Sabetian v. Fluor Enterprises CA2/7 ( 2021 )

Filed 3/24/21 Sabetian v. Fluor Enterprises CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SORAYA SABETIAN, B298989
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC699945)
v.
FLUOR ENTERPRISES, INC., et
al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Weitz & Luxenberg, Benno Ashrafi and Josiah Parker for
Plaintiff and Respondent.
Berkes Crane Robinson & Seal, Robert H. Berkes,
Steven M. Crane, Barbara S. Hodous and Carmen Santana for
Defendants and Appellants.
__________________________
Defendants Fluor Enterprises, Inc. (FEI), and Middle East
Fluor (MEF) (collectively, the Fluor defendants) appeal from a
judgment entered after a jury trial in favor of plaintiff Soraya
Sabetian.1 Soraya and her husband Houshang Sabetian brought
claims for negligence, premises liability, and loss of consortium,
alleging Sabetian contracted testicular mesothelioma caused by
exposure to asbestos while he was an Iranian citizen working for
the National Iranian Oil Company (NIOC) from 1959 to 1979 in
facilities under construction by the Fluor defendants. The jury
found FEI and MEF were negligent, and their negligence was a
substantial cause of Sabetian’s injury.
On appeal, the Fluor defendants contend the trial court
should have granted their motions for judgment notwithstanding
the verdict and for a new trial because substantial evidence does
not support the jury’s determination Sabetian was exposed to
asbestos attributable to the Fluor defendants with sufficient
frequency, regularity, and proximity to constitute a substantial
factor in causing Sabetian’s injury. They also argue substantial
evidence does not support the jury’s determination Sabetian’s
exposure to asbestos caused him to develop mesothelioma in the
testes, a rare form of mesothelioma. Finally, the Fluor
defendants assert the trial court erred in denying their post-trial
motions to reduce the jury’s damages award in accordance with
Iranian law. We affirm.
1 During the pendency of this appeal, Houshang Sabetian
died. On July 29, 2020 we granted Soraya Sabetian’s motion to
be substituted in place of Houshang Sabetian as his successor in
interest. To avoid confusion, we refer to Houshang Sabetian as
Sabetian and Soraya by her first name.
1
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
Sabetian and Soraya filed this action on March 28, 2018
against the Fluor defendants2 and others, alleging causes of
action for negligence, strict liability, premises liability, and loss of
consortium. The complaint alleged the Fluor defendants
provided gaskets, packing, and insulation that negligently
created asbestos dust Sabetian was exposed to while he worked
at Iranian oil refining facilities in the 1960s and 1970s. In
January 2017 Sabetian was diagnosed with mesothelioma, which
Sabetian alleged was caused by his exposure to asbestos at these
facilities.
B. The Sabetians’ Case at Trial
1. The Fluor defendants
At the beginning of trial, the parties reached a stipulation
as to the Fluor defendants’ individual responsibilities with
respect to construction of the Tehran I, Tehran II, and Esfahan
refineries operated by NIOC, and construction of the Crude
Distillation Unit No. 85 (CDU-85) at the Esfahan refinery.
Pursuant to the stipulation, the trial court instructed the jury:
“With respect to the Tehran [I] refinery project, Fluor
International, Inc., was responsible for the engineering,
2 The Sabetians named seven Fluor entities as defendants in
their complaint. At the beginning of trial, pursuant to the
stipulation of the parties, the trial court dismissed with prejudice
three of the Fluor defendants, leaving FEI, MEF, Fluor
Corporation, and Fluor International, Inc. The jury found only
FEI and MEF acted negligently.
2
procurement of materials, and construction. [¶] With respect to
the Tehran [II] refinery project [also known as] Tehran refinery
expansion, [MEF] was responsible for the engineering,
procurement of materials, and construction. [¶] With respect to
the Esfahan refinery project, [FEI] . . . was responsible for the
design, engineering, procurement of materials, and project
management. [¶] With respect to the Crude Distillation Unit
No. 85 project in Abadan, [FEI] . . . was responsible for the
performance of all services which [were] to be performed in the
United States and Japan, including but not limited to detailed
engineering services, materials[] procurement services, the
supply, inspection, and arrangement for the shipment of plant
materials and equipment and other related services.”
2. Presence of Asbestos at the Refineries
According to Gary Bryan, a designated representative of
the Fluor defendants,3 Fluor performed work on multiple oil
refinery construction projects in Iran from 1961 to 1979,
including the Tehran I, Tehran II, and Esfahan refinery projects.
During the period from 1953 through 1978 or 1979, Fluor
purchased calcium silicate insulation from Nippon Asbestos
Company (Nippon) for external use in its “pipe[s] and vessel[s].”
In the early 1970s companies in the United States “started
moving away” from using calcium silicate insulation containing
3 The Sabetians called Bryan as an adverse witness to
explain the use of asbestos in the Fluor defendants’ refinery
construction projects. Because the parties stipulated as to the
responsibility of each Fluor defendant, the witnesses at trial did
not distinguish between the Fluor defendants, typically referring
to them collectively as “Fluor,” as do we.
3
asbestos. However, calcium silicate insulation containing
asbestos continued to be available overseas, including in Japan.
All of the calcium silicate insulation used in the Tehran 1
construction project came from Nippon and contained asbestos.
Construction on Tehran I took place from 1963 through early
1969.
In 1972 NIOC hired Fluor to construct the Tehran II
refinery project. The project design specifications stated the pipe
insulation “‘shall be molded sectional-type covering of calcium
silicate, amosite asbestos, or expanded silica for temperatures up
to 1200 degrees Fahrenheit.’” In 1974 Fluor purchased the
calcium silicate pipe insulation from Nippon for use in the
construction of Tehran II. Bryan did not know whether the
calcium silicate used at Tehran II contained asbestos. When the
construction of the refinery project was completed in early 1975,
Fluor transferred over 20,000 linear feet of unused calcium
silicate pipe insulation procured for use at Tehran II to the
Esfahan project.
Dominick Pescarolo worked for Fluor on both the Tehran II
and Esfahan refinery projects.4 According to Pescarolo, Fluor
created the design documents for Tehran II, which specified the
use of asbestos-containing pipe insulation. Fluor duplicated the
Tehran II specifications for its construction of the Esfahan
refinery. The same vendors approved for Tehran II were
approved for construction of Esfahan. Bidding for the Esfahan
project began in 1974 or 1975.
4 The Fluor defendants designated Pescarolo as their person
most qualified. Excerpts from his deposition testimony were read
to the jury.
4
Amanollah Shahabi, assistant refinery manager for the
Tehran I and II refineries, similarly testified Fluor “used
asbestos-containing material [at Esfahan], exactly the same as
Tehran [II].”5 Shahabi based his view that asbestos-containing
materials were used at Esfahan on the facts that “[t]he contract
was copied from Tehran [I] and [II]. Approved vendors were the
same. Other vendors were the same. Materials were the same.”
Further, Fluor procured most of the materials for Esfahan in
1972 or 1973. Shahabi explained that “if there [had] been such a
change” away from using asbestos-containing materials in Fluor’s
construction of Esfahan, Shahabi would have “had to [have been]
informed,” but he did not learn of alternative materials for
insulation until 1977.
On October 25, 1976 Fluor sent a telex to the “Fluor
Thyssen Joint Venture” in Tehran with the subject “Asbestos
Free Insulation [¶] Urgent.” (Capitalization omitted.) The
message stated, “Nippon Asbestos has stopped their production of
insulation containing asbestos. [¶] . . . Were you able to get
NIOC to relax their demand that insulation be asbestos free?
[¶] . . . Answer urgently required.” (Capitalization omitted.) On
November 4, 1976, in a message with the subject “Esfahan
Refinery Project Asbestos in Insulation,” NIOC responded,
“Please be advised that we have no objection to the presence of
asbestos in calcium silicate insulation if it is contained.”
(Underlining omitted.)
Sometime after October 25, 1976 Nippon was acquired by
or changed its name to Nichias Corporation, and it changed the
5 Excerpts of Shahabi’s videotaped deposition were played for
the jury.
5
name of its calcium silicate insulation from “silicalite cover”
(which it sold in 1974) to “new silicalite board,” while continuing
to use the brand name “Tombo 4601.” Fluor did not have any
invoices, packing slips, or purchase orders showing Fluor ever
purchased “new silicalite” products for use in Iran. Fluor
completed construction of the Esfahan refinery in 1978 or 1979.6
3. Testimony of Sabetian
Sabetian was born in Tehran, Iran. After studying
industrial management in Tehran and London, in 1959 Sabetian
began to work for NIOC in its “organization for methods and
systems” department, where he remained for most of his career
at NIOC. Sabetian’s role in the department was to create
systems to make NIOC’s operations more efficient. Sabetian
worked at the Abadan oil refinery from about 1960 until 1963,
when he transferred to a fertilizer plant in Shiraz, Iran.
In 1967 Sabetian returned to Tehran and began to travel
regularly to several refinery projects that were under
construction, including Tehran II, Esfahan, and CDU-85. While
working for NIOC during this period, Sabetian was “always [in]
6 The Sabetians also presented evidence at trial regarding
the construction of the CDU-85 at the Abadan refinery. We do
not reach FEI’s contention there is no substantial evidence to
support the jury’s finding Sabetian was exposed to asbestos
attributable to FEI during the construction of CDU-85 because
the jury did not distinguish in its verdict between FEI’s
responsibility for actions taken at Esfahan and at CDU-85, and
substantial evidence supports the jury’s finding that Sabetian’s
exposure at Esfahan was a substantial factor in causing
development of mesothelioma. Accordingly, we do not discuss the
evidence relating to CDU-85.
6
the air,” traveling. As part of his job, Sabetian observed the
installation of piping and pipe insulation at each refinery he
visited. Sabetian sometimes stood as close as two or three feet
from where the insulation work was being performed. At other
times he was farther away, but he mostly “was close enough to be
able to observe the operation.” Sabetian’s “usual” practice at
each site was to observe workers cutting pipe insulation while
Sabetian stood between three and eight feet away. The
prefabricated pipe insulation had to be “cut to the measure in
order to use it.” The cutting of pipe insulation “always” produced
dust. As Sabetian explained, the insulation material was “always
dusty” and “really created a lot of dust.” While Sabetian observed
the insulation work, there were “people working all over the unit”
with insulation. Sabetian would stand a few feet from one
worker installing insulation, and at the same time he would be
15 to 20 feet from other workers also performing insulation work.
Construction of Tehran II was “a huge activity,” and
Sabetian visited the refinery project during its construction “so
many times.” Sabetian described the work he observed at
Tehran II: “You have to make a lot of insulation, putting pipe,
putting the different machinery. But the main thing was the
insulation activity that Fluor was responsible for.” He explained
the work at Tehran II was the same as what he had observed at
other refineries he visited. He added, “What I observed it is all
similar. I mean, nothing, no difference.” Sabetian observed
workers at Tehran II working with pipe insulation on “[d]efinitely
more than ten” occasions.
Sabetian visited Esfahan “more than 10 [or] 12 time[s]”
during its construction. The construction of Esfahan was “similar
to other refineries,” with workers “cutting pipe” and “installing
7
the pump machinery.” Sabetian observed workers “using
insulation for the equipment.” Sabetian explained insulation was
“really one of the main biggest activity that . . . building a
refinery needs. Every corner, every part of the refinery, the
machinery has to be insulated in order to be operational.” When
the pipe insulation at Esfahan was cut, “similar to other
refineries that [Sabetian] observed [there was] always dust.”
Sabetian observed the cutting of pipe insulation at Esfahan
“many times, so many times” while standing “between three to
seven, eight feet away from the actual operation.” Sabetian
described the insulation process as the “same as usual.”
On cross-examination, Sabetian denied that Esfahan was
95 percent completed when he first visited the refinery.
However, defense counsel played for the jury an excerpt from
Sabetian’s videotaped deposition testimony:
“‘[Q]: When you visited the Esfahan refinery, would you
visit the units that had already completed
construction and were working units?[’”]
“‘[A]: When I visited Esfahan, the refinery was nearly
95 percent finished. . . . And they were starting to
start up some of the units.’”
Sabetian explained at trial, “I think if I made such a
statement, it is wrong because it wasn’t – because it took four
years or more. And it faces the revolution, which stopped . . .
[the] finishing [of] the refinery.”
Breathing the dust caused by the cutting of pipe insulation
at the refinery project sites would sometimes cause Sabetian to
cough. Sabetian did not know, and was never informed, the dust
was a health hazard. According to Sabetian, “Absolutely nobody
told us this . . . dust would really affect your health.”
8
In 1979 Sabetian retired from his position with NIOC and
fled Iran to escape the revolution, eventually settling in Los
Angeles in 1980 or 1981. On cross-examination, defense counsel
elicited testimony from Sabetian about his 1982 application to
the United States Department of Justice’s Immigration and
Naturalization Service (immigration application). The
immigration application directed Sabetian to list his
“employment [for the] last five years.” (Capitalization omitted.)
In response, Sabetian listed his occupation as the head of NIOC’s
industrial department from 1975 to 1980. Sabetian signed the
declaration, declaring under penalty of perjury the information
was true and correct. The immigration application stated,
“Severe penalties are provided by law for knowingly and willfully
falsifying or concealing a material fact.” (Capitalization omitted.)
In 2017 Sabetian was diagnosed with mesothelioma of the
tunica vaginalis testis (TVT). Sabetian’s right testicle was
surgically removed. Pathological diagnosis of the removed
testicle showed malignant mesothelioma of the TVT.
4. The Sabetians’ Expert Evidence
(a) Dr. Daneshmand
Dr. Sia Daneshmand, a urologic oncologist, treated
Sabetian’s mesothelioma of the TVT, which was only the second
case of the disease he had treated in his career.7
Dr. Daneshmand explained the tunica vaginalis is comprised of
mesothelial cells identical to the mesothelial cells located in the
pleura, the peritoneum, and the pericardium. Dr. Daneshmand
7 Dr. Daneshmand’s videotaped deposition testimony was
played for the jury.
9
opined, “[G]iven the known risks and if I were told [Sabetian] had
significant exposure to asbestos, I would assume more likely than
not that [asbestos exposure] was a contributing cause of his
disease . . . .” Dr. Daneshmand explained, “[I]t’s incredibly rare
to develop [mesothelioma] in the tunica vaginalis, but half the
cases that I had read about had some exposure to asbestos, and it
is presumed to have the same risk factor.” Asbestos exposure
“appears to be the only plausible risk factor for development” of
Sabetian’s condition. On cross-examination, Dr. Daneshmand
acknowledged he had not “exhaustively looked at the literature”
regarding the epidemiology of the disease. He also acknowledged
there are many reported cases of mesothelioma of the TVT in
individuals with no known asbestos exposure.
(b) Kenneth Garza
Kenneth Garza, a certified industrial hygienist,8 opined
asbestos is present at “a background level” in the ambient air at a
range between .00000001 and .0001 asbestos fibers per cubic
centimeter. Industrial hygiene seeks to reduce industrial
asbestos levels to these background levels. Based on his review
of industrial hygiene literature and his familiarity with the
insulation products used in Iranian refineries, Garza opined to a
reasonable degree of scientific certainty that where asbestos-
containing dust is visible to the naked eye, a bystander would be
exposed to levels between 20 and 100 asbestos fibers per cubic
centimeter. Garza added, “And in this case, [Sabetian] was
within feet, so that’s pretty darn close to that activity.”
8 Industrial hygiene involves “anticipating, recognizing,
evaluating, and controlling hazards in the workplace,” including
the hazard of asbestos.
10
(c) Dr. Horn
Dr. Barry Horn, an occupational medicine specialist and
board certified pulmonologist,9 opined that exposure to asbestos
in the ambient air differed from exposure in an occupational
setting because “in an occupational setting, you overwhelm the
body’s defense mechanisms. . . . [¶] . . . And when you inhale
foreign material down in the lung, [alveolar macrophages][10] get
stimulated and go over to the area where these foreign particles
are and gobble them up. [¶] That leads to a whole series of
complex chemical reactions, which . . . cause other cells to move
into the lung and to produce potential[] changes in DNA that can
ultimately lead to cancer.” While the human body can handle a
“very modest exposure to asbestos,” a large exposure overwhelms
the body’s defense mechanisms causing an inflammatory
response, “which result[s] in a whole variety of responses, one of
which is to produce scarring, another is to produce cancer.”
Dr. Horn opined that standing 10 feet away from a person cutting
asbestos-containing pipe insulation would be considered an
occupational exposure to asbestos, which would be significant in
increasing the exposed individual’s risk of developing
mesothelioma. Plaintiffs’ counsel presented a hypothetical in
which Sabetian “was within ten feet of people cutting or removing
asbestos pipe insulation on several occasions in the 1960s and
1970s” that “created visible dust at the point of work, and assume
Mr. Sabetian was breathing.” When asked whether under the
9 Pulmonology is “the study of diseases of the lung or
diseases of other body parts that impact lung function.”
10 Dr. Horn described alveolar macrophages as “scavenger
white blood cells” in the air sacs of the distal airways.
11
hypothetical “each of those occasions [was] significant in
increasing the risk of Mr. Sabetian’s development of malignant
mesothelioma,” Dr. Horn responded, “Yes.”
(d) Dr. Zhang
Dr. David Zhang, a physician and occupational medicine
practitioner, testified occupational medicine focuses on finding
the cause of disease. Although Dr. Zhang is not an
epidemiologist, he was trained to interpret and apply
epidemiological studies.
Dr. Zhang explained asbestos fibers are most often inhaled
into the lungs, and from there the fibers may move throughout
the body in lymphatic fluid that flows throughout the mesothelial
linings or in defensive macrophages (white blood cells) that
consume the fibers and carry them to other parts of the body.
“[T]he fiber inhaled in the lung, carried by the macrophage or by
lymphatic fluid, travels from the lung to the pleura, to the
abdomen, and to the scrotum.” An individual exposed to asbestos
may not develop mesothelioma until 40 to 60 years after the
exposure.
Dr. Zhang opined, “The scientific community who is
familiar with asbestos-related disease would agree that asbestos,
no matter what type of asbestos, can cause all types of
mesotheliomas in any location lined by the mesothelial cells.”
Mesothelioma of different areas of the body is the same disease
with the same cell origin, but with a different location. When
asked whether “the mesothelioma that originates in the tunica
vaginalis [membrane covering the testes] [is] a different disease
than a mesothelioma that originates in the peritoneum or the
pleura [membrane covering the lungs],” Dr. Zhang responded,
12
“No, it’s the same disease from the same cell origin.” Dr. Zhang
opined, “[I]f you are exposed to asbestos, you will increase the
risk to develop mesothelioma—pleural, peritoneal, pericardial, or
tunica vaginalis [(TVT)].” Further, if Sabetian was exposed to
asbestos, the exposure “definitely” caused Sabetian’s
mesothelioma of the TVT.
In reaching his opinion, Dr. Zhang relied on a report titled
“Asbestos, Asbestosis, and Cancer, the Helsinki Criteria for
Diagnosis and Attribution” (Helsinki consensus report), which
was the product of a 1997 meeting of 19 specialists held in
Helsinki, Finland. The Helsinki consensus report was updated in
2015 following a meeting of over 20 scientists and doctors in
2014. Dr. Zhang stated as to the report there was a consensus
that asbestos causes all different forms of mesothelioma. The
Helsinki consensus report identified areas in need of further
research, but those did not include whether inhalation of asbestos
fibers can cause mesothelioma in all mesothelial linings
throughout the body. Both reports were published in the
Scandinavian Journal “Work, Environmental Health.”11
Dr. Zhang expressed his agreement with the consensus report’s
conclusion there is “no need to find asbestos fibers in the tissue to
attribute the mesothelioma to asbestos exposure.”
Dr. Zhang also based his opinion on his review of more than
30 case reports and case series reports published in the peer-
reviewed scientific literature concerning mesothelioma of the
11 Although plaintiffs’ counsel marked the 1997 Helsinki
consensus report and the 2015 updated report as Exhibits 29 and
30, neither was introduced into evidence at trial, and they are not
part of the record on appeal.
13
TVT,12 as well as one epidemiological study showing that
asbestos can cause pleural peritoneal mesothelioma. Dr. Zhang
stated mesothelioma of the TVT is very rare, occurring in only
about one in 10 million persons. The rarity of the condition
makes it difficult to conduct an epidemiological study at the
appropriate scale. Dr. Zhang explained, “[Y]ou probably need the
entire world [to participate in the study] to generate enough
testicular mesothelioma to look at this one,” making it “virtually
impossible to do this study.” For this reason, “case reports
sometimes are very important . . . especially for the rare disease.”
Case reports are written by treating physicians regarding
interesting medical cases; case series reports are based on
evaluation of multiple individuals. Dr. Zhang gave as an example
of the importance of case reports that Crohn’s disease was
identified by Dr. Crohn, who prepared a case report on the
disease, leading to a treatment, even though there were not
epidemiological studies showing the disease was an autoimmune
disease.
In reaching his opinions, Dr. Zhang relied on a case report
“that shows that those who have exposure [to asbestos] increase
12 “Case reports are reports by a clinician of the occurrence of
a disease in a particular individual. When there are multiple
case reports regarding an unusual occurrence of a certain disease
among a group, the study is referred to as a case series report.
([H.] Checkoway et al., Research Methods in Occupational
Epidemiology (2d ed. 2004) p. 59 (Occupational Epidemiology).)”
(Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477,
491.) The list of medical reports relied on by Dr. Zhang was
marked by plaintiffs’ counsel as Exhibit 28, but does not appear
to have been admitted into evidence at trial.
14
the risk of developing in particular tunica vaginalis
mesothelioma.” Dr. Zhang also reviewed the Mensi case series
report of individuals exposed to asbestos in Italy, which showed
“in the Italian cohort, . . . they have people develop the testicular
mesothelioma.” Dr. Zhang identified an additional case series
report by Dr. Attanoos that “reported testicular mesothelioma
and exposure responsible for some of the disease or some of the
cases.”
Dr. Zhang acknowledged there were reported cases of
mesothelioma of the TVT in patients with no documented history
of asbestos exposure. He explained patients may not be aware of
their exposure to asbestos, and the determination of whether
they have been exposed may depend on the quality of the medical
interview, for example, evaluating the patient’s prior work
history. Also, it is difficult for people to recall an exposure 20 to
30 years earlier.
5. Defense Case
Dr. Dominik Alexander, who has a Ph.D. in epidemiology,
testified for the defense. He explained epidemiology is “the study
of the distribution and determinants of disease in human
populations.” Further, epidemiologists are “interested in the
causes of disease in human populations and the patterns of
disease nationally and internationally.” Dr. Alexander opined
the available medical literature on health outcomes for
individuals exposed to occupational asbestos did not support the
conclusion exposure to asbestos dust is a cause of mesothelioma
of the TVT, although the studies show an increased risk of
pleural mesothelioma among workers exposed to asbestos fibers.
He testified that out of “hundreds” of analytical epidemiological
15
studies, none reported individuals exposed to occupational
asbestos contracted mesothelioma of the TVT.
On cross-examination, Sabetian’s attorney asked
Dr. Alexander to explain the meaning of the statement in the
Helsinki consensus report that “[m]alignant mesothelioma
affecting any serosal membrane may be induced by asbestos
inhalation.” Dr. Alexander responded, “I think it speaks for
itself. I believe that the authors are indicating that – exactly
what it says, malignant mesothelioma may affect any serosal
membrane.” But Dr. Alexander disagreed with the statement in
the report that “[a]ll types of malignant mesothelioma can be
induced by asbestos with amphiboles showing greater
carcinogenic potency than chrysotile.” Dr. Alexander opined
there was “no analytical epidemiologic evidence . . . supporting a
conclusion that asbestos exposure of any fiber type is even
associated” with mesothelioma of the TVT.
C. The Jury Verdict
The jury found on a special verdict form that FEI, MEF,
and NIOC were negligent, and that their negligence was a
substantial factor contributing to Sabetian’s risk of developing
mesothelioma. The jury found the other defendants had not
acted negligently.
The jury awarded Sabetian $6 million and Soraya
$3 million for past noneconomic loss and $8 million to each
plaintiff for future noneconomic loss, for a total of $25 million in
damages. The jury found FEI was 60 percent responsible for the
harm to Sabetian, while MEF and NIOC were each 20 percent
responsible.
16
D. Fluor Defendants’ Motions for Judgment Notwithstanding
the Verdict and for New Trial
The Fluor defendants filed motions for judgment
notwithstanding the verdict (JNOV) in which they argued there
was not substantial evidence of Sabetian’s exposure to asbestos
attributable to the Fluor defendants or that exposure to asbestos
causes mesothelioma of the TVT. The Fluor defendants also
challenged the award of damages to Soraya on the basis damages
for loss of consortium were not available under Iranian law,
which they argued applied to the case.
The Fluor defendants also filed a motion for new trial
raising the same issues and arguing the jury’s award of damages
was excessive and contrary to Iranian law. In support of both
motions the Fluor defendants submitted a supplemental
declaration by Iranian law expert Mahmoud Katirai, which we
discuss below.
The trial court denied the JNOV motions. It also denied
the new trial motion as to Sabetian, but it conditionally granted
the motion as to Soraya unless she consented to a reduction in
damages, finding the jury’s damages award was excessive and
should be reduced from $11 million to $1.4 million (comprised of
$400,000 for past loss of consortium, and $1 million for future
loss of consortium).
As to the Fluor defendants’ contention Iranian law applied
and limited recoverable damages, the court “decline[d] to deviate
from the pre-trial rulings issued by Judge John [J.] Kralik
regarding the application of Iranian law.[13] First, none of the
13 Judge Kralik presided over the pretrial choice of law
motions and issued the ruling on the motions. In October 24,
17
parties indicated that it wanted this Court to apply Iranian law
during the trial. Had the Court applied Iranian law, the jury
would have been asked to deliberate the case based on the law
given to it, and the jury has been discharged. Second, the Court
interprets Judge Kralik’s rulings to preclude the application of
Iranian law in this case. The Court notes that Defendants have
not waived their objections to applying Iranian law to the verdict,
and presumably, Defendants can challenge Judge Kralik’s
rulings directly with the Court of Appeal[].”
Soraya accepted the remittitur of the damage award to
$1.4 million. On July 3, 2019 the trial court entered an amended
judgment for the Sabetians. The Fluor defendants timely
appealed.
DISCUSSION
A. Standard of Review
“‘A motion for judgment notwithstanding the verdict may
be granted only if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there
is no substantial evidence in support.’” (Cabral v. Ralphs Grocery
Co. (2011) 51 Cal.4th 764, 770 (Cabral); accord, Johnson &
Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 313
(Johnson & Johnson).) “‘“On appeal from the denial of a motion
for judgment notwithstanding the verdict, we determine whether
there is any substantial evidence, contradicted or uncontradicted,
supporting the jury’s verdict. [Citations.] If there is, we must
2018 Judge Kralik granted in part and denied in part the defense
motions to apply Iranian law, which we discuss below.
18
affirm the denial of the motion.”’” (Newland v. County of Los
Angeles (2018) 24 Cal.App.5th 676, 684; accord, Cabral, at p. 770;
see IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639 [denial
of a motion for judgment notwithstanding the verdict “is
essentially the same as appealing the judgment itself for a lack of
substantial evidence”].)14
The appellate court, like the trial court, may not reweigh
the evidence or judge the credibility of witnesses. (Johnson &
Johnson, supra, 37 Cal.App.5th at p. 313.) “‘“‘“If the evidence is
conflicting or if several reasonable inferences may be drawn, the
motion for judgment notwithstanding the verdict should be
denied.”’”’” (Ibid., quoting Hauter v. Zogarts (1975) 14 Cal.3d
104, 110.) “The denial of a new trial motion is reviewed for an
abuse of discretion, except that a trial court’s factual
determinations are reviewed under the substantial evidence
test.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514, fn. 7;
see People v. Johnson (2019) 8 Cal.5th 475, 524 [“We will not
disturb a trial court’s denial of a motion for a new trial unless ‘a
“manifest and unmistakable abuse of discretion”’ clearly
appears.”].)
Code of Civil Procedure section 657 provides seven grounds
for granting a new trial where the error “materially affect[s] the
substantial rights” of a party, including as applicable here:
“5. Excessive or inadequate damages. [¶] 6. Insufficiency of the
evidence to justify the verdict or other decision, or the verdict or
14 We apply the same substantial evidence standard to an
appeal from a judgment following a jury trial. (Flores v. Liu
(2021) 60 Cal.App.5th 278; Gomez v. Smith (2020) 54 Cal.App.5th
1016, 1026.)
19
other decision is against law. [and] [¶] 7. Error in law, occurring
at the trial and excepted to by the party making the application.”
However, “[a] new trial shall not be granted upon the ground of
insufficiency of the evidence to justify the verdict . . . unless after
weighing the evidence the court is convinced from the entire
record, including reasonable inferences therefrom, that the court
or jury clearly should have reached a different verdict or
decision.” (Code Civ. Proc., § 657.)
B. Substantial Evidence Supports the Jury’s Finding Exposure
to Asbestos Attributable to the Fluor Defendants Was a
Substantial Factor in Causing Sabetian’s TVT
Mesothelioma
The Fluor defendants contend substantial evidence does
not support the jury’s finding Sabetian was exposed to asbestos
attributable to the Fluor defendants in quantities sufficient to
cause his mesothelioma. They further argue substantial evidence
does not support the jury’s finding inhalation of asbestos dust
was a substantial factor in contributing to Sabetian’s risk of
developing mesothelioma of the TVT because there is no evidence
asbestos exposure can cause mesothelioma of the TVT. We agree
with Soraya substantial evidence supports the jury’s verdict.
To prove exposure to asbestos from a particular product
was a legal cause of a plaintiff’s injury, the plaintiff must satisfy
the two-part test enunciated by the Supreme Court in
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953(Rutherford). “[T]he plaintiff must first establish some threshold
exposure to the defendant’s defective asbestos-containing
products, and must further establish in reasonable medical
probability that a particular exposure or series of exposures was
20
a ‘legal cause’ of his injury, i.e., a substantial factor in bringing
about the injury.” (Id. at p. 982, fn. omitted, italics omitted;
accord, LAOSD Asbestos Cases (2020) 44 Cal.App.5th 475, 488.)
“If an asbestos plaintiff fails to prove exposure, there is no
causation and no liability as a matter of law.” (LAOSD Asbestos
Cases, at p. 488; accord, Shiffer v. CBS Corp. (2015) 240
Cal.App.4th 246, 251 (Shiffer); Weber v. John Crane, Inc. (2006)
143 Cal.App.4th 1433, 1438.)
“[P]laintiffs may prove causation in asbestos-related cancer
cases by demonstrating that the plaintiff's exposure to
defendant’s asbestos-containing product in reasonable medical
probability was a substantial factor in contributing to the
aggregate dose of asbestos the plaintiff or decedent inhaled or
ingested, and hence to the risk of developing asbestos-related
cancer, without the need to demonstrate that fibers from the
defendant’s particular product were the ones, or among the ones,
that actually produced the malignant growth.” (Rutherford,
supra, 16 Cal.4th at pp. 976-977, fn. omitted; accord, LAOSD
Asbestos Cases, supra, 44 Cal.App.5th at p. 488.) “[A] particular
asbestos-containing product is deemed to be a substantial factor
in bringing about the injury if its contribution to the plaintiff[’s]
or decedent’s risk or probability of developing cancer was
substantial.” (Rutherford, at p. 977.)
In determining whether the plaintiff’s inhalation of
asbestos fibers from a particular product is a “‘substantial factor’”
contributing to the plaintiff’s cancer, relevant factors include “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
21
affecting the assessment of comparative risk . . . .” (Rutherford,
supra, 16 Cal.4th at p. 975; accord, Johnson v. ArvinMeritor,
Inc. (2017) 9 Cal.App.5th 234, 240, 245 [affirming grant of
summary judgment for defendants where plaintiff presented
evidence defendants’ brake lining components contained asbestos
and plaintiff’s father handled brake linings in his vehicle repair
work (to which plaintiff was exposed), but plaintiff failed to raise
triable issue that defendants produced the brake linings handled
by plaintiff’s father].)
1. Substantial evidence supports the jury’s finding
Sabetian was exposed to asbestos attributable to FEI
FEI contends there is no substantial evidence the pipe
insulation used at the Esfahan refinery contained asbestos
because Nippon did not ship its pipe insulation to Esfahan until
January 1977, by which time Nippon was no longer using
asbestos in its calcium silicate pipe insulation. FEI also asserts
there is not substantial evidence Sabetian was exposed to
asbestos during pipe cutting operations at the Esfahan refinery.
We agree with Soraya there is substantial evidence FEI used
asbestos-containing pipe insulation at Esfahan to which Sabetian
was exposed.
At trial the Sabetians presented evidence the design
documents for Tehran II specified the use of asbestos-containing
pipe insulation. MEF procured calcium silicate pipe insulation
from Nippon in 1974 for use in the construction of Tehran II. The
Fluor defendants do not dispute the pipe insulation used at
Tehran II contained asbestos. At some point over 20,000 linear
feet of unused calcium silicate pipe insulation was transferred
from Tehran II to the Esfahan project. The same design
22
specifications used for Tehran II were again used for the Esfahan
project. Further, Fluor15 procured most or all of the calcium
silicate pipe insulation for the Esfahan project from Nippon, as it
did for the Tehran I and Tehran II projects. Shahabi confirmed
Fluor “used asbestos-containing material [at Esfahan], exactly
the same as Tehran [II],” explaining he did not learn of the use of
asbestos-free insulation until 1977.
Fluor’s urgent request in 1976 to use asbestos-containing
insulation at Esfahan, which NIOC granted, further supports the
inference Fluor procured asbestos-containing insulation for use at
Esfahan. As discussed, sometime before October 25, 1976 FEI
learned Nippon was no longer going to produce asbestos-
containing insulation. FEI then “urgently” requested NIOC
“relax [its] demand that insulation be asbestos free.” In
November 1976 NIOC granted FEI permission to use asbestos-
containing calcium silicate insulation “if it is contained.” Nippon
then changed the name of its calcium silicate insulation product
from “silicalite cover” to “new silicalite cover.” But Fluor did not
present evidence it ever purchased “new silicalite” insulation for
Esfahan.16 In 1977 FEI received two shipments of calcium
silicate pipe insulation from Nippon totaling approximately
675,000 linear feet of insulation. FEI argues this pipe insulation
would not have contained asbestos because by then Nippon had
15 As discussed, the witnesses referred to the Fluor
defendants collectively as “Fluor.” However, the testimony about
Fluor with respect to the Esfahan refinery refers to FEI because
it was responsible for construction at that refinery.
16 Contrary to FEI’s contention, Soraya does not argue the
change of the company name from Nippon to Nichias Corporation
is evidence the insulation used at Esfahan contained asbestos.
23
changed its product. But the Sabetians presented an invoice for
the January 1977 shipment of insulation showing the insulation
had been ordered from Nippon pursuant to a June 21, 1975
contract—before Nippon switched to a new product. The invoice
states Nippon was providing “[m]aterial and [e]quipment as per
contract,” supporting an inference that Nippon had shipped its
earlier “silicalite cover” product containing asbestos. This
evidence supports a reasonable inference FEI used asbestos-
containing insulation at Esfahan.17
FEI’s argument Sabetian had insufficient contact with the
cutting of pipe insulation at the Esfahan refinery to show his
exposure was a legal cause of his developing mesothelioma also
lacks merit. Sabetian testified he visited Esfahan more than 10
or 12 times during its construction. He observed workers cutting
17 FEI also asserts the evidence did not show whether the
insulation Sabetian observed being cut contained asbestos
because Sabetian did not know whether he observed the cutting
of insulation for high- or low-temperature pipes. But FEI has not
provided any citation to the record for its assertion only
insulation for high-temperature pipes “could possibly have
asbestos insulation.” FEI’s contention is therefore forfeited. (See
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277
[“‘[T]o demonstrate error, an appellant must supply the reviewing
court with some cogent argument supported by legal analysis and
citation to the record.’”]; Multani v. Witkin & Neal (2013)
215 Cal.App.4th 1428, 1457 [plaintiffs forfeited claim of error by
failing to “present meaningful legal analysis supported by
citations to authority and citations to facts in the record that
support the claim of error”]; Cal. Rules of Court, rule
8.204(a)(1)(C) [each brief must “[s]upport any reference to a
matter in the record by a citation to the volume and page number
of the record where the matter appears”].)
24
pipe and using insulation for the equipment, and he described the
cutting of the pipe insulation as always creating dust. Sabetian
observed the cutting of pipe insulation at Esfahan “so many
times” while he was standing “between three to seven, eight feet
away from the actual operation.”18
2. Substantial evidence supports the jury’s finding
Sabetian’s exposure to asbestos attributable to MEF at
the Tehran II refinery project was a substantial factor
in causing his injury
MEF contends there is no substantial evidence Sabetian’s
exposure to asbestos at the Tehran II refinery project was a
substantial factor in causing his mesothelioma because there is
no evidence of the proximity, duration, or intensity of Sabetian’s
exposure to asbestos dust at Tehran II. MEF also argues
Sabetian stated under oath in his immigration application he
worked for NIOC from 1975 to 1980, which MEF argues is
inconsistent with Sabetian’s testimony he observed construction
18 FEI points out Sabetian was later asked, “Why did you
need to be so close to the insulation process?” to which he
responded, “Well, in actual fact, I wasn’t too close. But
sometime[s] the measuring the distance perhaps was very
difficult. . . . I may actually have been more than three feet or
four feet or five feet, something like that.” It was the role of the
jury to judge Sabetian’s credibility and weigh the evidence in
determining how close he was to the cutting of the insulation.
(Johnson & Johnson, supra, 37 Cal.App.5th at p. 313.) It was a
reasonable inference that Sabetian was close enough to the
cutting of pipe insulation that he was exposed to visible asbestos
dust.
25
at Tehran II because construction was completed by January
1975. Neither contention has merit.
Construction of Tehran II began in the early 1970s and
concluded in January 1975. During the 1970s, Sabetian was
regularly traveling to multiple refinery projects under
construction, including Tehran II. Sabetian visited Tehran II “so
many times” during its construction. Sabetian testified he
observed at Tehran II the same type of work he saw at other
refineries, including “the insulation activity that Fluor was
responsible for.” He observed Fluor workers installing pipe
insulation at Tehran II on more than 10 occasions. Sabetian’s
usual practice was to observe the cutting of pipe insulation while
he was standing three to eight feet away. While Sabetian
observed the work, there were “people working all over the unit”
with insulation. And cutting the insulation “always” produced “a
lot of dust.”
Industrial hygienist Garza opined that where asbestos-
containing dust is visible to the naked eye, a bystander would be
exposed to levels of asbestos fibers many orders of magnitude
greater than the amount in the ambient air and that Sabetian’s
position within feet of the insulation cutting was “pretty darn
close.” Dr. Horn similarly testified that a bystander positioned
10 feet from the cutting of asbestos-containing pipe insulation
and exposed to visible dust in the air would experience an
occupational exposure to asbestos that significantly increased the
bystander’s risk of developing mesothelioma.
The testimony from Sabetian, Garza, and Dr. Horn
provides substantial evidence from which the jury could
reasonably have concluded that Sabetian’s observation of Fluor
workers installing pipe insulation at Tehran II on more than 10
26
occasions substantially contributed to the aggregate dose of
asbestos Sabetian inhaled and was a substantial factor in
increasing his risk of developing mesothelioma.
Shiffer, supra, 240 Cal.App.4th 246, relied on by MEF, is
distinguishable. There, the plaintiff contended he was exposed to
asbestos in turbine insulation the defendant provided to a power
plant where plaintiff worked during one summer. (Id. at p. 248.)
In affirming the trial court’s grant of summary judgment for the
defendant, the Court of Appeal concluded the plaintiff in his
declaration stated only that he “‘observed construction . . .
including insulators insulating piping in the turbine building.’
Although he also declared he was frequently in the turbine room
for training, he did not say whether or on how many occasions he
observed the insulation process, itself, or whether he merely saw
the results of the process after being off-site for some time. Mere
presence at a site where asbestos was present is insufficient to
establish legally significant asbestos exposure.” (Id. at p. 252.)
In contrast, Sabetian testified he stood three to eight feet from
workers cutting pipe insulation on more than 10 occasions, from
which the jury could reasonably conclude Sabetian was exposed
to occupational levels of asbestos dust that significantly increased
his risk of developing mesothelioma.19
MEF also argues Sabetian’s statement in his 1982
immigration application—that he worked as head of NIOC’s
industrial department from 1975 to 1980—contradicted his trial
testimony he visited Tehran II many times during its
construction, because MEF completed construction of Tehran II
19 MEF also relies on McIndoe v. Huntington Ingalls Inc. (9th
Cir. 2016) 817 F.3d 1170, 1173, but that case involved application
of federal maritime law, not California law.
27
in January 1975. However, at trial, “contradictions between a
witness’s testimony and his or her prior statements, under oath
or otherwise, affect only the witness’s credibility, and it is
exclusively the function of the jury to determine which, if any, of
a witness’s assertions are credible.” (Lobo v. Tamco (2014)
230 Cal.App.4th 438, 446; accord, Clemmer v. Hartford Insurance
Co. (1978) 22 Cal.3d 865, 878 [“[T]he fact that inconsistencies
may occur in the testimony of a given witness does not require
that such testimony be disregarded in its entirety for the
purposes of a motion for judgment notwithstanding the
verdict . . . . It is for the trier of fact to consider internal
inconsistencies in testimony, to resolve them if this is possible,
and to determine what weight should be given to such
testimony.”], overruled on another ground by Ryan v. Rosenfeld
(2017) 3 Cal.5th 124.)
Sabetian’s statements in his immigration application and
at trial are not necessarily contradictory. The immigration form
requested Sabetian list his “employment last five years.”
Sabetian submitted his application in July 1982 and stated he
was last employed from 1975 to 1980 as the head of NIOC’s
industrial department. Nowhere did the form request Sabetian
list his employment other than for the latest five-year period.
The jury could have reasonably inferred Sabetian properly
responded to the precise question on the form—asking for the last
five years of employment—or that Sabetian was employed by
NIOC prior to that time in a position other than as head of the
industrial department. And to the extent the application was
inconsistent with Sabetian’s testimony, it was the jury’s function
to assess Sabetian’s credibility and resolve any inconsistencies.
28
(Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at p. 878;
Lobo v. Tamco, supra, 230 Cal.App.4th at p. 446.)20
3. Substantial evidence supports the jury’s finding
exposure to asbestos was the legal cause of Sabetian
developing mesothelioma of the TVT
The Fluor defendants argue there is no substantial
evidence asbestos exposure can cause Sabetian’s particular
injury, mesothelioma of the TVT. They contend the testimony of
Drs. Daneshmand and Zhang regarding causation does not
constitute substantial evidence because the testimony lacked
foundation in appropriate medical literature. Specifically, the
20 MEF’s reliance on Davis v. Foster Wheeler Energy
Corp. (2012) 205 Cal.App.4th 731 is misplaced. In Davis, the
plaintiffs alleged the deceased husband of one of the plaintiffs
(Ronald Davis) was exposed to asbestos dust from the defendant’s
stripping of old asbestos-containing insulation from the boilers at
Davis’s jobsite. (Id. at pp. 734-735.) Plaintiffs relied on
deposition testimony from Davis’s coworker that the coworker
had witnessed a contractor wearing a hat bearing the defendant’s
initials remove insulation from around the boiler. (Ibid.)
However, when the coworker was asked in other deposition
testimony who employed the worker who had removed the
insulation, the coworker answered he had no information that
the worker was employed by defendant. (Id. at p. 735.) The
Court of Appeal affirmed the trial court’s grant of summary
judgment for the defendant, concluding the coworker’s deposition
testimony was “not ambiguous, but is contradictory,” and it
therefore could not create a triable issue of fact to defeat
summary judgment. (Id. at pp. 735-736.) The Davis court also
acknowledged a different standard would apply where, as here,
the court is evaluating a post-trial motion for judgment
notwithstanding the verdict. (Id. at p. 736.)
29
Fluor defendants contend there are no epidemiological studies
that establish the requisite causation. Although the Fluor
defendants are correct that Dr. Zhang did not principally rely on
epidemiological studies to support his conclusions, his opinions
were properly based on the medical literature.21
“[E]ven when [a] witness qualifies as an expert, he or she
does not possess a carte blanche to express any opinion within
the area of expertise.” (Jennings v. Palomar Pomerado Health
Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (Jennings);
accord, Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155,
1178.) “‘[W]hen an expert bases his or her conclusion on factors
that are “speculative, remote or conjectural,” or on
“assumptions . . . not supported by the record,” the expert’s
opinion “cannot rise to the dignity of substantial evidence” . . . .
[Citations.]’” (Johnson & Johnson, supra, 37 Cal.App.5th at
p. 314; accord, Jennings, at p. 1117 [“[W]hen an expert’s opinion
is purely conclusory because unaccompanied by a reasoned
explanation connecting the factual predicates to the ultimate
conclusion, that opinion has no evidentiary value because an
‘expert opinion is worth no more than the reasons upon which it
rests.’”]; see Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 770 (Sargon) [“the matter relied
on must provide a reasonable basis for the particular opinion
offered, and . . . an expert opinion based on speculation or
conjecture is inadmissible’”].)
21 Because we conclude Dr. Zhang’s testimony is substantial
evidence from which the jury could conclude inhalation of
asbestos dust caused Sabetian’s mesothelioma of the TVT, we do
not address the Fluor defendants’ challenges to the testimony of
Dr. Daneshmand.
30
“[A]n expert’s conclusory opinion that something did occur,
when unaccompanied by a reasoned explanation illuminating
how the expert employed his or her superior knowledge and
training to connect the facts with the ultimate conclusion, does
not assist the jury. In this latter circumstance, the jury remains
unenlightened in how or why the facts could support the
conclusion urged by the expert, and therefore the jury remains
unequipped with the tools to decide whether it is more probable
than not that the facts do support the conclusion urged by the
expert.” (Jennings, supra, 114 Cal.App.4th at p. 1117.) However,
“an expert, in reaching a specific causation opinion, need not
exclude all other possibilities before he or she can express an
opinion that the defendant’s conduct or product caused the
plaintiff’s harm.” (Cooper v. Takeda Pharmaceuticals America,
Inc. (2015) 239 Cal.App.4th 555, 580; accord, Sarti v. Salt Creek
Ltd. (2008) 167 Cal.App.4th 1187, 1210.)
The Fluor defendants’ argument the Sabetians’ experts “did
not opine that asbestos exposure can cause TVT mesothelioma as
a general proposition” is contrary to the record. Dr. Zhang opined
at trial that “asbestos, no matter what type of asbestos, can cause
all types of mesotheliomas in any location lined by the mesothelial
cells.” (Italics added.) He opined further, “If you are exposed to
asbestos, you will increase the risk to develop mesothelioma—
pleural, peritoneal, pericardial, or tunica vaginalis [(TVT)].” In
reaching his opinion, Dr. Zhang relied on the Helsinki consensus
report, more than 30 case reports and case series reports, and one
epidemiological study. He also based his opinion on how the
human body’s defense mechanisms cause the asbestos fibers to
travel from the lungs to other parts of the body. As Dr. Zhang
testified, “[T]he fiber inhaled in the lung, carried by the
31
macrophage or by lymphatic fluid, travels from the lung to the
pleura, to the abdomen, and to the scrotum.”
The Fluor defendants contend the Helsinki consensus
report is not a reliable source for Dr. Zhang’s opinion because it
was the product “of a meeting convened ‘to discuss disorders of
the lung and pleura in association with asbestos,’” not
mesothelioma of the TVT. But the Fluor defendants provide no
citation to the record for this quote regarding the purpose of the
Helsinki meeting. They respond that no party introduced the
Helsinki consensus report into evidence at trial. But an expert
may rely on medical reports regardless of whether the report is
admissible or introduced into evidence. (People v. Linton (2013)
56 Cal.4th 1146, 1200 [“‘An expert may generally base his opinion
on any ‘matter’ known to him, including hearsay not otherwise
admissible, which may ‘reasonably . . . be relied upon’ for that
purpose.’”].)
Further, although the Helsinki consensus report and
updated report are not in the record, during his cross-
examination defense expert Dr. Alexander acknowledged the
report stated, “Malignant mesothelioma affecting any serosal
membrane may be induced by asbestos inhalation,” and further,
“All types of malignant mesothelioma can be induced by
asbestos . . . .” Of course, malignant mesothelioma of the TVT is
a type of malignant mesothelioma. Although Dr. Alexander
expressed disagreement with these statements, they bely the
Fluor defendants’ assertion the report reached no conclusions
regarding mesothelioma of the TVT.
The Fluor defendants’ challenge to the medical literature
relied on by Dr. Zhang to support his opinions rings hollow. As
part of their challenge, the Fluor defendants cherry pick a
32
handful of studies of the 30 on which Dr. Zhang relied. For
example, the Fluor defendants point out that one of the articles
relied on by Dr. Zhang reported only six out of 24 patients who
developed mesothelioma of the TVT had confirmed asbestos
exposure. But Dr. Zhang noted nine of the patients in the study
did not specify whether or not they had any history of asbestos
exposure. The Fluor defendants point out that in another article
relied on by Dr. Zhang, only about one-third of the 74 patients
who had developed mesothelioma of the TVT had confirmed
asbestos exposure. But Dr. Zhang emphasized the other patients
did not report any known exposure. As Dr. Zhang explained,
“[E]xposure history sometimes can be very, very challenging” and
depends on the quality of the patient evaluation because
individuals may not recognize asbestos exposure when it occurs,
and there is “recall bias” inherent in the passage of time from
exposure to the development of the disease. The Fluor
defendants attack this explanation as “partisan” and “baseless,”
but it is not an unreasonable proposition that persons exposed to
asbestos may not recognize they have been exposed and may not
recall their exposure given the lengthy passage of time (up to 60
years) before mesothelioma manifests itself.
The Fluor defendants assert further that Dr. Zhang
acknowledged there are no epidemiological studies performed
that show asbestos exposure specifically causes mesothelioma of
the TVT.22 They also point to Dr. Zhang’s testimony on cross-
22 Dr. Zhang relied on one epidemiological study showing that
asbestos can cause pleural peritoneal mesothelioma in reaching
his conclusion, but defense counsel failed to cross-examine
Dr. Zhang about the study. The record contains no additional
testimony about the study.
33
examination about an epidemiological study of 17,800 individuals
who worked in occupations typically involving high levels of
asbestos exposure. Dr. Zhang acknowledged there were no
recorded cases of mesothelioma of the TVT among this cohort, but
he explained that “documentation of the disease [was] not
accurate . . . during the time of [the] study.” Specifically,
mesothelioma of the TVT historically had been misdiagnosed as
adenocarcinoma; the study author relied on death certificates for
the diagnoses; and the author later acknowledged he
misclassified “quite a lot” of the cases.
The Fluor defendants cite federal authorities for the
proposition only epidemiological studies, not case reports or case
series reports, can support an expert’s opinion on causation in a
toxic tort case. The Court of Appeal in Davis v. Honeywell
Internat. Inc. (2016) 245 Cal.App.4th 477 rejected this argument,
reasoning, “While [defendant] is generally correct that in many
(or even most) instances epidemiological studies provide the best
evidence of causation, its implied argument that it is improper for
an expert to rely upon any other tools to determine causation,
such as case reports, is not universally accepted.” (Id. at p. 491,
fn. omitted.) Further, “‘[c]ase series reports can be virtually
conclusive in their own right when the health outcome identified
is a very rare disease or an uncommon manifestation of a
relatively common condition.’” (Ibid., quoting H. Checkoway
et al., Research Methods in Occupational Epidemiology (2d ed.
2004) p. 78.) In Davis, the Court of Appeal concluded the trial
court properly allowed plaintiff’s expert to testify at trial as to
whether the decedent’s exposure as a mechanic to defendant’s
asbestos-containing brake linings substantially contributed to his
development of mesothelioma, where the expert principally relied
34
on case reports to support his opinions and several
epidemiological studies had shown no association between the
mechanics’ exposure and the risk of developing mesothelioma.
(Davis, at pp. 480, 489, 491-492.) The Court of Appeal explained
the trial court’s gatekeeping function under Sargon, supra,
55 Cal.4th at page 769 “bars expert opinion only if it fails to meet
the minimum qualifications for admission. If the opinion is based
on materials on which the expert may reasonably rely in forming
the opinion, and flows in a reasoned chain of logic from those
materials rather than from speculation or conjecture, the opinion
may pass, even though the trial court or other experts disagree
with its conclusion or the methods and materials used to reach
it.” (Davis, at p. 492.)
Dr. Zhang testified at trial that case reports “sometimes are
very important” in determining causation, “especially for the rare
disease.” He explained mesothelioma of the TVT is so rare that a
proper epidemiological study would require participation of the
population of the planet, making it “virtually impossible” to
conduct. To the extent the Fluor defendants rely on the contrary
opinion of their expert Dr. Alexander, “[i]t is ‘not the role of this
court to redetermine the credibility of experts or to reweigh the
relative strength of their conclusions.’” (People v. Kirvin (2014)
231 Cal.App.4th 1507, 1514; accord, Estes v. Eaton Corp. (2020)
51 Cal.App.5th 636, 652 [“The jury was certainly free to side with
[defense expert’s] opinions and conclusions over [plaintiff’s
expert’s]. And we are not free to reweigh this evidence.”].)
Finally, the Fluor defendants contend Dr. Zhang failed to
rule out other causes of Sabetian’s mesothelioma of the TVT.
Contrary to their assertion, Dr. Zhang did not “acknowledge[]
that there are multiple potential causes” of Sabetian’s condition.
35
When asked on cross-examination whether trauma is a risk
factor for mesothelioma of the TVT, Dr. Zhang responded,
“[T]here’s no . . . evidence, scientific and medical indicating
trauma itself can absolutely cause mesothelioma.” While he
acknowledged that in one study the author identified viral
infection and ionizing radiation as “other hypothetical causes” of
mesothelioma of the TVT, he did not agree with the conclusion.
Further, that study stated, “Asbestos is the only established risk
factor for testicular mesothelioma.” Dr. Zhang acknowledged
genetic causes of the disease where it occurred in individuals as
young as seven. But even if genetic predisposition contributed to
Sabetian’s development of mesothelioma of the TVT, it does not
follow his exposure to asbestos did not substantially increase his
risk. Dr. Zhang was not required to “exclude all other
possibilities” in expressing an opinion that asbestos exposure is a
substantial factor in increasing the risk of an individual
developing mesothelioma of the TVT. (Cooper v. Takeda
Pharmaceuticals America, Inc., supra, 239 Cal.App.4th at p. 580.)
C. The Trial Court Did Not Err in Applying California Law
1. Proceedings below
(a) Defendants’ pretrial choice of law motions
In August 2018 codefendants Foster Wheeler, LLC, Exxon
Mobil Corporation, and ExxonMobil Oil Corporation filed pretrial
motions to apply Iranian law. The Fluor defendants joined the
motions. The motions sought to apply Iranian law as to the
negligence standard of care, strict liability, joint and several
liability, punitive damages, compensatory damages, and loss of
consortium, arguing California and Iranian law materially
differed as to each issue and Iran’s legitimate governmental
36
interest in the issues would be impaired if California law was
applied.
In support of their motions, defendants filed a declaration
from Mahmoud Katirai, an Iranian lawyer and scholar of Iranian
law. On the issue of compensatory damages for personal injury,
Katirai opined, “Under Iranian law, [p]laintiffs’ remedies are
limited to a statutory compensation (‘diyeh’) pre-determined by
the legislature, plus financial damages such as medical expenses
and loss of income. These statutory limitations also apply in a
personal injury case[] even if the victim does not die . . . . This
statutory compensation, which is based on Islamic law, has been
codified in the Islamic [Penal Code of Iran], but are of [a] civil
nature. . . . [¶] . . . Statutory compensation . . . calls for payment
in certain commodities[;] . . . since payment in such commodities
is no longer practical, however, the price of such commodities is
determined each year by virtue of a decree of the Department of
Justice[,] and Iranian courts are required to award [a] remedy
based on such decision. Presently, the amount of the statutory
compensation in cases of death is 2,310,000,000 Rials. During
certain lunar months (i.e., Zel-ghadeh, Zel-hajeh, Rajab, and
Moharam) which are called ‘haram’ (celebratory months), the
amount of the statutory compensation in cases of death is
3,080,000,000 Rials.” (Footnotes omitted.)
As to loss of consortium, Katirai opined, “Under Iranian
law, those who are related to the victim may not claim any loss,
other than the statutory compensation (‘diyeh’), in case the victim
has passed away, unless they have suffered a mental harm as the
result of the tort inflicted on their beloved one. . . . [¶] . . . In [the]
case of the death of the victim, however, his heirs are entitled to
statutory compensation . . . as well as other damages which are
37
provided in the Civil Responsibility Act. The spouse, however, is
not entitled to a remedy for loss of consortium. [¶] . . . The
Supreme Court of Iran has also decided that, in addition to the
statutory compensation, Iranian courts may award financial
damages, such as medical expenses and loss of income.”
(Footnote omitted.)
Katirai also opined punitive damages were not available
under Iranian law, declaring that damages under Iranian law
“are compensatory and are awarded as the measure of actual loss
suffered by the victim, not as a punishment of defendant’s
conduct.” Katirai opined, “[T]he proper measure of damages
under the Civil Responsibility Act is to put the injured party in
the same situation he or she would have been in had the injury
never occurred . . . . Thus, compensation is available for financial
damages, including physical injuries as well as non-financial
damages, including mental and emotional harms, but punitive
damages are not available under Iranian law.”
Katirai cited to Article 3 of the Iranian “Act for Attraction
and Protection of Foreign Capital” (Foreign Investment Act),
enacted in 1955, which provided, “The capital imported into
Iran . . . as well as profits accrued from the investment of the said
capital, shall be subject to the legal protection of the Government,
and all the rights, exemptions and facilities accorded to domestic
capital and private productive enterprises shall also apply to
foreign capital and corporations. . . .” Based on this language,
Katirai stated in his opinion that “if any foreign companies that
invest (or do business in Iran) are sued in an Iranian court,
Iranian law will apply to them, just as it would for any Iranian
company or citizen.” Katirai opined “the intent of the Iranian
38
Government in making such laws applicable to foreign nationals
was to, inter alia, promote foreign investment in Iran.”
Defendants filed multiple exhibits, translated into English,
in support of the Katirai declaration. Article 4 of the 1980
Constitution of the Islamic Republic of Iran stated that all laws
and regulations “must be based on Islamic standards.”
Article 448 of the Islamic Penal Code of Iran provided, “Decreed
statutory compensation (‘diyeh moghadar’) consists of a specified
property which has been provided in the [holy] religion . . . when
a non-intentional crime has been committed and has caused
death, [or] loss of a member . . .” Article 549 of the Islamic Penal
Code of Iran stated further, “The instances of full (death)[23]
statutory compensation are those set forth in the religion and the
amount of it will be decided at the beginning of each year by the
head of [the] judiciary branch based on the opinion of the leader.”
A judicial decision of “Chamber 15 of Appellate Court of Tehran
Province” held the statutory compensation laws of the Islamic
Penal Code of Iran applied to the civil case before it: “In this
court’s opinion, statutory compensation (diyeh) is of a civil
nature, even though it has been mentioned in criminal laws and
its rules have been set forth in the said laws and is applied in the
way that is normal in criminal matters, because it consists of the
definite damages which the legislature, following the [holy]
religion, considers as being sustained and the compensation
thereof has been guaranteed.”
23 The Fluor defendants later presented evidence a tort victim
whose injury did not result in death may be entitled to the full
amount of statutory compensation depending on the injury, such
as when the victim loses both testicles due to the same injury.
39
With their opposition the Sabetians filed a declaration from
Amirhassan Boozari, an Iranian law scholar and practitioner.
Boozari opined damages for loss of consortium are recoverable
under Iranian law, quoting Article 6 of the Civil Liability Act:
“When at the time of accident, the victim was, or would have
later been, legally responsible for the care of a third party who
will be deprived of such care should the victim die, the tortfeasor
must pay such a pension to such a third party that is
proportionate to the normal life expectancy of the victim as long
as such victim would be obligated to render care for such third
party.” Boozari stated the recovery for a “third party” includes
the wife of a tort victim because under Iranian law married men
have a legal responsibility “to maintain the emotional and
psychological health and balance of each member of their
families.” Boozari quoted Dr. Hossien Safei, an Iranian civil law
expert, as translated: “Emotional distress is one of the intangible
damages that are referred to in Article 9 of the Criminal
Procedure Code. Even causing damage to a person’s emotions
due to friendship, family relation, religious belief, and pain and
suffering consequent to accidents can be a cause of action for
intangible damages. . . . Under Iranian law, one can say that
emotional harm must be significant to be viewed as emotional
damage.”
Boozari challenged Katirai’s conclusion the Iranian
government intended in enacting the Foreign Investment Act
that the language in Article 3 providing that the Act’s extension
of all “rights, exemptions, and facilities” accorded to domestic
entities apply to foreign capital and corporations broadly means
Iranian tort law applies to any lawsuit filed against a foreign
company investing in Iran, instead opining the language has
40
always been interpreted to apply equal treatment only to “tax
exemptions conferred to investments in Iran for domestic
investors.”
At the October 18, 2018 hearing on the choice of law
motions, counsel for codefendants Exxon Mobil Corporation and
ExxonMobil Oil Corporation represented to the court that the
statutory compensation available under Iranian law for
Sabetian’s injury would depend on when his “loss occurs,”
explaining “[i]t goes from 2.3 billion to 3.08 billion Rials,
depending on the time of year.”
On October 24, 2018 the trial court granted in part and
denied in part the motions to apply Iranian law. The court
reasoned, “[T]he Government of Iran would have had a strong
interest in applying its own laws to a refinery it owned and an
employee that it employed. . . . California has little interest in
legislating behavior at such refineries and oil fields.” However,
the court ruled it would apply Iranian law only as to the issues of
strict liability, joint and several liability, and punitive damages,
as each was not available under Iranian law. The court declined
to apply Iranian law to limit Sabetian’s recovery of compensatory
damages, explaining, “Although the experts do not appear in
disagreement that there is some sort of monetary cap on general
damages, the Court declines to apply it in this case.
Apparently[,] the cap is set by reference to a memorandum
prepared by unnamed Iranian government lawyers who have the
power to alter the cap as they see fit. Defendants did not produce
a sample determination for the Court, leaving the Court in doubt
as to what the cap was and how it is determined. The cap also
varies by season of the year. As such, the Court is left unsure
that the cap is not so arbitrary in nature and application that it
41
would offend fundamental due process if applied in an American
court.”
The court also declined to apply Iranian law to bar
damages for loss of consortium, stating it was “worried that Iran
does not neatly define loss of consortium in the same way that
California does, and that the damages could be considered in
other categories under Iranian law. (See Boozari Dec., ¶¶ 55-58.)
Therefore, the Court finds that this prohibition is not established
with sufficient clarity in Iranian law to allow for application in
this case.” The court issued its ruling without prejudice to its
later reconsidering the ruling, stating, “The subject of what law
to apply to a trial, and how to instruct the jury, are under the
continuing jurisdiction and responsibility of the trial judge.
Sometimes, the evidence can evolve in a direction that causes
revision in the law to be submitted to the jury. Therefore, the
trial court retains its power to revise these rulings as it sees fit
and to hear further evidence from experts regarding Iranian law
should it find such evidence necessary.”
(b) The Fluor defendants’ posttrial choice of law
motions
In their motion for new trial, the Fluor defendants
addressed the choice of law issue and submitted a supplemental
declaration from Katirai. Katirai again opined Iranian law
limited Sabetian’s recovery to a statutorily prescribed amount for
his physical impairment, plus medical expenses and lost income.
The Iranian Department of Justice determines the formula for
statutory compensation each year. “For the loss of testes,”
Katirai declared Sabetian was entitled to “the full statutory
compensation amount,” or 2.7 billion Rials (approximately
42
$64,000).24 Sabetian was also entitled to an uncertain percentage
of the same amount for impairment of his general health.
Sabetian’s recovery for his physical injury was therefore limited
to a maximum of two times the amount allowed for a single
injury, 5.4 billion Rials (approximately $128,000).
Katirai also opined that under Iranian law Soraya “is not
entitled to any monetary compensation for the harms listed on
the Special Verdict. . . . [¶] . . . Under Iranian law, a spouse of a
living plaintiff is not entitled to any recovery unless the spouse
has suffered a mental injury as the result of the incident which
inflicted an injury on the plaintiff.” Katirai noted the special
verdict form did not award to Soraya any compensation for a
mental injury.
The Fluor defendants attached to the supplemental Katirai
declaration an Iranian news article, translated into English,
announcing the Iranian Department of Justice’s payment
schedule for the Iranian calendar year running from March 21,
2019 to March 20, 2020. The article quoted the first deputy head
of Judiciary as stating, “[I]n the new year, during regular
months, the statutory compensation (diyeh) for a Muslim male
shall be 270 million Toumans [2,700,000,000 Rials]. Of course,
during the sacred [haram] months, the said amount would be
increased by one third.” The Fluor defendants also submitted an
English translation of Article 665 of the Islamic Penal Code of
Iran, which stated, “Full statutory compensation (‘diyeh’) shall
apply in cases where both testes are amputated at the same time;
the removal of [the] left testis shall require payment of two
24 Katirai appears mistakenly to have believed both of
Sabetian’s testicles were removed to treat his mesothelioma. The
record reflects only his right testicle was removed.
43
third[s] of the statutory compensation . . . and the removal of the
right testis shall require payment of one third of the statutory
compensation.”
2. Governing law
“‘[T]he governmental interest approach generally involves
three steps. First, the court determines whether the relevant law
of each of the potentially affected jurisdictions with regard to the
particular issue in question is the same or different. Second, if
there is a difference, the court examines each jurisdiction’s
interest in the application of its own law under the circumstances
of the particular case to determine whether a true conflict exists.
Third, if the court finds that there is a true conflict, it carefully
evaluates and compares the nature and strength of the interest of
each jurisdiction in the application of its own law “to determine
which state’s interest would be more impaired if its policy were
subordinated to the policy of the other state” [citation] and then
ultimately applies “the law of the state whose interest would be
more impaired if its law were not applied.”’” (McCann v. Foster
Wheeler LLC (2010) 48 Cal.4th 68, 87-88 (McCann); accord,
Chen v. Los Angeles Truck Centers, LLC (2019) 7 Cal.5th 862,
867.)
“[A] separate conflict of laws inquiry must be made with
respect to each issue in the case . . . .” (Washington Mutual
Bank v. Superior Court (2001) 24 Cal.4th 906, 920 (Washington
Mutual); accord, Kearney v. Salomon Smith Barney, Inc. (2006)
39 Cal.4th 95, 110 (Kearney) [“distinct state interests . . . may
underlie separate aspects of the issue in question”]; Smith v.
Cimmet (2011) 199 Cal.App.4th 1381, 1395 [the governmental
interest analysis must be performed separately “with regard to
44
the particular issue in question”]; Beech Aircraft Corp. v.
Superior Court (1976) 61 Cal.App.3d 501, 518 [“Each choice of
law issue requires separate consideration.”].)
“The party arguing that foreign law governs has the burden
to identify the applicable foreign law, show that it materially
differs from California law, and show that the foreign law
furthers an interest of the foreign state.” (Frontier Oil Corp. v.
RLI Ins. Co. (2007) 153 Cal.App.4th 1436, 1465; accord,
Washington Mutual, supra, 24 Cal.4th at p. 919 [the movant
“‘“must demonstrate that the latter rule of decision will further
the interest of the foreign state and therefore that it is an
appropriate one for the forum to apply to the case before it”’”].)
We review the choice of law question de novo. (Scott v. Ford
Motor Co. (2014) 224 Cal.App.4th 1492, 1503; accord, Brown v.
Grimes (2011) 192 Cal.App.4th 265, 274 [“The choice-of-law issue
is a legal one that is decided de novo.”].)
In McCann, the Supreme Court held Oklahoma’s statute of
repose, which “required any cause of action against a designer or
constructor of an improvement to real property to be filed within
10 years of the substantial completion of the improvement,”
applied to bar the cause of action brought by a California resident
who was exposed to asbestos in Oklahoma decades earlier while
he was a resident of that state. (McCann, supra, 48 Cal.4th at
pp. 74-75, 102.) The McCann court found Oklahoma had “a
legitimate interest in attracting out-of-state companies to do
business within the state, both to obtain tax and other revenue
that such businesses may generate for the state, and to advance
the opportunity of state residents to obtain employment and the
products and services offered by out-of-state companies.” (Id. at
pp. 91-92.) The court reasoned, “In the absence of any explicit
45
indication that a jurisdiction’s ‘business friendly’ statute or rule
of law is intended to apply only to businesses incorporated or
headquartered in that jurisdiction (or that have some other
designated relationship with the state—for example, to those
entities licensed by the state), as a practical and realistic matter
the state’s interest in having that law applied to the activities of
out-of-state companies within the jurisdiction is equal to its
interest in the application of the law to comparable activities
engaged in by local businesses situated within the jurisdiction.”
(Id. at p. 92.) Although California also had a legitimate interest
in the compensation of its resident, the court concluded
Oklahoma’s interest would be more impaired by application of
California law than the converse. (Id. at pp. 96-98.) The court
reasoned, “If Oklahoma’s statute were not to be applied because
plaintiff had moved to a state with a different and less ‘business-
friendly’ law, Oklahoma could not provide any reasonable
assurance—either to out-of-state companies or to Oklahoma
businesses—that the time limitation embodied in its statute
would operate to protect such businesses in the future.” (Id. at
p. 98.)
3. The Fluor defendants’ challenge to the jury’s award of
damages to Soraya for loss of consortium is untimely
As discussed, Judge Kralik declined to apply Iranian law to
bar Soraya’s claim for loss of consortium without prejudice to the
trial court revisiting the ruling if the evidence “evolve[s] in a
direction that causes revision in the law to be submitted to the
jury.” The court also retained its power to hear evidence from
experts regarding Iranian law if it became necessary. In their
motion for new trial, the Fluor defendants argued the court
46
should strike the damages awarded to Soraya for loss of
consortium because the special verdict clarified the types of
injuries Soraya suffered, none of which was compensable under
Iranian law. On appeal, the Fluor defendants argue the trial
court erred in denying their motion because “the Special Verdict
form revealed the exact loss for which recovery was awarded to
[Soraya]: past and future ‘noneconomic loss, including loss of
love, companionship, comfort, care, assistance, protection,
affection, society, and moral support,’” none of which is available
under Iranian law. They argue the spouse of a living tort victim
can recover only damages for “mental injury,” and at trial the
Sabetian’s “proffered no evidence that [Soraya] sustained any
‘mental injury.’” The Fluor defendants’ argument illustrates the
untimeliness of their contention: Both sides prepared for trial
based on California law.
“‘“[G]enerally speaking the forum will apply its own rule of
decision unless a party litigant timely invokes the law of a foreign
state.”’” (Washington Mutual, supra, 24 Cal.4th at p. 919, italics
added; accord, Hurtado v. Superior Court (1974) 11 Cal.3d 574,
581.) Although California law does not clarify what constitutes a
timely request to apply the law of another state, a timely request
will necessarily be one that does not prejudice an opposing party.
Here, the record does not reflect any objection raised by the Fluor
defendants to instruction of the jury with CACI No. 3920 on loss
of consortium under California law. Rather, the Fluor
defendants first raised the application of Iranian law (following
Judge Kralik’s ruling) in their motions for new trial. Had the
Fluor defendants raised the applicability of Iranian law during
trial—or after the close of the Sabetians’ case—the parties could
have addressed the choice of law question in light of the evidence
47
presented at trial before the case was submitted to the jury. And
had the trial court indicated it was revisiting its ruling that
California law applied, the Sabetians potentially could have
presented evidence and argument at trial to satisfy their burden
to show compensable injury under Iranian law.25
Further, had the trial court ruled in favor of the Fluor
defendants before the case was submitted to the jury, the court
could have instructed the jury on the types of damages that are
compensable under Iranian law for loss of consortium. (See
Chen v. Los Angeles Truck Centers, LLC, supra, 7 Cal.5th at
p. 870 [“After the court determines the choice of law, factfinders
must then ‘try the facts necessary to determine liability in
accordance with such choice.’”].) As the trial court observed in
denying the Fluor defendants’ posttrial motions, “[N]one of the
parties indicated that it wanted this Court to apply Iranian law
during the trial. Had the Court applied Iranian law, the jury
would have been asked to deliberate the case based on the law
given to it, and the jury has been discharged.” Under these
25 For example, Judge Kralik credited Boozari’s opinion the
Iranian law rule that a “tortfeasor must pay . . . a pension to . . .
[a] third party that is proportionate to the normal life expectancy
of the victim as long as [the] victim would be obligated to render
care for such third party” could apply to Soraya. Had Soraya
been on notice the trial court intended to consider whether
Iranian law applied to loss of consortium damages, she arguably
could have shown her entitlement to a pension. Further, under
California law, “‘loss of consortium . . . is principally a form of
mental suffering.’” (Kindrich v. Long Beach Yacht Club (2008)
167 Cal.App.4th 1252, 1263.) Soraya could have presented
evidence focused more specifically on her mental suffering had
she been on notice that Iranian law applied.
48
circumstances, the Fluor defendants’ untimely request for the
court to apply Iranian law prejudiced Soraya and was properly
denied.
4. The trial court did not err in applying California law
to the jury’s award of compensatory damages to
Sabetian
(a) A true conflict exists between California’s and
Iran’s interests26
As to the second prong of the governmental interest test,
the Fluor defendants contend a true conflict exists between
California’s interest in providing a remedy for tort victims who
are California residents and Iran’s interest in “protecting
businesses operating in Iran against unknown or exorbitant tort
liability, to attract foreign investment in Iran, in accordance with
26 We do not address the first prong of the governmental
interest test given the parties’ agreement this prong is satisfied
because the laws of Iran and California are different. Further, in
contrast to the Fluor defendants’ challenge to the application of
California law to damages for loss of consortium, which we
conclude was untimely, the Fluor defendants’ challenge to the
award of compensatory damages was timely because application
of Iranian law did not require additional evidence to be presented
at trial or a revision in the jury instructions. Rather, as Judge
Kralik found, the experts agreed that Iranian law provided a cap
on compensatory damages. As the defendants argued at the
pretrial hearing before Judge Kralik, the court would consider
the amount of the cap under Iranian law “about at the time of
[the] verdict.” Thus, the Fluor defendants’ posttrial motion was
timely to the extent it sought to cap the jury’s award of
compensatory damages based on Iranian law.
49
the Foreign Investment Act.” Soraya argues there is no true
conflict because the purpose of tort liability in both Iran and
California is to compensate the victim for his or her injury.
Neither party is correct. There is a true conflict between
California and Iranian law, but the conflict is between
compensation of injured parties based on the evidence of injury
(California) and compensation under Islamic law (Iran).
As discussed, at the second step of the governmental
interest analysis, we must “examine ‘each jurisdiction’s interest
in the application of its own law under the circumstances of the
particular case to determine whether a true conflict exists.’”
(McCann, supra, 48 Cal.4th at p. 90.) The Fluor defendants do
not dispute California has a legitimate governmental interest in
having its law applied. The principal purpose of a damages
award under California tort law is “to compensate a wrongfully
injured party for injury to person or property.” (Romo v. Ford
Motor Co. (2003) 113 Cal.App.4th 738, 746; accord, Civ. Code,
§ 3281 [“Every person who suffers detriment from the unlawful
act or omission of another, may recover from the person in fault a
compensation therefor in money, which is called damages.”].) As
the McCann court observed, application of California law “to a
current California resident who suffers an . . . illness as a result
of his . . . prior exposure to asbestos in another jurisdiction would
assist such residents in obtaining compensation for their injuries
and in not becoming dependent on the resources of California for
necessary medical, disability, and unemployment benefits.”
(McCann, at p. 96.) Thus, California’s interest is substantial.
We disagree, however, with the Fluor defendants’
characterization of Iran’s interest as the promotion and
protection of foreign investment in Iran. We must evaluate Iran’s
50
interest in the context of the particular Iranian law the Fluor
defendants seek to apply. (See McCann, supra, 48 Cal.4th at
p. 91 [Court of Appeal erred in concluding Oklahoma’s law
governing design and construction deficiencies on real property
was “substantially a local one” where statute sought to protect
and incentivize out-of-state business].) The Fluor defendants
assert the salient Iranian interest at issue is embodied in its
Foreign Investment Act, which protects foreign companies doing
business in Iran by applying Iranian law to claims arising from
conduct in Iran. But the Fluor defendants seek to impose the
limitation on compensation for personal injury actions as codified
in the Islamic Penal Code of Iran “based on Islamic law,” which
provides statutory compensation as “provided in the [holy]
religion” to compensate for unintentional conduct resulting in the
“loss of a member.” The evidence submitted by the Fluor
defendants highlights this interest served by Iranian law. They
submitted an Iranian news article characterizing statutory
compensation as the amount due to “a Muslim male” in a
particular calendar year, as well as evidence showing the amount
of statutory compensation depended on whether the victim’s loss
occurred in one of the “sacred” months of the year.27 In the case
27 The Fluor defendants assert that Katirai’s supplemental
declaration “explained that in a personal injury action, Iranian
law allows recovery of statutory compensation for physical
impairment that does not vary by season or date where, as here,
the claimant is alive at trial.” (Italics added, fn. omitted.)
Katirai’s supplemental declaration contains no such explanation,
but rather, is silent as to compensation due in the sacred months
of the Iranian calendar. Evidence submitted in support of the
supplemental declaration indicates, without qualification,
“during the sacred [haram] months, the [statutory compensation]
51
of the loss of a testicle, the Islamic Penal Code of Iran specifies
payment of one-third the amount of full statutory compensation
for removal of the right testicle, and two-thirds of the amount for
the left,28 plus an additional proportion of the statutory
compensation for impairment to general health. There can be no
dispute these rules are “based on Islamic standards.”
Therefore, there is a true conflict between Iran’s interest in
compensation of a tort victim whose injury occurred in Iran in
accordance with Islamic law, and California’s interest in
compensation of its residents according to proof at trial. Both
jurisdictions have legitimate interests in the application of their
own law.
(b) California’s interests will be more impaired by
the failure to apply its laws
“Under the comparative impairment analysis, we must
‘carefully evaluate[] and compare[] the nature and strength of the
interest of each jurisdiction in the application of its own law “to
determine which state’s interest would be more impaired if its
policy were subordinated to the policy of the other state.”’”
amount would be increased by one third.” Regardless of whether
the rule would apply to Sabetian in this case, the variation in
prescribed recovery by reference to the sacred months of the
Iranian calendar illustrates the essential religious nature of
Iran’s law of statutory compensation.
28 In their motion for new trial, the Fluor defendants
requested the trial court issue a remittitur for the dollar
equivalent of twice the statutory compensation amount (that is,
full statutory compensation for Sabetian’s loss of his right
testicle, and full compensation for impairment of his general
health).
52
(McCann, supra, 48 Cal.4th at pp. 96-97; accord, Kearney, supra,39 Cal.4th at p. 108.) We must determine the appropriate
“‘“limitations on the reach of state policies—as distinguished from
evaluating the wisdom of those policies . . . . [E]mphasis is placed
on the appropriate scope of conflicting state policies rather than
on the ‘quality’ of those policies . . . .”’ [Citation.]
[¶] Accordingly, our task is not to determine . . . [which] rule is
the better or worthier rule, but rather to decide—in light of the
legal question at issue and the relevant state interests at stake—
which jurisdiction should be allocated the predominating
lawmaking power under the circumstances of the present case.”
(McCann, at p. 97; accord, Kearney, at p. 112.)
The Fluor defendants are correct that “a jurisdiction
ordinarily has the ‘predominant interest’ in regulating conduct
that occurs within its borders (citations), and in being able to
assure individuals and commercial entities operating within its
territory that applicable limitations on liability set forth in the
jurisdiction’s law will be available to those individuals and
businesses in the event they are faced with litigation in the
future.” (McCann supra, 48 Cal.4th at pp. 97-98.) That
argument has some force here, where Sabetian’s injury was
caused by conduct that occurred in Iran while he was a resident
of that country. But the concern in McCann—that applying
California’s law would prevent Oklahoma from providing “any
reasonable assurance . . . that the time limitation embodied in its
statute would operate to protect . . . businesses in the future”
(McCann, at p. 98)—does not apply with the same force to the
present circumstances where the Iranian law at issue does not
seek to promote and protect foreign businesses with domestic
53
business dealings, but rather, to ensure damages awards are
consonant with state-endorsed religious teachings.
California’s interest in protecting recovery of damages for
injuries suffered by its residents would be severely impaired if
Iranian law applied in light of the significant reduction in
recovery under Iran’s statutory compensation scheme. Sabetian
suffered his injury while a resident of California, and California
has an interest in ensuring that Sabetian is fully compensated so
he does not become dependent on California’s resources for
necessary medical, disability, and unemployment benefits. By
contrast, Iran’s interest in limiting damages paid by a foreign
company to a California resident in accordance with the tenets of
Islamic law (the same as Iranian companies) is relatively weak.
Thus, California law applies to the Sabetians’ recovery of
compensatory damages.
DISPOSITION
The judgment is affirmed. Soraya is to recover her costs on
appeal.
FEUER, J.
WE CONCUR:
PERLUSS, P. J.
SEGAL, J.
54