Davis v. Leslie Controls, Inc.

          WOODS, J.

         In this asbestos personal injury case, defendants Leslie Controls, Inc. (Leslie) and Warren Pumps LLC (Warren) appeal from the judgment in favor of plaintiffs John R. Davis and Anna J. Davis. The jury awarded Davis economic damages of $100, 000 and non-economic damages of $25 million and awarded Mrs. Davis non-economic damages of $10 million. Defendants contend that the court committed reversible error by refusing to instruct on the sophisticated user defense and that the damage award was excessive. We affirm conditionally.

John is referred to as Davis, and Anna is referred to as Mrs. Davis.

          FACTUAL AND PROCEDURAL SYNOPSIS

         I. Factual Background

         A. General Background

         Davis, who was born in 1933, was 74 years old at the time of trial. Eight months before trial, Davis had been diagnosed with mesothelioma, a fatal cancer of the lining of the lungs that is usually caused by asbestos exposure.

         Plaintiffs’ occupational-medicine expert opined that Davis had experienced “three substantial periods of cumulative asbestos exposure”: in the Navy between 1951 and 1955, at Shell Oil Company refineries from 1956 to 1963, and at the Idaho National Engineering and Environmental Lab (INEEL) from 1964 through 1976. Throughout Davis’s years of exposure to asbestos-containing products (including Leslie valves and Warren pumps), no employer, manufacturer, physician or anyone else, ever warned him about any danger associated with asbestos. Davis breathed asbestos dust when he worked on defendants’ products. None of Davis’s employers took any measures to control asbestos dust such as the use of respirators or wetting procedures.

         Davis developed mesothelioma due to his cumulative asbestos exposure. Plaintiffs’ expert Dr. Brodkin opined that products of Warren and Leslie were a substantial factor in causing Davis’s disease. Dr. Brodkin stated that products of the other defendants were also a substantial factor in causing the disease.

At the close of trial, Leslie and Warren were the only named defendants left.

         II. Procedural Background

         On March 6, 2007, plaintiffs filed a complaint for personal injury--asbestos, asserting causes of action for negligence, strict liability, false representation, intentional tort/intentional failure to warn and loss of consortium.

         Plaintiffs’ primary theory was the failure to warn, and the court instructed the jury it could find liability on that theory if “ordinary consumers would not have recognized the potential [risks].” Plaintiffs pursued their strict liability -- design defect claim solely under the consumer expectation test and the court instructed only on that test.

         The jury returned a verdict in favor of plaintiffs on their claims for strict liability based on design defect, strict liability based on the failure to warn and negligence. The jury assigned 7.1 percent of the liability to each of these two defendants as well as to each of five other manufacturers and 16.6 percent to each of Davis’s three employers -- the Navy, Shell Oil and INEEL. The jury awarded Davis $100, 000 in economic damages and $25 million in non-economic damages and awarded Mrs. Davis $10 million in non-economic damages for loss of consortium. After reducing the verdict based on the jury’s fault allocation, the court entered judgment against Leslie and Warren in the amount of $2, 578.360.05 each. After the court entered judgment in favor of plaintiffs, defendants moved for a new trial on several grounds, including those raised on appeal. The court denied the motions.

         Warren and Leslie filed timely notices of appeal from the judgment entered in favor of plaintiffs and the order denying their motions for new trial.

          DISCUSSION

         I. Sophisticated User Defense

         Appellants contend the court committed reversible error by refusing to instruct on the sophisticated user defense because the defense was applicable and supported by substantial evidence. Subsequent to the trial in this case, the Supreme Court held: “A manufacturer is not liable to a sophisticated user of its products for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 71.)

         Respondents counter this case presents a sophisticated intermediary situation not that of a sophisticated user, i.e., Davis’s employers were sophisticated intermediaries, which requires a showing the manufacturer relied on the intermediary to warn the plaintiff and its reliance was reasonable. (See Rest. 2d Torts, § 388, cmt. n; In re Brooklyn Navy Yard Asbestos Litigation (2d Cir. 1992) 971 F.2d 831, 837-838.)

         On appeal, appellants do not contend that Davis’s mesothelioma was not caused by exposure to asbestos fibers from working on their products. In a footnote in their reply brief, appellants state, “the record will demonstrate that Plaintiffs presented no evidence of a sale by either Warren or Leslie of any product that harmed Mr. Davis.” To the extent appellants are trying to raise a new issue (i.e., there is no substantial evidence a product of theirs harmed Davis), it is improper to do so in a reply brief as respondents noted in a motion to strike the footnote. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)

         A. The Proposed Instruction

         The proposed instruction stated:

         A defendant is not liable for failure to warn of the hazards of asbestos when the decedent’s employer is a sophisticated user of the asbestos-containing product. That is, a defendant has no duty to warn users who are already or should be aware of the potential dangers of the product. [¶] In this case if Mr. Davis’ employers (i.e., the U.S. Navy, Shell Oil, the Atomic Energy Commission, Idaho National Laboratories, ConocoPhillips, Lockheed Aerojet Corporation) knew about the hazards of working with asbestos during the time Mr. Davis worked for the entity, then it is a sophisticated user and the defendant(s) had no duty to warn.

         CACI No. 1244, which is based on Johnson, provides:

         [Name of defendant] claims that [he/she/it] is not responsible for any harm to [name of plaintiff] based on a failure to warn because [name of plaintiff] is a sophisticated user of the [product]. To succeed on this defense, [name of defendant] must prove that, at the time of the injury, [name of plaintiff], because of [his/her] particular position, training, experience, knowledge, or skill, knew or should have known of the [product]’s risk, harm or danger. (Emphasis deleted.)

         B. The Law

         The trial court refused to give the proposed instruction as a case recognizing the defense had been depublished and was under review by the Supreme Court. In Johnson, the plaintiff, a trained and certified heating, ventilating and air conditioning technician, was the sophisticated user. In the case at bar, the alleged sophisticated users are Davis’s employers. Thus, one issue presented by this appeal is whether the sophisticated user defense is applicable when the alleged sophisticated user is the plaintiff’s employer not the plaintiff.

         “‘Parties have the “right to have the jury instructed as to the law applicable to all their theories of the case which were supported by the pleadings and the evidence, whether or not that evidence was considered persuasive by the trial court.” “A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented.”’” (Citations omitted.) (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1157.)

         “The sophisticated user defense exempts manufacturers from their typical obligations to provide users with warnings about the products’ potential hazards. The defense is considered an exception to the manufacturer’s general duty to warn consumers, and therefore, in most jurisdictions, if successfully argued, acts as an affirmative defense to negate the manufacturer’s duty to warn.” (Citation omitted.) (Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 65.)

         “Under the sophisticated user defense, sophisticated users need not be warned about dangers of which they are already aware or should be aware. Because these sophisticated users are charged with knowing the particular product’s dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause. The rationale supporting the defense is that ‘the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.’ This is because the user’s knowledge of the dangers is the equivalent of prior notice. [¶] As we explain further below, the sophisticated user defense evolved out of the Restatement Second of Torts, section 388 (section 388) and the obvious danger rule, an accepted principle and defense in California. In addition, as we explain, the defense applies equally to strict liability and negligent failure to warn cases. The duty to warn is measured by what is generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff’s subjective knowledge.” (Citations omitted.) (Johnson v. American Standard, Inc., supra, 43 Cal.4th at pp. 65-66.)

         Johnson v. American Standard, Inc., supra, 43 Cal.4th at pages 66, 69, cited two cases adopting the sophisticated user defense which involved military employers. (See e.g. Akin v. Ashland Chemical Co. (10th Cir. 1998) 156 F.3d. 1030, 1037; In re Related Asbestos Cases (N.D.Cal. 1982) 543 F.Supp. 1152 1151.) In the latter, the court stated it believed the California Supreme Court “would permit the defense, provided, ... the plaintiffs were permitted to negate the defense by showing that the sophisticated employer’s misuse of the product was foreseeable, and so did not absolve the defendants of liability for failure of the duty to warn.” (Ibid.) Johnson noted it did not need to address that prediction as it was not at issue there. (Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 69, fn. 5.)

         Even though the sophisticated user defense is applicable in California, it is unclear how that defense would apply when the employer rather than the plaintiff is the sophisticated user. However, we conclude we need not resolve this question, as the jury not only found there was “a defect in the defendant’s product in that there was a failure to warn of the potential risks, ” but also found “there was a defect in the design of the defendant’s product in that it failed to perform as safely as an ordinary user would expect.”

Appellants acknowledge they are not relying on the sophisticated intermediary defense on appeal.

         II. Design Defect

         On appeal, appellants do not contest respondents’ election to use the consumer expectations test or contend that there was no substantial evidence supporting the finding of design defect or that the instruction on consumer expectations was improper.

The court gave CACI No. 1203 on strict liability, design defect, consumer expectation. One element of that instruction is: “That the [product] did not perform as safely as an ordinary consumer would have expected at the time of use.”

         Appellants claim that all respondents’ causes of action were based on the failure to warn. Appellants included only the first two pages of respondents’ complaint in their appendix so this court cannot determine what the allegations of the complaint were. In their closing argument, respondents essentially stated that appellants’ products did not perform as safely as ordinary consumers would expect because the products contained asbestos and ordinary consumers would have no idea asbestos would be harmful to their health, that sailors such as Davis were the ordinary consumers of the products, and that the consumer expectations instruction dealt with actual design not the failure to warn. Leslie acknowledged appellants had two theories of strict liability -- consumer expectations and the failure to warn. Thus, all respondents’ causes of action were not based on the failure to warn.

         Appellants argue that although the sophisticated user is ordinarily not a defense to an independent design defect claim, it is under the consumer expectations test and that if the court had instructed on the sophisticated user defense, the ordinary users would have been Davis’s employers, not Davis. As support, appellants cite Maneely v. General Motors Corp. (9th Cir. 1997) 108 F.3d 1176. In Maneely, applying California law, the court held that plaintiffs, who suffered injuries while riding unrestrained in the back of a pickup truck, could not prevail on their failure to warn because the ordinary motoring public recognized the dangers of doing so. (Id., at pp. 1179-1180.) The court also held that the plaintiffs could not meet the consumer expectations test as the ordinary users were aware of the product’s obvious dangers. (Id., at p. 1181.)

         Citing Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567, footnote 4, appellants note that when a product is in specialized use, the expectations of the product’s actual users, not those of the general public, are relevant in deciding whether the consumer expectations test has been met. At oral argument, appellants asserted the sophisticated user for the failure-to-warn theory of strict liability and the ordinary consumer for the design defect/consumer expectations theory of strict liability should be parallel, i.e., they both were Davis’s employers.

         However, as appellants did not request the jury be instructed that the ordinary consumers for the purposes of the consumer expectations test were Davis’s employers, this court requested supplemental letter briefs on the issue of whether reversal was precluded by the failure to request such an instruction.

         In response, appellants argued (1) reversal of the jury’s verdict would be required by the inconsistent verdict rule because the user would be the same under each test and (2) the verdict could not be supported because it was impossible to tell from the special verdict form whether the jury’s finding of liability on the design defect claim alone could have sufficed to sustain the jury’s finding of causation because question number 5 on the verdict form lumped together the failure-to-warn and design defect theories when asking if the defect was a substantial contributing factor in causing Davis’s mesothelioma.

         Design defect and failure to warn are separate and independent theories each with its own elements. (See Boeken v. Phillip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1668-1669; Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1001-1004.)

         “First, by requesting the instructions the court gave and not requesting any additional instructions, plaintiff has forfeited the right to argue on appeal that the court misinstructed the jury. ‘“‘In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.’” Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced, or to articulate for him that which he has left unspoken.’... ‘Where, as here, “the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.”’ Plaintiff's failure to request any different instructions means he may not argue on appeal the trial court should have instructed differently.” (Citations & italics omitted.) (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.)

         Appellants did not request instructions either applying the sophisticated user defense to the consumer expectations claim or defining ordinary consumers as Davis’s employers. Accordingly, appellants forfeited any claim Davis’s employers were the ordinary consumers for the design defect consumer expectations test as they failed to request an instruction to that effect. (See Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 523.)

         Regarding the verdict form, in their initial briefs, appellants did not contend there was no substantial evidence supporting the design defect claim. (See Julian v. Hartford Underwriters Ins. Co., supra, 35 Cal.4th at p. 761, fn. 4.) This court presumes the evidence was sufficient. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

         Accordingly, the judgment can be affirmed based on the finding of a design defect. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.)

         III. Damage Award

         In denying the new trial motion, the court found the damage award was not excessive, stating it “doesn’t shock the conscience” and was not “outside the range of what is appropriate in this case.” Appellants assert the trial court erred in denying the motion for new trial as the $35 million damage award was excessive under any objective view of the facts and the result of improper considerations.

         The evidence (testimony by Davis, Mrs. Davis and Kevin Mulvey, M.D., Davis’s treating oncologist) demonstrated the immense pain and suffering that Davis and his wife had experienced and would continue to experience in the future.

         “The amount of damages is a fact question, committed first to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. All presumptions favor the trial court’s ruling, which is entitled to great deference because the trial judge, having been present at trial, necessarily is more familiar with the evidence and is bound by the more demanding test of weighing conflicting evidence rather than our standard of review under the substantial evidence rule. [¶] We must uphold an award of damages whenever possible and ‘can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’ [¶] In assessing a claim that the jury’s award of damages is excessive, we do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor.” (Citations omitted.) (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.)

         Appellants argue that given Davis’s age (74 at the time of trial) the most severe pain and suffering Davis would have to endure was for 14 months, which could not justify the damages of $25 million, and even though Mrs. Davis would be without her husband’s comfort for approximately 8 years, the $10 million damage award to Mrs. Davis shocked the conscience. Appellants argue because this case was absent the circumstances that usually justify a large award such as years of suffering and young children who would grow up without a father, was double what counsel requested (he suggested the jury award $12 million to Davis and $5 million to Mrs. Davis), the jury deliberated for less than a day and rushed to finish the case and comparable verdicts in published cases were for much less, the verdict was the result of passion and prejudice.

         We agree with appellants. Even though the record shows Davis endured pain and suffering, given the facts mentioned above, the award was excessive as a matter of law. Accordingly, appellants are entitled to a new trial on the sole issue of non-economic damages. At oral argument it was suggested $5 million was a reasonable award. We will issue a remittitur based on a total non-economic damages award of $5 million. (See Slaughter v. Van Winkle (1931) 213 Cal. 573, 574-575.) The judgment awards non-economic damages of $1, 775, 000 (in favor of Davis) and $710, 000 (in favor of Mrs. Davis) for a total non-economic damages award of $2, 485, 000 against each appellant. Based on a total of $5 million non-economic damages, respondents are only entitled to $355, 000 against each appellant as the jury assigned 7.1 percent of the liability to each appellant. Thus, appellants are each entitled to a $2, 130, 000 “credit” on the non-economic damages awards. (See Mondine v. Sarlin (1938) 11 Cal.2d 593, 600.)

          DISPOSITION

         Appellants are entitled to a new trial upon the sole issue of non-economic damages unless within 30 days of the filing of the remittitur in the court below, respondents shall remit from the judgment the sum of $2, 130, 000 as to each appellant. If such remission be made, then the judgment shall stand affirmed; otherwise, it shall be reversed and the cause remanded for trial upon the issue of non-economic damages. Appellants to recover costs on appeal.

          We concur: PERLUSS, P. J., JACKSON, J.