Opinion
A143310
03-02-2017
MICHAEL MURDOCH, et al., Plaintiffs, Respondents, and Cross-Appellants v. BROCK SOLUTIONS, Defendant, Appellant, and Cross-Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. CGC-12-521014)
This case arises from an accident that occurred during the renovation of Terminal 2 at San Francisco International Airport (the terminal). Brock Solutions (Brock, or Brock Solutions) designed, installed, and programmed a computerized system to control the baggage conveyor system (conveyor or baggage conveyor) for the terminal. Michael Murdoch, then a millwright foreman working for Siemens Industry (Siemens), was seriously injured while performing work on the conveyor. Murdoch and his wife (collectively, plaintiffs) filed a complaint against several defendants, including Brock, for negligence, premises liability, and loss of consortium.
A jury found Brock Solutions negligent and awarded plaintiffs damages of $3,895,220. The jury allocated 80 percent of the responsibility to Murdoch, 10 percent to Brock, and 10 percent to Siemens. The court reduced the economic damages by Murdoch's percentage of fault, and offset settlement and workers' compensation benefits Murdoch received before trial.
Plaintiffs moved for a new trial, arguing the jury's apportionment of fault was against the weight of the evidence. The trial court agreed and granted the motion, concluding Brock's liability "was significant and in excess of the 10% that the jury apportioned." In reaching this conclusion, the court relied on evidence provided by plaintiffs' expert, Scott McAllister.
Brock appeals. It contends the court erred by: (1) allowing McAllister to testify after plaintiffs failed to comply with the expert witness disclosure requirements in Code of Civil Procedure sections 2034.260 and 2034.280; (2) granting the new trial motion; and (3) calculating the setoff. Murdoch cross-appeals regarding the court's setoff calculation.
All undesignated statutory references are to the Code of Civil Procedure. Other defendants are not parties to this appeal and are mentioned only where necessary.
We affirm the trial court's grant of a new trial. Because we affirm the order granting a new trial, we decline to reach the issue presented in Murdoch's cross-appeal and we dismiss the cross-appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010 and 2011, the terminal was being renovated. The project's general contractor hired Siemens to install the terminal's baggage conveyor. Siemens contracted with Brock Solutions to design, install, and program a computerized system to control the conveyor. Murdoch was a millwright foreman for Siemens. In January 2011, Murdoch was cutting a metal side guard along the baggage conveyor. Before he began working, he did not "logout/tagout" — a procedure used to de-energize the conveyor. As he worked, the conveyor began moving unexpectedly; Murdoch was pulled through a luggage door and seriously injured.
Plaintiffs filed a lawsuit against Brock for negligence, premises liability, and loss of consortium. Plaintiffs alleged Brock Solutions owed a duty to provide a safe place to work, to ensure "appropriate safety measures were in place and followed[,]" to "promulgate appropriate job safety rules and procedures," to "abide by the provisions of the California Labor Code, [and] Cal OSHA," and to "train and supervise their employees so as to protect workers, including . . . Murdoch, from injuries." The complaint also alleged Brock Solutions was negligent by allowing the baggage conveyor to start remotely without sufficient warning and by failing to train, instruct, and supervise its employees. According to plaintiffs, Brock's violations of "accepted construction safety practices" and various state and federal regulations "pertaining to construction site safety, including . . . the California Labor Code [and] CAL OSHA," constituted negligence per se.
Cal-OSHA or OSHA is the State of California's Division of Industrial Occupational Safety and Health.
Expert Designations
In late February 2014, the parties exchanged expert witness information pursuant to section 2034.260. As relevant here, plaintiffs designated Frank Loeffler to testify on "standard of care issues" and "safe practices to be used" in building, wiring, and programming baggage handling systems. Plaintiffs also designated Matt Wall, Ph.D., to testify regarding "responsibilities of general contractors and subcontractors" on large construction sites, and the "standard of care . . . regarding the subject construction project." Among the experts designated by Brock Solutions was Gideon Vardi, Ph.D., who would testify "regarding lockout/tagout procedures, OSHA regulations, [and] employer safety procedures and training[.]"
Both parties later exchanged supplemental expert witness lists pursuant to section 2034.280. Plaintiffs designated retired OSHA engineer Scott McAllister to "testify regarding issues related to the OSHA regulations that Defendants claim Mr. Murdoch violated, as well as violations of OSHA regulations by Defendants, and issues of workplace safety." Brock deposed plaintiffs' experts.
Trial Testimony Regarding the Accident
Siemens manufactured and installed the baggage conveyor. Siemens hired Brock Solutions — a company with significant experience designing and installing baggage handling systems at major airports — to design, install, and program the computerized system for the conveyor. Siemens's safety manual required employees to "Lockout/Tagout" before working on machines such as conveyors. This common industry practice, required by OSHA, requires a worker to place a lock on an energy isolating device connected to the equipment (lockout) or indicate the device is out of service (tagout). In other words, the employee must "turn off the equipment you're going to go work on . . . . You have to put a lock and a tag. The tag has to have your name, your company, and a phone number to reach."
Brock employee Yat Ming To was the baggage conveyor's "control systems engineer." The baggage conveyor had an outbound line — which brought baggage from the terminal to the planes — and inbound line — which brought baggage from the planes to the terminal. In early January 2011, installation of the inbound line was complete, and Brock began "commissioning" the line, i.e. verifying the conveyor was programmed and operating properly. When lines are being commissioned, the conveyor "can go on and off. A lot."
On the morning of the accident, Siemens told Ming To that he could begin commissioning the inbound line. From his laptop computer, Ming To operated the software program used to control the baggage conveyor. With the software program, Ming To could start up certain sections, or the entire inbound line. The software program also had a feature delaying the start of the conveyor. The delay for the inbound line was two seconds.
When he began commissioning the inbound line, Ming To was "physically present" at the baggage conveyor, but he could not see the entire inbound line. According to Ming To, Brock never considered having people stationed along the inbound line to make sure no one was on the conveyor because "[t]here shouldn't be anyone on the conveyers in the first place." Ming To conceded a person who was on the conveyor when it started moving could be injured or killed. Brock tested conveyor belts at the terminal, and at other airports, "without any notification."
Ming To testified he did not recall the exact time he began using his computer to commission the inbound line, but claimed he "hadn't started [the computer] up" when he learned Murdoch had been injured. The computer software program was saved at 7:41 on the morning of the accident, but Ming To denied saving the software program. "Anyone with Brock" could have saved the program.
According to Ming To's supervisor, Joseph Craddock, starting a conveyor "does create a hazard" and employers must "maintain a safe environment" for workers. Craddock acknowledged Brock did not have a required "safety designee" at the construction site. Craddock conceded Ming To should have inspected the conveyor before starting it, but claimed Brock Solutions was not at fault for the accident.
At about 8:30 a.m., Murdoch was on the conveyor, preparing to mark the side guard before cutting them. He did not lockout/tagout, which was a mistake. Murdoch assumed an electrician had "already locked out since he had just gotten off the conveyor." That assumption, however, was "not a good reason" for failing to lockout/tagout, and the accident would not have happened if Murdoch had followed the lockout/tagout procedure.
Murdoch was kneeling on the conveyor, near the luggage door, when the conveyor started moving. He did not hear an alarm before the belt began moving. Murdoch was knocked down and part of his body was dragged through a luggage door. As he was "getting sucked in" the luggage door, Murdoch yelled, "Turn it off, turn it off." The conveyor eventually stopped and Murdoch extricated himself from the luggage door.
Expert Testimony
Neither Loeffler nor Dr. Wall testified during plaintiffs' case. The day before McAllister was scheduled to testify, Brock objected to McAllister's testimony as beyond the scope of plaintiffs' initial expert designation of Loeffler and Dr. Wall. At a hearing outside the presence of the jury, defense counsel argued plaintiffs initially "designated two standard of care experts" who testified "about the standards of care and referenced OSHA and workplace rules[.]" Brock's expert, Dr. Vardi, gave "opinions that touch on OSHA, and Mr. McAllister stated he agrees with both of them. [¶] And then Mr. McAllister goes on . . . to give a whole series of new OSHA opinion[s] that were not given by Dr. Wall, the officially designated expert, or Mr. Loeffler, the officially designated expert. [¶] So what [plaintiffs are] doing is . . . trying to backdoor in an expert through the supplemental designation process in order to provide opinions that should have been provided by the experts in the original exchange[.]" Brock Solutions urged the court to limit McAllister's testimony to "responding" to Dr. Vardi's deposition testimony on OSHA.
In response, plaintiffs claimed they did not initially disclose an OSHA expert and that they properly designated McAllister as a supplemental expert concerning OSHA regulations after Brock designated Dr. Vardi. According to plaintiffs, McAllister would testify regarding "OSHA violations" and opine Dr. Vardi had "too narrow a view of what OSHA required" and that "Mr. McAllister's coming at it from the angle of OSHA violations. And they are making a huge part of their case that . . . Murdoch violated a specific OSHA regulation. And what Mr. McAllister points out is that Brock [Solutions] violated that same regulation."
After allowing the attorneys to submit relevant expert deposition testimony, the court denied Brock's motion to exclude McAllister's testimony on the subject of OSHA, or to limit his testimony to impeaching Dr. Vardi.
A. McAllister's Trial Testimony
McAllister, a retired safety engineer and industrial hygienist for OSHA, testified for plaintiffs. According to McAllister, OSHA promulgates regulations to "[p]rotect employees" in the workplace. Employers — including "creating" employers — must comply with OSHA regulations.
Brock Solutions was a "creating" employer because it created the hazard to which Murdoch was exposed. As a creating employer, Brock was required to "control the hazard. Or eliminate it." Brock created the hazard by "energizing" — or starting the conveyor — "without any notification to anybody that might be around there. [Brock] could . . . start the conveyors remotely, using computers. And [Brock] didn't take care of what they almost certainly knew as a hazard when those conveyors started up." Brock was "not able to see the hazard" it created when starting the conveyor.
The "lockout/tagout" regulation is "designed to control . . . hazardous energy." "[W]hen employees are at risk of hazardous energy," employers are "required to take certain steps to control that energy, or to eliminate it so people don't get hurt." The failure to control hazardous energy is responsible for at least 10 percent of serious workplace injuries. When a conveyor belt is being controlled remotely, there are several ways to control the hazard. "The most obvious" way is to "have some personnel there . . . making sure nobody's on that conveyor when it starts up . . . . [¶] There may be more fancy technological fixes . . . . But nothing would work as well as having some people out there controlling the line." The alarm did not play a significant role in controlling or eliminating the hazard and there was no evidence Brock disabled the alarm.
According to McAllister, Brock knew "there were violative conditions that could occur on these conveyor belts" — i.e. that there was "hazardous energy associated with these belts," and "people [were] unprotected from that energy[.]" The longer an employer is aware of a violation without correcting it, the more culpable the employer. OSHA did not perform an investigation after the accident. McAllister conceded it was Murdoch's responsibility to lockout/tagout and that the conveyor would not have started moving had he locked out and tagged out.
B. Dr. Vardi's Trial Testimony
Dr. Vardi, a licensed general contractor, testified for Brock. According to Dr. Vardi, the lockout/tagout rule was the most important safety rule on construction sites, and the accident was the result of Murdoch's "own negligence" — his failure "to follow required lockout/tagout safety protocols." Dr. Vardi also opined there was "no evidence that Brock Solutions had anything to do with the allegation of activation of the conveyor belt" or "disabling of strobes and alarms at the time of the accident."
Verdict and Judgment
The jury determined Brock Solutions and Siemens were negligent, and their negligence was a substantial factor in plaintiffs' injuries. The jury awarded plaintiffs $3,895,220, comprised of $2,395,220 in economic damages and $1,500,000 in non-economic damages. The jury allocated 80 percent of the fault to Murdoch, 10 percent to Brock, and 10 percent to Siemens. The court reduced the economic damages by Murdoch's percentage of fault, and offset settlement and workers' compensation benefits Murdoch received before trial.
New Trial Motion
Plaintiffs moved for a new trial. Among other grounds, plaintiffs argued "the apportionment of fault, was against the . . . weight of the evidence." According to plaintiffs, the jury wrongly apportioned only 10 percent of the fault to Brock Solutions because: (1) Brock's employee, Ming To, turned on the baggage conveyor when "he 'had no business' doing so, and without checking to make sure the conveyer was free of workman that he knew or should have known would be working on the security door"; and (2) McAllister's testimony established Brock — the entity that created the hazard — had an obligation to "make sure the hazard is controlled." In opposition, Brock argued " ' sufficient credible evidence' " supported the verdict. Brock contended plaintiffs were not entitled to a new trial on "allocation of fault" because the evidence of Brock's connection to the accident was minimal, while Murdoch's was "abundant[.]"
At a hearing, the court agreed insufficient evidence supported the jury's allocation of fault. The court observed the case was "difficult," the trial had been "long," and that it did not "take" the granting of a new trial motion "lightly." Then the court explained: "In reviewing the [trial] transcripts and my notes, I was compelled to find that the testimony of Mr. Scott McCallister, [an] . . . OSHA inspector[,] was credible and that the vital importance of that entity [that] creates a hazard, must make sure the hazard is controlled. Mr. McAllister spoke about the responsibility of [a] creating employer, which in this case was [Brock], and he testified that [Brock] had a duty to take affirmative steps to insure they were doing so in a safe manner.
"However, the defense's position is that the plaintiff's responsibility was to lock out and ta[g] out and that was the only responsibility. I was compelled to learn that one out of every ten serious workplace accidents occur because of lock out and ta[g] out was not properly followed. I was also compelled to read that it's human failure sometimes to forget. Mr. McAllister's testimony underscores the critical importance for creating employer's taking steps to prevent the potential of injury. And that Mr. Scott McAllister's testimony that [Brock's] violation of the safety [requirement] . . . was [an] extremely dangerous violation of the state's work safety regulation. In reviewing the entire transcript, I found that Brock's negligence in this case was significant and in excess of ten percent. [¶] . . . In this case, Mr. Murdoch committed a mistake; he forgot. It was also the responsibility of the creating employer to put in place some safety measures in this case. It was not done. Motion for new trial is granted on that basis."
Statement of Reasons
In a written statement of reasons, the court determined: "[f]or this accident to happen, it was necessary for two negligent acts to occur. One negligent act was that Plaintiff, Michael Murdoch, failed to lock out / tag out, which the Plaintiff admitted was his fault. The second negligent act occurred when Defendant, Brock Solutions' employee, Yat Ming To, turned on the conveyer without checking to make sure the conveyer was free of workmen that he knew or should have known would be working on the security door and also the two second [alarm] system was insufficient warning. Evidence showed that starting the conveyors without properly checking if someone was on it could seriously hurt a worker. Evidence further showed that a two second system was insufficient warning.
"Despite the significant evidence that was presented as to Defendant's negligent behavior, the jury apportioned 80% of the fault to the Plaintiff, while only 10% to Defendant Brock Solutions and 10% to Plaintiff's employer, Siemens. The most persuasive evidence of Defendant Brock Solutions' fault was presented by Mr. Scott McAllister. The Court found Mr. McAllister's testimony convincing and compelling.
"During the trial, Mr. McAllister, a Cal-OSHA inspector with twenty-five years of experience, testified about the importance of the fact that where an entity creates a work hazard, that entity must make sure that the hazard is controlled. By starting the conveyer, Defendant Brock Solutions was the 'creating employer' of the hazard (a term defined in the Cal-OSHA regulations which means the party who actually created the hazard). As a 'creating employer' Defendant had an absolute duty to take affirmative steps to ensure work was completed in a safe manner. Instead of ensuring safety, Defendant simply relied on the lock out / tag out procedure and issued a two-second warning signal prior to starting the conveyer. Mr. McAllister stated that in his professional opinion, the Defendant failed to control this hazard since it was unreasonable to give a mere two-second alarm to warn the workers and rely solely on the lock out / tag out procedure.
"Furthermore, Mr. McAllister presented statistical evidence regarding the accidents related to the failure to lock out / tag out. Specifically, he testified that 1 out of every 10 serious workplace accidents occur because the lock out / tag out procedure is not properly followed. A separate expert witness testified to the human factor and how common it is for workers to forget to lock out / tag out. As a result of the evidence, it was unreasonable for Defendant Brock Solutions to solely rely on the lock out / tag out procedure to ensure the safety of the workers. Mr. McAllister's testimony clearly identified that Defendant Brock Solutions' approach to safety procedures was an extremely dangerous violation of California's worker safety regulations under the Cal-OSHA rules that according to Mr. McAllister, may even rise to the level of a serious and willful violation, which is the most culpable level of violation under Cal-OSHA rules. Defense's position that Cal-OSHA was not contacted and a citation was not issued is not sufficient justification. Finally, the jury heard significant testimony that at all of Defendant Brock Solutions' worksites, Defendant has continued its practice of starting conveyors without first checking to see if they are free of workers.
"The Court is mindful of the presumption in favor of the correctness of the verdict, but based on the testimony of Mr. McAllister, other witnesses, and a careful review of the entire record, the Court found that Defendant Brock Solutions' fault for the accident was significant and in excess of the 10% that the jury apportioned. As such, there was insufficient evidence to justify the jury verdict regarding the fault apportionment."
DISCUSSION
I.
Permitting McAllister to Testify Was Not an Abuse of Discretion
Brock Solutions contends the court erred by allowing McAllister to testify as an expert witness, and that his testimony was "beyond the scope of the supplemental designation." To place the issues in context, we briefly review the statutory scheme. Under section 2034.210, any party may issue a demand for the "mutual and simultaneous exchange by all parties" of expert witness information. On or before the date of exchange, each party must provide either: "(1) A list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial"; or "(2) A statement that the party does not presently intend to offer the testimony of any expert witness." (§ 2034.260.)
Supplemental expert witness lists are governed by section 2034.280, which provides that "[w]ithin 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list . . . of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject." (§ 2034.280.) "[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260. . . ." (§ 2034.300.) "We generally review the trial court's ruling on a motion to exclude an expert's opinion for abuse of discretion. [Citation.] '[D]iscretion is always delimited by the statutes governing the particular issue.' [Citation.] But, 'when the exclusion of expert testimony rests on a matter of statutory interpretation, we apply de novo review.' [Citation.]" (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.)
Brock's challenge to McAllister's testimony is premised on the rule that a "party who has designated an expert to testify on a particular subject may not use a supplemental list to substitute experts." (Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723 (Basham).) According to Brock, plaintiffs could not list McAllister as a supplemental expert because they had previously designated Loeffler and Dr. Wall as "expert witnesses on [the] standard of care, including OSHA and workplace rules." We are not persuaded.
Brock cites no evidence demonstrating plaintiffs' initially-designated experts — Mr. Loeffler and Dr. Wall — would opine on Cal-OSHA. Instead of citing the record, Brock repeats its summary of plaintiffs' initial disclosure in a statement that assumes the standard of care is a synonym for OSHA. Repetition does not render the argument persuasive. (See Covarrubias v. Cohen (2016) 3 Cal.App.5th 1229, 1238.) The evidence offered by plaintiffs in the trial court supports an inference Loeffler was not retained to opine on specific OSHA regulations. At his deposition, Loeffler stated he was not aware of any documents showing OSHA's response to the accident. Loeffler stated he would refer to the standard of care, expressed by the American Society of Mechanical Engineers and "might pick up OSHA." When asked "which sections of OSHA support the opinions that you want to give[,]" Loeffler replied, "it's been brought up already, is . . . lockout/tagout because you're going to bring that one up."
In its opening brief, Brock offers no authority supporting the proposition that the "standard of care" is the "same subject" as Cal-OSHA. (§ 2034.280, subd. (a).) In reply, Brock Solutions cites Elsner v. Uveges (2004) 34 Cal.4th 915, 935-936 (Elsner). There, the California Supreme Court held Labor Code section 6304.5, which "catalogues the rules for the admissibility of Cal-OSHA provisions in trial court personal injury and wrongful death actions[,]" authorizes plaintiffs to "use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, whether the defendant is their employer or a third party." We do not consider authority provided for the first time in a reply brief. (Medill v. Westport Ins. Corp. (2006) 143 Cal.App.4th 819, 836, fn. 3; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [rejecting appellant's reliance on statute because, "without good cause, it was not raised until the reply brief"].) Brock did not cite Elsner in the trial court when objecting to McAllister's testimony.
At Dr. Wall's deposition, defense counsel repeatedly asked Wall whether he considered OSHA statutes, standards or regulations; each time, Wall responded he had not. For example, defense counsel asked Wall to identify "Any particular statutes, regulations, codes, standards" and Wall replied: "Nothing in particular. Most codes in the construction industry are based on common sense. . . . And as far as OSHA is concerned, we're trying to make the workplace safe for everyone involved." When defense counsel asked whether Wall was referring to any specific OSHA regulation, Wall said, "OSHA in general." Later, defense counsel asked: "I'm curious about what particular standards or codes you're relying upon in rendering your opinions with respect to OSHA, Cal/OSHA . . . . Are there any particular standards that you're relying upon in rendering your opinions in this case?" and Wall responded: "I did not research any of those materials to render my opinion . . . OSHA, Cal/OSHA."
Based on the evidence described above, and on the representation that Loeffler and Dr. Wall were not designated to testify on OSHA issues and could not adequately address the opinions anticipated from defense expert Dr. Vardi, the court was within its discretion to permit plaintiffs' supplemental designation. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1324 [appellate court presumes trial court performed its duty to examine the evidence].)
We reject Brock's argument that "the only proper testimony from McAllister would have been his agreement" with Dr. Vardi. Section 2034.280 authorizes a party to designate a supplemental expert to "express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange[.]" (§ 2034.280, subd. (a), italics added.) Here, McAllister could properly testify on OSHA regulations because Brock Solutions designated Dr. Vardi to opine on that subject. --------
Brock's reliance on Basham, supra, 44 Cal.App.4th 1717 does not alter our conclusion. In Basham, the defense contended the plaintiff's injury derived from a preexisting condition. (Id. at p. 1719.) The defendant initially designated an orthopedist to "testify regarding the nature and extent of the injuries suffered by plaintiff, any pre-existing condition plaintiff may have suffered from, and the appropriateness of the medical treatment plaintiff received." (Ibid.) In a supplemental designation, however, the defendant added a radiologist to testify on plaintiff's physical condition before and after the accident, and the "causation of the plaintiff's physical condition." (Ibid.)
The plaintiff moved to exclude the radiologist's testimony, arguing section 2034 permitted a supplemental expert designation only if there had not already been a designation on the same subject. According to the plaintiff, both defense experts would testify on the same subject: the cause of her injuries. (Basham, supra, 44 Cal.App.4th at p. 1720.) The trial court allowed the radiologist to testify, as long as he did "not testify to the same thing" as the orthopedist. (Id. at pp. 1720, 1721.) At trial, the orthopedist did not testify; instead, the radiologist testified the injury was degenerative, preexisting, and did not result from the accident. (Ibid.) The jury rendered a defense verdict. (Id. at p. 1722.)
The appellate court reversed. Basham noted the radiologist's testimony was the only expert evidence supporting the defense theory of the case, and the effect of allowing the radiologist's testimony was to "substitute[]" the radiologist as the defendant's "expert to testify on subject matters for which [the orthopedist] had been previously retained." (Basham, supra, 44 Cal.App.4th at pp. 1723-1724.) The court held it was prejudicial error to allow "an expert designated by defendant on a supplemental list to testify in place of the originally designated expert and on the same subject matter." (Id. at pp. 1724, 1718-1719.)
Basham is distinguishable. In that case, the parties agreed both experts testified on the same subject. Here, Brock did not persuasively argue Loeffler and Dr. Wall were retained to opine on OSHA. Instead, counsel for Brock acknowledged McAllister would "give a whole series of new OSHA opinion[s] that were not given by Mr. Wall, the officially designated expert, or Mr. Loeffler, the officially designated expert." Under the circumstances, it was reasonable for the trial court to conclude plaintiffs were not substituting one expert for another, but rather adding an expert to respond to Dr. Vardi's opinion that Murdoch violated OSHA regulations.
Finally, we reject Brock's argument that plaintiffs were attempting to game the discovery process by designating McAllister in a supplemental expert disclosure. This is not a situation like the one in Fairfax v. Lords (2006) 138 Cal.App.4th 1019 (Fairfax). There, the defendant's expert witness designation listed no experts; several weeks later, the defendant provided a second designation naming two witnesses designed to counter the plaintiff's expert. (Id. at p. 1022, 1023.) Over the plaintiff's objection, the trial court allowed the defendant's experts to testify. (Id. at pp. 1024-1025.)
The Fairfax court held a party may not fail to designate any experts as part of the initial expert exchange and then designate all experts in a supplemental exchange after viewing the timely served designation by the opposing party. As Fairfax explained, "The effect of [the defendant's] expert designation was to delay his own list of 'expected' witnesses until after he had seen the list put forth by [the plaintiff]," which was "inconsistent with the clear statutory requirement of a 'simultaneous' exchange." (Fairfax, supra, 138 Cal.App.4th at p. 1026.) This case bears no resemblance to Fairfax. Plaintiffs listed several experts in the initial expert designation and supplemented the list after Brock designated an OSHA expert.
II.
Granting the New Trial Motion Was Not an Abuse of Discretion
Brock claims the court erred by granting plaintiffs' new trial motion. Section 657 authorizes a trial court to grant a motion for new trial on several grounds, including "[i]nsufficiency of the evidence to justify the verdict . . . ." (§ 657, subd. 6.)
"A court granting a new trial motion must specify both the grounds on which the motion is granted and the court's reasons for granting the motion on each of those grounds. [Citation.] [¶] We generally review the trial court's decision to grant a new trial for specified reasons under the abuse of discretion standard. [Citations.] We defer to the trial court's resolution of conflicts in the evidence if the decision is supported by substantial evidence and reverse only if there is no reasonable basis for the court's decision or the decision is based on a legal error. [Citations.] [¶] An order granting a new trial 'will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside.' [Citation.]" (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1121-1122, fn. omitted.)
According to Brock, a new trial is unwarranted because " 'sufficient credible evidence' " supports the verdict. But this argument is based on a misunderstanding of the court's role in granting a new trial. Granting "a new trial does not entail a victory for one side or the other. It simply means the reenactment of a process which may eventually yield a winner. Accordingly, the judge has much wider latitude in deciding the motion . . . which is reflected in an abuse of discretion standard when the ruling is reviewed by the appellate court. A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse." (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751, second italics added.) The cases upon which Brock Solutions relies, including People v. Robarge (1953) 41 Cal.2d 628 and People v. Fuiava (2012) 53 Cal.4th 622, have no application here because they concern appeals from the denial of a new trial motion.
Here, the court determined the evidence was insufficient to support the jury's apportionment of fault, in part because McAllister's "convincing and compelling" testimony established: (1) Brock's approach to safety measures violated OSHA; and (2) it was Brock's obligation to control the hazard it created by energizing the baggage conveyor. Additionally, Craddock conceded starting a conveyor creates a hazard and that Ming To should have inspected the conveyor before starting it. Together, this evidence demonstrated it was unreasonable for Brock to rely solely on the lockout/tagout procedures to protect worker safety. And this evidence "undermined" the jury's allocation of fault, and "provided a sufficient basis for ordering a new trial[.]" (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) Brock acknowledges the evidence supporting its responsibility for the accident, but claims McAllister's testimony does "not justify granting a new trial and rejecting the jury's allocation of responsibility." Brock's disagreement with the court's conclusion does not demonstrate an abuse of discretion. An " 'abuse of discretion cannot be found in cases in which the evidence is in conflict . . . .' [Citation.] . . . [¶] The trial court sits much closer to the evidence than an appellate court. . . . The trial court, therefore, is in the best position to assess the reliability of a jury's verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. . . . [Citation.]" (Id.) Here, Brock has not established the court abused its discretion in granting a new trial. Having reached this result, we need not address the parties' contentions regarding the court's calculation of the offset.
DISPOSITION
The order granting plaintiffs' new trial motion is affirmed. Plaintiffs' cross-appeal is dismissed as moot. In the interests of justice, the parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278.)
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.