cal.App.4th 1529 [40 Cal.Rptr.2d 22]; Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178 [74 Cal.Rptr.2d 580]; cf. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 n.8 [67 Cal.Rptr.2d 16]; Hackett v. John Crane, Inc. (2002) 98 Cal.App.4th 1233, 1237 [120 Cal.Rptr.2d 662, 664] (suit against manufacturer of valve packing and gaskets proceeded under consumer expectations test).)
In Sparks, the plaintiff developed mesothelioma after removing and inspecting valves aboard the Bremerton for six months. Distinguishing Soule, the court found there were no “complicated design considerations,” “obscure components,” or “esoteric circumstances,” and noted that asbestos insulation is a simple and stationary product. (32 Cal.App.4th at 474.) The design failure was in its emission of toxic, respirable fibers in the normal course of its intended use and maintenance, which emission was a product failure beyond commonly accepted safety assumptions of ordinary consumers. (Id. 474-75.) The test was applied again in the case of a wireman who installed cable at a shipyard for 14 months: the fact that the scientific community may not have known of the dangers of asbestos did not make it less reasonable for the ordinary consumer to expect to work with or near a product without getting cancer. (Morton, 33 Cal.App.4th at 1535.)
In Jones, a seaman died from lung cancer following exposure to valve gaskets and packing on the Bremerton. The court rejected John Crane’s claim that its products were too complex and esoteric for the consumer expectations test, notwithstanding extensive expert testimony, studies, asbestos fiber measurements, and disputed testimony regarding fiber encapsulation. The court found nothing complicated or obscure about the design and operation of the products – “the Crane valve packing, which stops the flow of liquid or steam through a valve stem, or of Crane gaskets, which seal two pieces of pipe together to prevent liquid or steam from leaking out of the pipe” – or of the release of fibers during the “routine and relatively straightforward” use of the products. (32 Cal.App.4th at 1002-04.)
In Jones, John Crane also attempted to draw the same analogies to a Fourth District case that Crane asserts here. (See Brief at 41 & 45 (citing Morson v. Superior Court (2001) 90 Cal.App.4th 775 [109 Cal.Rptr.2d 343].) In Morson, the consumer expectations test was found inapplicable to a claim involving allergies from latex gloves, which involved technical details about the manufacturing process and the creation of allergies by glove proteins – not subjects of common safety assumptions of an ordinary consumer. The court refused to draw an analogy between latex gloves and asbestos, “due to the problem of comparing apples and oranges . . . .” (Morson at 786.)
This Court has explained that “[t]he critical question, in assessing the applicability of the consumer expectations test, is not whether the product, when considered in isolation, is beyond the ordinary knowledge of the consumer, but whether the product, in the context of the facts and circumstances of its failure, is one about which the ordinary consumers can form minimum safety expectations.” (McCabe v. Am. Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1124 [123 Cal.Rptr.2d 303, 310]; see also Arnold v. Dow Chem. Co. (2001) 91 Cal.App.4th 698 [110 Cal.Rptr.2d 722] (holding that home pesticides causing disability was within common knowledge of consumer defect could be assessed under consumer expectations).) Certainly an ordinary consumer can form minimum safety assumptions that fluid control equipment will not cause cancer in the regular course of its use and maintenance.
Crane claims that its valves were complicated and esoteric because they were “Navy-specified equipment that was carefully engineered to ensure the effective combat performance of a warship.” (Brief at 4, see also id. at 42.) In truth, the valves that Crane sold to the Navy were the exact same valves that Crane sold to other customers; as Crane’s corporate representative explained, the Navy sought out Crane’s valves precisely because Crane was already making them. R.1645:25 – 1646:2. Crane advertised that its valves, fittings, and flanges for marine services were “regular Crane products which also are popular for [non-marine] commercial purposes.” (RA 197; see also id. at 199.) Nor was there anything esoteric about the design and use of the valves themselves: their purpose was fluid control, and the concern was leakage. (R.1632:9-14; see also RA 20 (illustrating six Crane valves).)
Even if Crane’s asbestos-containing products were different from every other asbestos-containing product to which California courts have applied the consumer expectations test, the test is “entirely appropriate” even given such perceived complexity: “There are certain kinds of accidents – even where fairly complex machinery is involved – which are so bizarre that the average juror, upon hearing the particulars, might reasonably think: ‘Whatever the user may have expected from that contraption, it certainly wasn’t that.’”(Soule, 8 Cal.4th at 565 (quoting Akers v. Kelly Co. (1985) 173 Cal.App.3d 633, 650 [219 Cal.Rptr. 513]), see also West v. Johnson & Johnson Prods., Inc. (1985) 174 Cal.App.3d 831 [220 Cal.Rptr. 437] (test not precluded in complex cases involving expert testimony).) Whatever a user may have expected from the maintenance of Crane’s fluid control products, it certainly was not cancer.
The Consumer Expectations Test Applies to Victims Who Did Not Work Directly With the Product.
Nor does the fact that Mr. Norris was a bystander create “esoteric circumstances” or differentiate this case from the exposure to valve packing and gaskets in Jones, as Crane maintains. (Brief at 43 & 45.) “If anything, bystanders should be entitled to greater protection than the consumer or user.” (Elmore v. Am. Motors Corp. (1969) 70 Cal.2d 578, 586 [75 Cal.Rptr. 652].) The consumer expectations test is not confined to direct users, as the first case to articulate this test made clear that it is an objective one, applying to the expectations of “an ordinary consumer.” (Barker v. Lull Eng’g Co. (1978), 20 Cal.3d 413 [143 Cal.Rptr. 225]; see also Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126 n.6 [184 Cal.Rptr. 891] (“In determining whether a product’s safety satisfies the first prong of Barker, the jury considers the expectations of a hypothetical, reasonable consumer, rather than those of the particular plaintiff in the case.”); see also Soule, 8 Cal.4th at 565 (discussing Akers v. Kelly Co. (1985) 173 Cal.App.3d 633 [219 Cal.Rptr. 513], which applied the test to an accident involving a spring-loaded dockboard that injured a “nearby worker”).)
The Court clarified the objective nature of this test in Campbell, in which a bus passenger was thrown from her seat and sued the bus manufacturer for failing to include a grab bar. Reversing the nonsuit, the Court explained that the plaintiff could show “the objective conditions of the product” so the jurors could apply their “own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.” (32 Cal.3d at 126; see also Morton, supra, 33 Cal.App.4th at 1535 (test applied where ordinary consumer could expect to work with or near asbestos product without getting cancer).) Ordinary consumers can form an expectation that maintaining a metal valve will not cause cancer – to the worker, the bystander, or otherwise.
SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S FINDING OF CRANE’S NEGLIGENCE.
Crane claims that it owed no duty to Mr. Norris because there is no evidence that it “was actually aware” of the hazards of its products. (Brief at 47.) But the Supreme Court has repeatedly recognized a cause of action for negligence not only against those who have actual knowledge of unreasonable danger, but also against those who have constructive knowledge of it. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1190 [45 Cal.Rptr.3d 316] (citations omitted).) The evidence established that Crane knew or should have known of the dangers of asbestos, yet chose to do nothing to protect workers like Mr. Norris.
Dr. Richard Lemen, a retired U.S. Assistant Surgeon General who has testified before Congress on the dangers of asbestos on ships (R.572:19-24, 573:21-24, 770:19-22) explained that in the 1930s, an epidemiological study published in the Journal of the American Medical Association established a general causation for the disease asbestosis. (R.598:6-7, 599:5-12.). The study recommended methods of reducing exposure, including ventilation, wetting down to suppress dust, educating workers, enclosing dusty areas, posting warning signs, and using personal protective equipment (R.599:5 – 601:11.); these are the same precautions used today (R.601:15-19). The study specifically acknowledged that asbestos could harm people who did not directly work with the product, as it recommended creating a changing facility so workers would not take asbestos dust home on their clothing. (Ibid.) Also in the 1930s, the association between asbestos and cancer was observed, and a warning of the link between asbestos and lung cancer was reported in the Journal of the American Medical Association in 1942 and 1949. (R.606:20-25, 607:17 – 608:3.) In 1938, the German government determined that lung cancer was a compensable disease related to asbestos exposure. (R.607:21-24.)
By the 1940s, the first case reports concerning mesothelioma began to appear. (R.612:20-26.) In 1955, an epidemiological study establishing causation between lung cancer and asbestos was widely published in the U.S. (R.605:14-23, 610:21-28, 612:13-18.) By the time Mr. Norris joined the Navy in 1955, there were several hundred scientific and medical articles discussing the hazards of asbestos. (R.604:23-27.) During the time of Mr. Norris’s exposure to Crane’s products, it was well known that asbestos could cause deadly diseases, including cancer, and techniques to reduce exposure were available. (R.615:9-17, 616:2-8, 766:21 – 767:3.) In fact, by the 1930s some companies, such as Alton Railroad, had begun to use preventive services to guard against asbestos diseases among their workers. (R.678:15-21.)
Crane contends that such knowledge is meaningless because Dr. Lemen allegedly testified that Crane could not be expected to know of the dangers of its own products until the 1990s. (Brief at 4 & 47.) But Dr. Lemen said no such thing. Rather, Dr. Lemen testified that when he worked with the Public Health Service, he did not see much information about asbestos gaskets and packing as a direct result of the industry’s failure to test its materials. (R.648:21-27, 649:14-19.) The government simply could not test each of the 3,000-plus asbestos products, so it had to rely on manufacturers to test the products that they put in the marketplace; the Public Health Service requested such testing, but Crane and others in its industry chose to do nothing. (R.648:18 – 650:11, 679:11-18, 767:4-10.) It was Dr. Lemen’s opinion that based on what was known or knowable in the 1950s, it was unreasonable for Crane to fail to warn of the potential hazards of asbestos, and it was unreasonable for Crane to sell its asbestos products without researching or testing them. (R.677:16 – 678:10.) Further, the Navy did not prevent Crane from putting warnings on its valves, and such warnings would not have prevented the valves from working. (R.679:3-6, 769:5-12.)
Crane cites out of context testimony regarding Dr. Selikoff’s book and the Bremerton Naval Shipyard study to suggest that gaskets and packing do not pose a hazard. (Brief at 47.) Dr. Selikoff’s conclusion regarding the hazards of gaskets and packing was based on the sole study then available, as industry had failed to conduct testing at that time and neither Dr. Selikoff nor any other individual could test all the products themselves. (R.692:12-20, 696:5-17.) As for the Bremerton Shipyard Study, it verified what had been widely reported in 1930: the use of housekeeping methods – ventilation, wetting down material, avoiding dry sweeping – could reduce asbestos exposure. (RA.768:24 – 769:1, 600:1 – 601:19.)
Anthony Pantaleoni, Crane’s vice president of environmental health and safety (R.1623:13-16), testified that “companies have a responsibility to end users to sell products that are safe.” (R.1128:8-10.) He agreed that workers have the right to understand the dangers they face at work, and he would expect a company to test its products and pass on knowledge of potential dangers to end users. (R.1665:2-21.) Nevertheless, at the time of Mr. Norris’s exposure in the 1950s, Crane had never put any warnings or notices on their products, and had never conducted any tests of the dangers of asbestos, even though it conducted myriad other tests on its products. (R.1638:3-28, 1633:3-12; RA 6 (“No valve or fitting becomes a ‘regular’ in the Crane line without the benefit of exhaustive experimentation in the laboratory…..”).)
Crane’s former chief engineer, William McLean (R.1629:28), and Mr. Pantaleoni both admitted that the company foresaw that parts of a valve, including asbestos packing and gaskets, would need to be replaced in the regular course of valve maintenance, and indeed customers requested material to repack and regasket their valves. (R.1133:14 – 1134:8, 1670:6-12.) Crane sold asbestos products specifically for that purpose: from 1920 to 1972 it was the exclusive seller of Cranite, asbestos-containing sheet packing and gasket material that was always made with asbestos – 75% to 85% chrysotile asbestos pursuant to Crane’s specifications. (R.1129:21 – 1130:2, 1131:8-12, 1137:20-23; RA 353.) Crane made no effort to determine if its Cranite posed an asbestos hazard. (R.1131:13-19, 1653:13-18.) Crane eventually did an in-house test of dust levels, but such test was not done until after 1986. (R.1134:28 – 1135:17.)
Mr. Pantaleoni admitted that if Crane had sent someone to research the issue in 1950, it would have discovered a body of medical and scientific research concerning asbestos. (R.1127:25 – 1128:3.) Crane could have discovered this information without even trying. By 1914 Crane was a member of the National Safety Council (R.1131:24-27, 1137:24 – 1138:10), which in 1935 published member advisories regarding the dangers of asbestos dust: “If you can see the dust, you know it to be a terrific hazard.” (R.1138:11-19; 640:2-26.) Crane’s Dr. Andrew M. Harvey was a director of the American Association of Industrial Physicians and Surgeons, which in 1935 published “Dusty Death,” which discussed asbestosis, a disease well known by that time, and warned that “exposure to asbestos fibers offers another type of dust which may cause fatalities among workers.” (R.1140:1-6, 1661:19 – 1664:5.) On the next page, the journal had an ad for a respirator marketed “for the protection against the inhalation of asbestos, among other dusts.” (R. 1664:6-25.) Crane was also a member of the Illinois Manufacturers’ Association, whose members were “being flooded with damages suits” based on asbestosis and other lung diseases. (R.1656:18 – 1658:28.) Crane had three members on the Association’s committee. (R.1660:15 – 1661:8, 1671:23-27.)
Mr. Pantaleoni testified that suppliers of asbestos-containing products should have had “some type of formal procedure to determine whether or not those products that they were selling were hazardous.” (R.1652:27 – 1653:1.) But Crane never did any research, any testing, or any warning. (R.917:6 – 919:5, 1653:13-18.) The evidence was more than sufficient to support the jury’s finding that Crane was negligent.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN PERMITTING AMENDMENT OF THE COMPLAINT AND DENYING A CONTINUANCE AFTER MR. NORRIS’S DEATH.
Mr. Norris died on Monday, August 14, 2006, on which date the court and the parties had already spent five days on pre-trial matters and were prepared to begin jury selection. (R.514.) Mr. Norris’s grieving family did not tell counsel of his death until August 17, 2006, at which time counsel immediately told Crane and the court. (JA 72; R.234:18-20.) No one was surprised by Mr. Norris’s death: the suit was based on his terminal disease, Crane had witnessed his precarious state during his deposition, the court granted trial preference based on medical verification that Mr. Norris was unlikely to survive beyond July 2006 (RA 614, 644), and Plaintiffs reiterated Mr. Norris’s declining health in an application to commence trial (RA 619), which Crane urged the court to deny (RA 615-18).
After briefing (JA 704-29) and argument (R.501-16) the Court permitted Mrs. Norris to amend her complaint to add a wrongful death cause of action and to add the children as plaintiffs (JA 730-31). The court decided to proceed with the long overdue trial and not waste the “incredible investment of judicial time and attorney time,” including “five [days] this week and then a week prior to that” and the selection of jurors who could not serve on another trial. (R.235:11-19, 501:18-28, 514:11-18.) Plaintiffs offered to be deposed (R.510:14 – 511:3), and the court guaranteed Crane “every consideration” to conduct the depositions (R.515:7-11). Crane professed “no interest or intention of putting them through depositions before they take the stand” (R.853:16-17) and represented that if the children were just “going to talk about how they’re going to miss their dad or what they did that was enjoyable with their dad, I think we’re fine” (R.854:1-3). As the children’s testimony was confined to their loss (R.866-79, 881-85, 905-09), Crane was presumably “fine.” When Crane later claimed prejudice, the court reminded Crane that it “would have given you permission to depose [the Norris children]. You didn’t think you needed it.” (R.859:19-22.) Moreover, at the time the parties learned of Mr. Norris’s death, voir dire was in progress, and Crane could have examined the panel’s ability to remain fair and impartial.
The court properly exercised its discretion to allow the amendment, which is permissible “at any time before or after commencement of trial . . . .” (Code Civ. Proc. § 576 (emphasis added).) California has “a strong policy in favor of liberal allowance of amendments.” (Honig v. Fin. Corp. of Am. (1992) 6 Cal.App.4th 960, 965 [7 Cal.Rptr.2d 922].) Amendment may be permitted the first day of trial (e.g., Higgins v. Del Faro (1981) 123 Cal.App.3d 558 [176 Cal.Rptr. 704]) or even during trial (e.g., Rainer v. Cmty. Mem’l Hosp. (1971) 18 Cal.App.3d 240 [95 Cal.Rptr. 901]). Leave to amend should be freely given, particularly where new facts are discovered during trial. (E.g., Burr v. United Railroads of San Francisco (1912) 163 Cal. 663; Feigin v. Kutchor (1951) 105 Cal.App.2d 744 (discretion to amend even after all evidence submitted).) Such new facts include a litigant’s death, and courts not uncommonly permit rendition of judgment in favor of the survivor when the plaintiff dies during trial. (See Kellogg v. Asbestos Corp. (1996) 41 Cal.App.4th 1397 [49 Cal.Rptr.2d 256]; Morton, supra, 33 Cal.App.4th 1529 (upholding modified award for wife where husband died during trial and court proceeded to judgment over defendant’s objection); Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406 [28 Cal.Rptr.2d 751].)
Absent a showing of surprise or prejudice, leave to amend should be granted. (See, e.g., Young v. Bank of Am. (1983) 141 Cal.App.3d 108, 114 [190 Cal.Rptr. 122] (leave to add damages properly granted during trial, where original complaint put defendant on notice of general damages sought); Rainer, supra, 18 Cal.App.3d 240 (abuse of discretion to deny motion to amend on second day of trial to add new theory of recovery, where defendants did not claim surprise or need for more discovery).) Amendment may be granted even to state a new legal theory or claim if it relates to “the same general set of facts. Plaintiff’s proposed amendment, by seeking recovery for the same accident and injuries as the original complaint, complies with that test.” (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 489 [173 Cal.Rptr. 418].)
Mrs. Norris’s wrongful death damages overlapped those sought under her original loss of consortium claim. (See Krouse v. Graham (1977) 19 Cal.3d 59, 67-70 [137 Cal.Rptr. 863]; BAJI 14.40 (spouse’s wrongful death damages comprised of nonpecuniary damages recoverable in loss of consortium action plus economic damages which decedent could have recovered).) The overlap between a married couple’s action for personal injuries and loss of consortium and the survivor’s action for survival and wrongful death was recognized in Lamont v. Wolfe (1983) 142 Cal.App.3d 375, 381 [190 Cal.Rptr. 874], in which a husband and wife sought recovery for the wife’s personal injuries and the husband’s loss of consortium. After the wife died, the trial court sustained without leave to amend defendants’ demurrer to a wrongful death cause of action on the ground that it was untimely. (Ibid.) Reversing, the reviewing court noted that the wrongful death action was brought against the same defendant on the same general facts and the same alleged liability as the original complaint: “[b]y the time they were notified of Berniece Lamont’s death defendants should already have taken the necessary steps to gather and preserve evidence bearing on the Lamonts’ claims of medical malpractice and Ronald Lamont’s damages for loss of consortium [which] forms the core of the defense to the wrongful death action and defines defendants’ position on the amount of damages if liability is established.” (Ibid.)
Likewise here, amendment was proper, as Crane long had the opportunity to gather the pertinent evidence. Crane was not surprised by the amendment, which raised the same legal issues and arose from the same operative facts. The parties had already agreed to show Mr. Norris’s videotaped deposition (R.133:21-22), which included testimony about his family’s reaction to his illness, evidence pertinent to the survival and wrongful death actions. (JA 170:14 – 171:11, 174:24 – 175:19.) Mr. Norris’s death did not alter the availability of other witnesses, including family members, about whom Crane had known since April 3, 2006, when Plaintiffs submitted their General Order 29 Case Report (RA 678), and again on July 7, 2006, when Plaintiffs submitted their proposed witness list (RA 683).
Crane relies on inapposite cases to assert that the court abused its discretion in allowing the amendment. In North 7th Street Associates v. Guillermo Constante (2001) 92 Cal.App.4th Supp. 7 [111 Cal.Rptr.2d 815], the plaintiff was allowed to add claims that raised new factual allegations and triggered additional defenses, whereas the defendant was denied the opportunity to investigate or call rebuttal witnesses. In Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-87 [55 Cal.Rptr.2d 225], the plaintiff delayed two years without explanation to amend in the middle of trial; the defendant had no opportunity to discover or depose witnesses who supported the new allegations. Mr. Norris’s death, however, did not substantively change the allegations so as to require additional discovery. In any event, Crane propounded new discovery requests (R.851:1-9) and was invited to depose the Norrises, though Crane professed “no interest” in doing so. (R.853:16-17; see also JA 941 ¶6.)
Nor did the court abuse its discretion in denying a continuance, particularly in light of strong policy considerations against postponing trial: trial dates are firm in order “[t]o ensure the prompt disposition of civil cases” (Cal. Rules of Court 3.1332(a)), and the court must use “a firm, consistent policy against continuances” (Gov. Code 68607(g), see also San Bernardino v. Doria Mining & Eng’g Corp. (1977) 72 Cal.App.3d 776, 781 [140 Cal.Rptr. 383] (public policy disfavors continuances). A party seeking a continuance must show good cause. (Cal. Rules of Court 3.1332(c).) Crane claims a continuance was warranted due to the addition of a new party, but Mrs. Norris was a plaintiff from the inception of the case, the children had been identified as witnesses months earlier (RA 678), and Crane rejected opportunities to depose them. Crane also alleges a “significant, unanticipated change in the status of the case as a result of which the case is not ready for trial” (id. at (c)(7)), but Crane had long been on notice of Mr. Norris’s imminent death.
Disability or even death of a party does not automatically warrant a continuance:
In considering all such applications the court should be governed by the course which seems most likely to accomplish substantial justice. …. Illness of a party does not ipso facto require the granting of the motion…. Because of the necessity for orderly, prompt and effective disposition of litigation and the loss and hardship to the parties to an action, as well as to witnesses therein, it becomes and is a part of the bounden duty of the trial judge, in the absence of some weighty reason to the contrary, to insist upon cases being heard and determined with as great promptness as the exigencies of the case will permit.
Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 413-14 (denying continuance upon party’s disabling illness). Crane relies on Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1247- 48 [9 Cal.Rptr.3d 821], to support its claim that a party’s death is normally good cause for a continuance. (Brief at 51.) In Hernandez, the plaintiff’s attorney sought a continuance due to his cancer, then died five days after the trial date. The plaintiff also needed surgery during the trial setting. The appellate court admonished the trial court for failing to consider the health of plaintiff and counsel. Here, unlike Hernandez, everyone was prepared for trial and aware of Mr. Norris’s grave condition. Crane cannot show good cause, surprise, or prejudice. The scourt did not abuse its discretion in denying the continuance.
THE TRIAL COURT DID NOT ERR IN AMENDING THE VERDICT FORM.
The superior court properly rejected Crane’s claim that it is entitled to a new trial based on the jury’s finding of 50% responsibility to Crane. The court’s decision to amend the verdict form was well within its inherent power to control the proceeding before it to insure the orderly administration of justice. (See Rutherford, supra, 16 Cal.4th at 967.). Moreover, it is “appropriate to apportion damages among the defendants and the ‘universe of tortfeasors.’” Bly-Magee v. Budget Rent-a-Car Corp. (1994) 24 Cal.App.4th 318, 325-26 [29 Cal.Rptr.2d 330] (citations omitted). Proposition 51 is not violated by the verdict form used in Bly-Magee and in this case: Proposition 51 limits a tortfeasor’s liability for noneconomic damages to the proportion of such damages equal to the tortfeasor’s percentage of fault. (Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 524 [66 Cal.Rptr.2d 438].) Thus, the importance of Proposition 51 is to ascertain the trial defendant’s percent responsibility in order to ensure that the defendant pays only its proportion of the noneconomic damages; the proportion “due” from each individual tortfeasor not at trial is immaterial.
In Sparks, as here, a former Navy employee sued a manufacturer of an asbestos-containing product to which he was exposed aboard the Bremerton. Having been found 100% responsible, the defendant argued that there was no evidence that it was the sole legal cause of the plaintiff’s injuries. (Sparks, supra, 32 Cal.App.4th at 476). The court affirmed, noting that there were “several ways” the jury could have concluded that the defendant’s product was the sole legal cause of the plaintiff’s injuries even though the plaintiff was exposed to other asbestos products. (Id. at 476-77). “Even if the jury believed all asbestos-containing products were defective in design, it might nevertheless have found that there was insufficient evidence that exposure to products other than [the defendant’s] was ‘a substantial factor’ in bringing about [the plaintiff’s] disease.” (Id. at 477.)
Crane bore the burden to present evidence and argue that “other equally-defective products were concurrent causes of [the plaintiff’s] mesothelioma.” (Ibid.) Like the defendant in Sparks, Crane “did not carry its burden and, apparently, the jury was not convinced.” Id. The evidence of Mr. Norris’s exposure to other products was not nearly as extensive as that of his exposure to asbestos from Crane’s products. In fact, experts who had reviewed all of the depositions could not recall evidence of Mr. Norris’s exposure to various products. (E.g., R.963 (recalling no references to Mr. Norris around Kaylo and Unibestos) see also, e.g., JA 128:1-4 (Mr. Norris could not remember the brand name of any pipe insulation).) The jury could reasonably find lacking evidence that other specific products contained asbestos or were used in a manner reasonably foreseeable by the other manufacturers. Because Crane did not produce evidence that other entities failed to test or warn about their products, the jury may have been unpersuaded that other entities were at fault. As in Sparks, there were “several ways” the jury could have found as it did, all supported by the evidence.
Finally, Crane’s claim that it was prejudiced by the amendment of the verdict form is without merit. When the jury began deliberations, the verdict form listed separately the names of 21 other entities that Crane suggested bore responsibility for Plaintiffs’ injuries. (JA 852-53.) During deliberations, the jury twice expressed concern that the evidence against other entities was insufficient to assign them responsibility. (R.1975:15-23, 1979:15-22.) After its second notification, the jury was provided with an amended verdict form that included two lines, one for Crane and one for “All Others.” (R.1981:10-17.) Although Crane blames its apportionment of 50% liability on the amendment, a better explanation is Plaintiffs’ suggestion during closing arguments that the jury apportion 50% liability on Crane. (R.1855:1-21.) That is exactly what the jury did.
Crane has failed to show that any harm or prejudice resulted from the amendment. Crane asserts that its argument to the jury would have been more specific if the original verdict form had referred to “All Others.” This is simply illogical. If anything, the original verdict form – which listed each potential tortfeasor separately – called for more specific argument as to each individual entity. Even though each entity was listed separately in the original verdict form, Crane referred to them collectively as the Navy and “the insulation companies.” (R.1899:15 – 1901:13; see also R.1899:23-27 (“And you’ve got, I think, seven or eight of the insulation companies that Mr. Norris, by his own sworn testimony and by the ship records and the co-workers testimony, established he was around and which he said he, in fact, had asbestos exposure to injure him from.”).) If anything, combining “all others” benefitted Crane, as the jury may have otherwise allocated all fault to Crane – the only entity against whom liability was clear. Crane also claims that it should have had the opportunity to reargue apportionment. Crane waived any error, as the record reflects no request to reargue.
The jury simply did not accept Crane’s position that it had only “1 or 2 percent responsibility.” (R.1901:9-10.) The jury agreed with the Plaintiffs that Crane bore half the responsibility. (R.1855:1-21.) It is clear that Crane does not like the jury’s apportionment, but it is far from clear how the change in the verdict form could justify setting aside the jury’s apportionment to Crane, which was fully supported by the evidence. See supra, § I(A). Whether the remaining 50 percent is allocated to “All Others” or to individually listed entities, Crane’s share would be the same.
THE TRIAL COURT DID NOT ERR IN REFUSING TO ORDER MRS. NORRIS TO MAKE FUTURE PAYMENTS TO CRANE.
After the verdict, Crane asked the superior court to order Mrs. Norris to notify Crane of any future recoveries and pay Crane 15.44 percent of the gross amount. (JA 814-15.) Crane does not cite any legal authority for imposing such a continuing fiduciary obligation on a tort victim. Code of Civil Procedure section 877 provides that “[w]here a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort . . . it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater.” (Code Civ. Proc. § 877 (emphasis added).)
Section 877 does not apply to “settlements executed after verdict or judgment.” (S. Cal. White Trucks v. Teresinski (1987) 190 Cal.App.3d 1393, 1403 [236 Cal.Rptr. 159].) As the court explained in Teresinski:
[T]he language of section 877 precludes such a holding. Section 877 itself clearly states it applies where a settlement or other agreement is given “before verdict or judgment.” The rules of statutory construction indicate these words are to be given their plain meaning. The goal of the court is to effectuate the intent of the Legislature which, in the first case, is derived from the words of the statute themselves. Where the language of the statute is clear and unambiguous, and its meaning plain, there is no need for any statutory construction. . . . There is nothing uncertain or ambiguous about “before.” It means earlier than or in advance of. “Verdict” and “judgment” would appear to be equally unambiguous in meaning.
(Id. at 1403-04 (citations omitted); see also Be v. Western Truck Exchange (1997), 55 Cal.App.4th 1139, 1144 [64 Cal.Rptr.2d 527] (according to the “plain meaning” of section 877, the statute applies “only to settlements reached before verdict or judgment”).)
Crane does not cite any case law reflecting a different interpretation of section 877. Crane cites Greathouse, supra, but that case expressly dealt with “the trial court’s determination of the amount of the preverdict settlement that should be set off against the verdict pursuant to Code of Civil Procedure section 877.” (35 Cal.App.4th at 837 (emphasis added).) Although Greathouse involved asbestos claims, the court did not even suggest that future recoveries from bankruptcy trusts should be set off against the verdict. Crane has not identified any legal basis for expanding section 877 to encompass future recoveries.
Crane argues that “there is no principled reason” to differentiate between settlements reached “before or after judgment was entered in the trial court.” (Brief at 57.) Crane’s assertion is incorrect and ultimately irrelevant. Principles of finality and judicial economy provide a rational basis for distinguishing between pre-judgment and post-judgment settlements. In any event, complaints about the terms of the statute should be addressed to legislators, not judges. (See Stephens v. County of Tulare (2006) 38 Cal.4th 793, 801 [43 Cal.Rptr.3d 302] (“When interpreting statutes, ‘we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law. . . . This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.”); Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 684 [38 Cal.Rptr.3d 36] (“It is our task to construe, not to amend, the statute. . . . We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.”) (citations omitted).)
Pursuant to the plain language of section 877, Crane sought and received credit for all settlements received before the verdict. Crane has not shown any further relief was either necessary or appropriate. The trial court did not err in denying Crane’s request to order future payments from Mrs. Norris.
DATED this 19th day of October, 2007.
Renée M. Melançon
Attorney for Plaintiffs/Respondents
- ↑ None of the numerous other states that apply the “substantial factor” test require Borg-Warner’s quantification of dose. (E.g., In re Manguno (5th Cir.1992) 961 F.2d 533 (Louisiana law); Ingram v. AC&S, Inc. (9th Cir. 1992) 977 F.2d 1332 (Oregon); Murphree v. Raybestos-Manhattan, Inc. (6th Cir. 1982) 696 F.2d 459 (Tennessee); Thacker v. UNR Indus. (Ill. 1992) 603 N.E.2d 449; Mavroudis v. Pittsburgh Corning Corp. (Wash.App. 1997) 935 P.2d 684; Eagle-Picher v. Balbos (Md.App. 1992) 604 A.2d 445; O’Connor v. Raymark Indus. (Ma.Supr.Jud.Ct. 1988) 518 N.E.2d 510; Jeter v. Owens-Corning Fiberglas Corp. (Pa.Super. 1998) 716 A.2d 633 (plaintiff need not surmount percentage threshold “before a jury will be permitted to rule in his favor…. [D]efendants have been found to have been negligent, and their negligence to be a substantial factor in the plaintiff’s harm, even though their negligence was relatively minor vis-a-vis other defendants….”).)
- ↑ Upon learning of Mr. Norris’s death, Plaintiffs amended their complaint, which document bore the date of Mr. Norris’s death notwithstanding that it was prepared several days later. (See Brief at 49 n.21 (inaccurately concluding that the document title was an “automated date stamp”).) Apart from being unfounded, Crane’s allegations on this point are irrelevant to the issue of whether the trial court abused its discretion.