Jury Verdict Reversed and Remanded on Appeal in California | Goldberg Segalla
Court: Court of Appeal of California, First Appellate District, Division Two
Plaintiff Steven Watts filed a lawsuit in the Superior Court of Alameda County, California naming 36 defendants who were alleged to have manufactured or supplied asbestos-containing products, to which plaintiff claimed to have been exposed to during his time operating an automotive repair shop between 1983 and 2005, and to which he alleged caused his mesothelioma diagnosis.
By the time the matter went to trial, only one defendant remained – Pneumo Abex LLC (Abex), a manufacturer of brake linings. In September 2022, the jury returned a verdict awarding plaintiff $2,943,653 in economic damages, $6,750,000 in noneconomic damages, and $1,000,000 for loss of consortium. The jury also apportioned 60-percent fault to Abex, 25 percent to other brake manufacturers, and 15 percent to plaintiff.
Abex subsequently appealed the verdict against it, arguing that (1) Abex was entitled to a new trial on all issues because the trial court erred in granting a directed verdict against Abex on its defense that plaintiff was a sophisticated user; and (2) at the very least, Abex was entitled to a new trial on allocation of fault because the evidence did not support a 60-percent fault allocation against it.
Additionally, while Abex’s motion was pending, it asked the trial court to reduce the economic damages award to reflect the amounts that plaintiff received from pre-trial settlements. In response, plaintiffs argued that 50 percent of the pretrial settlements should be allocated to future wrongful death claims by plaintiff’s wife and daughter. To this, Abex argued that the proposed 50-percent allocation was excessive because plaintiff’s wife had asserted a loss of consortium claim, and that as a matter of law she could not split her cause of action between the instant matter and a future one. The trial court, however, ultimately accepted plaintiffs’ 50-percent allocation for the offset. Abex also appealed the trial court’s acceptance of the offset.
Regarding Abex’s argument that the trial court erred in directing a verdict against it on the sophisticated user defense, the appellate court agreed. First, the appellate court noted that courts should generally take a restrictive view of the circumstances under which a directed verdict is proper because it removes the matter from jury. As such, a directed verdict should only be granted when a court indulges every legitimate inference in favor of the party opposing the directed verdict and still, “nonetheless determines there is no evidence of sufficient sustainability to support the claim or defense.” Here, Abex argued that it was entitled to a sophisticated user defense, under where “sophisticated users need not be warned about the dangers of which they are already aware or should be aware . . . because these [sophisticated] users are charged with knowing the particular product’s dangers . . . [so], the failure to warn about those dangers is not the legal cause of any harm the product may cause.”
On appeal, the appellate court determined there was substantial evidence to support the sophisticated user defense because all of plaintiff’s claimed exposure to asbestos from Abex’s products occurred after the late 1970s, after the Occupational Safety and Health Administration (OSHA) and other government entities began to regulate the handling of asbestos-containing automotive parts. Moreover, the appellate court noted that plaintiffs’ own appellate brief acknowledged that plaintiff “understood that his shop was subject to OSHA and Cal/OSHA regulations regarding workplace safety” and that plaintiff, himself, testified that he knew brakes contained asbestos and that he avoided using compressed air because he did not want the air to fill with dust, as dust could be dangerous.” Plaintiff also testified he never looked at manuals because he felt that he was “sufficiently proficient and knew how to professionally and safely perform brake jobs.” For these reasons, the appellate court determined that a jury instructed on the sophisticated user defense could have reasonably found that the defense applied, which would have provided a complete defense to Abex or, at the very least, could have supported a larger apportionment of fault to plaintiff.
Next, regarding allocation issues, Abex argued that it was at least entitled to a new trial regarding allocation of fault because the trial court erred by: (1) refusing to put other suppliers of asbestos on the verdict form; (2) precluding Abex from using plaintiff’s interrogatory responses; (3) refusing Abex’s proposed instruction of plaintiff’s duty of care as an employer; and (4) excluding testimony from plaintiff’s college instructor, who taught plaintiff in automotive repair courses. Ultimately, the appellate court did not decide on this argument given their holding on the sophisticated user defense. However, “for the benefit of the court on remand,” the appellate court noted, inter alia, that: (1) other manufacturers of asbestos should have been included on the verdict form because plaintiff provided deposition testimony regarding other asbestos containing products that he worked with, including joint compound; (2) that Abex should have been allowed to use plaintiffs’ interrogatory responses because they were plaintiffs’ own discovery responses; (3) that the jury should have been provided with an instruction regarding the legal duties of employers because otherwise, the jury had no guidance about how important OSHA and other regulatory agency evidence was to plaintiff’s conduct and state of mind. Regarding the excluded testimony of plaintiff’s college professor, here the appellate court noted that the professor admitted that he did not recall what plaintiff looked like, who he was, or what they ever talked about.
Given the aforementioned, the appellate court stated that, in light of the record, they could not say whether the trial court’s decision to exclude the professor’s testimony was an abuse of discretion.
Lastly, regarding the offset issue, the appellate court similarly stated that it need not determine the issue in light of their holding on the sophisticated user defense. However, the appellate court noted that, under California law, a plaintiff in a common law action for loss of consortium can recover prospective damages for the period after the injured spouses’ death based on the life expectancy that the injured spouse would have had if the injury never occurred. Because damages that can be sought in a post-death situation may not be the same as in a pre-death situation, a loss of consortium plaintiff is still entitled to seek post-death, wrongful death damages.
Read the full decision here.
