Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ben T. Kayashima, Judge. (Retired judge of the San Bdno. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super.Ct.No. RCVRS083256
Steinbrecher & Associates and Edward Steinbrecher for Plaintiffs and Appellants.
Horvitz & Levy, H. Thomas Watson, Robert H. Wright; Yukevich Calfo & Cavanaugh, James J. Yukevich, Alexander G. Calfo and Sean A. Topp for Defendant and Respondent.
OPINION
Gaut J.
1. Introduction
Plaintiff Arturo Baez suffered a spinal injury, rendering him a quadriplegic and dependent on a ventilator. Baez and his wife, Teresa Baez, sued defendant L&L Machinery, Inc., the manufacturer of the industrial gluing press involved in the accident, and other defendants for negligence, products liability and loss of consortium. A jury found in favor of defendant L&L and plaintiffs appeal. Plaintiffs’ main contentions are the trial court erred by allowing defense testimony about the absence of previous accidents and that insufficient evidence supports the jury’s special finding that the press in 2004 was not in substantially the same condition as when it left the factory in 1984. We conclude the evidence was properly admitted and the judgment was amply supported by the evidence. We affirm.
2. Factual and Procedural Background
The subject machine was a Glu-All radio-frequency hydraulic-edge gluing press, Model GA-100. The model was first introduced in the 1960’s. L&L manufactured between 1,000 and 1,200 GA-100 presses. This particular machine was manufactured in 1984 and purchased second-hand in 1993 by Professional Wood Products (PWP), plaintiff’s temporary employer.
Radio-frequency gluing allows the gluing process to be speeded up and performed in seconds instead of hours. While the GA-100’s platen lid presses down with great force on the wood, radio frequency waves are applied to dry the glue.
The GA-100 was designed for use by one operator but it was also used by an operator with an assistant, particularly in the manual, rather than automatic, mode. L&L designed the GA-100 so the operator and the assistant would not work in the area of the platen lid. Instead, the assistant would work away from the platen lid while adjusting the wood on the glue spreader and removing the wood from the press after gluing was completed.
In August 2004, plaintiff, who had no experience in working with heavy machinery or presses, was hired through a temporary agency to work for PWP as a laborer. After one week, he was assigned to assist Juan Villa, the trained operator of the GA-100, to help operate the machine in manual mode. Although it was not company practice, Villa directed plaintiff to work under the press’s platen lid to adjust the wood for gluing. While plaintiff was doing so, Villa was distracted by another employee. Villa depressed the two-hand control button and activated the GA-100, causing the platen lid to crush plaintiff as he was leaning in, trying to position some wood pieces on the press preparatory to gluing. Plaintiff’s terrible injuries ensued.
Plaintiff’s medical expenses as of December 2006 exceeded $4 million.
The platen lid presents a safety hazard for people in the vicinity of the press because the closing lid creates a “pinch point” and the potential for injury. Three possible safety measures were a two-hand control button, which the GA-100 had; a presence-sensing device (PSD); and a barrier guard. The GA-100 did not have a PSD or a barrier guard. Originally the GA-100 displayed safety-warning labels. Any such warnings were not affixed when PWP purchased the press second-hand. Before the accident, PWP had modified the press by changing the location of the attached glue-spreader table, instead making it a separate table, adjacent to the platen lid with a narrow aisle between the table and the press.
Plaintiffs’ expert offered the opinion that the GA-100 was defectively designed without a PSD or a barrier guard. Defendant’s expert did not agree, stating that the two-hand control button was an adequate safety device without a PSD or a barrier guard. The parties and their experts also disagreed about whether “stroke limiters” could have prevented the accident by limiting the range of the platen lid and whether they were used when the press was being operated in manual mode.
Defendant began installing the PSD on its presses in 1995 for finger protection but did not propose PWP modify its GA-100. Defendant’s expert did not believe it was necessary for L&L to retrofit or recall the GA-100 from PWP. He found PWP and the operator, Villa, to be completely at fault for the accident. After the accident, PWP designed and installed a barrier guard.
Peter Nemeth, defendant’s president, testified about the safety history of the GA-100 and the absence of any complaints or reports of injuries involving the GA-100. The court had initially granted a pretrial motion in limine to prohibit Nemeth from testifying about the absence of any documented accidents reported before 1992 when Nemeth bought L&L Machinery. Ultimately, however, Nemeth was allowed to testify that, when he bought L&L, he conducted interviews and reviewed company records but did not discover any information about accidents or recalls involving the GA-100. Nemeth also testified there had been no accidents with the GA-100 reported to him since 1992 and it had a perfect safety record. The only accident involved a glue press in which the owner had removed the two-hand control button.
Plaintiffs’ expert testified he did not know about any previous reported accidents involving the GA-100, except for one in which the two-hand control button had been removed. Defendant’s expert also testified he did not know about any reported accidents involving an unmodified GA-100 since 1984, except the one accident involving the glue press without the two-hand control button.
In closing argument, the defense attorney continually asserted that the present accident was the first time defendant had received any notice in 44 years of any danger posed by the GA-100 and that the press had performed safely all that time.
The jury’s special verdict included two findings: that the GA-100 was not in substantially the same condition as when it left the factory and that defendant was not negligent in failing to notify PWP of a safety upgrade.
3. Absence of Prior Accidents
Plaintiffs contend the trial court prejudicially erred by allowing Nemeth to testify that his investigation before he purchased L&L in 1992 disclosed no reports of accidents involving the GA-100. Plaintiffs maintain there was not sufficient foundation for Nemeth’s testimony. (Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1345, citing Walker v. Trico Mfg. Co. (7th Cir. 1973) 487 F.2d 595, 599-600; Forrest v. Beloit Corporation (3d Cir. 2005) 424 F.3d 344.)
The leading case on the issue is Benson v. Honda Motor Co., supra, 26 Cal.App.4th at pages 1344-1345: “After reading cases decided by sister-state jurisdictions, and considering the views of commentators on this issue, we hold that trial courts may admit testimony regarding the absence of prior similar claims in cases concerning negligence or strict products liability. Whether a trial court ought to do so depends upon the purpose of such evidence and a showing of foundational requirements.
“We agree with the Supreme Court of Arizona which held that ‘per se inadmissibility is “manifestly incompatible with modern principles of evidence.”’ (Jones v. Pak-Mor Mfg. Co. [(1985) 145 Ariz. 121, 124].) A per se rule of exclusion would discourage companies from acquiring, recording and maintaining safety performance information. [Id. at p. 128.]
“‘The essence of a negligence action based on defective design is that defendant distributed a product when it was reasonably foreseeable that its design presented an unreasonable risk of harm. [Citation.]’ (Jones v. Pak-Mor Mfg. Co., supra, [145 Ariz. at p. 125].) In a strict products liability action, a plaintiff must prove that the product is unreasonably dangerous and that it is defective. (Ibid., citing Rest.2d Torts, § 402A.)
“Accordingly, some of the issues which arise in cases concerning defective design are: 1. the likelihood that the product will cause serious injury, 2. whether the defendant should have foreseen that the product is dangerous as designed, 3. whether a defect exists in the product, and 4. whether a particular danger was unreasonable—the likelihood of its causing serious injury. (Jones v. Pak-Mor Mfg. Co., supra, [145 Ariz. at p. 125].)
“‘Safety-history, including the presence or absence of prior accidents under similar use, is evidence which may make these ultimate facts “more probable or less probable than [they] would be without the evidence.” [Citations.] There can be no doubt that evidence of safety-history is relevant.’ [Citations.].”
In discussing what constitutes adequate foundation for safety-history evidence, Benson v. Honda Motor Co., supra, 26 Cal.App.4th at page 1345, explained: “In a design defect case, an adequate foundation for admission of such evidence may be laid by proffering testimony concerning substantially similar machines used for a reasonable length of time under reasonably similar circumstances.” Furthermore, “at minimum, the proponent should proffer evidence through a witness who is familiar with product safety surveys or safety records concerning the product. In Jones v. Pak-Mor Mfg. Co., supra, [145 Ariz. 121], the Arizona Supreme Court disallowed evidence of prior similar claims because it was not supported by any significant product safety survey or safety record search. [Citations.] [¶] A stronger showing is made by a witness in a product safety department or division which has kept records of the safety performance of the product in question, as here.” (Benson, supra, at p. 1346.)
Plaintiffs assert Nemeth should not have been allowed to testify because there was no proof that defendant maintained a system of recording accidents to provide the proper foundation. Plaintiffs rely most strongly on Forrest v. Beloit Corporation, supra, 424 F.3d at pages 354-362, in which the appellate court held it was prejudicial error to elicit anecdotal evidence from two longtime employees about the absence of prior accidents, for 17 years and 30 years, involving the Gloss Calendar machine at the Jefferson-Smurfit paper mill. Beloit, the manufacturer of the machine, did not maintain any safety records and no one from Beloit testified on this issue.
The Forrest court, however, recognized “most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness’s knowledge, no such prior accidents have occurred.” (Forrest v. Beloit Corporation, supra, 424 F.3d at pp. 355-356, citing Pandit v. American Honda Motor Co. (10th Cir. 1996) 82 F.3d 376, 380-81; Espeaignnette v. Gene Tierney Co. (1st Cir. 1994) 43 F.3d 1, 10 (permitting testimony where manufacturer’s president testified that 87 similar products had been sold in the previous 15 years, and that as president of the company any prior accidents or claims involving these products would have come to his attention); Bilski v. Scientific Atlanta (7th Cir. 1992) 964 F.2d 697, 700; Hines v. Joy Mfg. Co. (6th Cir. 1988) 850 F.2d 1146, 1154 (permitting testimony where defendant’s expert testified that original design of product dated back to the 1950’s and that 200 substantially identical units had been sold by defendant.)
The present case did not involve evidence about safety history elicited from the employees of PWP. Instead, it involved testimony by defendant’s owner, Nemeth, that many similar glue presses had been manufactured and used similarly over a period of time; he would likely be aware of prior accidents involving these products; and to his knowledge, no such prior accidents had occurred. Under the tests set forth in Forrest v. Beloit Corporation, supra, 424 F.3d 344 and many other cases, admission of Nemeth’s testimony was not an abuse of discretion and was not prejudicial. It was also cumulative of the testimony of both plaintiffs’ and defendant’s expert witnesses that they did not know of any other accidents involving an unmodified GA-100.
4. Special Finding
Plaintiffs’ second primary argument is that the accident was caused by the absence of a PSD or an interlocked barrier guard and that there was not substantial evidence to show there was any substantial change in or modification of the GA-100 after it was manufactured and left the factory. The parties agree that the appellate court undertakes a deferential review of this issue. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398.)
A manufacturer must warn about the dangerous condition of a product: “[T]the manufacturer has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom he should expect to use the product or be endangered by its probable use, if the manufacturer has reason to believe that they will not realize its dangerous condition. [Citations.]” (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1076-1077.) In the present case, substantial circumstantial evidence demonstrated that defendant had complied with its legal duty originally by placing warning stickers on the GA-100. (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 548.) Those stickers had been removed at the time the accident occurred.
Furthermore, it is undisputed that PWP changed the location of the gluing table from the original design. Defendant theorized that this alteration made it so the assistant was required to carry wood in the vicinity of the platen lid, creating a greater danger to him. There was also substantial evidence, although it was disputed, that stroke limiters that had been removed before the accident could have prevented the accident. It was not disputed that Arturo Baez was not an experienced worker and was not given safety training by PWP.
We recognize it is plaintiffs’ persistent argument that defendant did not prove that the accident was caused by any of the subject changes or modifications rather than the design. But the jury was not asked to render a special finding on that issue. Instead, the substantial direct and circumstantial evidence about the missing warning labels and stroke limiters and the modified glue table supports the jury’s special finding that the GA-100 was not substantially the same as when it left the factory 20 years earlier. Because we uphold the jury’s special finding on this point, the remainder of plaintiffs’ arguments, which are predicated on their attack on the special finding, need not be addressed.
5. Disposition
We affirm the judgment. Defendant, the prevailing party, shall recover its costs on appeal.
We concur: Richli Acting P. J., King J.