Opinion
B321687
08-30-2024
KEVIN BROOKS et al., Plaintiffs and Appellants, v. MISSION STUCCO COMPANY, Defendant and Appellant.
Frost Law Firm, Scott L. Frost, Andrew L. Seitz, Paul C. Cook; Worthington &Caron and John M. Caron for Plaintiffs and Appellants. Gordon Rees Scully Mansukhani, John P. Katerndahl and Don Willenburg for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeals from an order of the Superior Court of Los Angeles County, Super. Ct. Nos. 19STCV34068, JCCP4674 Michael Levanas, Judge.
Frost Law Firm, Scott L. Frost, Andrew L. Seitz, Paul C. Cook; Worthington &Caron and John M. Caron for Plaintiffs and Appellants.
Gordon Rees Scully Mansukhani, John P. Katerndahl and Don Willenburg for Defendant and Appellant.
ADAMS, J.
Plaintiffs and appellants Kevin Brooks and his spouse, Linda McCarthy (collectively, plaintiffs), sued 18 defendants, contending Brooks contracted malignant mesothelioma from exposure to the defendants' asbestos-containing products. The matter proceeded to a jury trial as to two of the defendants, one of whom was Misson Stucco Company (Mission Stucco). The jury entered a special verdict appearing to find a single design defect in Mission Stucco's products both was and was not a legal cause of Brooks's injuries, while also concluding Mission Stucco bore no comparative fault for the harm Brooks suffered.
Of the 18 defendants, only Mission Stucco is a party to this appeal. While the appeal was pending, we granted the parties' stipulated request for a dismissal of Kaiser Gypsum Company, Inc. from the appeal.
Plaintiffs filed a motion for new trial which, among other things, argued the jury's finding that Mission Stucco had no comparative fault was inconsistent with its finding that a design defect in Mission Stucco's products, defined by the risk-benefit test, was a substantial factor in causing Brooks's harm. The trial court agreed and granted the motion for new trial.
Plaintiffs and Misson Stucco have both appealed. Although the trial court's order granting the new trial motion did not clearly define the scope of the issues to be retried, the parties appear to agree that the trial court limited retrial to the issue of the allocation of fault. In their appeal, plaintiffs contend an additional inconsistency in the special verdict requires a new trial on liability and damages, not just apportionment of fault. Mission Stucco contends the trial court erred in granting the motion for new trial. We conclude that the jury's verdict was inconsistent in a manner that requires a new trial of Mission Stucco's liability, if any, on the design defect theory, in addition to a redetermination of the apportionment of fault if Mission Stucco is found liable. We therefore modify the trial court order and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial established the following facts relevant to this appeal. Brooks lived in California between January 1969 and December 1972. During that time, he worked in the construction industry and used stucco products. He recalled using Mission Stucco's Exterior Stucco and Speedi-Patch products. Both contained asbestos between 1956 and 1976.
The Mission Stucco products came in bags of sand and powder. Brooks's first step when using the products involved opening the bags and emptying the contents into a hopper or mixing tray. Brooks estimated he poured more than 100 bags of Mission Stucco's Exterior Stucco and Speedi-Patch products into hoppers and mixing trays. This process released dust into the air that he inhaled. On more than 100 occasions, Brooks was in the vicinity of other workers who poured Mission Stucco products into hoppers and mixing trays, which also created dust that he inhaled. Brooks's construction job sites were very dusty as a result of the Mission Stucco products, and Brooks inhaled the dust. Once the Mission Stucco bags were empty, he would pick them up and crush them against his chest before throwing them in a dumpster. To clean up job sites, he brushed down the hopper, and shoveled and swept around the area, stirring up dust that he inhaled. Brooks estimated he worked with and around Mission Stucco products for 40 days, eight hours a day, on new construction projects, and between four to eight hours a day on repair and remodel projects.
At trial, the defendants did not dispute that asbestos can cause mesothelioma. However, the testifying experts disagreed as to whether Mission Stucco's products caused Brooks's disease. One of plaintiffs' experts testified that Brooks's exposure to Mission Stucco's products was, to reasonable medical probability, a "substantial factor" contributing to his aggregate exposure to asbestos and his mesothelioma. Another of plaintiffs' experts, an industrial hygienist, testified about the level of asbestos in Mission Stucco's products and opined that Brooks was exposed to asbestos while working with the products. She also testified that the amount of asbestos Brooks was exposed to while working with Mission Stucco products exceeded background levels in the air to a reasonable degree of scientific certainty. She further opined that there is no safe or risk-free level of asbestos exposure.
In contrast, one of Mission Stucco's experts testified that the amount of the specific type of asbestos in Mission Stucco's products was too low to "cause or contribute" to Brooks's mesothelioma. Another Mission Stucco expert testified that Brooks's exposure to asbestos from Mission Stucco's products was "negligible."
There was also evidence that Brooks was exposed to asbestos from the other defendants' products and from nondefendant sources. Plaintiffs presented evidence that Brooks was exposed to asbestos when he worked near automotive brakes and in construction. This included asbestos from brake linings and joint compound products, as well as the products of two other stucco manufacturers. Other potential sources of Brooks's asbestos exposure included insulation, caulk, roof cement and decking.
Plaintiffs presented claims to the jury for (1) strict liability arising from a design defect, based on the consumer expectations and risk-benefit tests, (2) strict liability failure to warn, (3) negligence, and (4) negligent failure to warn.
For plaintiffs' design defect claim, the court instructed the jury on the consumer expectations and risk-benefit tests. As to the consumer expectations test, the court instructed: "Plaintiffs claim that Kevin Brooks was harmed by an asbestos-containing product distributed/manufactured/sold/supplied by defendants that was defectively designed or did not include sufficient instructions or warnings of the potential safety hazards. [¶] Plaintiffs claim that [the] asbestos-containing product's design was defective because [the] asbestos-containing product did not perform as safely as an ordinary consumer would have expected it performed. To establish this claim, plaintiff[s] must prove all of the following: [¶] 1. That the defendants manufactured, distributed, sold, or supplied the asbestos-containing product; [¶] 2. That the asbestos-containing product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in a reasonably foreseeable way; [¶] 3. That Kevin Brooks was harmed; and [¶] 4. That the asbestoscontaining product's failure to perform safely was a substantial factor in causing Kevin Brooks' harm. [¶] Under the consumer expectation test, the consumer is Mr. Brooks or people similar to him."
As to the risk-benefit test, the court instructed: "Kevin Brooks and Linda McCarthy claim that the products designed [sic] caused harm to Kevin Brooks. To establish this claim, plaintiffs must prove all [of] the following: [¶] 1. That defendants manufactured, distributed, or sold the product; [¶] 2. That Kevin Brooks was harmed; and[ ] [¶] 3. That the product's design was a substantial factor in causing harm to Kevin Brooks. [¶] . . . [¶] If plaintiffs have proved these three facts, then your decision on this claim must be for plaintiffs unless defendants prove that the benefits of the product design outweigh the risks of the design. In deciding whether the benefits outweigh the risk[s], you should consider the following. [¶] A) The gravity of the potential harm resulting from the use of the product; [¶] B) The likelihood that this harm would occur; [¶] C) The feasibility of an alternative safer design at the time of the manufacture; [¶] D) The cost of an alternative design; and [¶] E) The disadvantages of any alternative design."
The court instructed the jury on causation: "A substantial factor in causing harm is a factor that a reasonable person would have considered to have contributed to the harm. It does not have to be the only cause of the harm. [¶] . . . [¶] What constitutes a substantial factor for causation purposes needs to be something which is more than a slight, trivial, negligible, or theoretical factor in producing a particular result."
On the allocation of fault, the court instructed: "If you find that the negligence/fault of more than one person including defendants and nonparty tortfeasors was a substantial factor in Kevin Brooks' harm, you must then decide how much responsibility each has by assigning percentages of responsibility [as] to each person listed on the verdict form. The percentages must total 100 percent."
A special verdict form required the jury to make several findings regarding the two design defect theories. In the consumer expectations test portion of the form, question No. 2 asked: "Did defendant's product fail to perform as safely as an ordinary consumer would have expected when used in a reasonably foreseeable manner?" The jury answered "yes" as to Mission Stucco. Question No. 3 asked: "Was [the] defendant's product's design a substantial factor in contributing to Kevin Brooks's risk of developing mesothelioma?" The jury answered "no" as to Mission Stucco.
The next two questions concerned the risk-benefit test. Question No. 4 asked: "Did the risk of defendant's product's design outweigh the benefits of the design?" The jury answered "yes" as to Mission Stucco. Question No. 5 asked: "Was the risk in defendant's product's design a substantial factor contributing to Kevin Brooks's risk of developing mesothelioma?" The jury answered "yes" as to Mission Stucco. The jury separately rejected the failure to warn and negligence theories asserted against Mission Stucco.
Question No. 20 asked the jury: "What percentage of responsibility, if any, for Kevin Brooks's harm do you assign to each of the following? (The total must equal 100%): [¶] [Do not assign any percentage to any defendant(s) for which you did not answer 'Yes' to ANY of Questions 3, 5, 10, 12 or 17.]" A list of 22 tortfeasors followed, including Mission Stucco, Kaiser Gypsum, other stucco manufacturers, brakes manufacturers, and "unknown contractors." Next to Mission Stucco, the jury wrote: "0%." It assigned 10 percent fault to Kaiser Gypsum and the remaining 90 percent to other entities. The jury assigned 0 percent fault to the two other stucco manufacturers listed.
The jury assigned fault to Lavallee Service Station (7 percent), Butlin Buick (3 percent), unknown contractors (10 percent), Bendix Brakes (15 percent), Napa Brakes (15 percent), GM Delco Brakes (15 percent), Hennessey Ammco Brake Grinder (15 percent), Kelly Moore Paco (5 percent), Georgia Pacific (1 percent), United States Gypsum (2 percent), and Hamilton (2 percent).
The jury awarded non-economic damages of $2 million to Brooks and $3 million to McCarthy.
Plaintiffs moved for a new trial, arguing: (1) the trial court wrongfully excluded evidence of certain Occupational Safety and Health Administration (OSHA) regulations; (2) the damages award was inadequate; and (3) the verdict was inconsistent because the jury found a design defect in Mission Stucco's products was a substantial factor in causing Brooks's injury, yet it also assigned Mission Stucco 0 percent of the responsibility for the harm Brooks suffered. The court rejected plaintiffs' first two arguments but agreed that the verdict was inconsistent. It thus granted the motion for new trial on that ground.
The posttrial briefing is not included in the record on appeal. Our understanding of plaintiffs' arguments is based on the reporter's transcript from the hearing on the motion and the trial court's written ruling.
Plaintiffs and Mission Stucco appealed. Plaintiffs argue that, in addition to the inconsistency they identified in the trial court, the special verdict findings on the two tests for establishing a design defect were also fatally inconsistent, necessitating a "full retrial," including "liability and damages." Mission Stucco contends the trial court erred in granting the motion for new trial because there was no irreconcilable inconsistency arising from the jury's comparative fault finding.
In September 2022, four months after the trial court granted the motion for new trial, Brooks passed away. We granted McCarthy's motion for an order substituting her as successor in interest to Brooks's claims.
DISCUSSION
I. Applicable Legal Principles
A. Inconsistent special verdicts
'The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence ....' [Citations.] An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings. [Citation.]" '" (Trejo v. Johnson &Johnson (2017) 13 Cal.App.5th 110, 124 (Trejo); Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357 (Singh).) "Where special verdicts appear inconsistent, if any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them." (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 (Wysinger).) However, "[w]ith a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict." (Singh, at p. 358.)
"' "Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between inconsistent answers." [Citation.]' [Citation.]" (Trejo, supra, 13 Cal.App.5th at p. 124; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682 (City of San Diego).) Further," '" '[w]here the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error.'" [Citations.]' [Citation.]" (Singh, supra, 186 Cal.App.4th at p. 358; Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092 (Zagami) [judgment must be reversed if special verdict is" 'hopelessly ambiguous' "].) We review de novo whether a special verdict is inconsistent. (Trejo, at p. 124; accord, Singh, at p. 358; Zagami, at p. 1092.)
B. Products liability based on design defect
"Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn." (Saller v. Crown Cork &Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1231 (Saller).)" '" 'A product . . . is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor ....'"' [Citation.]" (Camacho v. JLG Industries Inc. (2023) 93 Cal.App.5th 809, 812.)
A design defect may be established through either: "(1) the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) the risk/benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design. [Citations.] Both theories may be presented to the jury." (Sailer, supra, 187 Cal.App.4th at pp. 1231-1232; Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995; Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.)
These "two tests provide alternative means for a plaintiff to prove design defect and do not serve as defenses to one another. A product may be defective under the consumer expectation test even if the benefits of the design outweigh the risks. [Citation.] On the other hand, a product may be defective if it satisfies consumer expectations but contains an excessively preventable danger in that the risks of the design outweigh its benefits." (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1121 (McCabe).)
C. Substantial factor causation in asbestos-related cancer claims
In asbestos-related cancer cases, the plaintiff may seek to prove causation by establishing years of exposure to multiple manufacturers' asbestos-containing products. In Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, the California Supreme Court established a specific test to demonstrate causation in such cases. "In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant's defective asbestoscontaining products, [fn. omitted] and must further establish in reasonable medical probability that a particular exposure or series of exposures was a 'legal cause' of his injury, i.e., a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant's product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff's or decedent's risk of developing cancer." (Id. at pp. 982-983.)
II. The Jury's Verdict Was Fatally Inconsistent
We agree with plaintiffs that the jury's design defect findings were inconsistent and cannot be reconciled. We thus reject Mission Stucco's argument that the trial court erred in granting a new trial.
Plaintiffs did not raise below the inconsistent jury findings they now challenge on appeal. While a party generally must raise issues in the trial court to preserve them for review on appeal, the issue of an inconsistent jury verdict is typically not forfeited by a party's failure to object in the trial court. (Trejo, supra, 13 Cal.App.5th at p. 123, fn. 4; Zagami, supra, 160 Cal.App.4th at pp. 1092-1093, fn. 6; Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1182 (Lambert); Remy v. Exley Produce Express, Inc. (1957) 148 Cal.App.2d 550, 554-555.) Mission Stucco has not argued plaintiffs forfeited the arguments they raise on appeal by failing to assert them in the trial court. We also note that Mission Stucco's cross-appeal implicates the same issue plaintiffs raise in their appeal. Mission Stucco has argued the trial court erred in granting the motion for new trial; plaintiffs may permissibly argue that the order was correct on a theory not argued in the trial court, regardless of the trial court's expressed reasons for issuing the order. (Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1339 [order affirmed if correct on any theory, irrespective of trial court reasons; respondent may therefore assert a new theory to establish an order was correct on that theory unless doing so would prejudice appellant by depriving him of opportunity to litigate an issue of fact].)
Plaintiffs' sole design defect theory was that Misson Stucco's products contained asbestos. (See Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 660 [considering "theory of the case reflected in counsels' arguments and the jury instructions" in determining whether the special verdict was inconsistent].) The consumer expectations and riskbenefit questions in the special verdict form reflected alternative means of establishing a single design defect. (McCabe, supra, 100 Cal.App.4th at pp. 1120-1121.) Once the jury found Mission Stucco's products had a design defect under either test, that defect either was a substantial factor in Brooks's injury or was not. Question Nos. 3 and 5 of the verdict form therefore asked the jury the same question, namely, whether Mission Stucco's products' design was a substantial factor in contributing to Brooks's risk of developing mesothelioma. After concluding Mission Stucco's products were defective in design under both tests, there was no basis for the jury to find that the defective design both was and was not a substantial factor in bringing about Brooks's injury.
Two aspects of the special verdict form may have led to confusion here. First, the form asked the causation question twice, instead of presenting it a single time after the jury's findings on both design defect theories. (See, e.g., CACI VF-1201.) Second, question Nos. 3 and 5 used slightly different language, potentially obscuring that the questions related to a design defect generally, no matter how the defect was defined.
When a verdict is" 'hopelessly ambiguous,' the judgment must be reversed." (Zagami, supra, 160 Cal.App.4th at p. 1092.) Lambert, supra, 67 Cal.App.4th 1179, illustrates the principle. In Lambert, the plaintiff was injured in an automobile accident and brought a strict products liability action against the vehicle manufacturer. At trial, the plaintiff asserted strict liability and negligence claims, both based on the design of the vehicle. In a special verdict form, the jury found there was no defect in the design of the vehicle, but also found the manufacturer was negligent in the design of the vehicle. (Id. at p. 1182.) The record disclosed no evidence of negligence except negligent design. As a result, if the vehicle's design was not defective, the manufacturer could not be deemed negligent. The jury could not have concluded the manufacturer negligently designed the vehicle and at the same time concluded there was no design defect. The reviewing court therefore held the verdict was irreconcilably inconsistent and required reversal. (Id. at pp. 1185, 1186; see also Trejo, supra, 13 Cal.App.5th at p. 123 [inconsistent verdict where jury found the defendant liable for negligent but not strict liability failure to warn based on the same injury from same product].)
The inconsistency in this case is even more apparent as the jury answered yes and no to what was essentially the same question. The evidence regarding causation did not differ based on the particular design defect theory. As a result, once the jury found the asbestos in Mission Stucco's products constituted a design defect under either theory, it could make only a single finding about whether the defect was a substantial factor in causing Brooks's injury. "[A] jury's special verdict findings must be internally consistent and logical" (City of San Diego, supra, 126 Cal.App.4th at p. 681), and the findings here cannot be reconciled.
Mission Stucco does not argue the jury's causation findings were consistent or reconcilable. Instead, it contends any inconsistency between the jury's findings on the two causation questions is of no consequence because plaintiffs would not be entitled to additional or different damages if the jury had twice found the design defect was a substantial factor in causing
Brooks's injuries. However, Mission Stucco's argument would require us to accept the jury's finding that the design defect was a substantial factor in causing Brooks's harm in the risk-benefit section of the verdict form, and to reject the jury's finding that the defect was not a substantial factor in causing Brooks's harm in the consumer expectations section. This is impermissible. When confronted with an inconsistency between answers within a special verdict, neither the trial court nor this court may choose between inconsistent answers. (Trejo, supra, 13 Cal.App.5th at p. 124.)
The court in City of San Diego, supra, 126 Cal.App.4th 668, rejected a similar harmless error argument in an eminent domain action. The City of San Diego argued that even if two of the jury's findings related to damages were inconsistent, the error was harmless. The City contended that even assuming a consistent verdict would have led the jury to award less of a specific form of damages (severance damages), a third, separate finding (project benefits) would have offset those damages, resulting in no change to the jury's ultimate award. (Id. at p. 677.)
The Court of Appeal dismissed this contention, explaining: "In advancing its harmless error argument, City essentially asks that we credit the jury's finding as to project benefits, and discredit its finding as to severance damages before benefits. Because this court is not entitled to draw inferences in favor of the jury's special verdict findings, we cannot conclude the jury's determination of project benefits should stand while the jury's determination of severance damages before project benefits should fail." (City of San Diego, supra, 126 Cal.App.4th at p. 685.) Similarly, we cannot conclude the jury's finding that the design defect in Mission Stucco's products was a legal cause of Brooks's injuries should stand, but the jury's finding that the design defect was not a legal cause of Brooks's injuries should fail.
In its cross-appeal, Mission Stucco argues the trial court erred in concluding the jury's findings under the risk-benefit design defect theory were necessarily inconsistent with the finding that Mission Stucco had no comparative responsibility for Brooks's harm. We need not reach this question. Even assuming those two findings alone were not irreconcilably inconsistent, the verdict would still be fatally inconsistent because of the jury's causation findings. The jury's answers to question Nos. 3 and 5 in the special verdict form make it impossible to determine whether the jury found Mission Stucco liable under a design defect theory at all. Without a finding on liability, the apportionment of fault finding cannot independently stand. Taken together, these three findings are materially inconsistent, and we are unable to draw any conclusions or inferences to explain the apparent conflict. (Wysinger, supra, 157 Cal.App.4th at p. 424.) We reject Mission Stucco's argument that the order granting the motion for new trial must be reversed.
III. Scope of the New Trial
On appeal, plaintiffs contend the inconsistencies in the special verdict necessitate a new trial on "liability and damages," not just apportionment of fault. We conclude the trial court could properly order a limited retrial, however, to the extent the order authorized a new trial on apportionment of fault only, it must be modified to allow the parties to retry Mission Stucco's liability, if any, under the strict products liability design defect theory.
At the hearing on plaintiffs' motion for new trial, the trial court indicated a new trial limited to apportionment of fault was its tentative order; however, the final order did not explicitly define the scope of the new trial. The appellate record also does not establish that plaintiffs sought a new trial on all issues. In the absence of a clear indication that plaintiffs requested a full retrial and were denied (Cobb v. University of So. California (1996) 45 Cal.App.4th 1140, 1144), or that the trial court in fact issued a limited new trial order, we might question whether plaintiffs are aggrieved by the trial court order granting their motion for new trial. However, Mission Stucco's cross-appeal also implicates the issue of the scope of the new trial. Mission Stucco was indisputably aggrieved by the trial court order granting a new trial and has argued that only a new trial limited to apportionment of fault is warranted.
Following the grant of a motion for new trial, or reversal on appeal, a limited retrial is appropriate when some issues may be determined separately without prejudice to any party. Limiting the issues to be retried may "relieve the trial court and the parties of the unnecessary burden of relitigating issues that have been decided," and may also "respect and preserve the results of a trial on issues as to which the appellant has not shown error." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696.) In considering the scope of retrial on remand, we find instructive O'Kelly v. Willig Freight Lines (1977) 66 Cal.App.3d 578 (O'Kelly), and Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4th 1651 (Curties).
In O'Kelly, the trial court granted a motion for new trial on the ground of insufficient evidence to support the jury's verdict that the plaintiff's injuries were 50 percent attributable to the defendant's negligence and 50 percent to the plaintiff's contributory negligence. (O'Kelly, supra, 66 Cal.App.3d at p. 582.) On appeal, the defendants argued that, if affirmed, the trial court's order should be treated as limiting a new trial to the apportionment of fault between the parties. (Id. at p. 583.)
A majority of the reviewing court agreed, finding it was clear the trial court did not intend a new trial on all issues, or a retrial of the total amount of damages. (O'Kelly, supra, 66 Cal.App.3d at p. 583.) The court further explained: "It is true that, in order to make a proper allocation of damage, the jury on the new trial will have to hear, and weigh, anew, all of the evidence dealing with the conduct of the parties, but the jury may, properly, be told, when the case is submitted to them that: (a) as matter of the law of this case, they must find that each party is negligent in some degree; (b) they must proceed on the assumption that the total damage was $16,147.43; and (c) their sole function is to apportion that total damage between the parties." (Ibid.) The court thus modified the new trial order and otherwise affirmed. (Id. at p. 584; accord, Collins v. Plant Insulation Co. (2010) 185 Cal.App.4th 260, 276 (Collins).)
In Curties, the appellate court held the trial court erred in instructing the jury on the defense of the assumption of risk and reversed the judgment entered on a defense verdict. The plaintiff argued the case should be remanded only for a redetermination of damages. (Curties, supra, 14 Cal.App.4th at p. 1656.) The reviewing court rejected the argument because the jury's findings did not exclude the possibility of contributory negligence. However, the court still adopted the reasoning of O'Kelly and applied it "to the extent feasible ...." (Id. at p. 1657.) The court remanded with directions to the trial court to conduct a partial retrial on the degree of the defendant's negligence, the plaintiff's comparative fault, if any, and damages, if any. The appellate court further directed that the jury should be instructed that it was permitted to weigh the conduct of both parties, but also that the law of the case required a finding that the defendant was negligent to some extent, "i.e., at least 1 percent." (Ibid.)
Here, plaintiffs assert the matter must be remanded for a trial on "liability and damages." Mission Stucco contends that if the new trial order is affirmed at all, there is no basis for a retrial of liability or damages and, "the most even the trial court ruled should be subject to new trial is allocation of fault."
As in O'Kelly and Curties, we agree that only a limited retrial is necessary. Plaintiffs have neither challenged the trial court order denying the motion for new trial on the ground of inadequate damages nor asserted any basis to disturb the jury's findings on the total amount of damages. (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 457 [modifying and limiting new trial to apportionment of liability where retrial of entire case not warranted]; Collins, supra, 185 Cal.App.4th at p. 276 [retrial properly limited to apportionment of fault where no challenge to jury's liability verdict].)
Plaintiffs argue that the verdict was a "compromise verdict" that must be remanded for a "full retrial of both liability and damages," citing Beagle v. Vasold (1966) 65 Cal.2d 166 (Beagle). We disagree. Beagle concerned a personal injury suit arising from a single-vehicle automobile accident. (Id. at p. 170.) The plaintiff, a passenger in the car, sued the driver's estate and the driver's wife. (Id. at p. 170, fn. 1.) Although the jury returned a verdict in the plaintiff's favor, the plaintiff argued the damages awarded were inadequate. (Id. at p. 170.) The sole issue before the California Supreme Court was whether the trial court erred in prohibiting plaintiff's counsel from stating in argument to the jury the amount of general damages the plaintiff was seeking.
The Beagle court determined the trial court erred in limiting counsel's argument, then turned to whether the error was prejudicial. The court found prejudice, reasoning, "When prejudicial error appears in the determination of the issue of damages, 'It has been held that on an appeal from a judgment where the evidence as to liability is "overwhelming" a retrial may be limited to the issue of damages. [Citations.] Where, however, the evidence as to liability is in sharp and substantial conflict, and the damages awarded are so grossly inadequate as to indicate a compromise on the issues of liability and damages, the case should be remanded for a retrial of both issues.' [Citations.]" (Beagle, supra, 65 Cal.2d at p. 183.)
For this proposition, the Beagle court quoted Clifford v. Ruocco (1952) 39 Cal.2d 327 (Clifford). In Clifford, our Supreme Court similarly considered an appeal from a jury verdict in a personal injury action arising out of an automobile accident. The issue on appeal was the adequacy of the jury's damages award. (Id. at p. 328.) The court found the amount of damages awarded inadequate as a matter of law because it was lower than some of the plaintiff's undisputed damages and loss of earnings; however, it found a "sharp and substantial conflict" in some of the evidence regarding liability. (Id. at p. 330.) The court therefore concluded, "[I]t would appear that the verdict was the result of a compromise on the issues of liability and damages, and substantial justice requires that the case be retried in its entirety." (Ibid.)
In contrast to Beagle and Clifford, nothing about the jury's verdict here suggests a compromise on the issues of liability and the total amount of damages, which the jury assessed at $5 million. While the appellants in Beagle and Clifford challenged the amount of damages on appeal, plaintiffs have not argued on appeal that the damages award was inadequate. Indeed, given the nature of this case, which involved over 20 tortfeasors, the extent of the harm Brooks suffered and the monetary value associated with those injuries were issues distinct from the question of which entities were responsible. While the jury's findings could have been the result of a compromise on the issues of liability and allocation of fault, there is no basis to conclude that any such compromise affected the jury's decision on the total amount of damages. Beagle and Clifford do not concern allocation of damages and do not persuade us that a new trial on the issue of total damages is warranted.
Plaintiffs' opening brief makes only a passing reference to inadequate damages. This is insufficient to present the issue for review on appeal. Although plaintiffs sought a new trial on the ground of inadequate damages, the trial court rejected the argument, and we deem it abandoned on appeal. (Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 653; Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 497-498.)
The order granting a new trial is thus modified to permit plaintiffs to retry the issues of Mission Stucco's liability under a design defect strict products liability theory, in addition to a redetermination of the allocation of fault if Mission Stucco is found liable. The jury may properly be told that they must proceed on the assumption that the total damage was the amount found by the first jury.
IV. OSHA Regulations
Finally, plaintiffs argue the trial court erred by excluding evidence of certain OSHA regulations. Before trial, plaintiffs filed a request for judicial notice of several OSHA regulations. Mission Stucco did not oppose judicial notice by the trial court but objected to providing the regulations to the jury. The court sustained Mission Stucco's objection to the admission of the OSHA regulations into evidence, finding they did not "add[ ] anything to the information the jury" already had.
Under Evidence Code section 352, the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. In sustaining Mission Stucco's objection, the trial court stated: "Everyone's testified about it [the OSHA regulations] ad nauseam. I don't think it adds anything to the information the jury has." The court further explained: "That request is denied. It's not necessary. Everyone has been-if you haven't asked questions about that statute in this case, I'm not going to go into it at this time. Okay? I'm not going to have other witnesses come." We infer from this discussion that the trial court conducted an Evidence Code section 352 analysis and excluded the evidence on that ground. (People v. Homick (2012) 55 Cal.4th 816, 864 [finding no abuse of discretion where, "the trial court did not specifically cite Evidence Code section 352" but "its ruling clearly rested on that provision"].)
On appeal, plaintiffs argue that judicial notice of the regulations was mandatory under Evidence Code section 451, subdivision (b). However, they concede that even if the trial court was required to take judicial notice of the regulations, it retained the discretion to exclude the evidence pursuant to Evidence Code section 352.
We review the trial court's decision to admit or exclude evidence under Evidence Code section 352 for an abuse of discretion. (People v. Thomas (2023) 14 Cal.5th 327, 358.) We "do not disturb the trial court's ruling unless it was arbitrary, capricious, or made in a' "patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (Ibid.)
Plaintiffs contend the OSHA regulations would have showed: (1) governmental agencies concluded asbestos exposure causes fatal disease; (2) there is no safe level of exposure to asbestos and compliance with minimal OSHA standards does not prevent disease; (3) asbestos exposure at low levels causes disease; (4) chrysotile asbestos, the type of asbestos used in Misson Stucco's products, causes cancer; (5) minimal compliance with regulations does not prevent disease; and (6) products emitting respirable asbestos fibers must be labeled. Plaintiffs assert the OSHA regulations would have provided the jury this information from an "impartial" source, thus the trial court committed prejudicial error by excluding them.
We find no abuse of discretion. Experts for both the plaintiffs and defendants testified that OSHA has concluded asbestos exposure causes mesothelioma, including from chrysotile asbestos. Defendants' experts further testified that OSHA's "official statement" is that there is no "safe" level of asbestos exposure, including from chrysotile asbestos. Defendants' experts additionally testified that although OSHA has created a permissible exposure limit for exposure to asbestos in the workplace based on an "acceptable risk," the agency has also concluded, as indicated in its official statements, that there is still a "significant risk" even at that level, and there is "no safe level of the carcinogen." Thus, the jury was informed by defendants' experts that compliance with OSHA standards does not prevent mesothelioma.
While the substance of the OSHA regulations was conveyed through the testimony of plaintiffs' and defendants' experts rather than by the regulations themselves, the experts' testimony explained that OSHA is a regulatory agency that is part of the federal government. An expert for the plaintiffs also explained that the National Institute of Occupational Safety and Health (NIOSH), is a scientific agency that makes recommendations to OSHA, based on the "best possible scientific knowledge and proposals for regulation." Those recommendations have included that OSHA issue a warning that asbestos causes cancer. An expert for the defendants similarly informed the jury that NIOSH is also part of the federal government, is the "research arm" for OSHA, and proposes regulations for OSHA based on its research. The defendants did not dispute or challenge the plaintiffs' experts' descriptions of the OSHA regulations. There was no dispute about what the regulations actually state.
Under these circumstances, the trial court was well within its discretion to conclude admitting the regulations would have been cumulative, and the risk of undue consumption of time outweighed the probative value of evidence that had already been presented to the jury in another form. (People v. Nicolaus (1991) 54 Cal.3d 551, 582, 583 [after expert's testimony about documents that formed his opinion, no abuse of discretion to exclude the documents because "admission of the documents themselves into evidence would have merely been cumulative"].) "The trial court has discretion to refuse to admit cumulative evidence" and the" 'exclusion of evidence which has only a cumulative effect will not justify reversal on appeal....' [Citations.]" (Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371.) We find no abuse of discretion in the trial court's evidentiary ruling. The exclusion of the OSHA regulations was not reversible error and does not justify a retrial of all of plaintiffs' claims.
DISPOSITION
The trial court order granting a new trial is affirmed and modified to include retrial of liability for design defect strict products liability as to Mission Stucco, in addition to a redetermination of allocation of fault if Mission Stucco is found liable. The matter is remanded for further proceedings not inconsistent with this opinion. The parties to bear their own costs on appeal.
We concur:
EDMON, P. J. BERSHON, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.