Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 432013
Richman, J.
This appeal by the losing defendant in a trial for personal injuries caused by asbestos presents a single issue, namely, does a trial court commit reversible error under Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford) when it declines the defendant’s request that the jury be required to determine in a special verdict whether the plaintiff’s injuries are in fact caused by asbestos before the jury determines that the defendant is liable for those injuries? We hold that Rutherford imposes no such requirement, and thus the trial court did not abuse its discretion in denying the defendant’s request. Moreover, numerous other express determinations that the jury did make establish that the point of the rejected interrogatory was necessarily considered by the jury, leaving no doubt that the substance of the rejected interrogatory was deliberately, decisively, and repeatedly rejected by the jury. We affirm the judgment for the plaintiff.
BACKGROUND
This appeal has some features that by now are familiar in asbestos-related litigation, and some features that are distinctly atypical.
As is common in this field, the plaintiff filed a complaint against dozens of named defendants and hundreds of Doe defendants, but went to trial against only one. Thus, the case the jury decided was the claim of plaintiff James Morrison for damages from defendant Copeland Corporation. But some common features are missing. First, plaintiff does not suffer from asbestosis. Second, because plaintiff never smoked tobacco products, there was no issue at trial as to whether tobacco, as opposed to asbestos, was the causative agent of the cancer from which he now suffers.
Another common feature is that Mr. Morrison was joined as a plaintiff by his wife, who alleged her own cause of action for loss of consortium. However, in the interests of simplicity, we shall refer hereafter to both Morrisons as “plaintiff.”
Lacking the usual option of blaming plaintiff’s current woes on his own past consumption of tobacco, Copeland pointed to something else as the cause of plaintiff’s physical debilitation—a genetic condition. Copeland presented expert testimony, which plaintiff did not dispute, that plaintiff suffers from a genetic abnormality known as epidermal growth factor receptor (EGFR) defect. However, whether EGFR was the cause of plaintiff’s cancer was hotly disputed: Copeland’s experts testified that it was, while plaintiff’s experts were equally convinced that it was not, that EGFR also required exposure to asbestos to germinate into cancer.
Another unusual feature of the case was that there was no dispute that plaintiff had been exposed to friable asbestos fibers from a specific Copeland product for a considerable period of time. Specifically, for approximately 15 years, beginning in 1973, plaintiff was employed by Patton Sheet Metal, and in the course of that employment he spent a majority of his time replacing Copeland gaskets on Copeland refrigeration compressors. The process of replacing a Copeland gasket was a day-long operation, as the old gaskets required considerable effort to remove before the new gasket could be seated. And the old gaskets, which contained asbestos, commonly disintegrated into small bits and dust while being removed.
There could be no doubt on this point because only Copeland gaskets would fit Copeland compressors, and plaintiff testified he bought Copeland replacement gasket kits from Copeland.
Plaintiff also presented expert testimony that the gasket replacements exposed plaintiff to a substantial amount of friable, i.e., airborne, asbestos fibers capable of being inhaled. One of those experts gave his opinion that asbestos from Copeland products was the major source of plaintiff’s asbestos exposure.
Trial began on January 24, 2006, and continued until March 1, when the case was sent to the jury. In discussing the form of the verdict that would be submitted to the jury, the court denied Copeland’s request that the verdict have the question “Was exposure to asbestos fibers a substantial factor in causing Plaintiff’s cancer?” The trial court rejected Copeland’s request, deeming the interrogatory “very confusing” if placed at the beginning of the verdict as requested by Copeland. The court also decided that the substance of the question was “duplicative” of other questions regarding causation of plaintiff’s injuries that would be asked on the verdict.
The jury returned a verdict on which it answered 14 questions. As relevant here, the verdict reads as follows:
The verdict also had two questions that the jury answered “Yes” at the direction of the court: (1) “Did Copeland Corporation manufacture, distribute or sell an asbestos-containing product?” and (2) “At the time the product was used, was it substantially the same as when it left Copeland Corporation’s possession or were any changes made to the product after it left Copeland Corporation’s possession reasonably foreseeable to Copeland Corporation?”
“ QUESTION NO. 3:
“Did the product fail to perform as an ordinary user, such as . . . [a] refrigeration mechanic, would have expected?
“ ANSWER : YES X
“ QUESTION NO. 4:
“Was the product used or misused in a way that was reasonably foreseeable to Copeland Corporation?
“ ANSWER : YES X
“ QUESTION NO. 5:
“Was the product’s failure to perform as safely as an ordinary user, such as . . . [a] refrigeration mechanic, would expect, a substantial factor in causing harm to James Morrison?
“ ANSWER : YES X
“ QUESTION NO. 6:
“Did the product have potential risks that were known or knowable through the use of scientific knowledge available at the time of manufacture, distribution or sale?
“ ANSWER : YES X
“ QUESTION NO. 7:
“Did the potential risks present a substantial danger to the users of the product?
“ ANSWER : YES X
“ QUESTION NO. 8:
“Would an ordinary user, such as . . . [a] refrigeration mechanic, have recognized the potential risks?
“ ANSWER : NO X
“ QUESTION NO. 9:
“Did Copeland Corporation fail to adequately warn or instruct of the potential risks?
“ ANSWER : YES X
“ QUESTION NO. 10:
“Was Copeland Corporation’s failure to warn or provide sufficient instructions a substantial factor in causing harm to James Morrison?
“ ANSWER : YES X
“ QUESTION NO. 11:
“Was Copeland Corporation negligent?
“ ANSWER : YES X
“ QUESTION NO. 12:
“Was Copeland Corporation’s negligence a substantial factor in causing harm to James Morrison?
“ ANSWER : YES X ”
The jury found that Copeland was responsible for 12.4% of the total damages of $5,151,000 suffered by plaintiff. After making the adjustments required by Proposition 51 (Civil Code section 1431.2), and allowances for settlements by other defendants, the court entered a judgment against Copeland for $325,500.
Mr. Morrison was awarded $279,000, his wife the remaining $46,500. Both of these sums were for non-economic damages only. No economic damages were awarded because the sum fixed by the jury was exceeded by the settlements Mr. Morrison received from other defendants.
Copeland moved for a new trial on the ground that the trial court’s rejection of the special verdict question made the verdict “incurably defective.” Following the denial of its motion, Copeland perfected this timely appeal.
The motion had other grounds, none of which Copeland renews on this appeal.
DISCUSSION
Copeland contends it was reversible error under Rutherford for the trial court to refuse Copeland’s request that the jury make what amounts to the preliminary determination that plaintiff’s injuries were caused by asbestos. This is the fulcrum upon which Copeland’s entire appeal hinges. Copeland’s hope for a reversal is in vain, because it is based upon a complete misreading of Rutherford.
Copeland’s opening brief cites a total of eight decisions, but six of them deal in one way or another with instructional error. The seventh is cited for historical support—“most cases cite Rutherford to address the legal question of whether there is substantial evidence to support a relaxed substantial factor finding. (See, e.g., Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 998.)” But the issue here is not the soundness of an instruction, but the refusal of a special verdict.
Rutherford was a one-issue decision. The court makes that clear at the start of its opinion: “In this consolidated action for asbestos-related personal injuries and wrongful death brought and tried in Solano County, defendant Owens-Illinois (Owens-Illinois) contends the trial court erred in instructing the liability phase jury pursuant to Solano County Complex Asbestos Litigation General Order No. 21.00. This instruction shifts the burden of proof to defendants in asbestos cases tried on a products liability theory to prove that their products were not a legal cause of the plaintiff’s injuries, provided the plaintiff first establishes certain predicate facts, chief among them that the defendant manufactured or sold defective asbestos-containing products to which plaintiff was exposed, and that plaintiff’s exposure to asbestos fibers generally was a legal cause of plaintiff’s injury. The Court of Appeal concluded the trial court erred in giving the burden-shifting instruction.
“The Court of Appeal further held that the judgment in this case must be reversed because the trial court erred in refusing to permit Owens-Illinois to present a ‘tobacco company defense.’ The Court of Appeal’s judgment in this regard was error requiring reversal under our recent holding in Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 988-989, a case consolidated and tried with the instant action and three others. However, because the Court of Appeal alternatively determined the trial court erred in giving the burden-shifting instruction, and because plaintiffs here additionally sought review of that aspect of the Court of Appeal’s judgment, we must also in this case review the Court of Appeal’s holding that it was error to give the burden-shifting instruction.
“We conclude the Court of Appeal correctly determined that the burden-shifting instruction should not have been given in this case. For reasons to be explained, we hold that in cases of asbestos-related cancer, a jury instruction shifting the burden of proof to asbestos defendants on the element of causation is generally unnecessary and incorrect under settled statewide principles of tort law.” (Rutherford, supra, 16 Cal.4th 953, 957.)
Thus, it was within the context of determining the legality of the burden-shifting instruction required by the trial court’s local rule that the Supreme Court defined and refined the “substantial factor” standard for tort liability. As the court explained: “Most asbestos personal injury actions are tried on a products liability theory. In the context of products liability actions, the plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.” (Rutherford, supra, 16 Cal.4th 953, 968.) The plaintiff’s burden of proof has two parts: “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 asbestos-containing products, 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.” (Id. at pp. 982, fn. omitted; see also id., at pp. 957-958, 976 & fn. 11, 977, 982.)
“The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Rutherford, supra, 16 Cal.4th 953, 978.) As the court subsequently put it, “ ‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor’ [citation], but a very minor force that does cause harm is a substantial factor.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79, quoting Rutherford, at p. 969.) A plaintiff is not required to prove that a specific defendant manufactured the asbestos-containing product that was the actual cause of injury, only that exposure to the defendant’s “was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.” (Rutherford, supra, at pp. 976-977.)
The Rutherford court repeatedly noted that “Instruction on the limits of the plaintiff’s burden of proof of causation, together with the standardized instructions defining cause-in-fact causation under the substantial factor test (BAJI No. 3.76) and the doctrine of concurrent proximate legal causation (BAJI No. 3.77) will adequately apprise the jury of the elements required to establish causation.” (Rutherford, supra, at p. 958; accord, id. at pp. 982-983.) Because the jury in Rutherford had been given these instructions, the Supreme Court held that the error in using the burden-shifting instruction was harmless. (Id. at pp. 983-985.)
The jury was given these instructions. Thus, even if Copeland was arguing that instructional error did occur (see fn. 6, ante), it would not prevail.
The most cursory reading of Rutherford demonstrates that Copeland’s position is untenable. Copeland seizes upon essentially a single word in a single sentence—“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 asbestos-containing products” (Rutherford, supra, 16 Cal.4th 953, 982; italics added & original italics omitted). And from that Copeland would extrapolate a virtually iron-clad requirement for asbestos trials. As Copeland states in its brief: “[U]nless it is stipulated or uncontested that the plaintiff’s injuries are asbestos-related, a threshold interrogatory should be submitted asking the jury to determine whether asbestos caused the plaintiff’s injuries before the Rutherford [substantial factor] instruction can be given. Liability for an allegedly asbestos-related injury may be predicated on a finding of mere increased risk of injury only if the jury first finds that the plaintiff’s injuries are asbestos-related. The procedural posture of Rutherford confirms this. . . . [¶] . . . [¶] [A] rule that would permit the jury to make a Rutherford finding without requiring a threshold finding that the plaintiff’s injuries were caused by asbestos would result in systemic overcompensation. Plaintiffs who have not proven that their injuries were caused by asbestos could nonetheless recover on a bare showing that exposure to a particular defendant’s asbestos-containing product increased the risk of injury without regard to whether their injury was actually asbestos-related. That result, which occurred in this case, is contrary to the structure, language, and purpose of the Rutherford decision.” (Italics added.) Not so.
As an intermediate court, we are duty-bound to follow and apply decisions of our state Supreme Court. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) But it is only holdings that are binding, not dicta. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 945, pp. 986-987.) Determining the holding—the precise point, issue, or principle of law that has been authoritatively resolved—is not always apparent. This court has repeatedly cautioned that “Language used in an opinion must be understood in the light of the facts and issues then before the court, and an opinion is not authority for a proposition not considered.” (Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1376; accord, Valentine v. City of Oakland (1983) 148 Cal.App.3d 139, 149.) Moreover, the factual nexus and context of the appellate decision is important because it demonstrates what issues are actually passed upon, and thus qualify as binding on lower courts. (People v. Mendoza (2000) 23 Cal.4th 896, 915; Hart v. Burnett (1860) 15 Cal. 530, 598; Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985.) “[A]n opinion’s authority is no broader than its factual setting . . . .” (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1121.)
Any objective reading of Rutherford convinces us beyond doubt that our Supreme Court made no holding that aids Copeland. Within the context of deciding the single issue of the correctness of the burden-shifting instruction, the Rutherford court made two holdings: (1) the nature of the substantial factor standard in asbestos cases, and (2) the jury had to be instructed that it was the plaintiff’s burden of proof to satisfy that standard. There was no mention, much less sustained discussion, concerning how the jury was to express its conclusion that a plaintiff claiming asbestos-related injuries has sustained that burden of proof.
Nor is Copeland warranted in claiming that “the procedural posture of Rutherford” lends support to Copeland’s reasoning. Quite the contrary. Under that part of its opinion labeled “Factual and Procedural Background,” the Rutherford court detailed the peculiar nature of the trial: “Plaintiffs’ case was consolidated for trial with four other actions presenting the similar claims of various other plaintiffs . . . . [¶] Under procedures adopted by the Solano County Superior Court for general use in complex asbestos litigation within that county, trial of these consolidated cases was bifurcated into ‘damages’ and ‘liability’ phases (heard by separate juries). In the first damages phase, the jury was to determine, as to each plaintiff, whether exposure to asbestos was a proximate cause of injury (i.e., whether plaintiff was suffering from asbestos-related disease or, as here, plaintiffs’ decedent had died from asbestos-related disease) and, if so, the total amount of resulting damages.
“[¶] . . . [¶] At the end of the first phase of trial, the jury answered the question, ‘Did the decedent, Charles Rutherford, have lung cancer legally caused by his inhalation of asbestos fibers?’ in the affirmative. The jury returned a verdict finding that a total of $278,510 in economic damages had been incurred by plaintiffs, and $280,000 in noneconomic damages suffered by plaintiffs as a result of decedent’s death. . . . Between the first and second phases of trial, nearly all the defendants except Owens-Illinois settled with plaintiffs. The second liability phase thus involved only issues of Owens-Illinois’s percentage of fault and apportionment of damages.” (Rutherford, supra, 16 Cal.4th 953, 959-960, fns. omitted.)
Rutherford involved a two-stage trial with multiple plaintiffs and multiple defendants. The potential for jury confusion was all too obvious. It was very possibly for this reason alone that the jury was asked whether Mr. Rutherford had “lung cancer legally caused by his inhalation of asbestos fibers?” (Rutherford, supra, 16 Cal.4th 953, 960.) The inquiry may also have been required by the local rule allowing what at a distance looks like a group trial. The trial court may have simply granted a party’s request that the interrogatory be put to the jury. We do not know because the Rutherford opinion does not tell us. In any event, just because the jury in Rutherford was asked the question does not establish a Supreme Court holding that an equivalent question must be asked and answered by every jury in every case for asbestos-related personal injuries.
The point can be best shown by looking at the factual context of this trial. There was only one plaintiff and only one defendant. Thus, there was no chance that the jury would attribute to Mr. Morrison another plaintiff’s exposure to Copeland’s asbestos-containing products. Conversely, there was virtually no chance that the jury would attribute to Copeland any exposure Mr. Morrison may have had to other asbestos-containing products manufactured by another defendant. In such simplified circumstances, there is no basis for reading into Rutherford an intention by the Supreme Court to ordain an inflexible procedural requirement, especially as the substance of the “threshold inquiry” urged by Copeland is necessarily subsumed in the rest of the causation issue the jury would be deciding. As plaintiff correctly sees it, “The jury would have to determine that asbestos in general was a ‘substantial factor’ as used in Rutherford to decide asbestos from Copeland’s products was a substantial factor in Mr. Morrison’s lung cancer,” and that for the jury to find “that Copeland’s asbestos-containing products caused Mr. Morrison’s cancer necessarily entailed finding that asbestos . . . caused the cancer.” Accordingly, there is no force to Copeland’s argument that the jury was “permitted to bypass a threshold determination that [plaintiff’s] lung cancer was asbestos-related.”
Again, we acknowledge the presence of Mr. Morrison’s wife (see fn. 1, ante), but her involvement does not detract from our general point—that the jury was considering only the work history of a single individual.
Such a Procrustean requirement as Copeland urges would be a pointless, perhaps mischievous, complication. Assume that every asbestos case jury must respond to the “threshold inquiry” urged by Copeland. If the jury answers it favorably to the plaintiff, the jury must still go on to consider the rest of causation inquiry, i.e., whether the plaintiff also established “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.” (Rutherford, supra, 16 Cal.4th 953, 982.) On the other hand, it hardly appears more efficient to present a jury with two interrogatories, either of which can be decided in the defendant’s favor. Perhaps the most potent objection to Copeland’s argument is that it would introduce a potential for confusion. Suppose that a jury answered the “threshold inquiry” in the defendant’s favor, but then answered a more general causation question in the plaintiff’s favor? This would be a fertile field for claims that the jury had returned an inconsistent verdict, thus generating additional complications for trial and appellate courts.
On this point we are impressed with the foresight and wisdom of what Justice Macklin Fleming wrote on the subject in 1978: “[W]e note the disadvantages of saddling a jury with lengthy and involved interrogatories, cocooned in legal terminology and garnished with words of art. At bench the jury was required to answer 28 questions of a technical legal nature, in effect to make written findings of fact and conclusions of law . . . . and when detailed questions of such nature are given to a jury, perfect and consistent answers to all questions cannot be expected. . . . While there were some inconsistencies in the jury’s answers to questions, the general drift of the jury verdict . . . was clear, and the cumbersomeness of the procedures used had no consequence beyond that of wasted court time. In other causes the result might not be so fortunate. We think concoction of such a broth of questions for the jury serves only as a kind of lawyer’s welfare policy, which insures against early cessation of litigation by providing ready-mixed inconsistencies which may be used to attack the jury’s verdict in later stages of the case.” (Wyler v. Feuer (1978) 85 Cal.App.3d 392, 405-406.) We know that things have changed since 1978, particularly in the wake of the detailed fault apportionments required by Proposition 51 in tort cases. Nevertheless, the general point of Justice Fleming’s cautions has not been blunted with the passage of time.
We are not persuaded by a hypothetical Copeland advances as illustrative of “the absurd results that could result” if we reject its contention. “Take . . . a case in which experts for both sides testify that the lung cancer at issue was actually caused by a different environmental agent than asbestos. The plaintiff, however, also presented testimony that she was exposed to levels of asbestos from the defendant’s product that increased her risk of developing lung cancer. Without a threshold question regarding what legally caused the lung cancer in question, a jury could conclude that asbestos was a substantial factor because it increased the plaintiff’s risk of developing lung cancer, even if it did not actually cause the cancer.” This is a straw man argument because it is founded upon a dubious premise—“ a case in which experts for both sides testify that the lung cancer at issue was actually caused by a different environmental agent than asbestos.” If there has been a situation where a manufacturer of asbestos-containing products has been sued by a plaintiff who concedes a cancer was not caused by asbestos, we have not heard of it, and Copeland cites no reported instance in the decade since Rutherford was decided. If such a situation did occur, the obvious response by the defendant-manufacturer would be that the plaintiff could not prove causation. In any event, as noted, the jury did have evidence that Mr. Morrison’s lung cancer was tied to asbestos, specifically Copeland’s products. (See fn. 2 and accompanying text, ante.)
A point implicitly accepted by the Rutherford court in addressing the issue of “causation in asbestos-related cancer cases” as shown by evidence of “reasonable medical probability.” (Rutherford, supra, 16 Cal.4th 953, 976; see also id. at pp. 957, 974-978, 982-983, fn. 13 [“our discussion here has focused on asbestos-related cancers”].) Ultimately, Copeland’s argument appears to challenge the Rutherford court on its causation analysis, particularly its acceptance that “Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber.” (Id. at p. 976.)
Nor are we persuaded by the contention at oral argument that the substantial factor instruction given to the jury somehow ran afoul of Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965. To begin with, that specific argument was not made before, certainly not in the opening brief, where Potter was not even cited. In any event, Potter involved a claim for negligence and emotional distress for plaintffs’ fear of cancer. This is not the situation here.
Potter was cited twice in the reply brief, both times without discussion as “see, e.g.”
Because Rutherford does not command that Copeland’s request had to be granted, the issue becomes a simple matter of the court’s discretion. With certain limited exceptions not present here, the decision whether to use a special verdict is a matter entrusted to a trial court’s discretion. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824, fn. 18; Estate of Witt (1926) 198 Cal. 407, 426; Olmstead v. Dauphiny (1894) 104 Cal. 635, 641.) If the trial court exercises its discretion to use a special verdict, that discretion also extends to the substance and detail of the questions put to the jury. (Gonzales v. R. J. Novick Const. Co. (1978) 20 Cal.3d 798, 811-812; American Co. v. Bradford (1865) 27 Cal. 360, 365 [“neither party has the right to dictate the terms of any particular question to the jury, and for refusing to comply with such a request no error can properly be assigned”]; Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1488; Weintraub v. Soronow (1931) 115 Cal.App. 145, 152.) We cannot hold that abuse occurred here.
As plaintiff’s attorney aptly noted in opposing Copeland’s request, “if they [the jury] decide that they agree . . . that this EGFR mutation is the cause and they agree with the defendant’s position that asbestos had nothing to do with causing cancer . . . they don’t get to allocating fault because when it comes to whether there was a defective product or any defective product was a cause of his cancer, they say no. If asbestos was not a cause of his cancer, it doesn’t matter what other causes there were. They don’t allocate fault. They don’t do anything.” The logic of this argument defies rebuke. If the jury had accepted Copeland’s theory that plaintiff’s cancer was completely unrelated to his exposure to Copeland’s asbestos products, the jury would be forced to conclude that those products, or Copeland’s acts or omissions, were not “a substantial factor in causing harm” to plaintiff. But the jury did conclude—not once but three separate times—that what Copeland did or not did not do was “a substantial factor in causing harm” to plaintiff. Thus the jury necessarily and repeatedly concluded that plaintiff’s cancer was not self-generated, but was instead due to his numerous years of exposure to Copeland’s defective asbestos-containing products.
In any event, and even if we accepted for purposes of this appeal that the trial court did abuse its discretion in refusing to put Copeland’s interrogatory to the jury, there is no way we could conclude that such error in any way prejudiced Copeland. As just shown, the substance of the interrogatory was asked and answered by other parts of the special verdict. (See Vallejo etc. R. R. Co. v. Home Sav. Bk. (1914) 24 Cal.App. 166, 174 [no abuse of discretion in refusing to submit proposed questions that “were covered by the questions which were submitted”].) No miscarriage of justice emerged from this trial. (Cal. Const., art. VI, § 13.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.
Further, although Copeland’s brief has various references to what is claimed to be instructional error, this is not sufficient to preserve a claim of instructional error for review on this appeal for two reasons, both procedural and substantive. Every brief is required to “State each point under a separate heading or subheading summarizing the point . . . .” (Cal. Rules of Court, rule 8.204(a)(1)(B).) Copeland’s brief has two headings. The first is “The Superior Court Erred in Failing to Submit a Threshold Jury Question Asking Whether Asbestos Fibers Caused Mr. Morrison’s Cancer Before Permitting the Jury to Reach the Rutherford Question and Instruction as to Copeland.” The second is stated as “The Failure to Require a Threshold Finding That Mr. Morrison’s Injuries Were Caused by Exposure to Asbestos Fibers Prejudicially Affected the Verdict and Requires a New Trial.” The first point directly attacks the absence of a “Threshold Jury Question” on the verdict form. The second is clearly a derivative extension of the first.