Opinion
B218420
02-09-2012
CHARLES H. CUNDIFF et al., Plaintiffs and Respondents, v. LONE STAR INDUSTRIES, INC., Defendant and Appellant.
Horvitz & Levy, Lisa Perrochet, Jason R. Litt, and Julie L. Woods; Jackson Jenkins Renstrom, Allan D. Gutsche and Christina A. Huntoon, for Defendant and Appellant. Waters, Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC390398)
APPEAL from a judgment of the Superior Court of Los Angeles County. Maureen Duffy-Lewis, Judge. Affirmed.
Horvitz & Levy, Lisa Perrochet, Jason R. Litt, and Julie L. Woods; Jackson Jenkins Renstrom, Allan D. Gutsche and Christina A. Huntoon, for Defendant and Appellant.
Waters, Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Respondents.
In this asbestos-related personal injury action, defendant and appellant Lone Star Industries, Inc. (Lone Star) appeals from the judgment entered in favor of plaintiffs and respondents Charles H. Cundiff (Cundiff) and his wife Glenda J. Cundiff (collectively "plaintiffs") after a jury returned a verdict in their favor on claims for strict liability based on design defect and failure to warn. Lone Star contends the trial court erred by denying its motions for judgment notwithstanding the verdict (JNOV), a directed verdict, and a new trial, all premised on the federal enclave doctrine. Lone Star also challenges certain of the trial court's evidentiary rulings, the jury's allocation to it of 19 percent of the fault, and the jury's award of $10 million in noneconomic damages.
By order dated January 18, 2012, Glenda J. Cundiff was substituted in place of Charles H. Cundiff who died during the pendency of the appeal.
We affirm the judgment. Lone Star failed to establish that plaintiffs' claims arose inside a federal enclave, and the record discloses no abuse of discretion by the trial court in its evidentiary rulings. Substantial evidence supports the jury's fault allocation and its award of noneconomic damages, which were not excessive as a matter of law.
BACKGROUND
1. Factual Background
Cundiff was diagnosed with mesothelioma in the spring of 2008. Following that diagnosis, Cundiff and his wife filed this personal injury action against multiple defendants, including Lone Star. Cundiff's complaint alleged that his mesothelioma was caused by exposure to asbestos from the defendants' products or services during his service in the United States Navy during the 1960's.
While in the Navy, Cundiff served on the aircraft carrier USS Kitty Hawk for four years, beginning in December 1962. Aboard the Kitty Hawk, Cundiff worked in the engine rooms, where his duties involved cleaning and working on machinery, including pumps and valves. Cundiff lived and worked aboard the Kitty Hawk while it underwent a nine-month overhaul at the Puget Sound Naval Shipyard (PSNS) from 1964 to 1965. While the Kitty Hawk was being overhauled at PSNS, a Lone Star affiliate, Pioneer Sand & Gravel, delivered an asbestos-containing insulation product known as Insulag to the ship. Cundiff recalled working around Insulag during the Kitty Hawk's overhaul.
Insulag was a dry powder delivered to the ship in 50-pound bags approximately two times per week by flatbed trucks bearing the name Pioneer Sand & Gravel. The Insulag was taken to the ship's engine room, where it was poured into a trough, mixed with water, and applied to pipes, pumps, valves, and lines. Cundiff was present when Insulag was mixed. Dust from the product got on his hair and clothes and in his nose during the mixing process, and he breathed the dust. Although Cundiff never applied Insulag, he testified that he removed it from equipment on the ship when he had to work on a valve or pump.
2. Pretrial Proceedings
In his complaint, Cundiff expressly disclaimed "any cause of action or recovery for any injuries caused by any exposure to asbestos dust that occurred in a federal enclave." Citing this language in the complaint, Lone Star filed a motion for summary judgment on the ground that Cundiff waived any recovery for exposure to Insulag because (1) Cundiff was exposed to Insulag only during the overhaul of the Kitty Hawk at PSNS and (2) PSNS was a federal enclave. Plaintiffs opposed the motion on various grounds, including that Lone Star failed to establish that PSNS was a federal enclave.
The trial court denied Lone Star's motion on the ground that there was no showing that Cundiff's only exposure to Insulag occurred when the Kitty Hawk was docked at PSNS. The court also noted that the only evidence presented by Lone Star to support its argument that PSNS was a federal enclave was a presidential proclamation from 1918 and a grant from the State of Washington to the United States in 1919.
The trial court also denied a motion in limine by the defendants seeking to exclude evidence of exposures to asbestos aboard the Kitty Hawk during its overhaul at PSNS because PSNS was a federal enclave.
3. Trial Proceedings
Edwin Holstein's Testimony
During the trial, Lone Star and the other defendants examined plaintiffs' causation expert, Edwin Holstein, M.D. (Holstein), outside the presence of the jury pursuant to Evidence Code section 402. Lone Star's counsel asked Holstein whether he had reviewed any additional documents specific to the allegations regarding Insulag since his deposition. Holstein said that he had not. Counsel for various of the defendants objected to Holstein's testimony on foundational and hearsay grounds. At the conclusion of the hearing, the trial court ruled that Holstein "may opine as he's being offered," and that defendants' arguments "will go to weight, not the admissibility of his testimony."
On the same day as the Evidence Code section 402 hearing, Lone Star filed a motion to preclude Holstein from offering any opinion testimony that Insulag was a substantial factor in causing Cundiff's injuries because Holstein had not been prepared to offer such testimony during his deposition. Plaintiffs opposed the motion on the ground that Holstein had been prepared to provide his causation opinions during his deposition, but Lone Star's counsel had insisted that he do so without consulting Cundiff's deposition transcript. During his deposition, Holstein informed Lone Star's counsel that he needed to consult the record to respond accurately to the questions presented, but counsel refused to allow him to do so and then moved on to other areas of inquiry without obtaining answers to the questions. The trial court denied Lone Star's motion to preclude Holstein's testimony.
At the trial, Holstein testified that he based his opinions on asbestos levels a worker would be exposed to when applying, removing, and cleaning up asbestos-containing insulation material on various studies performed on asbestos-containing joint compounds in powder form. These studies showed that mixing the powdered material with water resulted in exposure levels ranging from 2 to 10 fibers per cubic centimeters (cc) of air, with an average exposure range of 5 or 6 fibers per cc of air; that sanding the hardened material resulted in average exposure levels of 8 or 9 fibers per cc, with an upper range of about 20 fibers per cc of air; and that cleaning up the residual dry materials and dust following the removal of the insulation would result in exposure levels of up to 25 fibers per cc, with an average exposure level in the range of 7 to 9 fibers per cc.
Lone Star objected to Holstein's testimony about asbestos-containing joint compounds on relevance grounds, and the trial court overruled that objection.
Holstein then testified that he was familiar with an insulation material known as Insulag, that Insulag was an asbestos-containing product, and that his familiarity with Insulag went beyond the instant case. Holstein also testified that he had reviewed trade brochures describing Insulag and its properties. Lone Star's counsel objected to Holstein's testimony about the brochure, and the trial court overruled the objection.
Holstein testified that he relied on studies concerning asbestos-containing joint compounds as the basis for his opinions because the studies on Insulag were old and he could not remember them; and because both materials came in a dry powder form, both contained approximately 10 percent asbestos, and the use and removal of both materials resulted in comparable asbestos concentrations in the air. After the trial court sustained Lone Star's objection to this testimony for lack of foundation, plaintiffs' counsel elicited testimony from Holstein that he had reviewed brochures produced by the manufacturer of Insulag.
Lone Star's counsel then requested a side bar conference at which he argued that Holstein should not be permitted to testify about materials reviewed after his deposition and which had not been disclosed to Lone Star. The trial court overruled Lone Star's objections and allowed Holstein to testify that Insulag contains 9.7 percent asbestos, and that based on Cundiff's testimony that he was present when Insulag was being mixed and applied to equipment aboard the Kitty Hawk and that he removed hardened insulation material from the equipment, that Insulag was a substantial factor in causing Cundiff's mesothelioma.
Robert Hendricks's Testimony
During the trial, Lone Star presented two expert witnesses, Thomas McCaffery and John Graham, who both testified that Insulag could not have been used aboard the Kitty Hawk because it did not satisfy military specifications. Graham further testified that Navy practices did not permit a vendor to deliver material directly to a ship and that insulation work would have been performed on the Kitty Hawk during only two months of its nine-month overhaul.
In response, plaintiffs presented Robert Hendricks (Hendricks) as a rebuttal witness. Hendricks worked at PSNS from late 1960 until 1978 and also worked aboard the Kitty Hawk during its overhaul at PSNS in 1964 and 1965. According to plaintiffs' counsel, Hendricks would testify that he observed Insulag being delivered to Navy ships at PSNS by Pioneer Sand & Gravel trucks and that he personally used Insulag on ship boilers and valves.
Lone Star moved to exclude Hendricks as an improper rebuttal witness, arguing that his percipient testimony about seeing Insulag delivered to the Kitty Hawk, and using it aboard the ship, should have been presented during plaintiffs' case-in-chief. Plaintiffs argued that Hendricks was a proper rebuttal witness because he would address matters initially introduced into evidence at the trial by Lone Star's experts during the defense case-in-chief -- that Insulag would not have been allowed or used on Navy ships such as the Kitty Hawk because it did not meet military specifications, the insulation work would have been performed on the Kitty Hawk during only two months of its nine-month overhaul, and Navy procedures would have prohibited direct delivery of material to a ship by a vendor.
The trial court allowed Hendricks to testify about his percipient knowledge concerning the use of Insulag on Navy ships at PSNS during the time at issue, when insulation work would be performed during a ship overhaul, and whether a vendor would deliver material directly to a ship.
Hendricks testified that he was familiar with Insulag because he worked with and around it on Navy ships at PSNS, including in 1964 and 1965. He said that he observed Insulag being delivered to ships at PSNS. The Insulag was delivered to the pier and then placed on a ship's hanger deck by the rigging shop, where it was staged for use by workers. He saw flatbed trucks bearing the name "Pioneer Sand & Gravel" make deliveries at PSNS, including in 1965. Hendricks also testified that he worked on the Kitty Hawk during its overhaul at PSNS in 1964 and 1965 and personally used Insulag while on the ship.
4. The Jury's Verdict
At the conclusion of the trial, the jury returned a special verdict against Lone Star on plaintiffs' claims for strict liability based on design defect and failure to warn. The jury awarded Cundiff $506,000 in economic damages and $10 million in noneconomic damages, and it awarded Mrs. Cundiff $1.5 million in noneconomic damages for loss of consortium. The jury allocated 19 percent fault to Lone Star.
5. Posttrial Proceedings
After reducing the verdict based on the jury's allocation of fault and pretrial settlements, the trial court entered judgment against Lone Star for $2,185,000 in noneconomic damages and $420,425 in economic damages against Lone Star and another defendant jointly and severally.
Lone Star then filed a motion for JNOV, in which it again raised the federal enclave argument. Lone Star also filed a motion for a new trial, premised on the trial court's allegedly erroneous evidentiary rulings regarding the testimony of Holstein and Hendricks, and an excessive noneconomic damages award by the jury.
Lone Star's motions were heard and denied on July 20, 2009. This appeal followed.
LONE STAR'S CONTENTIONS
1. Lone Star argues that the trial court erred by denying its motion for a directed verdict, as well as its subsequent JNOV motion, because PSNS is a federal enclave and plaintiffs waived any claims against Lone Star as the result of the federal enclave disclaimer in the complaint. Alternatively, Lone Star argues that it is entitled to a new trial because the trial court erroneously allowed plaintiffs to introduce evidence of Cundiff's exposure to Insulag on the Kitty Hawk during its overhaul at PSNS because plaintiffs had waived any claim for those exposures by virtue of their federal enclave disclaimer.
2. Lone Star further contends it is entitled to a new trial because the trial court erroneously allowed plaintiffs to introduce testimony by Holstein and Hendricks.
3. Lone Star challenges the sufficiency of the evidence supporting the jury's allocation to it of 19 percent of the fault.
4. Lone Star claims the jury's $10 million noneconomic damages award is excessive.
DISCUSSION
I. Lone Star Was Not Entitled to a Directed Verdict, JNOV, or a New Trial Based on the Federal Enclave Doctrine
A. Standard of review and burden of proof
"'A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.'" (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 878.) When the motion for JNOV raises a legal issue, we review the trial court's ruling under a de novo standard of review. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) Lone Star contends the trial court erred by denying its motion for JNOV or a directed verdict because Cundiff failed to prove he was exposed to asbestos outside a federal enclave.
Cundiff did not bear the burden of proving that his injuries occurred outside a federal enclave. Rather, Lone Star had the burden of establishing that Cundiff's claims arose inside a federal enclave because it was the party asserting the existence of a federal enclave and its defense was premised on this fact. (See Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 480 (Taylor); see also Gaus v. Miles, Inc. (9th Cir. 1992) 980 F.2d 564, 566 [in a removal action, defendants bear the burden of establishing that events occurred on a federal enclave].) Lone Star was therefore obligated to present evidence as to when and how the United States government acquired the property at issue and that all of Cundiff's exposures took place on that property. (See Taylor, at pp. 479-480.) As we discuss, Lone Star failed to do so.
B. Federal enclave doctrine
"A federal enclave is land over which the federal government exercises legislative jurisdiction. [Citation.] The federal power over such enclaves emanates from article I, section 8, clause 17 of the United States Constitution, which gives Congress the power '[t]o exercise exclusive legislation in all cases whatsoever' over the District of Columbia and 'to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings.'" (Taylor, supra, 78 Cal.App.4th at p. 478.)
"An enclave is created when the federal government purchases land within a state with the state's consent, which may be conditioned on the retention of state jurisdiction consistent with the federal use. [Citation.] Unlike those situations where the United States has a mere proprietary interest in a piece of land, the voluntary cession of land by a state to the federal government is an actual transfer of sovereignty. [Citations.]" (Taylor, supra, 78 Cal.App.4th at p. 478.)
In support of its motion for a directed verdict or JNOV, Lone Star submitted evidence consisting of a 1918 presidential proclamation authorizing the acquisition of certain land belonging to the State of Washington "adjacent to the Naval Reservation, Puget Sound, Bremerton Wash.," and a 1918 grant by the State of Washington to the United States of "the right to use for naval purposes" the harbor area in front of the city of Bremerton.
Plaintiffs objected to the documents on the ground that there was no foundation for their admission and that they were inadmissible hearsay. Although plaintiffs claim the trial court sustained their evidentiary objections, the record contains no ruling by the trial court on any of the objections. In the absence of such a ruling, we must consider plaintiffs' objections to have been impliedly overruled. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566; Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736.)
Both the presidential proclamation and the 1918 grant contain specific descriptions of the properties covered by their respective terms. The presidential proclamation describes certain property to be acquired by the United States as "Tract No. 2," consisting of three parcels identified as "Parcel #1," "Parcel #2," and "Parcel #3." Each of the three parcels is described more specifically and in great detail. For example, Parcel #1 is described in the presidential proclamation in part as follows:
"Beginning for the same at a point in the east boundary line of the Naval Reservation, Puget Sound, Washington, which point marks the intersection of the dividing line between lots 11 and 12, Block 11 of the Town of Bremerton, Kitsap County, Washington, according to the original plat of said town on file in the office of the Auditor of Kitsap County, Washington, prolonged in westerly direction with the said easterly boundary line of said Naval Reservation; thence in an easterly direction following the said dividing line between the said lots 11 and 12 prolonged across Pacific Avenue in said town to the dividing line between lots 2 and 3, Block 10 in said town; thence continuing in an easterly direction with said dividing line between said lots 2 and 3 to the westerly line of the certain fourteen foot alley in said Block 10, a distance of two hundred and eighty-four fee (284') more or less; thence south turning at right angles and following the westerly line of said alley to its intersection with the northwesterly line of Washington Avenue in said town . . . ."
The presidential proclamation contains similarly detailed descriptions for Parcel #2 and Parcel #3.
The 1918 grant covers only one of the three parcels identified in the presidential proclamation, specifically, "the area designated as Parcel 1 of Tract No. 2." That area is described as follows:
The 1918 grant does not mention Parcel #2 or Parcel #3.
"All harbor area belonging to the State of Washington and lying westerly of the line between Lots 8 and 9, Block 1 of the Town of Bremerton produced southeasterly to and across the harbor area to the outer harbor line, as shown on the official maps of Bremerton Tide Lands filed in the office of the Commissioner of Public Lands at Olympia, Washington, February 28, 1918; it being the intention to include in the above description all of the harbor area embraced within the area designated as Parcel 1 of Tract No. 2 in the proclamation of the President of the United States relating to title to and possession of land for naval purposes dated November 4, A.D. 1918."
C. Lone Star did not sustain its burden of establishing a federal enclave
We need not determine whether the presidential proclamation and the 1918 grant together were sufficient to establish the existence of a federal enclave. This is because even assuming those documents were sufficient to establish that the area described therein was a federal enclave, there was no evidence showing that the overhaul of the Kitty Hawk took place within that area.
The 1918 grant and the presidential proclamation describe in detail and with great specificity the area covered by their respective terms. Lone Star presented no evidence, such as maps or expert testimony, to establish the location of the Kitty Hawk in relation to the area described in those documents.
Federal case law discussing federal enclave jurisdiction is instructive. Courts in such cases have concluded that the key factor in determining whether federal enclave jurisdiction exists is the location of the plaintiff's injury. (See, e.g., Roll v. Tracor, Inc. (D.Nev. 2001) 140 F.Supp.2d 1073, 1078, fn. 2 [location of accident was not a federal enclave]; Anderson v. Crown Cork & Seal (E.D.Va. 2000) 93 F.Supp.2d 697, 700.) Lone Star failed to provide evidence of the specific location where Cundiff's injuries occurred. It therefore failed to establish that those injuries occurred within a federal enclave.
A substantial question also exists as to whether asbestos exposures that occurred solely aboard a Navy vessel such as the Kitty Hawk, even if those exposures occurred while the vessel was docked at a federal enclave, can be considered to have occurred within a federal enclave. Federal courts are divided on this issue. (Compare Anderson v. Crown Cork & Seal, supra, 93 F.Supp.2d at p. 700 [vessel docked at a federal enclave is itself not a federal enclave ]; McCormick v. C.E. Thurston & Sons (E.D.Va. 1997) 977 F.Supp. 400, 402 [a navy vessel cannot be considered a federal enclave] with Fung v. Abex Corp. (N.D.Cal. 1992) 816 F.Supp. 569, 571 and Corley v. Long-Lewis (N.D.Ala. 2010) 688 F.Supp.2d 1315 [federal enclave jurisdiction proper when plaintiff's asbestos exposures occurred aboard a navy vessel while in dry dock at federal facilities and plaintiff's work required the use of dock utilities such as electricity and water].) Because Lone Star failed to establish that the Kitty Hawk was located within a federal enclave, we need not determine whether asbestos exposures that occurred only while Cundiff was aboard the vessel took place within a federal enclave.
II. Substantial Evidence Supports the Jury's Allocation of Fault
Lone Star challenges the sufficiency of the evidence supporting the jury's allocation to it of 19 percent fault. A jury's apportionment of fault is reviewed on appeal under the substantial evidence standard. (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 147.) Under this standard, "the appellate court may not substitute its judgment for that of the jury or set aside the jury's finding if there is any evidence which under any reasonable view supports the jury's apportionment. [Citation.]" (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 346.)
The record contains evidence from which a reasonable jury could allocate 19 percent fault to Lone Star. During the Kitty Hawk's nine-month overhaul at PSNS, 50-pound bags of Insulag were delivered to the ship approximately two times a week. Insulag was applied to equipment in the fire rooms and engine spaces of the ship, including boilers, pipes, and valves. Cundiff was present when Insulag was mixed and applied. He also removed Insulag from equipment on the ship.
Plaintiff's expert, Holstein, testified that Insulag contained 9.7 percent chrysotile asbestos, that exposure levels associated with mixing Insulag ranged from 2 to 10 fibers per cc of air, with an average of 5 or 6 fibers per cc, and that exposure levels associated with the removal of asbestos-containing insulating material ranged from 10 to 150 fibers per cc of air, with an average of 20 to 25 fibers per cc. Holstein also testified that exposure levels for mixing were 50,000 to 60,000 times greater than background levels of asbestos, while those for removal were 200,000 to 250,000 times above background, and that these levels were sufficient to increase the risk of developing mesothelioma. Holstein further testified that Cundiff's exposure to asbestos from Insulag was a substantial factor in causing his mesothelioma and that his exposures far exceeded what the medical literature showed was required to cause mesothelioma.
Lone Star argues that its maximum allocation of fault is two percent, based on the fact that Cundiff spent approximately 19 percent of his Navy career at PSNS, and the assumption that Lone Star should be responsible for no more than one-twelfth of the exposures during that time. Allocation of fault by the trier of fact is not subject to such exact mathematical computations. Rather, apportionment involves an equitable assessment of the evidence. (Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 102-103; Henry v. Superior Court (2008) 160 Cal.App.4th 440, 461.) The jury in this case considered evidence that substantial quantities of Insulag were delivered regularly to the Kitty Hawk and used extensively on equipment and piping throughout the ship, that Cundiff was present when Insulag was mixed and applied, and that he also removed Insulag from equipment that he maintained and repaired. There is substantial evidence in the record to support the jury's allocation of fault.
III. Alleged Evidentiary Errors
A. Holstein Testimony
Lone Star contends the trial court erred by allowing plaintiffs' medical expert, Holstein, to testify as to causation. Lone Star maintains Holstein's testimony should have been excluded under Code of Civil Procedure section 2034.300, subdivision (d) because he was not prepared to provide his opinions during deposition. Lone Star also argues that Holstein's testimony should have been excluded because his opinions were based on Insulag brochures he received and reviewed after his deposition and after an Evidence Code section 402 hearing on the admissibility of his testimony. We review the trial court's decision to admit Holstein's expert testimony for an abuse of discretion. (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.)
Code of Civil Procedure section 2034.300, subdivision (d) states that upon timely objection by a party, "the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to . . . [m]ake that expert available for a deposition . . . ."
At the hearing on Lone Star's motion to preclude Holstein's testimony, plaintiffs argued that Holstein was prepared to offer his causation opinions during his deposition if he could first consult Cundiff's deposition transcript, but Lone Star's counsel would not permit Holstein to do so, and instead moved on to other areas of inquiry. Plaintiffs argued that the deposition of a medical expert in a multi-defendant asbestos case should not be "a memory game," and that Holstein was entitled to consult Cundiff's deposition transcript before responding. Plaintiff's counsel then read portions of Holstein's deposition reflecting the following exchange between Holstein and Lone Star's counsel:
"'[Lone Star's counsel]: Okay. So I assume you have not formed an opinion as it relates to Lone Star Industries Incorporated as it pertains to Mr. Cundiff in this case?
"'[Holstein]: Hold on a minute please. I'm doing my best to prepare the answer to your question, Ma'am. Just give me another moment, please.
"'[Lone Star's counsel]: I'm not prepared to pay Dr. Holstein for time he's spending on the record.'"
Plaintiff's counsel also read the last question-and-answer exchange between Holstein and Lone Star's counsel at the conclusion of Holstein's deposition:
"'Q: Do you have any other opinions as it relates to Insulag and any claimed exposure to Insulag by Mr. Cundiff?
"'A: As it specifically relates to Mr. Cundiff?
"'Q: Right.
"'A: Not without further checking the record.
"'Q: Just without checking the record, do you have information with regard to the frequency, proximity, or duration of any claimed exposure by Mr. Cundiff to Insulag?
"'A: No, I don't recall the answer to that question.
"'Q: Thank you.
"'A: I'll try to look it up if you want me to.
"'Q: No, thank you.'"
The record shows that Holstein was prepared to state his opinions during deposition, and would have done so had he been allowed to review the record. Easterby v. Clark (2009) 171 Cal.App.4th 772, on which Lone Star relies, is inapposite. In that case, the plaintiff's expert testified at his deposition that he had formulated no opinion that the plaintiff's injury resulted from the defendant's conduct. (Id. at p. 780.) Here, Holstein was attempting to state his opinions, but Lone Star's counsel would not permit him to do so. Given these circumstances, the trial court's denial of the motion to exclude Holstein's testimony was not an abuse of discretion.
Nor did the trial court abuse its discretion by allowing Holstein to testify after he indicated that he had received and reviewed Insulag brochures a few days before he was scheduled to testify. Lone Star contends Holstein's testimony regarding the brochures should have been excluded because he received and reviewed them after his deposition and after the Evidence Code section 402 hearing at which Lone Star sought to exclude his testimony. Lone Star further contends Holstein impermissibly relied on the brochures to form his causation opinion as to Insulag, using them as a basis for opining that Insulag was sufficiently comparable to asbestos-containing joint compounds so that he could then use and rely on joint compound exposure studies.
The record shows that Holstein was familiar with Insulag and that his familiarity with the product went beyond the instant case. Holstein was also familiar with the similarities between Insulag and asbestos-containing joint compounds. Both substances contained approximately 10 percent asbestos, came bagged in a dry powder form, and were mixed with water and then applied to equipment for insulation purposes. When the trial court asked Holstein whether there was any information in the Insulag brochures that was new to him, he told the court that the brochures "confirm[ed] my previous understanding of what Insulag is, and how it is used." Holstein also told the trial court that he "had previous testimony from years past about Insulag," and that he had previously testified "about Insulag in particular, and about asbestos cements . . . on many, many occasions."
Lone Star was given the opportunity to cross-examine Holstein about the Insulag brochures, and did cross-examine him extensively about the product's uses as set forth in the brochures. Lone Star's own experts relied on the brochures as the basis for concluding that Insulag did not meet the Navy's specifications for high-temperature cement and therefore could not have been used on a Navy vessel such as the Kitty Hawk. Under these circumstances, the trial court did not abuse its discretion by allowing Holstein to testify that he had reviewed the Insulag brochures.
B. Hendricks Testimony
Lone Star contends the trial court committed prejudicial error by allowing plaintiffs to present testimony by a rebuttal witness, Hendricks, in response to testimony by Lone Star's experts that Insulag could not have been used aboard the Kitty Hawk. Lone Star contends Hendricks's testimony was improper because Lone Star's witnesses presented no new theories for which rebuttal testimony was appropriate; Hendricks's testimony was merely cumulative of Cundiff's testimony that Insulag was used aboard the Kitty Hawk; and circumstances suggest that plaintiffs intended to call Hendricks as a rebuttal witness weeks before he testified.
A trial court has broad discretion over the scope of rebuttal testimony, and its ruling will not be disturbed on appeal unless a clear abuse of discretion is shown. (Ray v. Jackson (1963) 219 Cal.App.2d 445, 454.) The record here discloses no abuse of discretion.
Plaintiffs offered Hendricks's testimony to rebut evidence presented by Lone Star during its defense case-in-chief that Insulag could not have been used on Navy ships because it did not satisfy military specifications, insulation work would have been performed on the Kitty Hawk during only two months of the nine-month overhaul, and Navy procedures would have prohibited direct delivery of material to a ship by the vendor.
The trial court allowed Hendricks to testify about his percipient knowledge concerning the use of Insulag on Navy ships at PSNS during the time at issue; when insulation work would be performed during a ship overhaul, and whether a vendor would deliver material directly to a ship. Hendricks's testimony was responsive to evidence initially introduced by Lone Star, and the trial court's ruling allowing that testimony was not an abuse of discretion. (Edgar v. Workers' Comp. Appeals Bd. (1966) 246 Cal.App.2d 660, 665.)
The record does not support Lone Star's claim that plaintiffs schemed to withhold Hendricks's testimony for rebuttal. That plaintiffs anticipated the need for a rebuttal witness, and arranged to have Hendricks available should the need materialize, is not a ground for precluding his testimony.
IV. Excessive Damages
Lone Star contends the trial court erroneously denied its motion for a new trial on the ground that jury's award of $10 million in noneconomic damages (and Lone Star's $2,185,000 share of those damages) was excessive. The standard of review on a claim of excessive damages is well settled: "The amount of damages is a fact question, committed first to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. [Citations.] All presumptions favor the trial court's ruling, which is entitled to great deference because the trial judge, having been present at trial, necessarily is more familiar with the evidence and is bound by the more demanding test of weighing conflicting evidence rather than our standard of review under the substantial evidence rule. [Citations.] [¶] We must uphold an award of damages whenever possible [citation] and 'can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.' [Citations.] [¶] In assessing a claim that the jury's award of damages is excessive, we do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor. [Citation.]" (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.)
Lone Star argues that the jury's award of noneconomic damages "far exceeds the average, and even the largest, verdict for asbestos-related mesothelioma, lung cancer and similar injuries in a published case." While a reviewing court "should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. . . . Injuries are seldom identical and the amount of pain and suffering involved in similar injuries varies widely. . . . [T]he question that should be decided by the appellate courts is whether or not the verdict is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice." (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508.)
Lone Star cited reported appellate decisions in California involving damages awards for asbestos-related illnesses over the past 10 years involving noneconomic damages awards ranging from $500,000 to $4 million. (See, e.g., Garza v. Asbestos Corp. Ltd. (2008) 161 Cal.App.4th 651, 654 [$500,000]; Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 95 [$750,000]; Cadlo v. Metalclad Insulation Corp. (2007) 151 Cal.App.4th 1311, 1317 [$4 million].) Plaintiff submitted evidence of jury verdicts in other mesothelioma cases, many of them unreported decisions, ranging from $9 million to $25 million.
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The jury in this case heard testimony by Cundiff that his mesothelioma causes him constant pain, at times severe; that he has undergone numerous chemotherapy treatments that make him nauseated for several days; that he can no longer work, do things around the house, or go fishing; and that he worries all the time.
The jury also heard Cundiff's wife of 24 years testify that Cundiff's chemotherapy leaves him so nauseated and dehydrated that he has had to go the hospital for fluids and blood; that he has undergone numerous radiation treatments that have inflamed his chest and esophagus, making it painful for him to swallow; that he is unsteady on his feet and has pain and numbness in his hands and legs; and that he has lost 35 pounds since he began his treatment.
The jury's nonpecuniary damages award includes compensation for past and future pain and suffering, including mental suffering. While the amount of the award is high, we cannot say, as a matter of law, that it is so high that it shocks the conscience and suggests passion or prejudice on the part of the jury.
Lone Star next complains that plaintiffs' counsel improperly argued to the jury that Cundiff should be awarded noneconomic damages at the rate of $2 per minute for the 17 years of life he is expected to lose because of his mesothelioma. Lone Star concedes that plaintiffs' counsel also told the jury that the purpose of the noneconomic damages award was to compensate Cundiff for his physical and mental suffering, including the knowledge that he was going to die. Lone Star nevertheless contends "it is unlikely the jury drew the line at awarding damage only for distress arising from such knowledge during the plaintiff's lifetime" but instead compensated Cundiff for his shortened life span, a type of damage not allowed by the jury instructions. Lone Star cites nothing in the record to support this argument. Absent some contrary indication in the record, we must presume that the jury followed the trial court's instructions and that its verdict reflects the legal limitations those instructions imposed. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.)
Substantial evidence supports the jury's noneconomic damages award, which was not excessive as a matter of law.
DISPOSITION
The judgment is affirmed. Plaintiffs are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
________________________________, P. J.
BOREN
________________________________, J.
DOI TODD