Opinion
B212270
09-08-2011
BEVERLY SAFFOLD et al., Plaintiffs and Respondents, v. BONDEX INTERNATIONAL, INC., Defendant and Appellant.
Horvitz & Levy, Curt Cutting, Alicia A. Pell; Walsworth, Franklin, Bevins & McCall, Stephen M. Nichols, and Heather L. Nicoletti for Defendant and Appellant. Waters, Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC341492)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ricardo A. Torres, Judge. Affirmed.
Horvitz & Levy, Curt Cutting, Alicia A. Pell; Walsworth, Franklin, Bevins & McCall, Stephen M. Nichols, and Heather L. Nicoletti for Defendant and Appellant.
Waters, Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiff and Respondent.
Beverly Saffold sued various manufacturers of joint compound containing asbestos for defectively designing products that led to her husband's death from mesothelioma. The jury found Bondex International, Inc. (Bondex) 26 percent at fault. On appeal, Bondex contends the evidence is insufficient to support the jury's allocation of noneconomic damages. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Summary
In 2005, Ronald Saffold (Saffold) died of mesothelioma, a cancer of the lungs, which is typically caused by exposure to asbestos. The greater the exposure to asbestos fibers, the greater the likelihood that mesothelioma will develop, although some people are more susceptible to contracting the disease than others.
Saffold was diagnosed with mesothelioma in 2004, while still working at Warner Bros. Between 1971 and 1978, Saffold's job at Warner Bros. consisted largely of keeping the television and movie stages free of dust and debris, particularly when they were under construction. Dust was created when joint compound was used in building temporary stage walls. The compound came in a powder form and was mixed with water to make a paste that was spread onto the seams between sheets of drywall and then sanded to a smooth surface. Saffold did not handle the compound, but he breathed in the airborne dust while sweeping it off the stages. He was also close enough when the compound was mixed and sanded to inhale the floating dust. Saffold was exposed to compound dust most of every working day.
Between 1971 and 1978, Warner Bros. used various brands of joint compound that were manufactured by Bondex, Dowman Products, Inc. (Dowman), Kaiser Gypsum Company, Inc. (Kaiser Gypsum), Kelly-Moore Paint Company, Inc. (Kelly-Moore), Georgia-Pacific Corp. (Georgia-Pacific) and Gold Bond. Saffold could not remember any one brand being used more often than others. All of the brands contained chrysotile asbestos, which has been shown to cause mesothelioma. Saffold did not know that the joint compounds used at Warner Bros. were formulated with asbestos and that he was being exposed to it on the job.
In 1972, OSHA limited asbestos-exposure in the workplace and required an asbestos warning label on products containing asbestos. Prior to 1972, certain manufacturers, including Bondex, knew asbestos exposure associated with joint compound was hazardous, but refrained from investigating the safety of their own compounds and from eliminating asbestos as a component. After 1972, there were compound manufacturers, who failed either to place the OSHA-mandated warning label on consumer packages of the compound and/or to include instructions on how consumers could avoid harmful exposure. In 1978, the Consumer Product and Safety Commission banned asbestos in joint compounds because of its health risks to consumers.
II. Procedural Summary
The suit filed by Saffold's wife and adult children (plaintiffs) alleged negligence and strict liability against a number of defendants, among them, the manufacturers of joint compounds used at Warner Bros. By the time of trial, only four defendants remained in the case: Bondex, Dowman, Kaiser Gypsum and Kelly-Moore. Plaintiffs settled with Kelly-Moore during trial.
Following a three-week trial, the jury rendered a special verdict in plaintiffs' favor, finding Bondex, Dowman and Kaiser Gypsum liable for negligence and strict liability for product defect and failure to warn. The jury awarded plaintiffs $400,280 in economic damages and $5,000,000 in non-economic damages, and apportioned fault as follows:
The parties stipulated that plaintiffs' economic damages were $400,000.
Bondex 26 percent
Dowman 23 percent
Kaiser Gypsum 26 percent
Georgia-Pacific 0 percent
Kelly-Moore 0 percent
Gold Bond 0 percent
Union Carbide 0 percent
Warner Bros. 25 percent.
After accounting for pre-verdict settlements, the trial court entered judgment on August 14, 2008, in the amount of: $1,300,000 against Bondex and Kaiser Gypsum each for non-economic damages; $1,150,000 against Dowman for non-economic damages; and $204,664.99 jointly and severally against all three defendants for economic damages.
Saffold pursued a worker's compensation claim against Warner Bros.
Bondex timely filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial, which the trial court heard and denied. This appeal followed.
Dowman also filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial, which was heard and denied by the trial court the same day.
DISCUSSION
Bondex does not contend that it has no liability for plaintiffs' noneconomic damages. Instead, Bondex argues the jury's allocation of 26 percent fault to Bondex and 0 percent fault to Kelly-Moore, Georgia- Pacific and Gold Bond is contrary to the evidence. However, we conclude Bondex's deliberate tactical decision to refrain from actively litigating the proportionate fault of the nonparty manufacturers precludes Bondex from now challenging the jury's allocation of liability for noneconomic damages.
I. Comparative Fault
Adopted by the voters in 1986, Civil Code section 1431.2 is the "heart" of Proposition 51. (Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 852 (Wilson).)The statute provides "[i]n any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non- economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." (Civ. Code, § 1431.2, subd. (a).) Simply put, a defendant's liability for noneconomic damages shall not exceed the defendant's relative share of fault; and must be apportioned among the universe of potential tortfeasors, including nonparty tortfeasors. (See Diaz v. Carcamo (2011) 51 Cal.4th 1148; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603.)
The doctrine of comparative fault "allocates liability not simply on the relative blameworthiness of the parties' conduct, but also on the proportion to which their conduct contributed to the plaintiff's harm. A more accurate label might well have been something like 'comparative responsibility.' [Citation.]" (Wilson, supra, 81 Cal.App.4th at p. 854.) As the jury here was properly instructed: "More than one person's negligence/fault may have been a substantial factor in causing plaintiff's harm. If so, you must decide how much responsibility each person has by assigning percentages of responsibility to any person listed on the verdict form whose negligence or other fault was a substantial factor in causing plaintiff's harm. The percentages of the responsibility must total 100 percent." (CACI No. 406.)
In allocating liability, the defendant bears the burden of proving causation and the extent to which fault and damages can be apportioned among the universe of potential tortfeasors. (Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1408.) The trial court instructed the jury, "[i]n the asbestos-related lawsuit a defendant bears the burden of establishing all elements of liability against others before damages can be allotted to it." (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369; Sparks v Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 478 [defendant manufacturer of asbestos-containing product "undisputedly had the burden to establish concurrent or alternate causes [of the plaintiff's mesothelioma] by proving: that [the plaintiff] was exposed to defective asbestos-containing products of other companies; that the defective designs of the other companies' products were legal causes of the plaintiffs' injuries; and the percentage of legal cause attributable to the other companies. [Citations.]"])
When the facts warrant, jury verdict forms may be designed by trial courts to permit juries to apportion fault to specifically named entities and persons as well as to "others" in the universe of potential tortfeasors. (Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, 958 ["And although a defendant cannot escape liability simply because it cannot be determined with medical exactitude the precise contribution that exposure to fibers from defendant's products made to plaintiff's ultimate contraction of asbestos-related disease, all joint tortfeasors found liable as named defendants will remain entitled to limit damages ultimately assessed against them in accordance with established comparative fault and apportionment principles."]; e.g., Gutierrez v. Cassiar Mining Corp (1998) 64 Cal.App.4th 148, 151-152 [in an asbestos case the jury assigns percentages of comparative fault to the supplier and manufacturer of the asbestos, and to "all others."].)
II. Additional Facts
A. Summary of trial issues and pertinent evidence
The primary issue at trial was causation. To prove causation in an asbestos-related lawsuit, "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 [or her] injury, i.e., a substantial factor in bringing about the injury. . . . [T]he plaintiff need not prove that fibers from the defendant's product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor . . . contributing to the plaintiff's or decedent's risk of developing cancer." (Rutherford v. Owens-Illinois, supra, 16 Cal.4th at pp. 982-983, italics omitted.)
Plaintiffs' causation evidence against Bondex consisted of Saffold's testimony of having been exposed over the same period and with equal frequency to all six brands of asbestos-containing compound used at Warner Bros., and medical expert testimony that Saffold's prolonged exposure to any and all brands of asbestos-containing compound was a substantial factor in causing his mesothelioma.
At trial, Bondex agreed that under certain circumstances asbestos exposure was carcinogenic. However, Bondex claimed it was not responsible for the harm in this case. Bondex introduced medical expert testimony to show that chrysotile asbestos is the least potent kind of asbestos, and, under the circumstances of Saffold's exposure, it could not have been a substantial factor in causing his mesothelioma. Bondex offered two alternative explanations, developed mainly through Saffold's testimony and cross-examination. The first was that Saffold contracted the disease after being exposed to other known asbestos sources at Warner Bros. The second was that Warner Bros. failed to take safety precautions to protect Saffold from asbestos exposure while on the job. In short, Bondex's defense at trial was that its asbestos-containing product did not cause Saffold's disease, but even if it did, Warner Bros., and not Bondex, was responsible for failing to safeguard its employee from any and all asbestos-exposure.
B. Special Verdict Form
The trial court discussed with the parties proposed special verdict forms submitted by plaintiffs and Bondex, Dowman and Kaiser Gypsum, together. There were minor differences between the two forms. The court agreed to use plaintiffs' version. It was derived from a combination of CACI 1201, 1202, and 1203 and VF-402, which were intended for use in strict products liability cases based on design defect and failure to warn, and in negligence cases involving comparative fault. (CACI Oct. 2005 Ed.)
The verdict form required the jury to make specific findings as to: (1) whether there was a design defect in the joint compound manufactured by Bondex, Dowman or Kaiser Gypsum in that it failed to perform safely as an ordinary user would expect; (2) whether the risks of the design defect outweighed the benefits; (3) whether there was a failure to warn by Bondex, Dowman or Kaiser Gypsum of known potential health risks associated with the design defect; (4) whether the design defect existed when it left the manufacturer's possession; (5) whether the design defect was a substantial contributing factor in causing Saffold's mesothelioma; (6) whether Bondex, Dowman or Kaiser Gypsum was negligent; and (7) whether such negligence was a substantial contributing factor to causing Saffold's mesothelioma.
The verdict form then directed the jury to assess the total amount of economic and noneconomic damages suffered by plaintiffs, and to apportion the total fault among "defendants and others," listing Bondex, Dowman, Kaiser Gypsum, Kelly-Moore, Georgia Pacific, Gold Bond, Union Carbide and Warner Bros..
The only objections Bondex's counsel made to the verdict form concerned Warner Bros. and did not relate to the six manufacturers or other potential tortfeasors.
C. Closing Argument
During lengthy closing argument, Bondex's counsel made the following comments about the special verdict and allocation of fault: "The last question on the verdict form 24, that's apportionment. I don't think you get there. . . . [¶] But if you do get there, and you decide to throw out substantial, and you are looking at those empty spots there and how to award percentages, I would submit to you that you do what [Saffold] did before he filed this lawsuit and give 100 percent of the responsibility to Warner Brothers. They were the employer, they were the one that was there to follow the California laws, the OSHA laws, to protect [Saffold]. [¶] But since he's changed that posture and brought in joint compounds and, again, if you are throwing [away] substantial factor, if you buy the argument that everything that contributes to dose contributes (sic),then there are six joint compounds you know about. Each one gets a sixth of some percentage. [¶] And if you drop Warner Brothers' percentage to 99 percent and there's one percent left that you are going to give to the joint compounds, you've got to divide them equally six ways."
As for the nonparty manufacturers, Bondex's counsel argued, "You heard testimony that all of the joint compounds, in the 1970s, contained asbestos. Now all of a sudden there's an argument that, 'Gee, we don't know if Gold Bond did. We don't know if U.S.G. [sic] did.' But go back to your notes, think about the testimony. Why all of a sudden [do] the two joint compounds who aren't in this courtroom all of a sudden, 'We don't know if they had asbestos in the joint compound.' It was used in joint compounds during that time period, we know that."
III. Bondex's defense theory was not the comparative fault of the six manufacturers
The record shows Bondex presented two defense theories: (1) Bondex's asbestos-containing joint compound did not cause Saffold's mesothelioma; and (2) even if Bondex did, Warner Bros. was entirely at fault, having failed to protect Saffold from asbestos-exposure. The record also demonstrates that Bondex refrained from presenting or highlighting evidence that would establish liability for the nonparty manufacturers.
A. State of the Evidence
Bondex failed to introduce evidence of its own to prove the comparative fault of Kelly-Moore, Georgia-Pacific and Gold Bond. Bondex maintains it did not have to, because in proving causation, plaintiffs presented sufficient evidence for Bondex's burden of proof on that issue. (See Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1433 [substantial evidence is determined by examining both parties' evidence].) Specifically, Bondex asserts that because plaintiffs' causation evidence established that all six manufacturers contributed equally to Saffold's harm, they all should have been apportioned equal percentages of fault. Thus, the allocation of 26 percent fault to Bondex and zero percent fault to Kelly-Moore, Georgia-Pacific and Gold Bond cannot be reconciled with the evidence.
We need not reach the question of whether plaintiffs' causation evidence was sufficient to prove the nonparty manufacturers' proportionate fault in this case. Nor do we need to consider the validity of Bondex's underlying premise that plaintiffs' burden of proving causation against Bondex for personal injury, and Bondex's burden of proving equitable indemnity against the other manufacturers, were the same. Even if we were to assume, as urged by Bondex, that plaintiff's causation evidence supported Bondex's theory of equal apportionment of fault among manufacturers, it was incumbent upon Bondex to convey this theory to the jury, to explain how it was supported by the evidence, and to request the same special findings as against the non-party manufacturers as it did for those manufacturers still in the case, to avoid confusion and misdirection of the jury. Tellingly, Bondex failed to do.
After oral argument, Bondex requested the opportunity for further briefing on a waiver theory. This court permitted such briefing by both parties.
B. Special Verdict Form
Read in conjunction with the jury instructions on allocation of fault, the special verdict form did not reflect the theory that fault should be apportioned among all six manufacturers based upon the evidence. The jury was instructed that if it found from the evidence that more than one "person's negligence/fault" caused Saffold's mesothelioma, then the jury was to decide how each person's fault was to be apportioned. However, the liability questions in the verdict form, which guided the jury in determining causation, pertained only to Bondex, Dowman and Kaiser Gypsum. Bondex's counsel never requested that the form be modified to have the same questions asked about the nonparty manufacturers, so that the jury could assess the relative fault of all six manufacturers based on the evidence. Significantly, one of the CACI user notes suggests, "Users may wish to have the jury specify the liability and causation of each nonparty actor." (CACI VF 402.)
C. Closing Argument
In arguing to the jury, Bondex's counsel never discussed the instructions on comparative fault and how they should be applied to the jury in light of the evidence. In particular, counsel did not explain the basis for its argument here that while Kelly-Moore, Georgia-Pacific and Gold Bond were no longer in the lawsuit, they each shared the same percentage of fault as Bondex, Dowman and Kaiser Gypsum. (Roslan v. Permea, Inc. (1993) 17 Cal.App.4th 110, 111-112 [error to preclude a defendant from showing that parties who had previously settled should share liability for noneconomic damages].) Indeed, counsel only referred to Georgia Pacific and Gold Bond in reminding the jury their joint compounds contained asbestos. Counsel never mentioned Kelly-Moore at all. Instead, counsel argued that Warner Bros. should bear 100 percent of fault, or at the very least, 99 percent of fault based on its failure to protect Saffold from asbestos exposure from any source.
IV. Bondex failed to submit a jury form sufficient to support its defense
Bondex made a pragmatic choice to give instructions to the jury that did not ask them to make any findings on liability for the absent manufacturers. Bondex opted instead to focus the jury's analysis on the special verdict form to the defendants still in the case, and to focus its closing argument on Warner Bros., presumably to avoid implicating itself as a manufacturer of asbestos-containing joint compound.
Bondex failed to object to the jury form, or to argue to the jury what the factual basis for assessing liability against those parties omitted from the special verdict question should be. If, as it now asserts, there was substantial evidence on which the jury should have based an allocation, it failed to point that out - or to explain how it could be used.
By proceeding with a special verdict form as to manufacturer liability, but omitting findings as to some of the manufacturers, Bondex took the risk that the jury would fail to make necessary findings. Where, as here, a special verdict is used, we do not imply findings on review. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 531; Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1557.) It is the responsibility of the party, here Bondex, who bears the burden on an issue to include the necessary findings in the form to support the verdict it seeks. (Behr v. Redmond, supra, at p. 530; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 961-962 (Myers).)
If there was jury error, it is traced to Bondex's choices. "It is incumbent on counsel to propose a special verdict that does not mislead a jury into bringing in an improper special verdict." (Myers, supra, 13 Cal.App.4th at p. 960, fn. 8.) Here, by including specific detailed questions pertaining to the liability of the remaining manufacturers, but omitting any of the non-parties, Bondex sought a special verdict, consistent with its primary argument at trial that non-manufacturer Warner Bros. should bear fault, but inconsistent with its argument in this court. That the jury would be confused or misled by that choice was a substantial risk; Bondex now claims error based on the jury's failure to allocate responsibility to the very parties it excluded from the special findings.
Moreover, while waiver or forfeiture based on the structure of a jury form is not found where the failure to object was not tactical or strategic, here there is a sufficient record to find a knowing decision consistent with the conduct of the trial and argument. (Compare Saxena v. Goffney (2008) 159 Cal.App.4th 316, 328-329 [no waiver when party raised issue in trial court and objected to jury instructions]; see also Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686-1687 (Mesecher) [inconsistent answers to two special verdict questions would not permit appeal of a jury's verdict where the appellant had asked to include both questions on the verdict form]; Myers, supra, at pp. 960-961[ a party must bear the responsibility for a special verdict form it submitted, despite the inadequacy of that verdict to support the punitive damages judgment against it].) .
Estoppel to challenge a verdict resulting from a party's proffered instruction, or special verdict also arises under a theory of invited error. (See Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 667.)
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"[W]here a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error." (Mesecher, supra, 9 Cal.App.4th at p. 1686.)
Bondex made no objection to the special verdict form, and made the choice to withhold from the jury the factual or legal basis for assigning fault to the missing non-party tortfeasors. Bondex has forfeited its claim.
DISPOSITION
The judgment is affirmed. Plaintiffs are to recover their costs on appeal.
ZELON, J. We concur:
PERLUSS, P. J.
JACKSON, J.