Opinion
B153966.
7-17-2003
CALVIN R. LANE et al., Plaintiffs and Respondents, v. GASKET HOLDINGS, INC., Defendant and Appellant.
McKenna, Long & Aldridge, William J. Sayers, Margaret I. Johnson, and Joanne L. Rosen, for Defendant and Appellant. Davis & Heubeck and Joseph Daniel Davis, Charlotte E. Costan, for Plaintiffs and Respondents.
INTRODUCTION
In this asbestos-exposure case brought by a retired Navy seaman, Calvin R. Lane, the jury found defendant Gasket Holdings, Inc. liable and rendered a verdict in favor of plaintiffs, Calvin and his wife Alicia Lane, and awarded them damages in excess of $ 4 million. In its appeal from the judgment and from the ensuing denial of its motion for new trial, Gasket Holdings assigns as error the exclusion of evidence and of certain witness testimony, insufficiency of the evidence, and instructional error. Because we discern no error requiring reversal, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Procedural predicate.
Calvin Lane was diagnosed in September 1999, with mesothelioma, a fatal lung cancer caused by his exposure to asbestos. There is no cure for this disease, which has an extremely long latency period. In February 2000, Lane and his wife filed a complaint against numerous defendants, including Gasket Holdings, individually and as successor-in-interest to Flexitallic, Inc., makers of gaskets and other products containing asbestos. Lane alleged he was exposed to asbestos between 1965 and 1969, while serving in the Navy aboard the U.S.S. Holder.
After dismissal or bankruptcies of all other defendants, trial commenced on May 9, 2001, against Gasket Holdings for damages for strict product liability and loss of consortium. Lane elected to try the case based on the consumer expectation test.
In September 2002, the bankruptcy court vacated the automatic stay in Gasket Holdings bankruptcy for the purpose of permitting the parties to litigate the instant state-court action.
2. Factual history.
Lane joined the Navy in 1964, after leaving high school. Following training and a brief period on a submarine, he served on the destroyer, the U.S.S. Holder, between mid-March 1965, and the end of August 1969. While serving on the Holder, Lane worked in the boiler room known as Bravo 3. Bravo 3 was a contained environment, with entry through two hatches. Lane, alone with 15 others, spent eight hours a day in Bravo 3, and then served a four-hour daily watch. He was also on duty during special ship-functions.
Gasket Holdings manufactured Flexitallic spiral wound gaskets, comprised of alternating spirals of metal and chrysotile asbestos fibers, wrapped in a metal binder. The spirals were located in an inner ring surrounded by a metal outer ring. Spiral wound gaskets were used to seal joints in high-pressure, high-temperature piping, such as the piping in boiler rooms on ships, to prevent leaks where two pieces of pipe are joined. The gasket was placed between two pieces of pipe and pushed together very tightly. This allowed the asbestos to expand to prevent leaking.
One of Lanes duties was to repair leaks in the steam pipes. When a pipe sprang a leak, Lane would, among other things, loosen the bolts holding the flanges by using penetrating oil, wrenches, and a sledge hammer, to expose the Flexitallic gasket sandwiched between the grooved flanges. The gaskets always stuck to the flanges, often disintegrating when removed, necessitating the use of a wire brush to clean the surfaces before installing new gaskets. He would pry the gasket off, brush off the gasket material that stuck to the grooves in the flanges and blow the residue out. Nearly every flange needed some brushing and scraping. Afterwards, Lane would replace the old gasket with a new one. Two other sailors worked next to Lane doing the same repairs, an average of four to five times a week.
In addition to the steam pipe gaskets, Lane also worked with man-hole and hand-hole Flexitallic asbestos gaskets. Lane replaced man-hole and hand-hole gaskets five or six times each in the 52 months he was aboard the Holder.
During storage, gaskets became dusty and would bounce around. Hence, Lane would have to blow off the asbestos dust and wipe the gaskets with a rag before installing them.
When removing gaskets, Lane never disturbed the material covering the pipes and never saw anyone else remove that material. He explained, "everything was clean and ship shape." The Holders pipe insulation was always sealed under several layers of paint. "We painted it [the pipe] a couple hundred times . . . because everything in the Navy that didnt move had to be painted, and everything that did move had to be saluted."
When the Holder underwent an overhaul at the Norfolk Naval Shipyard in Virginia, dust was not generated because the retrofit was accomplished by cutting a hole in the ships deck and hauling the equipment out. Asbestos was not removed while Lane was aboard.
Other than two weeks aboard the U.S.S. Wiltsie, where Lane did the same work installing, removing, inspecting, and replacing Flexitallic gaskets, Lane was never around other gaskets or insulation while in the Navy. He did not recall ever seeing boxes of Johns Manville or Armstrong pipe covering where he worked. Lane had no idea that Flexitallic gaskets contained asbestos, or that they could cause cancer far into the future. He expected he could use them safely.
In September 1999, Lane learned he was suffering from this "complete carcinogen" that is caused by exposure to asbestos. In October 1999, Lane underwent an extrapleural pneumonectomy, followed by chemotherapy and then radiation. The survival rate of mesothelioma patients who undergo this surgery is "pretty dismal." Not only is the surgery high risk, but the results are not favorable. Post surgery, the two-year survival rate is 25 percent; the five-year survival rate is 9 percent.
3. Plaintiffs causation evidence.
Lanes theory of liability was that his exposure to asbestos from the Flexitallic gaskets caused his mesothelioma. Lane presented the following evidence of causation: The only known cause of mesothelioma is exposure to asbestos. All kinds of asbestos can cause mesothelioma. Generally speaking, the more one is exposed to asbestos, the more likely one is to develop an asbestos— related disease. Still, mesothelioma can occur with even brief exposures. The disease takes decades to develop.
Samuel Hammar, M.D., a pathologist with an expertise in asbestos-related diseases, explained that mesothelioma can develop in one who has had a very low exposure to asbestos. He testified, "theres no threshold below which any type of bystander or occupational exposure to asbestos cannot potentially cause mesothelioma." Greater exposure for a short period of time could cause mesothelioma. Dr. Hammar testified further that Lanes low but concentrated exposure to the asbestos in the ships boiler room was sufficient to cause his disease. Continuing, Dr. Hammar explained, "Lane did the Flexitallic gaskets work. That was exposure. And that was causative of his mesothelioma. . . ."
4. The defense evidence on causation.
Gasket Holdings sought to demonstrate that Lanes contact with Flexitallic gaskets produced an infinitesimal exposure to chrysotile asbestos in comparison to his exposure to other asbestos-containing products aboard ship. Gasket Holdings attempted to show Lanes disease could have been caused by other products such as asbestos pipe insulation.
Toward that end, defendants called Dr. Egilman, an epidemiologist with a masters degree in public health and occupational medicine. Dr. Egilman testified that Lanes exposure to Flexitallic gaskets did not contribute to his disease. Dr. Egilman also testified he was more than 99 percent certain that Lanes mesothelioma was caused by asbestos and, given 95 to 97 percent of all fibers used in the United States were chrysotile, that chrysotile asbestos was the most important fiber causing the majority of mesotheliomas. Absent any other exposures, Dr. Egilman conceded Lanes cancer was caused by asbestos.
Dr. William Hughson, a clinical professor at the University of California at San Diego, agreed that asbestos exposure causes mesothelioma, but only "massive exposures" to the chrysotile form will cause the disease. He opined that Lanes exposure to the Flexitallic gaskets was insufficient to cause his disease because Lanes exposure from Flexitallic gaskets would be a "tiny fraction of 1 percent of the background exposure."
Industrial hygienist John Spencer is a civilian employee of the Coast Guard who works on asbestos abatement projects. Spencer tested seven Flexitallic gaskets with openings of three-quarter to one-inch. The pipes and flanges that he tested were of unknown age and years of use and came from a chemical plant, not from a ship. Measuring only fibers that were 5 microns in length that were released into the air, excluding those that fell onto the table, Spencer found a mean level of exposure of .009 to .01 fibers per cubic centimeter (cc) of air, or below general background levels.
Both Lanes and defendants experts agreed there would be no respirable fibers in a properly maintained boiler room because the fibers would have been encapsulated by layers of paint. No one controverted Lanes testimony that the Holders boiler room was well maintained, without any breaks or tears in the pipe covering.
5. The judgment.
At the close of trial, the jury returned a nine-to-three verdict in favor of the Lanes, finding that the Flexitallic gaskets were defective because they failed to perform as safely as the ordinary user would expect, and the defect was a cause of Lanes mesothelioma.
The trial court denied Gasket Holdings motion for new trial. After allowing for set-offs for settlements from other defendants, judgment was entered in favor of Calvin Lane for $ 3,303,998, and Alicia Lane $ 750,000. Gasket Holdings appealed.
CONTENTIONS
Gasket Holdings contends (1) the trial court (a) erred in denying Gasket Holdings request to extend discovery beyond the cutoff date; (b) abused its discretion in excluding the testimony of certain of Gasket Holdings witnesses; (c) erred in instructing on the "consumer expectation" test; and (2) there is insufficient evidence to support the verdict.
DISCUSSION
1. The trial court did not abuse its discretion in denying Gasket Holdings request to continue trial and application to reopen discovery.
Gasket Holdings contends that the trial court erred in denying its application to reopen discovery and to continue trial for the purposes of deposing two out-of-state shipmates of Lanes to counter Lanes testimony about asbestos exposure on the Holder.
a. Factual background.
Trial was originally scheduled for February 21, 2001, but was then continued to April 4, 2001, and finally set for May 9, 2001.
Meanwhile, on April 13, 2001, after the second continuance, Gasket Holdings filed an ex parte application of issuance for out-of-state commissions for subpoenas for preservation of testimony of Fred Harrison and Edward Martin, shipmates of Lanes who also worked in the boiler room. In support of the motions, Gasket Holdings counsel indicated they had only learned of the existence of Harrison, a Floridian, during Lanes deposition on January 31, 2001. Gasket Holdings counsel then hired an investigator in February 2001, who located Harrison on March 20, 2001. During the search for Harrison, Gasket Holdings learned of Martin, a resident of Ohio, and located him on March 22, 2001.
In opposing the motion to continue trial, Lanes attorneys noted Lane had actually identified Harrison and three other shipmates with whom he had served on the Holder nearly a year earlier, in his responses to interrogatories served in May 2000. Hence, Gasket Holdings had known of Harrisons identity for eight months before Lanes deposition, and nearly a year before it sought to continue trial. After noting trial had already been continued twice, Lane explained he had never moved for trial preference because he had relied on the courts prior representations that trial would go forward on the scheduled date. He cautioned the court, any further delay of trial would put him at substantial risk he would die before trial commenced.
The trial court denied Gasket Holdings ex parte application for out-of-state subpoena commissions on April 13, 2001, citing Code of Civil Procedure section 2024, subdivision (a), and stating "discovery is closed." After a hearing, on May 4, 2001, the court denied Gasket Holdings motions to continue trial and the corresponding discovery cut-off date finding Gasket Holdings did not show it had been diligent in attempting to locate the witnesses.
b. Legal analysis.
The decisions to reopen discovery and to continue trial are committed to the sound discretion of the trial court (Code Civ. Proc., § 2024, subd. (e); Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249), which cannot be disturbed on appeal without a clear showing of abuse. (Lazarus, supra, quoting from Foster v. Civil Service Com. (1983) 142 Cal. App. 3d 444, 448, 190 Cal. Rptr. 893.)
With respect to continuances, California Rules of Court are explicit: "Continuances before or during trial in civil cases are disfavored[]" and "the date set for trial shall be firm." (Cal. Rules of Court, rule 375(a).) Toward that end, "[a] continuance before or during trial shall not be granted except on an affirmative showing of good cause under the standards recommended in section 9 of the Standards of Judicial Administration." (Ibid, italics added.)
Turning to section 9 of the Standards of Judicial Administration, they provide generally, "the necessity for the continuance should have resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with reasonable diligence and cannot now be properly provided for other than by the granting of a continuance." Section 9 lists the following matters that "should, under normal circumstances, be considered good cause for granting the continuance of a trial date: [P] (1) Death . . . . [P] (2) Illness . . . . [P] (3) Unavailability of trial attorney or witness . . . . [P] (4) Substitution of trial attorney . . . . [P] (5) Significant change in status of case . . . ."
Turning then to motions to reopen discovery, Code of Civil Procedure section 2024, subdivision (e) provides that in exercising its discretion to grant or deny such a motion, the court must consider, among other things, "(2) The diligence or lack of diligence of the party seeking the discovery . . . and the reasons that the discovery was not completed . . . . [P] (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party." The record here supports the courts conclusion Gasket Holdings was not diligent in locating Harrison and Martin. Gasket Holdings was aware of Harrison and three other shipmates in May 2000, a year before it sought to continue trial and extend discovery. Then, nothing was pursued until February 2001. What Gasket Holdings failed to demonstrate to the trial court was good cause for waiting until February 2001, to commence a search for the witnesses locations.
Nor are we influenced by Gasket Holdings argument that it was not until Lanes deposition, on the eve of trial, that it became aware of Lanes contention that Flexitallic gaskets were the only asbestos-containing product to which Lane was exposed. Even were we to accept Gasket Holdings implied rationale that the posture of the case changed significantly in January 2001 during Lanes deposition, Gasket Holdings waited ten weeks after that deposition, or three weeks after its investigator claims to have located Harrison and Martin, or four days after expiration of the newest discovery cut-off date to move on April 13, 2001, for issuance of out-of-state commissions for deposition subpoenas. By then, discovery had closed. (Code Civ. Proc., § 2024, subd. (a).)
Manifestly, the delay of this case would prejudice Lane. The Lanes never filed a motion in the trial court seeking preference, with the result Gasket Holdings is correct this case was never officially made "a preference matter." Yet, the Lanes explained to the trial court they had not sought preference in reliance on the courts earlier representations that the trial would finally go forward on the scheduled date, and also that delay would place Lane at substantial risk he would die before he had his day in court. The court was aware that any delay by continuing trial would have prejudiced Lane. There was no abuse of discretion in denying the request to extend discovery and trial.
Gasket Holdings reliance on Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 15 Cal. Rptr. 90, 364 P.2d 266, to justify reversal is unavailing given Greyhound was decided decades before institution of fast track and the delay reduction rules, which completely reoriented the courts timetables and changed the standards by which courts measure requests for continuances.
2. Exclusion of testimony.
a. The trial court properly excluded portions of Dr. Egilmans opinion testimony.
Gasket Holdings contends the trial court abused its discretion in excluding portions of Dr. Egilmans expert opinion testimony.
Dr. Egilman had not personally tested Flexitallic gaskets. He proposed to testify to his opinion about the levels of asbestos exposure of naval seamen during the 1960s, based on (1) an unpublished medical study conducted at the Mare Island Naval Shipyard, and (2) numerous conversations he had with and statements made by servicemen and shipyard workers, none of whom had served on the Holder and all of whom had worked at the Fore River Shipyard in Massachusetts. The trial court ruled, absent a proper foundation, Dr. Egilman could not testify about opinions he formed from those conversations or from the unpublished study.
"[Courts enjoy] broad discretion in ruling on foundational matters on which expert testimony is to be based. [Citations.]" (Korsak v. Atlas Hotels, Inc . (1992) 2 Cal.App.4th 1516, 1523.) Trial courts have the duty to require adequate foundation for expert opinion and to restrict expert testimony to areas of claimed expertise. (Ibid.) While trial courts will allow experts some latitude in the sources of information used to form opinions (id. at p. 1524), courts may reject expert opinions "`where the basis of the opinion is unreliable hearsay . . . . [Citation.]" (Ibid.)
"Nevertheless, hearsay information of a type reasonably relied upon by professionals in the field in forming an opinion on the subject may be used to support an expert opinion, even though not admissible in court. [Citations.] The rationale for this rule has been stated: [P] `When the experts opinion is not based on matter perceived by or personally known to him, but depends on information furnished by others, the opinion will be of little value unless the source is reliable. . . . [Citation.] [P] The matters need not be admissible. . . . Many types of information which could not be directly produced as competent evidence are nevertheless commonly used by experts in forming their opinions. [Citations.] [Citation.]" (Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at p. 1524, original italics.) " `It is suggested that the factors of necessity and relative reliability be given strong consideration. If, for example, an expert is using hearsay to support his opinion, it should be considered an improper matter unless the elements of necessity and indications of reliability are present. If there is no necessity for the use of hearsay and there is little indication of trustworthiness, a finding against reasonable reliance by an expert is justified. Whether a matter used by an expert consists largely of conjecture or speculation is another important consideration. The factors of necessity, reliability, and speculation or conjecture at least provide some guideposts for the judge in determining whether a proffered expert opinion satisfies the requirements of [citation] . . . . [Citation.]" (Korsak v. Atlas Hotels, Inc., supra, 2 Cal.App.4th at p. 1524, original italics, quoting from 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 29.3, pp. 1001-1002.)
Here, the court did not abuse its discretion to exclude that portion of Dr. Egilmans opinion which was based on conversations with shipyard workers. There was no showing Dr. Egilmans hearsay discussion with shipyard workers in Massachusetts about their exposure to asbestos is reliable. Whether the shipyard workers contracted mesothelioma from their unique circumstances of asbestos exposure at the Fore River Shipyard would itself, as in this case, be a matter for expert opinion, not the conjecture of the lay shipyard worker. Nor was there a showing such imprecise, anecdotal information, without more, is of the type normally used by researchers in the field. Moreover, Lane had clearly no opportunity to cross— examine these heresay declarants about the basis of their accounts. (Evid. Code, § 804.) (See Korsak v. Atlas, Inc., supra, 2 Cal.App.4th at p. 1526.) Therefore, that portion of Dr. Egilmans opinion which was based on those conversations was inadmissible. Gasket Holdings contention is unavailing that the general consistency of the statements of these shipyard workers lends reliability to the statements. These informal, non-scientifically analyzed, out-of-court conversations, made 40 years after the fact, with workers who did not serve on the Holder, or with Lane, are neither relevant nor reliable merely because they are "generally consistent." Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal. App. 3d 1244, 226 Cal. Rptr. 306, cited by Gasket Holdings, does not advance its argument. In Williams, the hearsay statements were mathematical calculations, the foundational predicate for which had already been proven in voir dire. (Id. at pp. 1260-1261.) Hence, the expert in Williams did not testify based on subjective anecdotal accounts of an absent witness concealed from cross-examination. By comparison, here, the subjective hearsay statements of unavailable shipyard workers would have been brought into evidence on direct examination of Dr. Egilman.
Dr. Egilman explained in an Evidence Code section 402 hearing, "Based on my conversations with people who have been on ships and served on ships, they would tend to be higher than those that have been measured in published papers. Thats my impression generally for any kind of study. In addition, you know, I have dealt and talked to a lot of people who worked on ships and I think the conditions on ships were generally worse than the studies Ive seen with exposure." (Italics added.)
Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 864, 236 Cal. Rptr. 778, upon which Gasket Holdings relies, is unavailing. The Mosesian court stated, "If an expert [relies] in part upon the opinions of others, the expert may be cross-examined as to the content of those opinions. It is improper, however, to solicit the information on direct examination if the statements are inadmissible. [Citations.]" (Italics added.)
Finally, we note the court properly excluded the doctors testimony premised on an unpublished study. Unpublished studies are not the type of professional, technical literature that is reasonably relied on by an expert in forming an opinion. (Evid. Code, § 801, subd. (b); see Luque v. McLean (1972) 8 Cal.3d 136, 148, 104 Cal. Rptr. 443, 501 P.2d 1163.)
b. No error in excluding testimony of Mangold, Eisenman, or Spencer.
To pass liability to another defendant manufacturer or seller of asbestos-containing products, the defendant must show concurrent or alternate causes by showing (1) the plaintiff was exposed to defective asbestos-containing products of other companies; and (2) "that the defective designs of the other companies products were legal causes of the plaintiff[s] injuries; and [(3)] the percentage of legal cause attributable to the other companies. [Citations.]" (Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 478.)
Relevant testimony focuses on the actual ship and plaintiff in question, not on Naval ships in general. For instance, in Sparks v. Owens-Illinois, Inc. , the jury found the defendants product was the sole legal cause of the plaintiffs asbestosis contracted while the plaintiff served aboard the U.S.S. Bremerton. In affirming the judgment, the appellate court explained the defendant could have presented evidence that other equally defective asbestos-containing products were concurrent causes of the plaintiffs disease, by calling lay or expert witnesses to testify about specific properties (e.g., the asbestos content), performance, extent of usage, or effects of the other product to which the plaintiff himself was exposed on the Bremerton or of the specific plaintiffs exposure to asbestos products after his tenure on the Bremerton. (Sparks v. Owens-Illinois, Inc.,supra, 32 Cal.App.4th at p. 478.) The Sparks Court declared it was the defendants obligation to develop the details of the plaintiffs exposure to asbestos-containing product during and after his tenure on board the Bremerton. (Ibid. )
To meet this obligation, Gasket Holdings sought to call Messrs. Mangold, Eisenman, and Spencer. The court excluded Mangold and Spencer from testifying, and excluded portions of Eisenmans testimony. We hold there was no error.
(i) Mangold.
Gasket Holdings contends the trial court erred in excluding the testimony of Carl A. Mangold, who served in the Army during the Korean conflict. Mangold is an industrial hygienist who has previously testified as an expert on behalf of Gasket Holdings. Gasket Holdings paid Mangold to testify in this case, but failed to designate him as an expert. The failure to designate Mangold as an expert is fatal to Gasket Holdings attempts to call him as an expert witness. (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 34-35, 37-38, 989 P.2d 720; Code Civ. Proc., § 2034, subd. (j).)
Nor are we persuaded otherwise by Gasket Holdings contention the only testimony Gasket Holdings sought to elicit from Mangold was based solely on his personal observations. In an attempt to demonstrate that asbestos was present on the Holder in forms other than Flexitallic gaskets, Gasket Holdings intended to call Mangold to testify, as a civilian employee of the Navy at Puget Sound and Norfolk Naval Shipyards during the 1960s, that he observed pipe fitters and insulators in engine and boiler rooms on destroyers and other warships like the Holder. Mangold described the repair process on a number of naval vessels, but not the Holder on which Lane served.
Fairly read, the record indicates the trial court excluded this portion of Mangolds testimony because it was irrelevant, not because it was expert testimony. While Mangolds testimony was that of an expert because it did not fall within the knowledge of ordinary people (Evid. Code, § 801, subd. (a)), the portion of Mangolds testimony that was based on personal observation was not relevant because Mangold could not testify about what occurred aboard the Holder during any time period, let alone the years Lane served aboard that ship. As the court observed, merely because Mangold saw asbestos piled up on ship decks in Puget Sound does not mean that the same occurred on the Holder 3,000 miles away. (Evid. Code, §§ 210 & 350.)
(ii) Eisenman.
Between 1962 and 1971, Johnny Eisenman worked as a boiler tender on the U.S.S. Rowan, changing spiral wound gaskets. Eisenmans testimony about his method for tending to the boilers and changing gaskets largely paralleled Lanes testimony. Eisenman also testified that in rough weather, when the Rowan was steaming at high speed, and when guns fired, the entire ship would vibrate, knocking dust from everything in the boiler room.
Through additional testimony elicited from Eisenman, Gasket Holdings wanted to show that Navy boiler tenders worked with asbestos-containing products other than gaskets. To rebut Lanes testimony that he never worked with pipe covering on the Holder and never saw anyone on the Holder working with it, and to rebut testimony that the pipe covering on the Holder was never disturbed, Gasket Holdings sought to introduce testimony from Eisenman that on the Rowan and the U.S.S. Fletcher, both destroyers like the Holder, he sometimes had to knock the covering off the pipes to replace the gaskets. The trial court excluded Eisenmans testimony about disturbing the pipe covering.
On appeal, Gasket Holdings argues Eisenmans testimony was admissible circumstantial evidence about the existence, condition, and handling of asbestos-containing materials on the Holder. Not so. Relevant evidence, circumstantial or not, is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, §§ 210 & 350.) What occurred on the Rowan and Fletcher does not have any tendency whatsoever to prove any fact about the presence of asbestos in, condition of, or procedures for, maintaining the Holder.
(iii) Spencer.
Gasket Holdings designated John Spencer as an expert industrial hygienist to testify about practices and operations with asbestos-containing products during his tenure in the United States Coast Guard between 1982 and 1987, where he was in charge of asbestos abatement operations on Naval destroyers. The court excluded that portion of Spencers testimony about asbestos levels detected when removing pipe covering on the ground Spencers experience was on a different class of destroyer than the one aboard which Lane served; there had been no showing the pipe covering was the same on Spencers ships as on the Holder; and no showing that any pipe covering had been removed on the Holder. This ruling was not in error.
Spencer was not qualified to testify about the products used on the Holder, nor about details of Lanes exposure to other companies asbestos products as described in Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at page 478 . Spencer had never been on the Holder, and had no experience with Lanes exposure, or with how the Holder was maintained. Spencer was not even competent to testify about the Holders entire class of naval destroyers.
Gasket Holdings assertion is unavailing that it is irrelevant that Spencers experiences were aboard a different class of ship than the Holder, where at issue is the product used on the ships. Spencer had no experience with the U.S.S. Holder and thus could not connect other makes of asbestos products with Lane or his ship. (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 478.)
In fact, Gasket Holdings own witness, Dr. Egilman, testified that the only study of ships at sea found no asbestos in the boiler room. Even studies on ships in port found from 0 to 1.0 fibers per cc. Defense expert Dr. William G. Hughson explained if the equipment is properly maintained, and not being cut, the level of asbestos would be low. When pipe insulation stays intact and is covered with paint, it does not release much or any asbestos. "Under normal conditions of operation, the level of asbestos in the engine room . . . was very low."
In short, Gasket Holdings called no expert qualified to testify that Navy asbestos use was uniform across ship-class, or about pipe-covering specifications, and provided no foundational evidence that any of the asbestos or procedures these witnesses attempted to testify to were present or occurred on the Holder. Therefore, Gasket Holdings presented no foundational facts which could render the excluded testimony of Mangold, Eisenman, and Spencer relevant. (Evid. Code, §§ 210 & 350.)
Because we hold there was no error in excluding the testimony outlined above, we need not address Gasket Holdings further contention that it was prejudiced by the rulings or about application of Proposition 51.
3. The court did not err in instructing the jury on "consumer expectation."
Gasket Holdings contends the trial court should not have given the jury the consumer expectation instruction because "the health and industrial hygiene-related characteristics and performance of a spiral wound gasket are not within the common knowledge of lay jurors."
A party is entitled to instructions on every theory of the case advanced by him which is supported by substantial evidence. (Soule v. General Motors Corp . (1994) 8 Cal.4th 548, 572, 882 P.2d 298.) We review de novo the legal issue whether the challenged instruction was erroneously given. (National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 427.)
In California, "a manufacturer may be held strictly liable in tort for placing a defective product on the market if that product causes personal injury, provided that the injury resulted from a use of the product that was reasonably foreseeable by the defendant. [Citation.] The doctrine of strict liability extends to products which have design defects, manufacturing defects, or `warning defects. [Citations.]" (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 472.)
This case involves allegations of design defects. There are two theories for identifying whether a product is defectively designed: (1) whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) whether the benefits of the challenged design outweigh the risk of danger inherent in the design. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995, 281 Cal. Rptr. 528, 810 P.2d 549; Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432, 143 Cal. Rptr. 225, 573 P.2d 443.) Plaintiffs chose to apply the first such test.
Under the first such test based on consumer expectation, a plaintiff "is required to produce evidence of the `objective conditions of the product as to which the jury is to employ its `own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. [Citation.]" (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 472.)
Our Supreme Court has outlined when the consumer expectation test is and is not appropriate. Accordingly, that test "is reserved for cases in which the everyday experience of the products users permits a conclusion that the products design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 567, original italics.) By contrast, the Soule Court explained, the consumer expectation test is inappropriate when the alleged injury results from products whose characteristics or performance do not fall within the comprehension or common experience of the ordinary user. As a practical matter, the Court stated, the alternate test, i.e., balancing of competing considerations to determine whether a product is defectively designed, is to be employed in those cases involving "complex products," which can "cause injury in a way that does not engage its ordinary consumers reasonable minimum assumptions about safe performance." (Id. at pp. 566-567.) The Supreme Court stated, "The crucial question in each individual case is whether the circumstances of the products failure permit an inference that the products design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers." (Id. at pp. 568-569.)
In Soule, the consumer expectation test was not appropriate because the jury had to consider a complicated defective-design claim concerning the wheel assembly and front floorboard in a left front-end collision. The Supreme Court explained that the plaintiffs theory involved technical and mechanical detail about several obscure components of her car "under the complex circumstances of a particular accident." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 570.) Continuing, the Court held, "ordinary experience and understanding [would not] inform such a consumer how safely an automobiles design should perform under the esoteric circumstances of the collision at issue here. Indeed, both parties assumed that quite complicated design considerations were at issue, and that expert testimony was necessary to illuminate these matters." (Ibid.)
Gasket Holdings contends the consumer expectation test does not apply to this case where the issue involves the "`complicated nature " of "the biological effects of exposure to extremely low levels of chrysotile asbestos" which is not in the understanding of lay jurors. Gasket Holdings argues the extensive testimony of experts in this case demonstrates that Lanes claim would succeed or fail on the intensity or degree of exposure to the chrysotile asbestos in the gasket, which matter is not within the "commonly accepted minimum safety assumptions of [the gaskets] ordinary consumers." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 569, fn. omitted.) Gasket Holdings argument misses the point.
The "crucial" question is not whether a lay jury is capable of comprehending the complex medical processes by which a plaintiff develops mesothelioma, but whether the Flexitallic gaskets "performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner . . . ." (Anderson v. Owens-Corning Fiberglas Corp., supra, 53 Cal.3d at p. 995.)
In this respect, Sparks v. Owens-Illinois, Inc., supra, is directly on point. Sparks squarely faced the question whether the consumer expectation test was appropriate in a products liability case involving exposure to Kaylo, a product containing chrysotile asbestos sold in pipe-covering and block forms for use as industrial high-temperature thermal insulation. (Sparks v. Owens-Illinois, Inc., supra , 32 Cal.App.4th at pp. 465, 469.) Relying on Soule, the Sparks Court concluded the consumer expectation test applied because "there were neither `complicated design considerations, nor `obscure components, nor `esoteric circumstances surrounding the `accident in the instant case. Kaylo was a common type of asbestos-containing block insulation. It was a simple, stationary product in its ordinary uses. Because it was made of friable material that had to be cut and shaped to perform its insulating function on irregularly shaped objects, it generated large amounts of asbestos-laden dust during normal installation, inspection, removal, and replacement. The design failure was in Kaylos emission of highly toxic, respirable fibers in the normal course of its intended use and maintenance as a high-temperature thermal insulation. It is a reasonable inference from the evidence that this emission of respirable fibers, which were capable of causing a fatal lung disease after a long latency period, was a product failure beyond the `legitimate, commonly accepted minimum safety assumptions of its ordinary consumers. [Citation.]" (Sparks v. Owens-Illinois, Inc., supra, at pp. 474-475.)
Just as in Sparks, the Flexitallic gaskets involved "neither `complicated design considerations, nor `obscure components, nor [were there] `esoteric circumstances surrounding the ` accident. . . ." (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 474.) As with Kaylo, Flexitallic gaskets were a conventional type of asbestos-containing pipe component, which in its regular and intended use was simple and stationary. It was only during normal removal and replacement or when jostled that the Flexitallic gasket generated asbestos-laden dust fibers. The design defects lay in the gaskets emission of highly toxic, respirable fibers in the normal course of its storage and intended use. As in Sparks, the evidence about the emission of respirable fibers capable of causing a fatal disease raises the reasonable inference that the products defect exceeded the "`legitimate, commonly accepted minimum safety assumptions of its ordinary consumers. [Citation.]" (Sparks v. Owens-Illinois, Inc., supra , at p. 475.)
The Lanes presented abundant evidence that, when used as intended, the Flexitallic gasket violated the minimum safety expectations of its ordinary consumers. Both Lane and Eisenman testified about how they changed gaskets and wire brushed the dust off the flanges. Both witnesses also described how the Flexitallic gaskets would emit dust when knocked about in storage. Lane testified he did not know that Flexitallic gaskets contained asbestos, or that they could cause cancer 35 years later. He expected they could be used safely. The jury could reasonably conclude that ordinary users of the Flexitallic gaskets did not expect to develop a fatal disease merely by breathing its dust, and therefore, that "the products performance did not meet the `minimum safety assumptions of its ordinary consumers. [Citation.]" (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 476.)
Morson v. Superior Court (2001) 90 Cal.App.4th 775, upon which Gasket Holdings relies does not alter our conclusion here. That case involved whether the consumer expectation test applied to a claim that latex gloves were defectively designed because the chemical substances contained in the gloves might allow excessive levels of allergenic agents, such as proteins, to increase users sensitization to the latex in their individual biological systems. Unlike here, the consumer expectation test did not apply in Morson because the issue to be resolved there involved the complicated technicalities of manufacture, the nature of rubber, and the effect of allergenic proteins on the individual, all of which require a weighing of the manufacturers knowledge, the cost of producing the gloves safely, and the feasibility of production changes. (Id. at p. 792.) In fact, the Morson Court understood the difference in factual scenarios between it and Sparks noting, "we find such authorities [asbestos cases] to be of limited value here due to the problem of comparing apples and oranges in such fact-specific circumstances." (Id. at p. 786.)
Since Sparks, the consumer expectation test has been utilized in asbestos litigation (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1184-1185; cf. Hackett v. John Crane, Inc. (2002) 98 Cal.App.4th 1233, 1237), and Morson is simply not relevant. Based on our analysis above, the trial court did not err when it concluded it was bound by Sparks and would give the consumer expectation instruction. Because we conclude the instruction was properly given, we need not reach Gasket Holdings further contention that the giving of this instruction supports the grant of its motion for new trial.
4. The causation evidence is sufficient to support the verdict.
Gasket Holdings contends the verdict is not supported by the evidence because Lanes experts were not credible.
Our role in reviewing the evidence when it is attacked as insufficient to support the verdict has long been established. The fundamental rule is, "`in reviewing the evidence . . . all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary . . . principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]" (Estate of Bristol (1943) 23 Cal.2d 221, 223, 143 P.2d 689, original italics, quoting from Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.) "Our review requires us to focus on evidence that is favorable to plaintiffs, rather than to weigh favorable evidence against unfavorable. [Citation.]" (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64, 107 Cal. Rptr. 45, 507 P.2d 653, italics added.)
Fairly stated, both of plaintiffs experts, Dr. Samuel Hammar and James R. Millette, opined that, assuming Lane changed four or five 6 inch Flexitallic gaskets per week, taking 10 minutes per gasket, then Lane would have expended a total of 140 hours in brushing Flexitallic gaskets while aboard the Holder. Assuming further that Lane breathed 360,000 cc of air per hour, and that a 6 inch gasket releases 3.7 fibers per cc of air, then Lane breathed in a total of 186 million Flexitallic chrysotile asbestos fibers of greater than 5 microns in length over the four and one-half years he served on the Holder. This would be a fair estimate, even without including the more significant exposures from blowing off and breathing in visible asbestos dust containing 90 percent pure chrysotile asbestos. If Lane also breathed in fibers of less than 5 microns in length, he would have been exposed to roughly 3 billion Flexitallic asbestos fibers of all sizes. Hammar opined that 186 million Flexitallic fibers of 5 microns in length or greater inhaled for four and one-half years would be enough exposure to cause mesothelioma 35 years later or to be a significant contributing cause of Lanes disease. Moreover, inhaling 3 billion such fibers over more than four years would alone be enough to be a significant contributing factor in Lanes disease, even if there were other contributing fibers.
Plaintiffs also presented evidence that very low exposure to asbestos can cause mesothelioma in some people. "Theres no threshold below which any type of bystander or occupational exposure to asbestos cannot potentially cause mesothelioma." There is no known, provable level of exposure that is safe. Hence, a concentrated exposure from Flexitallic gaskets over a four-year period would be sufficient to cause Lanes mesothelioma.
This evidence is sufficient to support the verdict. While Gasket Holdings counsel did an admirable job in cross-examining these experts to undermine the plaintiffs evidence, in the end, the credibility of an expert is for the jury to decide. (Williams v. Volkswagenwerk Aktiengesellschaft, supra,
180 Cal. App. 3d at p. 1265.) We cannot substitute our opinion for that of the jury.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P.J., and KITCHING, J.