Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of San Diego County, Super. Ct. No. GIC815211. William R. Nevitt, Jr. and Judith F. Hayes, Judges.
McINTYRE, P.J.
Ingersoll Rand appeals from a judgment and related orders against it in this design defect product liability action by Donald Butler after he was injured while working as a heavy machinery mechanic on a DM-45 blasthole drill manufactured by it in 1996. Ingersoll Rand contends that reversal is required because the court:
(1) erred in denying its requests for a continuance of the trial and to augment its expert witness list;
(2) erred in giving judgment in Butler's favor because, as a matter of law, it had no liability pursuant to (A) the sophisticated user doctrine, (B) the rule of law precluding manufacturer liability for open and obvious dangers, (C) the consumer expectation test for determining a manufacturer's liability for design defects, and (D) principles of comparative negligence;
(3) abused its discretion in (A) permitting Butler to introduce evidence that it did not provide any warnings about the dangers of using the equipment, (B) excluding its proposed evidence regarding the lack of prior accidents involving the DM-45 drill, (C) admitting opinion testimony of a witness who Butler used to replace his economics expert after the expert became unexpectedly unavailable to testify at trial, and (D) excluding its proffered evidence that the DM-45 model in question was "state of the art" at the time of its manufacture;
(4) erred in concluding that the accident caused Butler's neck injuries because there was insufficient evidence to support that finding; and
(5) erred in denying its motion for a new trial in light of (A) Butler's improper and prejudicial reference during trial to a confidential mediation between the parties and (B) the cumulative effect of its erroneous rulings before and during trial.
We find these arguments unavailing and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2000, Butler worked for general contractor Kiewit Pacific Company (Kiewit) as a journeyman heavy machinery mechanic. As part of that job, Butler performed maintenance and repair work on an Ingersoll Rand DM-45 blasthole drill used in deep drilling operations to facilitate the making of cement for the Olivenhain Dam project. On August 27, 2002, Butler prepared to perform routine maintenance work on the drill that required him to stand on the drill platform while welding tabs to keep the drill head and its protective subshaft connected. He was required to wear protective gloves, a leather welder's jacket, a helmet with a welder's mask and a tool belt to do the work.
The drill platform of the DM-45 was approximately three and a half feet above the ground and was six to seven feet long, but was only seventeen inches wide. Because the standing area on the platform was so narrow, Kiewit supervisor Roger Brott told the drill operator (Kevin Rogers) to raise the DM-45's dust cover, a metal flap that could be moved from a vertical position hanging down from the edge of the platform, to a horizontal position so that Butler would have a wider area on which to stand while doing the work.
Once up on the drill platform, Butler started to weld, using two welding leads, an electric welding wand (known as a stinger) and a welding rod. He discovered, however, that the stinger was not hot enough to weld properly so he asked Brott to adjust the temperature on the welding unit, which was located in his truck 15 to 20 feet from the drill. Butler turned slightly and stepped onto the dust cover as he motioned to Brott; in doing so, he lost his balance and fell from the platform to the ground.
Butler landed on the ground and immediately felt pain in his left knee. A subsequent MRI revealed that he had torn the anterior cruciate ligament and ruptured the medial ligament in his knee and had a bone bruise and a large effusion (swelling) as well. Several days later, he began to experience headaches and muscle spasms in his neck; after seeking treatment for a lump at the back of his neck, he was diagnosed with a preexisting degenerative condition in his cervical spine that had been asymptomatic until the accident. Butler underwent one surgery on his knee and three surgeries to treat his neck problems.
In July 2003, Butler filed this action against Ingersoll Rand for negligence, strict products liability, failure to warn of defective condition, breach of implied warranty of fitness for a particular purpose, breach of the implied warranty of merchantability and breach of express warranty. Shortly thereafter, Kiewit's workers compensation insurer, Liberty Mutual Fire Insurance Company (Liberty), intervened in the action, seeking to recover amounts it had paid to Butler or his medical providers as a result of his injuries. Prior to trial, Butler dismissed all claims other than the cause of action for product liability and the parties waived their right to a jury trial.
At trial, Butler presented uncontroverted evidence that, because the drill platform was too narrow to safely perform the required maintenance work, the raised dust flap was frequently used by mechanics to provide a larger area on which to stand while doing such work. He showed that the dust flap has exposed structural elements (including one-inch high box tubing that ran along the edges of the flap and dissected its middle), and that, when raised to a horizontal level, there were horizontal and vertical gaps between it and the drill platform, both of which created tripping hazards. He also introduced evidence that subsequent Ingersoll Rand drill models (including the later version of the DM-45) used guardrails around the platform.
Butler's safety expert testified that the drill was unsafe because its platform was too narrow, not protected by a guard rail and did not have a slip resistant surface. Further Butler elicited admissions from the defense safety expert that "there [was] not a whole lot of room up [on the platform]" and that the addition of a guardrail would have enhanced the safety of the drill.
Ingersoll Rand defended on the grounds that the DM-45 complied with applicable safety standards, that the dust cover was not intended to be used as a work platform, that based on his experience, Butler knew or should have known of the danger, that the use of a guardrail on the existing 17-inch platform would have precluded Butler from doing the maintenance work and that Butler fabricated his version of what had happened, particularly as it related to his neck injuries.
At the completion of trial, the court issued a statement of decision in favor of Butler and Liberty, finding that Ingersoll Rand had defectively designed the DM-45 in question. The court summarized its findings as follows:
"The platform was only 17 inches wide[,] providing [Butler] an inadequate work area on which to stand and weld. The design and placement of the dust cover adjacent to the platform would cause any reasonable person to view the dust cover as a platform upon which one could stand. The dust flap, however, created an uneven work surface due to its exposed structural members, the box tubing and the angle iron. Additionally, the area where [Butler] was required to work on the DM45 was not protected by any kind of guardrail or handhold.
"The benefits relating to the design of this aspect of the DM45 are outweighed by the unreasonable risk of injury to workers. The two-inch gap between the drill deck and the dust flap, and the uneven surface of the dust flap[,] . . . constituted a substantial hazard to [Butler].
"There were no significant modifications to the DM45 between the time of manufacture and the date of the accident. The DM45 was being used in a way that Ingersoll Rand expected and intended it to be used. [Butler's] welding of [the] drill tabs [onto] the drill head was a form of routine maintenance, the foreseeability of which was not questioned by Ingersoll Rand.
"As a result of his fall from the DM45, [Butler] sustained injuries to his knee and neck, which have rendered [him] unable to continue working as a heavy equipment mechanic. There is no evidence that [Butler] was comparatively at fault for the accident, nor was there evidence that Kiewit or any other third party was at fault."
It thereafter entered judgment awarding Butler economic and noneconomic damages of $1,490,037.00 and Liberty Mutual $220,773.79 for amounts paid for Butler's medical bills, disability payments and vocational rehabilitation costs. Ingersoll Rand appeals from the judgment and the order denying it a new trial. (It also noticed an appeal from a posttrial order awarding Liberty Mutual certain costs, but has not raised any argument in its briefs on that issue and thus appears to have abandoned any challenge to the trial court's ruling on that matter.)
DISCUSSION
1. Denial of Ingersoll Rand's Requests for a Continuance and to Augment its Expert Witness List
Trial in this action was originally set for October of 2004, although it was continued several times, with the acquiescence of both parties, because Butler's medical condition had not yet become permanent and stationary. After the completion of a number of surgeries on Butler's neck, trial was ultimately scheduled for February 10, 2006.
At a mediation in December 2005 where Butler asserted that his damages were $3.7 million, the case "became . . . very significant" to Ingersoll Rand. Ingersoll Rand concluded that its existing counsel had not adequately prepared for trial and retained new counsel to represent it. The new attorneys substituted into the case on January 9, 2006 and two days later, they appeared ex parte to request a 3-month continuance of discovery and motion cut-offs and trial based on the recent substitution and to amend or augment Ingersoll Rand's expert witness list to add an economics expert and to replace its human factors expert.
At the ex parte hearing, Ingersoll Rand contended that there was good cause for the continuance because it only recently discovered that its former counsel had failed to conduct necessary investigation and discovery relating to certain essential witnesses. Butler responded that Ingersoll Rand's last minute change in strategy did not establish good cause and that, in any event, he would be prejudiced if the requested relief was granted because he had not received a paycheck since August of 2002 and because Ingersoll Rand would have the opportunity to designate new experts with the benefit of knowing what his experts' opinions were. The court found Butler's latter argument persuasive and denied Ingersoll Rand's requests for a continuance of the trial-related dates on that basis.
A week later, Ingersoll Rand renewed its request for a continuance of the trial related dates on the ground that Butler had intentionally secreted information regarding the whereabouts of drill operator Kevin Rogers, by failing to disclose this information in response to its discovery requests and that as a result it needed more time to locate and depose Rogers. In support of its request, Ingersoll Rand submitted a declaration from defense attorney, Christian Bredeson, indicating that Butler's counsel, Thomas Luneau, had revealed having had contact with Rogers, but refused his request for Roger's contact information.
At the hearing, Luneau responded to Bredeson's declaration by explaining that his investigator had found Rogers at a jobsite in 2004 and asked Rogers about the accident, but did not get Rogers's contact information. Luneau said he told Bredeson that he was unwilling to turn over to Ingersoll Rand his investigator's report of the interview, but agreed to inform the defense if he obtained Rogers's contact information. Luneau represented to the court that he did not at that time, and never did, have any such contact information. Luneau urged the court to deny what he characterized as Ingersoll Rand's ex parte motion to compel.
After noting that there were some procedural problems with Ingersoll Rand's request, the court nonetheless considered the request on its merits. It concluded that, under the circumstances, a delay of the proceedings to reopen discovery would severely prejudice Butler and denied Ingersoll Rand's renewed request on that basis.
Ingersoll Rand challenges the court's rulings on appeal, contending that there was good cause for a continuance and for augmentation of its expert witness list. "To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain." (Cal. Rules of Court, rule 3.1332(a).) Requests for a continuance are "disfavored" and the court may grant a request for such relief "only on an affirmative showing of good cause" therefor. (Cal. Rules of Court, rule 3.1332(c); see also Code Civ. Proc., § 2034.610, subd. (b) [requiring a party's motion to augment its expert witness list to be made sufficiently ahead of the discovery cut-off to permit the expert's deposition, except in "exceptional circumstances"].) A trial court has broad discretion to determine whether to grant a continuance and we will not disturb its determination unless clear abuse of that discretion is shown. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1003, fn. 11 [continuance]; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1039 [request to augment expert witness list].)
In determining whether good cause exists, the court must consider all the relevant facts and circumstances. (Cal. Rules of Court, rule 3.1332(d).) Circumstances that may establish good cause include:
(1) The unavailability of an essential witness, a party or trial counsel because of excusable circumstances;
(2) A substitution of trial counsel that "is required in the interests of justice"
(3) The addition of a new party;
(4) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
(5) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).)
Generally, however, good cause is lacking if the need for the continuance arises from circumstances that could have been avoided with reasonable diligence. (See Cal. Stds. Jud. Admin., § 2.1(a), (b); generally County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 783-784, and cases cited therein; see also Code Civ. Proc., § 2034.620, subds. (b), (c) [precluding leave to augment unless the court determines that the opposing party will not be prejudiced and that the moving party acted with reasonable diligence in not designating the proposed expert originally].)
Ingersoll Rand relies on the following circumstances as the basis for its argument that good cause for a continuance existed: (1) its substitution of counsel just prior to the scheduled trial date, which was necessitated by its prior counsel's failure to properly designate experts and prepare for trial; (2) its need to designate a new human factors expert because its existing expert mistakenly did not cover the scope of Butler's expert's testimony; and (3) its recent discovery that Butler had allegedly intentionally concealed information about Roger's whereabouts. There are a number of problems with these arguments. For example, as to the third argument, the trial court did not appear to give any credence to the contention that Butler had intentionally withheld information about Roger's contact information. Further, the record shows that Ingersoll Rand was ultimately successful in locating Rogers and had the opportunity to depose him during the trial, but did not call him as a witness.
More fundamentally, however, each one suffers from one flaw that is fatal to Ingersoll Rand's argument, to wit, that each of these circumstances could have been avoided if Ingersoll Rand had exercised reasonable diligence in this case. (See Cal. Stds. Jud. Admin., § 2.1(a), (b); generally County of San Bernardino v. Doria Mining & Engineering Corp., supra, 72 Cal.App.3d at pp. 783-784; Code Civ. Proc., § 2034.620, subd. (b).) Ingersoll Rand's last minute desire to substitute counsel, replace its human factors expert (as well as add a new economics expert) and reopen discovery to locate Rogers resulted from its failure to adequately monitor the case until after hearing Butler's mediation demand and suddenly deciding that new counsel and new strategies were required to protect its interests. These circumstances do not establish reasonable diligence on Ingersoll Rand's part.
(For the first time in its reply brief, Ingersoll Rand attempts to blame Butler for its last minute need to substitute counsel by contending that he failed to serve it with a statement of damages. This argument is too little in that Ingersoll Rand could have asked the court to order Butler to comply with the requirement or propounded discovery relating to the amount of and basis for his claimed damages well before trial, but apparently did not do so. The argument also comes well too late, at a time when Butler is precluded from the opportunity to respond to it, and, as a result, we decline to consider its merits. (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 171.))
Further, the record amply supports the court's conclusion that Butler would have been unduly prejudiced by granting Ingersoll Rand's continuance requests. As the court expressly recognized, granting a continuance so that Ingersoll Rand could designate additional experts and conduct discovery that it had not previously seen fit to undertake would "change[] the matrix of factors that each side was considering" for purposes of settlement and trial and would interfere with Butler's trial preparation efforts. (Although Ingersoll Rand contends that the court relied on intentional misrepresentations about Butler's financial situation in making its decision, there is no indication in the record that it relied on those representations at all in denying its requests.) Thus, even absent a lack of diligence on Ingersoll Rand's part, the court was justified in denying its requests for a continuance and to augment its expert witness list based on the prejudice to Butler that would have resulted from the granting of relief. (Cal. Rules of Court, rule 3.1332(d); Code Civ. Proc., § 2034.620, subd. (b).)
For these reasons, we conclude that the trial court acted well within its discretion in denying Ingersoll Rand's repeated requests for a continuance of the trial related dates and its request for leave to augment its expert witness list.
2. Liability Issues
Ingersoll Rand contends that the judgment against it must be reversed because as a matter of law (A) the sophisticated user doctrine precludes its liability to Butler for his injuries; (B) it was not liable for Butler's injuries because the claimed defect in the drill equipment was "open and obvious"; (C) the court improperly relied on a risk-benefit theory of design defect liability rather than a consumer expectation theory as a basis for finding it liable for those injuries; and (D) its liability for Butler's injuries should have been reduced to reflect Butler's and Kiewit's comparative negligence. We address these arguments in turn below.
A. The Sophisticated User Doctrine
Under California law, "manufacturers are strictly liable for injuries caused by their failure to give warning of dangers that were known to the scientific community at the time they manufactured and distributed the product[.]" (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1108.) Some California intermediate appellate courts have recognized an exception to this general rule of strict liability for sophisticated users; pursuant to this exception, a manufacturer is not required to provide warnings to members of a profession or trade who, as a result of training or expertise, are deemed to be aware of the general risks of using the manufacturer's products. (See generally Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, 866-867.)
The question of whether the sophisticated user doctrine applies in California is currently pending review in the California Supreme Court. (Johnson v. American Standard, Inc. (2005) 133 Cal.App.4th 496, review granted Jan. 4, 2006, S139184.) Although Ingersoll Rand contends otherwise, we need not make our own determination of this issue in this case because even if the sophisticated user doctrine is otherwise applicable in California, it affects only those claims alleging that the manufacturer failed to provide required warnings. (Fierro v. International Harvester Co., supra, 127 Cal.App.3d at p. 866; see generally Carrel v. National Cord & Braid Corp. (2006) 447 Mass. 431, 441; Rosebrock v. General Electric Co. (1923) 236 N.Y. 227, 237-238, 240-241.) Here Butler dismissed his failure to warn claim prior to trial and as a result Ingersoll Rand's argument that the sophisticated user doctrine applies does not provide a basis for reversal of the judgment given in his favor.
B. The Open and Obvious Defect Exception
Under premises liability law, a property owner has a duty to keep its premises in a reasonably safe condition and to warn those coming onto the property of latent or concealed perils. (Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590.) Where, however, a "danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning," the property owner has no duty to warn of the condition. (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393; Shanley v. American Olive Co. (1921) 185 Cal. 552, 555.) The owner may, however, still have a duty to remedy the dangerous condition, with the obviousness of the danger relevant to the issue of whether the injured person was comparatively negligent in causing his injuries. (Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665; Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114-122.)
Borrowing from the authorities governing a property owner's strict liability to persons coming onto its property, courts have similarly refused to recognize a duty on the part of a manufacturer to warn of obvious or generally recognized dangers of using its products. (See Holmes v. J.C. Penney Co. (1982) 133 Cal.App.3d 216, 220 [manufacturer of CO2 cartridges had no duty to warn of possible injuries from using the cartridges in pellet guns because the potential for harm from such usage was obvious]; Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 933 [slingshot manufacturer]; Morris v. Toy Box (1962) 204 Cal.App.2d 468, 471 [manufacturer of a bow and arrow].) In reliance on these cases, Ingersoll Rand argues that as a matter of law it cannot be liable for Butler's injuries because the lack of a guardrail and the existence of an angle iron on the dust flap were obvious.
However, this argument disregards the established law that although the obviousness of a danger may obviate a manufacturer's duty to warn, it does not, as a matter of law, absolve the manufacturer from a duty to remedy the defect that gives rise to the danger. (See Donohue v. San Francisco Housing Authority, supra, 16 Cal.App.4th at p. 665; Osborn v. Mission Ready Mix, supra, 224 Cal.App.3d at pp. 114-122.) Ingersoll Rand cites no authority to show that the obviousness of the dangers created by its drill design (the most notable one identified by the trial court being the narrow width of the drill deck) absolved it from liability for failing to design the drill in such a way as to eliminate those obvious dangers. In the absence of persuasive authority compelling such a conclusion, we reject Ingersoll Rand's contention. (Ingersoll Rand also makes a passing argument that the defects were minor and insignificant. Presumably because the argument is ludicrous, Ingersoll Rand does not attempt to explain how providing an unprotected 17 inch deck from which a welder must work meets that description. As Ingersoll Rand has not seen fit to provide any meaningful argument or authorities in its brief, we do not address the point.)
C. The Consumer Expectations Test
In California, there are two possible tests for determining whether a product is defectively designed: the consumer expectations test and the risk-benefit test. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118-119.) Under the former, "[a] product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." (Id. at p. 118.) In accordance with the latter, a product may be found to be defective in design if the factfinder determines in hindsight that the product's design embodies "excessive preventable danger," i.e., that the risk of danger inherent in the design outweighs the design's benefits. (Ibid.)
The consumer expectations and risk-benefit tests provide alternative theories a plaintiff may pursue, under appropriate circumstances, as the basis for proving a design defect claim. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1121.) A product may be defective under the consumer expectations test even if the benefits of its design outweigh the risks thereof or, conversely, it may be defective if it presents an excessively preventable danger even though it otherwise meets ordinary consumer expectations. (Ibid.) For this reason, the plaintiff's theory at trial will often depend on the facts of the particular case; the consumer expectations test, however, can only be relied upon in those cases where "the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 562, 567, italics omitted.)
Here, Ingersoll Rand complains that Butler based his strict products liability claim on a risk-benefit theory and that it would have fared better at trial under a consumer expectations theory. However, although it cites certain industrial accident cases involving complex machinery in which a consumer expectations theory was pursued by the plaintiffs, it cites no authority establishing that Butler was required to pursue such a theory in this case or that his failure to pursue such a theory somehow invalidates the court's finding in his favor after applying the risk-benefit test. Finding no such authority ourselves, we conclude that Butler was entitled to exclusively pursue a risk-benefit theory at trial and that the judgment is not subject to reversal based on his having done so.
D. Comparative Negligence Principles
In a strict products liability action, principles of comparative fault may, in appropriate circumstances, apply to diminish the amount of damages awarded. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1001; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 325; Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 742.) Here, Ingersoll Rand argues that the evidence showed, as a matter of law, that Butler and Kiewit were comparatively at fault for his injuries because:
(a) At the time of the accident, Butler was not wearing a safety belt and line as required by state law;
(b) Brott instructed the drill operator to raise the dust cover so that Butler could stand on it even though the cover was not designed to be used as a work platform;
(c) Butler stood on the dust flap to perform the repair rather than using a manlift as instructed by the DM-45 safety manual;
(d) Butler asked Brott to turn up the heat on the unit rather than turning it up himself and Brott did so even though he had not read the safety instructions for the welding unit as required by a Kiewit company policy; and
(e) Butler failed to use a three-point hold in accordance with Kiewit's policies.
Ingersoll Rand's argument is unavailing, for two reasons. First, to the extent that it relies on Butler's failure to comply with state law to establish his comparative negligence "per se," Ingersoll Rand did not argue this theory in the trial court or present evidence to show that any such negligence was a cause of his injuries; for this reason, Ingersoll Rand's attempt to raise the issue on appeal is unavailing.
Second, its overall argument is problematic because the issue of whether a plaintiff (or his employer) was comparatively at fault for his injuries generally presents a question of fact for the trier of fact (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 399) and may be decided as a matter of law only when the evidence permits a sole inference of comparative fault. (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 184-185; see generally Snow v. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128.) Although Ingersoll Rand argues that the only rational inference to be drawn from the evidence is that Butler and/or Kiewit were comparatively at fault, its characterization of the evidence is not borne out by the record.
For example, although Butler was not wearing a safety harness at the time he fell, there was evidence at trial that it was more dangerous to wear a harness when doing work that was at a height of less than six feet above the ground than to go without one. Further, although Ingersoll Rand contends that the dust cover was not intended to be used as a work area, the evidence at trial showed that nothing in the safety manual for the drill or on the equipment itself indicated that the dust cover could not be used for walking on or for work purposes. The uncontroverted evidence also showed that the dust flap could support the weight of a person and was, for safety reasons, frequently used as a work surface in carrying out maintenance and repair work on the drill since the drill platform was only 17 inches wide and was not protected by a guard rail to keep the welder from falling off of the deck while working.
Similarly, Ingersoll Rand's evidence regarding the drill's safety manual instruction that no one should climb on the drill derrick and that the derrick should be lowered, or a manlift used to raise the repairman, if repairs were needed was further explained by other evidence showing that this instruction related to repairs to the drill derrick itself rather than to the type of work Butler was performing at the time of the accident and that a manlift is too tall to have been used by Butler to do that work. Similarly, although Ingersoll Rand introduced evidence that Kiewit policy required its employees to use a three-point hand hold under certain circumstances, that same evidence (as well as other evidence) showed that the policy applied only where the employee was mounting or dismounting the drill. (The Ingersoll Rand safety manual also required the use of a three-point stance when "mount[ing] and dismount[ing]" the drill.) Based on evidence in the record that Butler was standing on, rather than getting on or off of, the drill at the time of the accident, this evidence did not establish Butler's comparative fault as a matter of law.
Finally, Ingersoll Rand's evidence that Butler asked Brott to turn up the heat on his welding equipment and that Brott started to do so despite having never read the safety manual for the welding machine fails to establish their comparative fault for Butler's injuries. The evidence at trial showed Brott had substantial welding experience and that the task of turning up the heat on the welder was a simple one, involving the adjustment of a knob on the welding machine. There was other evidence that Butler's request complied with normal operating procedures and that it was more practical than for Butler to disengage from his equipment, climb down off the drill and walk over to his truck to turn up the heat himself. More importantly, the fact that Brott had not read the safety manual for the welding machine is simply irrelevant, as it had no causal relationship with Butler's fall, and thus does not provide a basis for reducing Ingersoll Rand's liability for Butler's injuries.
Based on a review of the evidence considered as a whole, we conclude that the evidence is not so constrained as to permit only a finding that Butler and/or Kiewit were comparatively at fault for Butler's injuries. Accordingly, we reject Ingersoll Rand's argument that the evidence established comparative fault by Butler and/or Kiewit as a matter of law.
3. Evidentiary Rulings
Evidence is considered relevant, and will generally be admissible as such, if it has any tendency in reason to prove a disputed material fact. (Evid. Code, §§ 210, 351; see People v. Scheid (1997) 16 Cal.4th 1, 13-18.) A trial court, however, has broad discretion to exclude evidence that is otherwise relevant if it finds that the admission of that evidence will require undue consumption of time or confuse the issues (Evid. Code, § 352) and its exercise of discretion will not be disturbed on appeal unless it acted in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (Evid. Code, § 354; People v. Yovanov (1999) 69 Cal.App.4th 392, 406.)
Ingersoll Rand argues that the trial abused its discretion in (A) admitting evidence that it had failed to provide warnings regarding the use of the dust cover as a work platform; (B) excluding its evidence relating to a state of the art defense; (C) excluding its proposed witness testimony that there had been no prior falls from the drill; and (D) admitting opinion testimony proffered by Butler from a witness who he did not designate as an expert.
A. Introduction of Evidence that Ingersoll Rand Failed to Provide Warnings
In response to Ingersoll Rand's introduction of testimony by its safety expert Michael Cash that the dust cover was not intended to be used as a walking surface or work platform, Butler elicited his testimony, on cross-examination and over a defense objection, that nothing on the drill or the dust cover or in the safety manual for the drill warned a prospective user not to walk or stand on the cover. Ingersoll Rand contends that the trial court abused its discretion in admitting this cross-examination testimony, particularly in light of Butler's dismissal of his failure to warn cause of action.
We are unpersuaded. Even in the absence of a failure to warn claim, the evidence that there were no warnings on the equipment or in the safety manual provided circumstantial evidence to refute Ingersoll Rand's evidence that it never intended that the dust flap would be used as a work surface. (See generally Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1009 [recognizing that intent is often established by circumstantial evidence]; Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 338 [similar].) Because the evidence that there were no warnings on the equipment or in the safety manual was relevant to one of Ingersoll Rand's defense theories, the court did not err in admitting it.
B. Exclusion of Proffered Evidence to Establish a State of the Art Defense
In a products liability action based on an alleged failure to warn of a risk of harm, a manufacturer present a "state of the art" defense by introducing evidence that the particular risk of which the plaintiff complains was neither known nor knowable by the application of scientific knowledge available at the time of manufacture or distribution. (Carlin v. Superior Court, supra, 13 Cal.4th at p. 1155; Anderson v. Owens-Corning Fiberglas Corp., supra, 53 Cal.3d at pp. 990, 992.) Ingersoll Rand contends that the court erred in excluding its proffered evidence that, at the time the DM-45 was first manufactured, it was state of the art equipment. However, as Butler did not pursue a failure to warn claim at trial, Ingersoll Rand's proposed evidence was irrelevant. Further, as described by Ingersoll Rand, the proposed evidence did not relate to whether the risk of harm was known or knowable in accordance with the technical knowledge available at the time of the DM-45's original manufacture and thus would not have been relevant to establish a state of the art defense in any event. Ingersoll Rand's argument does not support a reversal of the judgment.
C. Exclusion of Proposed Witnesses to Testify About the Lack of Prior Accidents
After the case was assigned to Judge Judith Hayes for trial, Ingersoll Rand amended the trial readiness conference memorandum to add two attorneys as witnesses to testify about the absence of any prior injuries from the DM-45. Thereafter, Butler brought a motion in limine to exclude evidence of the lack of prior accidents involving the drill, arguing that (1) Ingersoll Rand's safety and design experts had both testified that they had no knowledge about whether there had been prior accidents, (2) Ingersoll Rand had refused to provide substantive responses to special interrogatories requesting information about prior accidents, and (3) Ingersoll Rand would probably not be able to lay a proper foundation relating to its record-keeping practices to have the proposed testimony admitted.
Ingersoll Rand argued that the proposed evidence was relevant to the risk-benefit theory of liability and that it only intended to call one of the two attorneys at trial, although it did not specify which one. Upon inquiry from the court, Ingersoll Rand admitted that the issue came up for the first time after new counsel reviewed the defense safety expert's testimony and thus that it had not informed Butler of its intent to call these witnesses until 1-1/2 weeks earlier. After additional argument by both parties, the court agreed with Butler's repeated objections that he would be unfairly disadvantaged if it allowed Ingersoll Rand to add these witnesses, although it indicated it would be willing to revisit the issue if Butler introduced evidence or otherwise opened the door to the admission of such evidence.
At trial, defense counsel asked Brott, over Butler's objection, "in all the years that you've worked around this equipment[,] you've never seen anybody trip or slip and fall off of the deck area and/or the dust flap that we've been talking about, have you?," to which Brott responded that he had seen men fall off, but that none of them had been hurt. Five trial days later, when Butler indicated his intent to call his wife to testify as a percipient witness to his injuries despite the fact that she was not included on the witness list for trial, Ingersoll Rand argued that if the court was inclined to allow Butler to call her, it should be permitted to call one of its proposed witnesses to testify as to the lack of prior accidents involving the equipment. The court concluded that there was no relationship between the two types of proposed evidence and allowed her to testify, conditioned only on her submission to a deposition beforehand.
On appeal, Ingersoll Rand argues, as it did in its motion for a new trial, that Brott's testimony regarding prior accidents without prior injuries opened the door on the entire subject of prior accidents and that the court erred in refusing its request to call one of the attorneys to testify regarding the lack of prior accidents. However, Ingersoll Rand, not Butler, solicited the testimony that it now contends opened the door on the issue. Further, although the court had indicated in ruling on Butler's motion in limine that it would be willing to revisit the issue if Butler had opened the door by introducing evidence on the subject, Ingersoll Rand's renewed request to introduce the attorney testimony was not based on the contention that Butler had done so, but instead was made in response to Butler's stated intent to call his wife to testify.
Finally, a review of the record shows that Ingersoll Rand was repeatedly permitted to elicit evidence that there was no indication of any prior accidents involving the DM-45. For example, defense safety expert, Michael Cash, testified on cross-examination that Ingersoll Rand was not required to put any warnings on the equipment based on the absence of prior accidents involving the equipment. Similarly, Ingersoll Rand introduced the deposition testimony of its design engineer and expert, Ajay Kumar, and the Kiewit project manager for the dam project that neither of them was aware of any prior injuries involving the DM-45. Ingersoll Rand also cross-examined Butler's safety expert, Carl Beels, a Kiewit safety supervisor and Butler himself regarding their lack of knowledge of any such incidents. Butler did not introduce any evidence to controvert these witnesses.
Under these circumstances, the trial court did not abuse its discretion in disallowing Ingersoll Rand from calling one of its in-house attorneys to testify regarding the lack of prior accidents involving the DM-45.
D. Admission of Expert Witness Testimony by Butler's Substituted Expert
Prior to trial, Butler's designated economics expert (Roberta Spoon) suffered from some serious medical problems and had a death in her family and for these reasons was unavailable to testify at trial. Butler informed Ingersoll Rand that Spoon was not available, but that her partner (Robert Taylor) had reviewed her materials and was prepared to testify on the matters as to which Spoon was to testify. Thereafter, Ingersoll Rand deposed Taylor.
At trial, Butler essentially sought leave of court to have Taylor testify in place of Spoon. Ingersoll Rand objected, however, arguing that if the court was inclined to allow Taylor to testify, it should also be permitted to put on an economics expert, notwithstanding its failure to ever designate an expert on that topic. After inquiring as to whether Spoon's inability to testify had any effect on Ingersoll Rand's ability to designate an economist and being told "no," the court allowed Taylor to testify without giving Ingersoll Rand the opportunity to present an economics expert of its own.
On appeal, Ingersoll Rand cries foul, arguing that by statute Butler was required to augment his expert witness list to name Taylor in place of Spoon as his economist and that the court's decision to allow Taylor to testify in absence of such a designation constituted "prejudicial error." However, Ingersoll Rand never requested that the trial court exclude Taylor from testifying, but instead sought, yet again, to have the court reverse its prior rulings so that it could call an expert to testify on a subject for which it had never designated an expert at all as a condition to Taylor testifying.
Even if Ingersoll Rand had raised the current issue below, it does not explain how it was prejudiced by the substitution of experts given that (1) Taylor was Spoon's partner, (2) he apparently relied on the materials Spoon had prepared in this case, and (3) it had had the opportunity to, and did, depose both Spoon and Taylor prior to trial. Under the circumstances, we cannot discern that there was any prejudice to Ingersoll Rand at all from the court's decision to allow Taylor to testify, much less prejudice that rises to the level of a miscarriage of justice. (Evid. Code, § 354; People v. Yovanov, supra, 69 Cal.App.4th at p. 406.) The court's decision to allow Taylor to testify in Spoon's place did not constitute reversible error.
4. Sufficiency of the Evidence of Causation as to Butler's Neck Injuries
Causation must be proven by competent expert testimony under a "reasonable medical probability" standard; the mere possibility that the defendant's conduct caused the injury is not enough, as there can be many possible causes of a particular injury. (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.) Conduct is a "probable" cause when, in the absence of other reasonable causal explanations, it is more likely than not to have caused the injury. (Ibid.; see Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509; compare Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [conduct is a probable cause where it constitutes a "substantial factor" in bringing about the harm].)
The evidence at trial here established that Butler had a moderate to severe cervical degenerative condition in his neck prior to the accident and Butler's medical expert, Dr. Christopher Uchiyama, testified that there was a 50/50 chance that that preexisting condition would have required some surgery at some point in the future even if the accident had not occurred. Ingersoll Rand relies on this evidence in arguing that the evidence at trial was insufficient to establish that the accident caused Butler's neck injury. However, Ingersoll Rand ignores the extensive evidence (including the opinion of its own expert) that Butler's preexisting condition was asymptomatic and that the accident precipitated the neck symptoms for which Butler ultimately received treatment and surgery. This latter evidence is more than sufficient to establish the requisite causation, notwithstanding the existence of contrary evidence in the record. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.)
5. Denial of Ingersoll Rand's New Trial Motion
Finally, Ingersoll Rand contends that the court erred in denying its motion for a new trial because (A) Butler made an improper and prejudicial reference to the parties' confidential mediation during his testimony, and (B) the cumulative effect of the court's rulings before and during trial denied it a fair trial. However, a trial court may not grant a new trial for any error as to any matter of procedure unless, after examination of the entire cause, it concludes that the error has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Code Civ. Proc, § 475.) A trial judge is vested with broad discretion in ruling on a motion for new trial and its determination is entitled to "great deference," although we must independently assess whether the court abused that discretion in a prejudicial manner based on a review of the entire record, including the evidence. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161, citing City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.)
A. Butler's Reference to Confidential Mediation
While on the stand, Butler was asked by his counsel about his attendance of vocational training classes and, in responding, indicated that he had missed one class to attend a mediation conference in which Ingersoll Rand "refused to talk to us." Ingersoll Rand immediately objected to the testimony as nonresponsive and informed the court that there had been "a complete mediation." Although the court struck the quoted portion of Butler's testimony, Ingersoll Rand contends, as it did below, that this was insufficient to undo the "legally presumed" prejudice that it suffered as a result of the statement.
There is no question that the statutory scheme "unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception." (Foxgate Homeowners' Ass'n., Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 15, fn. omitted; Evid. Code, §§ 1115-1128.) Further, "[a]ny reference to a mediation during [a] subsequent trial is an irregularity in the proceedings" that may provide a basis for the granting of a new trial. (Evid. Code, § 1128; Code Civ. Proc., § 657.) However, an irregularity in the proceedings supports the granting of a new trial only where that irregularity materially affects the substantial rights of a party. (Code Civ. Proc., § 657.)
Here, although Butler's comment was unfortunate, the fact of its making was nonetheless harmless. Not only did Ingersoll Rand object to the statement, but it also challenged the statement's factual accuracy, a response that arguably waived any appellate issue relating to the propriety of the underlying statement. The case was not being tried to a jury and the trial court immediately struck the improper portion of Butler's testimony, which had no relevance to the issues being tried. (Compare Foxgate Homeowners' Ass'n. v. Bramalea California, Inc., supra, 26 Cal.4th 1 [upholding a reversal of a sanctions order imposed on a party for its bad faith conduct during court-ordered mediation, as established by the mediator's report and a declaration of the other party's counsel].) Further, Ingersoll Rand had previously made the court aware of the fact that although Butler had offered to settle his claims against it for $1.7 million, exclusive of worker's compensation interest, it had declined to even talk settlement unless he was willing to lower his demand to less than $1 million. Finally, in ruling on Ingersoll Rand's new trial motion, the court specifically noted that the fact of the prior unsuccessful mediation did not play any role in its determination that the DM-45 drill was defectively designed and Ingersoll Rand cannot point to any part of the record that suggests to the contrary.
Under these circumstances, there is simply no basis for concluding that the statement affected Ingersoll Rand's substantial rights and thus a reversal of the judgment based on its admission is not warranted. (Code Civ. Proc., § 657.)
B. The Court's Handling of the Case Generally
In accordance with our obligations in reviewing an appellate challenge that the trial court denied one party a fair trial, we have reviewed the entire record of this case. Our review shows that the trial court handled this case in a fair manner and, although it exerted some pressure on both sides to keep the case moving along, that pressure was not undue, nor was it exerted unfairly against Ingersoll Rand. Its rulings were also fair and balanced. Ingersoll Rand was not denied a fair trial and accordingly, the trial court did not err in denying Ingersoll Rand's motion for a new trial based on that finding.
DISPOSITION
The judgment and posttrial orders are affirmed. Butler is awarded his costs of appeal.
WE CONCUR: O'ROURKE, J., IRION, J.