LAOSD Asbestos Cases CA2/2 ( 2021 )

Filed 4/13/21 LAOSD Asbestos Cases CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LAOSD ASBESTOS CASES B303627
ARTHUR PUTT et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
18STCV06912/JCCP4674)
v.
ORDER MODIFYING
FORD MOTOR COMPANY, OPINION AND DENYING
REHEARING
Defendant and Appellant.
NO CHANGE IN
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on March 25,
2021, be modified as follows:
1. On page 13, bottom of the page and after the sentence
“Taken together, this evidence compels a finding that “some
nonzero percentage of fault is properly attributed” to the
other automakers and the brake pad manufacturers and
suppliers” insert the following as a new footnote:
Contrary to what plaintiff suggests for the first time
in his petition for rehearing, our partial reliance on
the jury’s special verdict findings in assessing what
the totality of the evidence compels regarding
allocation is not an implicit determination that the
jury returned inconsistent special verdicts. We are
not citing those findings to show that they are
somehow inconsistent with other findings by the jury.
Instead, we are citing them because they reflect the
facts the jury actually found, and it is those facts
along with the other evidence we cite that compels a
contrary allocation finding in this case.
* * *
There is no change in the judgment.
Plaintiffs’ petition for rehearing is denied.
——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
2
Filed 3/25/21 LAOSD Asbestos Cases CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LAOSD ASBESTOS CASES B303627
ARTHUR PUTT et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
18STCV06912/JCCP4674)
v.
FORD MOTOR COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen M. Moloney, Judge. Reversed in part
and remanded.
Simmons Hanly Conroy, Deborah R. Rosenthal and
William A. Kohlburn; Law Office of Ted W. Pelletier and Ted W.
Pelletier for Plaintiffs and Appellants.
Horvitz & Levy, Jason R. Litt and Emily V. Cuatto; Snell &
Wilmer, Warren E. Platt and Alina Mooradian for Defendant and
Appellant.
Fred J. Hiestand for The Civil Justice Association of
California and the U.S. Chamber of Commerce as Amicus Curiae
on behalf of Defendant and Appellant.
******
A former gas station employee performed brake jobs in the
1960s and 1970s, at a time when all brake pads contained
asbestos. He contracted mesothelioma, and sued several entities,
including Ford Motor Company (Ford). Everyone but Ford
settled. A jury awarded the employee and his spouse $8.5 million
in compensatory damages, awarded the employee $25.5 million in
punitive damages, and found that Ford was at fault for 100
percent of the employee’s injuries. Because it was undisputed at
trial that the brake pads manufactured by others were identical
to those incorporated into Ford’s vehicles, the jury’s special
verdict findings against Ford apply with equal force to the other
automakers and brake pad manufacturers and suppliers, such
that the jury’s apportionment of 100 percent of fault to Ford is
unsupported by the evidence. The trial court may have erred in
instructing the jury regarding the possible liability of the
employee’s employers (that is, the gas station owners), but this
error is not prejudicial. We accordingly leave intact the jury’s
finding of liability against Ford, its compensatory damages
award, and its finding that punitive damages are appropriate,
but reverse and remand the matter for a new trial on
apportionment of fault among the automakers and brake pad
manufacturers and suppliers as well as a new trial on the
amount of punitive damages.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Plaintiff was exposed to dust from brakes in the
1960s and 1970s
Arthur Putt (plaintiff) worked at various gas stations in the
1960s and 1970s. Between 1966 and 1970, he worked in
California at stations owned by Exxon Mobil and Chevron Oil. In
1975 and 1976, he worked in Indiana at stations owned by
Standard Oil.
While so employed, plaintiff worked as an auto mechanic
and regularly replaced the brake pads on vehicles. He followed a
specific process: (1) he removed the used brake pads from the
brake drums; (2) he used an air compressor to blow out the debris
that had accumulated in the drum from brake use; (3) he sanded
down the new brake pads he planned to install to remove the
glaze on them; and (4) he then installed the new brake pads. He
was exposed to dust from the used brakes when he blew out the
debris and exposed to dust from the new brakes when he sanded
them.
Plaintiff worked with brake pads supplied by various
entities.
The used brake pads plaintiff removed came from cars
manufactured by Ford, Chevrolet, or Dodge/Chrysler. Plaintiff
estimated that he replaced the brake pads on Ford vehicles
approximately 40 percent of the time while he was working in
California and approximately 30 percent of the time while he was
working in Indiana. Plaintiff also estimated that he performed
the first brake pad replacement on those vehicles—that is, that
he removed the factory-installed brake pads—approximately 40
3
percent of the time. Although Ford did not itself manufacture the
brake pads installed on its new vehicles in factories and instead
used brakes manufactured by third parties to Ford’s
specifications, Ford’s incorporation of those brake pads into its
new vehicles renders Ford liable for any defects with them. (E.g.,
Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th
1178, 1193-1194 (Arena) [entities “within the same chain of
distribution of a single product” are jointly liable for injuries
caused by that product].) Thus, approximately 16 percent—that
is, 40 percent of 40 percent—of the brake pads plaintiff removed
are attributable to Ford.
The new brake pads plaintiff installed all came from third
party manufacturers, and never from Ford. Plaintiff said he
bought replacement pads exclusively from NAPA or Pep Boys.
B. The brake pads contained asbestos
In the 1960s and 1970s, all brake pads manufactured and
used in the United States contained approximately 40 to 60
percent asbestos by weight. There are many types of asbestos.
Brake pads of this vintage contained the type known as
chrysotile: Most experts opine that chrysotile was the only type
of asbestos in brake pads of this vintage, although a few opine
that brake pads of this vintage also “occasionally” contained “low
levels” of either amosite or tremolite, both of which are more
potent forms of asbestos than chrysotile. However, it is
undisputed that the dust generated from the brake pad
replacement process contained only chrysotile.
Plaintiff was exposed to asbestos during two steps of the
process for changing brake pads. First, he was exposed when he
inhaled the dust generated by blowing out debris from the used
brake pads, although asbestos accounted for less than 15
4
percent—and, as most experts opined, less than one percent—of
the debris (because the driver’s repeated use of the brakes
converted the bulk of the asbestos into other, non-harmful
compounds). Second, plaintiff was exposed when he inhaled the
dust generated when he sanded the new brake pads.
C. Plaintiff contracts mesothelioma
The inhalation of asbestos causes mesothelioma, a type of
cancer of the lungs.
Mesothelioma is a “dose-response disease[],” which means
“the more [a person is] exposed to [asbestos], the more likely [he
is] to get” mesothelioma. This means that every exposure to
asbestos “above background” is causally “meaningful” and
“important” because every exposure “add[s] to the dose and
increase[s] the risk” of contracting mesothelioma. This is true no
matter which product gives rise to the asbestos fibers that are
inhaled. As a result, no exposure is causally “insignificant” and
“the causal contribution of” exposure to asbestos “dust” from any
source cannot be “disregard[ed]” or “discounted.”
Plaintiff was diagnosed with mesothelioma in 2018.
Mesothelioma is incurable, and hence fatal.
II. Procedural Background
A. Complaint
In December 2018, plaintiff and his wife sued Ford and 15
other entities he alleged were responsible for his exposure to
asbestos, as pertinent here, under theories of (1) negligence, (2)
strict products liability, and as to plaintiff’s wife, (3) loss of
consortium.1
1 Plaintiff also alleged claims for making false
representations under Restatement of Torts, section 402-B; for
intentional injury and deceit (Civ. Code, §§ 1708-1710); and for
5
All of the defendants but Ford settled prior to trial; those
settlements came to a total of $2,280,000.
B. Trial against Ford
The matter proceeded to a three-week jury trial against
Ford alone.
The trial court instructed the jury that Ford could be liable
to plaintiff and his wife under theories of (1) strict liability for (a)
defectively designing a product that “did not perform as safely as
an ordinary consumer would have expected,” and (b) failing to
warn of the “potential risks” of its product, and (2) negligence for
(a) its product design, (b) its failure to warn, and (c) its failure to
recall the product.
The court also instructed the jury that it had to “assign[]
percentages of responsibility” to each nonparty “listed on the
[special] verdict form” if Ford established that (1) any of those
nonparties—namely, the gas stations for whom plaintiff worked
“and/or [the] manufacturers or suppliers of asbestos-containing
products”—“were [also] negligent or at fault” for plaintiff’s
injuries, and (2) their “negligence or fault was a substantial
factor in causing [plaintiff’s] harm.” The special verdict form
listed three groups of potentially responsible nonparties: (1)
aiding and abetting a battery. These claims were not presented
to the jury in the trial against Ford.
The other 15 defendants were CBS Corporation; Certain-
Teed Corporation; Crown Cork & Seal Company; Forest River,
Inc.; Foster Wheeler Energy Corporation; General Electric
Company; Genuine Parts Company; Industrial Holdings
Corporation; Ingersoll-Rand Company; John Crane Inc.; Kelly
Moore Paint Company, Inc.; The Pep Boys, Manny, Moe & Jack
of California; Pneumo Abex LLC; Soco West, Inc.; and Union
Carbide Corporation.
6
“[plaintiff’s] employers (Standard Oil, Chevron and Exxon),” (2)
“Other automakers (Chevrolet, Chrysler),” and (3)
“Manufacturers or suppliers of replacement brakes (NAPA and
Pep Boys, as sellers of Bendix, Pneumo Abex products).”
In its special verdict, the jury found Ford liable on every
theory presented. As to strict liability for defective product
design, the jury specially found that Ford’s product did not
“perform as safely as an ordinary consumer would have
expected,” that it was “used in a way that was reasonably
foreseeable to Ford,” and that “the failure of Ford[’s]
. . . product(s) to perform as safely as an ordinary consumer
would have expected [was] a substantial factor in causing harm
to” plaintiff.
With regard to damages, the jury awarded plaintiff
$500,000 in economic damages, which was the amount to which
plaintiff and Ford stipulated. The jury awarded plaintiff and his
wife each $4 million in noneconomic damages. The jury also
found that Ford had acted with malice, oppression, or fraud.
After a brief punitive damages phase, the jury returned a
further verdict imposing $25.5 million in punitive damages on
Ford.
The trial court entered judgment for plaintiff in the amount
of $33,892,748.80, which included costs and incorporated a
$107,251.20 offset from the settlements of the other parties.
C. Posttrial motions
Ford moved for a new trial and for judgment
notwithstanding the verdict challenging the jury’s apportionment
of liability, the jury instructions, and the amount of punitive
damages. After fulsome briefing, the trial court issued a
tentative ruling that granted a new trial on the issues of
7
apportionment and punitive damages. After an hour-long
hearing, the trial court issued a final ruling that upheld the jury’s
apportionment of liability and rejected Ford’s claims of
instructional error, but reduced the punitive damages award to
$8,785,569.60.
In its final ruling, the trial court upheld the jury’s
apportionment of 100 percent fault to Ford for what boils down to
three reasons: (1) Ford was required to prove “what percentage of
fault should be attributable to each entity” listed on the special
verdict form, but did not “prove [that] percentage” or “suggest[ it]
to the jury” and thus left the jury to “speculate,” (2) Ford did not
call any witnesses or introduce any documentary evidence
regarding the fault of the other entities, and (3) Ford did not offer
any evidence regarding the “specific properties of the other
entities’ products which contained asbestos” or the extent of
plaintiff’s usage or exposure to those products, and instead relied
upon the “‘mere possibility of exposure . . . to establish
causation.’” In reducing the punitive damages award, the court
recounted the parties’ various positions and then, without any
further explication, declared that the jury’s $25.5 million award
was “excessive” and that “the appropriate multiplier is two-to-
one.”
D. Entry of judgment, appeal and cross-appeal
After the trial court entered an amended judgment for
plaintiff in the amount of $17,427,713.40, Ford filed a timely
appeal and plaintiff filed a timely cross-appeal.
DISCUSSION
In its appeal, Ford argues that the trial court erred in
denying its new trial motion because (1) substantial evidence did
not support the jury’s apportionment of 100 percent of fault to
8
Ford, and (2) the court erred in refusing two of Ford’s requested
jury instructions; on the basis of these errors, Ford seeks a new
trial on all issues. In his cross-appeal, plaintiff argues that the
trial court erred in reducing the jury’s $25.5 million punitive
damages award; he seeks reinstatement of that award. As
discussed below, we agree with Ford that the jury’s special
verdict findings, when read in conjunction with the record,
compel a finding that Ford is not 100 percent at fault for
plaintiff’s injury and that the jury’s contrary finding is not
supported by substantial evidence. This error, we explain,
warrants a new trial on apportionment and the amount of
punitive damages. We also conclude that any error in the jury
instructions regarding the liability of the gas station owners—as
it bears on apportionment of liability to them—was not
prejudicial. These conclusions obviate the need to reach the
merits of plaintiff’s cross-appeal regarding punitive damages.
I. Motions for New Trial, Generally
As pertinent here, a trial court may grant a new trial when
“the evidence” is “[i]nsufficien[t]” “to justify the verdict or other
decision, or the verdict or other decision is against law.” (Code
Civ. Proc., § 657, subd. (6).)
For purposes of a new trial motion, the evidence can be
insufficient in one of two ways: (1) it can be “insufficient” “to
justify the verdict” because the trial court, sitting as a thirteenth
juror who independently weighs the evidence, would have come to
a different result (Mercer v. Perez (1968) 68 Cal.2d 104, 112), or
(2) it can be “against law” because the verdict is “unsupported by
any substantial evidence” (Sanchez-Corea v. Bank of America
(1985) 38 Cal.3d 892, 906-907). Although Ford’s motion for new
trial argued the “thirteenth juror” type of insufficiency and the
9
trial court’s tentative ruling granted a new trial on this same
type, Ford’s motion for new trial also argued that the jury’s
apportionment verdict was unsupported by substantial evidence
because the evidence at trial “compelled” a different
apportionment, the trial court’s final ruling seemed to rest on this
type, and this is the type of insufficiency argued by both parties
in their briefs on appeal. (Accord, Siry Investment, L.P. v.
Farkhondehpour (2020) 45 Cal.App.5th 1098, 1131-1132, fn. 11
[trial court’s citation to incorrect statutory ground for new trial
relief is of no moment where the reason it granted relief was
raised by the movant], review granted July 8, 2020, S262081.) As
a result, the substantial evidence type of insufficiency is properly
before us.
A new trial may also be granted if the jury instructions are
prejudicially incorrect. (Code Civ. Proc., § 657, subd. (7); McCarty
v. Department of Transportation (2008) 164 Cal.App.4th 955,
984.)
We review the trial court’s denial of a new trial motion for
an abuse of discretion. (Minnegren v. Nozar (2016) 4 Cal.App.5th
500, 514, fn. 7.)
II. Sufficiency of the Evidence Underlying the Jury’s
Apportionment Verdict
In actions for “personal injury,” a defendant is “liable only
for the amount of non-economic damages allocated to that
defendant in direct proportion to that defendant’s percentage of
fault.” (Civ. Code, § 1431.2, subd. (a); Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 958 (Rutherford).) “[I]f
supported by the evidence,” a jury must apportion fault against
parties and nonparties found responsible for the plaintiff’s injury,
and must do so regardless of whether they are at fault due to
negligence or instead on a theory of strict liability. (Arena, supra,
10
63 Cal.App.4th at pp. 1194, 1198; DaFonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 603.) Apportionment is meant to “protect[]
the defendant [who goes to trial] from paying more than its share
of noneconomic damages.” (Arena, at p. 1193.)
Once the plaintiff proves that the defendant is at fault for
his injury, it becomes the defendant’s burden to “establish[] that
some nonzero percentage of fault is properly attributed to”
others—whether they be “the plaintiff, other defendants, or
nonparties to the action.” (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1285 (Pfeifer); CRST, Inc. v. Superior Court
(2017) 11 Cal.App.5th 1255, 1261, fn. 4.) Where, as here, the
defendant is arguing that the jury’s finding that no fault should
be apportioned to others is unsupported by substantial evidence,
the defendant will prevail on appeal only if it proves that the
evidence—when viewed in the light most favorable to the jury’s
apportionment finding—nevertheless “compel[s] a finding” that
“some nonzero percentage of fault is properly attributed” to
others. (Pfeifer, at pp. 1285-1287; Rosh v. Cave Imaging Systems,
Inc. (1994) 26 Cal.App.4th 1225, 1234 (Rosh); Estes v. Eaton
Corp. (2020) 51 Cal.App.5th 636, 651.)
The nonparties to whom Ford seeks to attribute fault in
this case fall into two broad categories—namely, (1) the entities
who might be liable on strict products liability theory (that is, the
other automakers who sold vehicles whose used asbestos-
containing brake pads plaintiff removed and the manufacturers
and suppliers of asbestos-containing brake pads that plaintiff
removed from vehicles whose factory-installed brake pads had
previously been replaced and that plaintiff installed as
replacements), and (2) plaintiff’s employers at the gas stations
11
where he replaced brake pads. The sufficiency analysis for each
category is different.
A. The automakers and the manufacturers and
suppliers of asbestos-containing brake pads
As pertinent to this case, an individual or company is
strictly liable for a design defect in its product that injured the
plaintiff by causing cancer if (1) “the product . . . failed to perform
as safely as an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner,” and (2) the product
was “a substantial factor in bringing about [the plaintiff’s] injury”
because “it was,” “in reasonable medical probability,” “a
substantial factor contributing to the plaintiff’s . . . risk of
developing cancer.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th
465, 479; Rutherford, supra, 16 Cal.4th at pp. 968, 977; see
generally CACI No. 1203.)
The jury’s finding that Ford is 100 percent at fault for
plaintiff’s injury is unsupported by substantial evidence because
the record compels a contrary finding that “some nonzero
percentage of fault is properly attributed” to the automakers and
the manufacturers and suppliers of the asbestos-containing brake
pads to which plaintiff was also exposed. This contrary finding is
compelled by (1) the jury’s special verdict finding that Ford’s
brake pads did not “perform as safely as an ordinary consumer
would have expected” and were “a substantial factor in causing”
plaintiff’s mesothelioma, in combination with (2) several
undisputed facts in the record. Because it was undisputed that
the brake pads manufactured, supplied, or used by the other
automakers, manufacturers, and suppliers had the same
composition as the brake pads used by Ford in terms of their
asbestos content, the jury’s special verdict finding that Ford’s
12
brake pads were defective applies with equal force to the brake
pads manufactured, supplied, or used by these other entities.
Because it was undisputed that plaintiff’s exposure to dust from
the brake pads used by Ford was a “substantial contributing
factor in causing his mesothelioma,” because it was undisputed
that plaintiff was also exposed to the dust from the brake pads
manufactured, supplied, or used by the other automakers and the
manufacturers and suppliers, because it was undisputed that
every exposure to this dust “add[s] to the [cumulative] dose and
increased [plaintiff’s] risk” of contracting mesothelioma, and
because an exposure that “contribut[es] to [a] plaintiff’s . . . risk of
developing cancer” is a “substantial factor” (Rutherford, supra, 16
Cal.4th at p. 977), the jury’s special verdict finding that the brake
pads used by Ford were a substantial factor contributing to
plaintiff’s mesothelioma also applies with equal force to the brake
pads manufactured, supplied, or used by these other entities.
Taken together, this evidence compels a finding that “some
nonzero percentage of fault is properly attributed” to the other
automakers and the brake pad manufacturers and suppliers.
Indeed, plaintiff in his opening statement recognized as much:
His counsel noted that plaintiff had been “exposed to other
brakes,” that “all of the exposures” are what “raise[d] the risk” of
mesothelioma, and that, as a result, Ford was not “the only
company at fault” and that the “other companies” that
manufactured, supplied, or used these other brake pads were also
“at fault.”
Plaintiff resists this conclusion with a plethora of
arguments that boil down to four broad assertions.
First, plaintiff asserts that Ford did not carry its burden of
proving that the other automakers and the brake pad
13
manufacturers and suppliers were at fault for his mesothelioma
under a strict liability theory. Strict liability, he reminds us,
does not equal absolute liability. (Anderson v. Owens-Corning
Fiberglas Corp. (1991) 53 Cal.3d 987, 994.) Because all Ford
offered the jury was a “vague impression that [the] other products
[were] somewhat similar,” because Ford did not put on any
independent evidence about the “specific properties” of the brake
pads manufactured, supplied, or used by these other entities,
about their performance, about plaintiff’s extent of usage, or
about their effects on him in terms of how they contributed to his
contraction of mesothelioma (Sparks v. Owens-Illinois, Inc. (1995)
32 Cal.App.4th 461, 478 (Sparks)), and because there was
evidence that the brakes Ford installed in its new vehicles were
different because they “occasionally” also contained amosite,
plaintiff argues that the jury’s finding of fault regarding the
brake pads used by Ford does not compel the same finding of
fault as to the other automakers and the manufacturers and
suppliers of other brake pads plaintiff replaced.
Both the law and the record refute these arguments.
As a threshold matter, the law permits Ford to carry its
burden of proving the need for apportionment by relying on
evidence introduced by, or elicited from, plaintiff’s witnesses.
(Williams v. Barnett (1955) 135 Cal.App.2d 607, 612 [so holding];
CACI No. 200.) Contrary to what plaintiff and the trial court
both suggest, Ford is not required to introduce independent
evidence in support of its bid for apportionment.
Further, the record does not support plaintiff’s assertion
that the evidence gave only a “vague impression” of similarity
among the brake pads installed by Ford and the other brake pads
plaintiff encountered, or their contribution to his mesothelioma.
14
To the contrary, and as noted above, it was undisputed that the
asbestos content of all of the brake pads of that vintage was the
same; that all of the brake pads accordingly generated the same
type of asbestos-containing dust plaintiff inhaled; and that each
and every one of plaintiff’s exposures to this dust was a
substantial factor contributing to his development of
mesothelioma because each exposure to that dust contributed to
that development and none of those exposures was “insignificant”
or capable of being “disregard[ed]” or “discount[ed].”2 Plaintiff is
correct that no medical expert explicitly testified that his
exposure to the dust from brake pad jobs on vehicles other than
Fords with factory-installed brake pads was a “substantial factor”
in his contraction of mesothelioma, but there is no “requirement
that specific words . . . be recited by [an] expert” (Hernandez v.
Amcord, Inc. (2013) 215 Cal.App.4th 659, 675) and, due to the
identity between all of the brake pads of that vintage, the
experts’ opinions regarding the causal link between plaintiff’s
2 For the first time at oral argument, plaintiff suggested that
Ford voluntarily took on a heavier burden with respect to proving
causation because it stipulated to a jury instruction that listed
seven factors “relevant” to assessing whether “an alleged asbestos
exposure” “was a substantial factor” contributing to plaintiff’s
injury—namely, (1) “the type of asbestos,” (2) “the nature of the
exposure,” (3) “the frequency of the exposure,” (4) “the regularity
of the exposure,” (5) “the duration of the exposure,” (6) “the
proximity of the asbestos-containing product,” and (7) “the type of
asbestos-containing product.” However, the enumeration of these
factors did not modify or otherwise increase Ford’s burden of
proving causation and, more to the point, it did not negate the
undisputed evidence establishing that the asbestos brake pads
used, manufactured, or supplied by others were a “substantial
factor” contributing to plaintiff’s mesothelioma.
15
mesothelioma and the brake pads used by Ford apply with equal
force to the brake pads used, manufactured, or supplied by the
other entities. Although this link turns in part on the notion that
every exposure to asbestos dust was a “substantial factor”
contributing to plaintiff’s risk, that was the notion that formed
the very basis for every expert opinion plaintiff offered; plaintiff
cannot now disclaim that basis in order to avoid its effect on
apportionment. (Cf. Pfeifer, supra, 220 Cal.App.4th at p. 1288,
fn. 1 [no liability where plaintiff did not rely upon a theory that
every exposure was a substantial factor].)
And the record does not support plaintiff’s assertion that
the brake pads Ford factory-installed in its vehicles were
different or that this difference mattered to this case. Plaintiff’s
sole support for that assertion is a passage from a July 1968 draft
report prepared by an industrial hygiene specialist employed by
Ford: “The brake linings in current use may contain 40 to 60
[percent] asbestos when manufactured – the asbestos being
normally in the chrysotile form, and occasionally in the amosite
form.” (Italics added.) Plaintiff says that this entire passage
refers solely to “Ford brakes”; because other testimony at trial
indicated that brake pads of that vintage contained only
chrysotile, plaintiff continues, Ford’s brake pads had a unique
composition that render them different from—and, indeed, more
potent in causing mesothelioma than—the brake pads used by
other automakers or manufactured or supplied by other entities.
The record does not support the inference plaintiff seeks to draw
from the July 1968 draft report. Even if we assume that the
report is ambiguous as to whether it refers to brake pads
16
installed solely on Ford vehicles,3 it is undisputed that Ford used
the same brake pads manufactured by others and available to
everyone in the automobile industry. At best, therefore, the July
1968 draft report created a conflict in the evidence regarding
whether the brake pads of that vintage contained any amosite,
but says nothing about whether the pads used in Ford’s vehicles
were different than the other pads used at that time.4 And even
if we were to agree with plaintiff’s reading of the July 1968 draft
report as establishing that the composition of the brake pads
used by Ford was somehow different, it was undisputed that the
dust generated from the brake pad replacement process
contained only chrysotile. Because mesothelioma was caused by
plaintiff’s inhalation of that dust, the brake pads used by Ford
were indistinguishable from those used by others in the one
respect that mattered to plaintiff’s lawsuit—namely, their
contribution to his mesothelioma.
Second, plaintiff urges that the record does not compel a
finding that Ford is not 100 percent at fault because Ford failed
to prove the precise percentage of fault that should be
apportioned to each of the other automakers and the brake pad
3 At a sidebar, Ford’s counsel represented that the July 1968
draft report referred to the brake pads installed in Ford vehicles.
This is of no consequence to our analysis because (1) counsel’s
representations to the court at a sidebar is not evidence, and (2)
we are assuming for the purpose of our analysis that the July
1968 draft report examined only the brake pads factory-installed
in Ford’s vehicles.
4 Indeed, plaintiff’s counsel repeatedly represented to the
jury during plaintiff’s opening statement that the trial would
include “no evidence” or “testimony” about plaintiff being exposed
“to anything but chrysotile.”
17
manufacturers and suppliers listed on the special verdict form,
such that any apportionment by the jury would be wholly
speculative. Plaintiff relies upon language from several cases
indicating that a defendant has the “burden to . . . prov[e] . . . the
percentage of legal cause attributable to the other companies.”
(Sparks, supra, 32 Cal.App.4th at p. 478; Stewart v. Union
Carbide Corp. (2010) 190 Cal.App.4th 23, 33 (Stewart),
disapproved on other grounds in Webb v. Special Electric Co., Inc.
(2016) 63 Cal.4th 167.)
We decline to read this language as requiring a defendant,
as a precondition for overturning a verdict apportioning 100
percent of fault against it, to prove the precise percentage of fault
attributable to each other entity. The origin of this language is
Sparks, but that language was dicta because Sparks’s affirmance
of the 100 percent apportionment in that case rested on a failure
to prove others were at fault at all rather than a failure to assign
a specific percentage of fault. (Sparks, supra, 32 Cal.App.4th at
p. 478.) What is more, the three cases Sparks cited in support of
its language—namely, Vermeulen v. Superior Court (1988) 204
Cal.App.3d 1192, American Motorcycle Assn. v. Superior Court
(1978) 20 Cal.3d 578, and Gentry Construction Co. v. Superior
Court (1989) 212 Cal.App.3d 177—do not deal with fixing specific
percentages and thus do not lend any support to plaintiff’s
proffered reading of Sparks.
Most importantly, reading Sparks to require a defendant to
prove up and then assign a specific percentage of fault to each
nonparty would render Sparks inconsistent with other precedent
and with the fundamental purpose of apportionment. The other
precedent obligates a defendant seeking to void a finding of 100
percent fault merely to show “some” or “a” “nonzero percentage of
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fault” that is “reasonably” attributable to others rather than a
specific percentage of fault. (Pfeifer, supra, 220 Cal.App.4th at
pp. 1285, 1286; Hernandez v. County of Los Angeles (2014) 226
Cal.App.4th 1599, 1614.) Moreover, requiring a specific and
precise percentage of fault would be inconsistent with the very
nature of apportionment itself, which is a “flexible, commonsense
concept” designed to “arrive at an ‘equitable apportionment or
allocation of loss.’” (Knight v. Jewett (1992) 3 Cal.4th 296, 314;
Rosh, supra, 26 Cal.App.4th at p. 1233; Pfeifer, at p. 1285.) If
anything, it would be manifestly inequitable—and hence at odds
with the function of apportionment—to saddle a defendant with
100 percent of the fault for a plaintiff’s injury when the record
compels a finding that it was not 100 percent at fault merely
because it did not assign specific percentages—individually or in
the aggregate—to others who are otherwise shown by the
evidence to share the fault. This is perhaps why plaintiff,
somewhat quixotically, seems to acknowledge that “Ford is
correct in noting that” the law does not “require[] evidence . . . as
to other entities’ precise percentages of fault . . . .”
And contrary to what plaintiff suggests, apportionment is
not speculative merely because a party does not prove up a
precise percentage of shared fault. The equitable nature of
apportionment contemplates that juries will have a fair degree of
leeway in apportioning liability without that leeway being
invalidated as impermissible speculation. In Scott v. County of
Los Angeles (1994) 27 Cal.App.4th 125, a child sued the county,
her social worker, and her foster mother after the foster mother
burned the child by submerging her in scalding water for 30
seconds. (Id. at pp. 133, 138.) When the jury apportioned 99
percent of the liability to the county and social worker for failing
19
to supervise the foster mother, but only 1 percent to the foster
mother who actually inflicted the harm, the Scott court did not
hesitate in concluding that the 1 percent apportionment “was
improper as a matter of law.” (Id. at pp. 136, 147.) If
apportionment of liability among various tortfeasors in Scott was
deemed not to be speculative, the apportionment required in this
case is certainly not speculative. That is because, under
plaintiff’s theory and evidence, the risk (and hence injury) to
plaintiff was a function of his repeated exposure to asbestos-
containing dust, and because it is possible to estimate how often
plaintiff worked with brake pads by various automakers,
manufacturers, and suppliers and to apportion fault on that
basis.
Third, plaintiff contends that Ford effectively forfeited its
right to challenge the jury’s apportionment because Ford, in its
closing argument, made the tactical decision not to “connect the
dots” between its observations that Ford was responsible for only
a “small percentage” of the “brake dust debris” to which plaintiff
was exposed on the one hand, and the jury instructions regarding
apportionment on the other hand. This contention lacks merit.
Because the argument of counsel is not evidence (e.g., Beagle v.
Vasold (1966) 65 Cal.2d 166, 181), the absence of argument does
not equate to an absence of evidence, and the latter is all that
matters to a substantial evidence challenge. Although a party, in
its arguments, may commit itself to one of several alternative
theories of liability or affirmatively concede an issue, Ford did no
such thing here: The trial court instructed the jury on its duty to
apportion liability and Ford argued the facts supporting
apportionment; Ford’s failure to tie those facts to the
apportionment instructions neither committed it to one of several
20
alternative theories nor constituted a concession of the issue.5
(Cf. Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869,
874-878 [party waived issue by committing to one of several
alternative theories in closing argument, but changing theories
on appeal].)
Fourth, plaintiff argues that this case is analogous to
several other cases—namely, Sparks, supra, 32 Cal.App.4th 461,
Stewart, supra, 190 Cal.App.4th 23, Pfeifer, supra, 220
Cal.App.4th 1270, and Rutherford, supra, 16 Cal.4th 953—where
the jury’s apportionment of the bulk of fault to the defendant was
affirmed as supported by substantial evidence. These cases are
not controlling. In Sparks, the court upheld the jury’s verdict not
to apportion any fault to other manufacturers of “asbestos-
containing products” because there was no evidence that the
plaintiff had been exposed to the asbestos-containing dust from
those products. (Sparks, at pp. 477-478.) Here, by contrast, it
was undisputed that plaintiff was exposed to dust generated by
the brake pads of the other entities. In Stewart and Pfeifer, the
courts upheld the jury’s verdicts not to apportion any fault, or to
apportion significantly less fault, to other manufacturers of
asbestos-containing products because the plaintiffs’ exposure to
the defendants’ products were far more extensive and significant
5 What is more, the jury was instructed—per the parties’
agreement—that it could not consider plaintiff’s other
occupations aboard a military ship and in HVAC and
construction work as contributing to plaintiff’s exposure to
asbestos; this selective determination of which entities were
subject to the jury’s allocation finding further demonstrates that
Ford certainly did not abandon the issue of allocation of fault to
the other automakers and the brake pad manufacturers and
suppliers.
21
than to the products of others. (Stewart, at pp. 32-33; Pfeifer, at
pp. 1289-1290.) Here, by contrast, the undisputed expert
testimony was that every exposure was significant and no
exposure could be discounted; further, it is undisputed that
plaintiff’s work with brake pads in Ford vehicles—and hence his
exposure to dust from those pads—constituted at most 8 percent
of his work history as a gas station mechanic (that is, at most 16
percent of the installation half of a brake replacement). And
Rutherford dealt with the proper standard for imposing liability
upon a party-defendant in the first place, and not the subsequent
apportionment of fault vis-a-vis nonparties; indeed, Rutherford
took pains to distinguish the two analyses. (Rutherford, at pp.
958, 983.)
For these reasons, substantial evidence does not support
the jury’s verdict apportioning no fault to the other automakers
and to the manufacturers and suppliers of asbestos-containing
brake pads.
B. Plaintiff’s former employers (the gas stations)
Any fault of plaintiff’s former employers at the gas stations
where he worked would be grounded in negligence. Negligence
requires proof of a duty of care, breach of that duty, injury to the
plaintiff, and a causal link between the breach and that injury.
(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)
The jury’s finding that plaintiff’s former employers are to
be apportioned no fault for plaintiff’s mesothelioma is supported
by substantial evidence because the record does not compel a
finding of fault. Here, it was legally undisputed that plaintiff’s
former employers owed plaintiff a duty of care to “maintain a safe
workplace” by “discover[ing] . . . dangerous condition[s],” warning
of them, and using “safe practices and procedures,” and it was
22
factually undisputed that two of plaintiff’s former employers
(Standard Oil and Exxon) breached that duty by allowing
plaintiff to perform brake replacement jobs without warnings or
protective gear despite knowing of the dangers of asbestos-
containing dust from blowing out and sanding brake pads.
Plaintiff’s injury was also undisputed. Yet there was no evidence
as to precisely what actions the gas station owners should have
taken to protect plaintiff and no evidence as to how, if any at all,
those actions would have reduced plaintiff’s risk of contracting
mesothelioma. Maybe they would have, and maybe not. Either
way, the record before us does not compel a finding of a causal
link, and the jury’s implicit finding that no such link exists is
accordingly supported by substantial evidence.
III. Instructional Error
Ford argues that it is entitled to a new trial on
apportionment vis-à-vis plaintiff’s former employers for a second
reason—namely, that the jury instructions did not sufficiently
inform the jury what it would need to find in order to find those
employers at fault.6 Because plaintiff’s former employers did not
manufacture or supply asbestos-containing brake pads, any fault
on the part of plaintiff’s gas station employers would need to be
grounded in negligence, as noted above. This presents the
question: Did the court’s instructions properly instruct the jury
on the elements of that theory of liability? We independently
6 Ford also argues the trial court’s apportionment instruction
was defective because the court used the standard CACI jury
instruction (CACI No. 1207B) rather than Ford’s special
instruction modifying that standard language. Our reversal on
substantial evidence grounds moots out the need to reach this
issue.
23
review the correctness of jury instructions. (People v. Nelson
(2016) 1 Cal.5th 513, 538.)
The jury instructions may well have been erroneous.
Although the court instructed the jury that an entity’s
“negligence” was a basis for apportioning fault, and that an
employer had a “non-delegable duty to . . . furnish” its employees
“with a safe place to work,” the court did not instruct the jury on
the elements of negligence generally. The closest the court came
was the instruction on negligent product design, but that
instruction was couched in terms of product design and was
limited to Ford; it is far from clear that a reasonable jury would
retrofit these instructions to fit a different type of negligence
against an unnamed, nonparty.
But any error was not prejudicial. An error in instructing
the jury warrants a new trial only if it is reasonably probable
that a proper instruction would have yielded a different verdict.
(Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1072.) Here, it
would not have. That is because, as noted above, there was a
dearth of evidence regarding the causal link between any
negligence by plaintiff’s former employers and plaintiff’s
mesothelioma. Making the elements more explicit would not
have cured this gap in the evidence.
IV. Scope of Retrial
Our conclusion that the jury’s verdict apportioning no fault
to the other automakers and to the manufacturers and suppliers
of brake pads is not supported by substantial evidence means
that Ford is entitled to a new trial on the issue of apportionment
among Ford and those other entities. But this presents the
question: Is Ford entitled to a new trial on any other issues?
24
Ford urges that it is entitled to a new trial on all issues.
We disagree. There is no need to retry the jury’s finding of
liability against Ford on any of the five theories presented, the
jury’s finding that Ford engaged in conduct worthy of punitive
damages, or the jury’s award of $8.5 million in compensatory
damages. Each of these findings is supported by substantial
evidence, and Ford does not challenge them except to generally
complain that they are infected by “passion and prejudice.”
There is accordingly no reason to disturb them. There is also no
merit to Ford’s contention that all new trials must encompass all
issues whenever punitive damages are at issue because, under
Civil Code section 3295, the same jury that finds a defendant
liable when a case is tried must also be the one to impose
punitive damages; as the cases cited next indicate, that is not the
rule when it comes to what must be retried.
Plaintiff urges that we should leave the jury’s punitive
damages award intact—preferably the original $25.5 million
award, but, failing that, even the $8.7 million reduced award. We
disagree with plaintiff’s suggestion, as well. This is not a case
where we are vacating or reducing the compensatory damages
award; in such circumstances, courts need not also vacate the
punitive damages award if the ratio of punitive to compensatory
damages is likely to remain within the constitutionally valid ratio
of 10-to-1 or less. (Izell v. Union Carbide Corp. (2014) 231
Cal.App.4th 962, 984; Behr v. Redmond (2011) 193 Cal.App.4th
517, 536-537; cf. Auerbach v. Great Western Bank (1999) 74
Cal.App.4th 1172, 1190 [requiring new trial on punitive damages
amount where ratio on remand would be greatly in excess of 10-
to-1]; Frommoethelydo v. Fire Ins. Exch. (1986) 42 Cal.3d 208, 220
[requiring new trial on punitive damages where “most of the
25
compensatory damages must be set aside”].) This makes sense
because the defendant’s contribution to the plaintiff’s injury
remains the same as it was before.
Here, by contrast, we are invalidating the jury’s
apportionment of 100 percent of fault to Ford for—and thus,
Ford’s contribution to—plaintiff’s injury. Should, as Ford urges,
the jury apportion fault in direct proportion to plaintiff’s exposure
to the brake pads for which it is legally responsible, that jury
could apportion Ford at most 8 percent of fault, and possibly less.
This would paint a substantially different picture of Ford’s
overall culpability, especially vis-à-vis the other entities
responsible for exposing plaintiff to asbestos-related brake pads.
Because punitive damages are meant to reflect “the magnitude of
[a] defendant’s violation” of public policy (Zhadan v. Downtown
L.A. Motors (1976) 66 Cal.App.3d 481, 496-497), the potential for
a jury to find that Ford’s violation is of a substantially smaller
magnitude counsels in favor of letting the jury on retrial evaluate
the opprobrium of Ford’s conduct in light of Ford’s proportionate
fault for plaintiff’s injury rather than simply using the
constitutional maximum as a back-end safety valve.
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DISPOSITION
The judgment is reversed and remanded for a new trial on
the issues of (1) apportionment among Ford, the other
automakers, and the manufacturers and suppliers of brake pads,
and (2) the amount of punitive damages. The jury’s verdict as to
Ford’s liability, the liability of plaintiff’s former employers, Ford’s
eligibility for punitive damages, and the total amount of
compensatory damages is affirmed. Each party is to bear its own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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