GARD v. RAYMARK INDUSTRIES INC

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Court of Appeal, Second District, Division 4, California.

Graydon GARD, Plaintiff, Appellant and Respondent, v. RAYMARK INDUSTRIES, INC., Defendant, Appellant and Respondent.

B007784.

Decided: September 16, 1986

Charlotte E. Costan, Martin, Davis & Lewis and Guy J. Lewis, Los Angeles, for plaintiff, appellant and respondent. Alfred G. Lucky, Jr., Norby & Brodeur, Paul D. Loreto and Terry Schneier, Torrance, for defendant, appellant and respondent.

The case before us consists of two nonconsolidated appeals.

Raymark Industries, Inc., defendant, appeals from the remitted verdict in favor of plaintiff Gard and against the three defendants who were part of the trial.   Raymark also appeals the denial of its motion for summary Judgment Notwithstanding the Verdict.

Gard appeals from the denial of punitive damages as a matter of law.

In 1980 plaintiff Graydon Gard filed a complaint for damages against defendant and 51 other defendants for negligence, breach of warranty, and strict liability.   The complaint was based on failure to warn and on both prongs of the strict liability test set forth in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443.

At the time of the trial only three defendants remained, Raymark Industries, Inc., Fibreboard and Celotex Corporation.   On Raymark's motion, the trial court ordered a bifiurcated trial, severing the liability and compensatory damages claim from the punitive damages claim.   Prior to jury selection plaintiff dismissed the causes of action for negligence, breach of warranty, strict liability based on failure to warn, and on the design defect second prong test of Barker v. Lull,1 which required weighing the benefits and risks of asbestos containing products.   Plaintiff did not waive the first prong test of Barker v. Lull, the consumer expectation test.   The jury returned a verdict for plaintiff in the amount of $888,600 against Raymark, Fibreboard and Celotex.   After a hearing, the court apportioned fault and found Raymark 55 percent at fault, Fibreboard 30 percent at fault, and Celotex 15 percent at fault.

The court denied Raymark's motion for mistrial and motion for judgment notwithstanding verdict.   The court denied Raymark's motion for mistrial, noting that the issue of reprehensibility of defendant's conduct can be litigated in the second phase of the trial.

Raymark's motion for directed verdict on the matter of punitive damages was granted.   The court ruled that punitive damages were inapplicable where the product is manufactured according to government specifications.   The court granted a motion for new trial on the issue of damages unless the plaintiff filed a consent in writing to a remittitur of the judgment to $325,000.   Plaintiff Gard consented to the reduction.   The court found no evidence was presented on the subject of medical expenses incurred, plaintiff's loss of work, or any disability.   Fibreboard and Celotex settled with plaintiff for their apportioned shares of 30 percent and 15 percent, respectively, and of the remitted verdict, minus the set-off and plus interest from the date of entry of judgment.

There are two appeals pending in this case and they have not been consolidated.   Mr. Gard, the plaintiff, has appealed from the trial court's granting of Raymark's motion for nonsuit and/or directed verdict on the issue of punitive damages.   The court ruled as a matter of law, plaintiff is not entitled to punitive damages.   The defendant, Raymark, has appealed from the judgment and asks for reversal of the judgment or in the alternative that the case be remanded for a new trial on all issues, or that this court remit damages to a nominal sum.2

Plaintiff was employed as an electrician's helper at the Long Beach Naval Shipyard in 1951, and later he became an electrician limited to a journeyman and then a foreman from 1961 to 1967.   Plaintiff's exposure to asbestos occurred when he was working in the vicinity of others who were removing and installing insulation products aboard ships.

Mr. Charles Ay, an insulator at the Long Beach Naval Shipyard, recognized plaintiff's face.   Mr. Ay identified Raymark as the manufacturer of a tape product with an asbestos filler.   He testified that Raymark supplied 60 percent to 65 percent of the asbestos cloth used at the Long Beach Naval Shipyard and that Johns-Manville supplied the rest.   Fibreboard manufactured 25 percent of the total products used at the shipyard on the whole and 25 percent of the asbestos containing pipe covering and black used personally by Mr. Ay.   Celotex supplied 3 percent of the total amount of asbestos containing materials used at the Long Beach Naval Shipyard.

Mr. Gard was present when the old asbestos cloth was ripped out and the new asbestos cloth was put in.   Mr. Gard used the cloth himself on occasion.   He used it to install electrical equipment and to protect the equipment from sparks or fire.   He could identify Raybestos cloth on the job site because of the shape of the box the cloth was in.   However, his principal exposure came during the removal and installing of cloth by others.

Plaintiff's first expert-doctor, Dr. Richard Aschenbrenner, is board certified in pulmonary medicine.   Dr. Aschenbrenner defined parenchymal asbestos as pulmonary fibrosis or diffuse pulmonary scar tissue caused by breathing in asbestos dust and by the body's reaction to that dust.   Dr. Aschenbrenner stated that plaintiff's x-rays were consistent with pulmonary fibrosis but not so extensive that he would diagnose pulmonary fibrosis in the absence of abnormal pulmonary function studies.

The criteria for a diagnosis of parenchymal asbestosis are a history of significant exposure, some radiological evidence of pulmonary fibrosis and crackling rales, and a restrictive defect or reduction in lung volume or pulmonary function.   It takes 30 to 40 years to develop clear-cut asbestos and some people never develop asbestosis.

Dr. Aschenbrenner was unable to diagnose asbestosis with reasonable certainty because Mr. Gard's lung volume test was normal;  however, plaintiff's x-rays were consistent with pulmonary fibrosis.

Dr. E. Nicholas Sargent is a Professor of Radiology and Chief of Chest Radiology Section at Los Angeles County-U.S.C. Medical Center.   He is a consultant for the National Institute for Occupational Health and Safety.   He is a B Reader of x-rays and has read thousands of x-rays.   Dr. Sargent concluded that plaintiff has bilateral pleural plaques and enfolding of the lungs, that is consistent with a history of asbestos dust exposure, and is consistent with asbestos dust inhalation.   He stated plaintiff did not have pulmonary fibrosis.   He said the x-ray findings were not consistent with parenchymal asbestosis, but plaintiff had pleural plaques which were a sign of exposure to asbestos.

Dr. Hector Blejer has examined hundreds of patients exposed to asbestos since 1965.   Dr. Blejer is board certified in preventive medicine with a subspecialty in occupational epidemiology.   He teaches classes related to occupational chest disease and is part of U.C.'s clinical staff on chest medicine.   Dr. Blejer is not board certified in internal medicine or in pulmonary medicine and he is not a B Reader of x-rays.   Although he was not originally retained by Gard to make a diagnosis, after reviewing Gard's medical records, and the radiology reports of other doctors, Dr. Blejer testified that Gard has pleural and parenchymal asbestosis.   Dr. Blejer based this on radiological findings of bilateral diffused pleural thickening and bilateral pleural plaquing and plaintiff's history.

RAYMARK APPEAL

Raymark asks the court to enter judgment for Raymark, or to grant a new trial on all the issues, or to remit the remitted damages to a reduced sum.   Raymark abandoned its appeal of an apportionment of damages of the remitted verdict among defendants, Fibreboard and Celotex settled with plaintiff, and plaintiff consented to apportionment.

Raymark argues that an asbestos case is not an appropriate case to use the “consumer expectation” prong of Barker v. Lull, supra, because the consumer expectation theory is only appropriate where the product is within the common experience of ordinary consumers.   Raymark also argues that the shifting of the burden of proof (Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1) was improper in the instant case because all parties were not before the court.   Finally, plaintiff argues that the jury damage award was not supported by competent medical evidence.   Raymark argues that Dr. Blejer was not qualified as an expert, that his testimony unfairly surprised the defendant, and that the evidence was insufficient to support the verdict.

I

 Raymark first argues that the plaintiff effectively dismissed his entire case on the grounds that he has relied on the first prong of Barker v. Lull, supra, (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, the “consumer expectation test,” and that test is inappropriate in an asbestos case as a matter of law.   Raymark argues that asbestos products, as used in a naval shipyard environment, are not the type of products about which juries have common knowledge.   Under the consumer expectation test, a product is defective if the product has failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner.  (Barker v. Lull, supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443.)

Raymark relies on Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, 200 Cal.Rptr. 387 (which construed the consumer expectation test, and the earlier case of Campbell v. General Motors (1982) 32 Cal.3d 112, 184 Cal.Rptr. 891, 649 P.2d 224) to support its argument that asbestos-containing insulation products are not products within the common experience of the ordinary consumer or ordinary jurors.

In Lunghi, the court found that the trial court's refusal to instruct the jury on the consumer expectation test for strict liability was not error.   The appellants in Lunghi noted that they were entitled to the consumer expectation test instruction under Campbell v. General Motors Corporation (1984) 32 Cal.3d 112, 127, 184 Cal.Rptr. 891, 649 P.2d 224, where plaintiff shows (1) evidence of his or her use of the product, (2) the circumstances surrounding the injury, and (3) the objective features of the product which are relevant to an evaluation of its safety.  Lunghi pointed out that in Campbell, a case dealing with an ordinary city bus, the Supreme Court said the criteria is sufficient only “if the product is one within the common experience of ordinary consumers.”   The Lunghi court reiterated the guideline that the proper focus is on whether the subject of inquiry is one of such common knowledge that persons of ordinary education could reach a conclusion as intelligently as the witness, or whether, on the other hand, the matter is sufficiently beyond the common experience of jurors such that the opinion of an expert is required.  (153 Cal.App.3d 485, at 496, 200 Cal.Rptr. 387, quoting Campbell v. General Motors Corp., 32 Cal.3d at p. 124, 184 Cal.Rptr. 891, 649 P.2d 224.) 3  In the Lunghi case, the subject of inquiry was “whether the user of a loader would expect that boom arms and bucket could descend with fatal crushing force, when the loader is at rest with the engine off.”   The Lunghi court held that this does not seem the kind of question that 12 ordinary people drawn from the community at large could evaluate based on their “common knowledge,” and that the “user of a loader” is to be distinguished from “ordinary consumers.”   The Lunghi court said that an ordinary consumer would not know what to expect from a piece of heavy equipment, like the Bobcat loader, and that since appellant asked for the “consumer expectation” instruction based on lay testimony, rather than on expert opinions, the trial judge's refusal was correct.

Therefore, if we are to apply the Lunghi test to the case before this court, the proper focus ought to be whether the use of asbestos, in plaintiff's work environment, as a subject of inquiry, is a subject of such common knowledge that persons of ordinary education could reach a conclusion intelligently, or whether the use of asbestos is sufficently beyond the common experience of jurors that opinions of an expert on the subject of consumer expectations are required.4  Our inquiry in part is whether 12 ordinary people, drawn from the community at large, would be unable to evaluate ordinary consumer expectations concerning asbestos based on their common knowledge.5  Thus, we must determine whether asbestos use, in this case, is within the common experience of ordinary consumers, as was the ordinary city bus, in Campbell (see fn. 3, supra ), or out of the experience of ordinary consumers, as was the Bobcat loader in Lunghi.

Applying Lunghi and Campbell analysis to the facts before us, we believe consumer expectations concerning asbestos in the work place, here a naval shipyard, is more analogous to consumer expectations concerning an ordinary city bus, and less like consumer expectations concerning an esoteric and specialized piece of equipment like a “Bobcat loader.”   Ordinary people know that asbestos has been used in all kinds of places like homes, schools, offices and elsewhere, and they have certain expectations concerning its safety, even though they probably would not have similar expectations for a Bobcat loader.

It is true that ordinary people probably do not know a great deal about asbestos, including its chemical makeup or what it looks like or how it works or how it is installed.   But it is also undoubtedly true that ordinary people do not know much about the inside of an engine of a city bus or how to open its doors or even how to drive a bus.   We cannot say that ordinary consumers or jurors have more experience with city buses than they have with asbestos, even though asbestos is not always in plain sight.   Simply because ordinary people see or ride city buses, and asbestos is often not visible because it is behind a wall or wall-like covering, would not mean that asbestos was out of the common experience of ordinary jurors.

Furthermore, Akers v. Kelley Company, Inc. (1985) 173 Cal.App.3d 633, 649, 651, 219 Cal.Rptr. 513 (review den. 2/20/86) commented on Lunghi, further refined the test for reasonable consumer expectations, and is consistent with our holding.

In Akers v. Kelley Company, Inc., the court asked whether there can be a reasonable consumer expectation test with regard to the performance of a “broken dockboard.”   The Akers court, at page 651, 219 Cal.Rptr. 513, discussed Lunghi and said:  “[O]ur brethren in the First Appellate District read the foregoing quoted language [from Campbell ] to say that the ‘consumer expectation’ test cannot be applied where the product is beyond the ken of the ordinary person on the street.   We do not so read it.   Instead, we read it to say simply that the plaintiff in such a case was entitled to establish, and did establish, a prima facie case of failure to meet ‘consumer expectations' without the benefit of expert testimony, because public transportation is a matter of common experience.”  (173 Cal.App.3d at 651, 219 Cal.Rptr. 513.)   The Akers court held the consumer expectation rule was appropriately applied to the case of the dock loader.   The Akers court said, at page 651, 219 Cal.Rptr. 513, that “there are certain kinds of accidents—even where fairly complex machinery is involved—which are so bizarre that the average juror, upon hearing the particulars, might reasonably think:  ‘Whatever the user may have expected from that contraption, it certainly wasn't that.’ ”   The court said, in discussing the dockboard that flew apart, that “A reasonable juror with no previous experience of dockboards could conclude that the dockboard in question failed to meet ‘consumer expectations' as to its safety.”

Applying the test of the Akers case to the instant case, we find that a reasonable juror with no previous experience with asbestos could conclude that the asbestos in question failed to meet the consumer expectation test.   Even if the juror had no previous experience with asbestos, a juror could conclude asbestos failed to meet consumer expectations for safety, since an ordinary consumer would not expect a disease from its use.   As the court reasoned in the Akers case, whatever the user may have expected from asbestos, “it certainly wasn't that.”  (173 Cal.App.3d at 651, 219 Cal.Rptr. 513.)

Ordinary jurors' expectations of safety of consumer goods often include the expectations that certain products are in fact not always safe.   For example, ordinary jurors might not expect unicycles to be safe or hanggliders to always be safe or even certain chemicals to be safe.   However, ordinary jurors would not expect to develop asbestosis from exposure to asbestos cloth present in their environment.   In our opinion, ordinary jurors would expect asbestos, a substance that has been used in the insulation of homes, schools, offices and factories, as well as in hot pads in many kitchens, not to produce a disease such as asbestosis.   Therefore, we hold that expert testimony on general public expectations as to what to expect of asbestos should not be necessary.

Raymark makes much of the fact that an ordinary person would not have an expectation of asbestos cloth use “aboard ships.”   We think the focus of consumers expectations “aboard ships” sheds little on the subject.   Whether the use of asbestos cloth is placed in a ship, or an office, or a school, or a factory, consumer expectations would be no different.   In each of these places, an ordinary person would not expect a lung disease.

II

 Raymark next argues that it was error to instruct the jury based on a modified version of Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1.

The jury was instructed on a modified version of BAJI 3.80 as follows:

“In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

“1. Each defendant's status as a manufacturer or seller of an asbestos-containing product.

“2. That the product failed to perform as safely as an ordinary consumer of such product would expect.

“3. That the design and asbestos content of the product existed when the product left the defendant's possession.

“4. That plaintiff was exposed to the asbestos product produced by one or more or all of the defendants.

“5. That such product or products were used in a manner reasonably foreseeable to the defendant.

“6. That plaintiff's exposure to, and inhalation of, asbestos fibers was a legal cause of plaintiff's injury;  and

“7. The nature and extent of plaintiff's injuries and damages.

“If the plaintiff establishes by a preponderance of evidence that plaintiff was exposed to asbestos-containing products of one or more or all of the defendants, then the burden of proof shifts to each defendant to prove by a preponderance of the evidence that their products were not a legal cause of any injury or damage to the plaintiff.”

Raymark argues that it is error to shift the burden of proof where all the defendants are not before the court, noting that in Summers v. Tice6 , all actors were before the court.

The Supreme Court has made an exception to the rule that all actors must be before the court in what is known as “market share” cases.   In the case of Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 610, 163 Cal.Rptr. 132, 607 P.2d 924, the court carved out a very specific exception to the rule that all potential wrongdoers or actors must be before the court to shift the burden of proof.  Sindell was a class action for personal injuries caused by a prenatal exposure to diethylstilbestrol (DES) manufactured by one or more named defendants.   Plaintiff therein sued drug companies and could not identify which defendant manufactured the drug that actually caused her injuries.   Numerous other companies also manufactured DES and they were not before the court.   There were 200 drug companies that manufactured DES, and plaintiff might have been injured by the drug produced by any of the companies.

In Sindell, the court relied on the fact that defendants produced DES from a common and mutually agreed on formula, which allowed pharmacists to treat the drug as a fungible commodity and to fill prescriptions from whatever brand of DES they had on hand.   The court held that where all defendants produced the drug from an identical formula, and plaintiff could not identify the manufacturer through no fault of her own, the burden of proof was shifted to defendants.  Sindell held it was reasonable to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff, by determining the percentage of the DES sold by each of them for the purpose of preventing miscarriage bears to the entire production of the drug sold by all for that purpose.   The Sindell court said, “The presence in the action of a substantial share of the appropriate market also provides a ready means to apportion damages among the defendants․   Under this approach, each manufacturer's liability would approximate its responsibility for the injuries caused by its own products․”  (26 Cal.3d at 612, 163 Cal.Rptr. 132, 607 P.2d 924.)   The court held a defendant is liable for the proportion of the judgment corresponding to its market share.

Clearly, the market share theory is inapplicable in the case at bar.   First of all, Gard has identified Raymark as one of the manufacturers of the cloth he was exposed to.   Secondly, the evidence shows asbestos is not a fungible product, and each manufacturer produced asbestos according to a slightly different formula.   Furthermore, the court has held in In re Related Asbestos Cases (1982) 543 F.Supp. 1152, 1158, that the market share liability theory is inapplicable where asbestos is the product.   The court said, “asbestos fibers are of several varieties, each used in varying quantities by defendants in their products and each differing in harmful effects.   Second, defining the relevant product and geographic markets would be an extremely complex task due to the numerous uses to which asbestos is put, and to the fact that some of the products to which the plaintiffs were exposed were undoubtedly purchased out of state sometime prior to the plaintiff's exposure.   A third factor contributing to the difficulty in calculating market shares is the fact that some plaintiffs were exposed to asbestos over a period of many years, during which time some defendants began or discontinued making asbestos products.”   The court in In re Asbestos Related Cases, supra, 543 F.Supp. 1152, 1158 also said:

“Perhaps more important than the practical difficulty in ascertaining shares here is the fact that, unlike the plaintiff in Sindell, who was completely unable to identify which defendant had manufactured the product which her mother had ingested, plaintiffs in the present case apparently plan to call as witnesses individuals who will testify that plaintiffs were exposed to asbestos products manufactured by defendants.   Where a plaintiff does have information as to the identity of the defendants who caused his alleged injury, the rationale for shifting the burden of proof in Sindell is simply not present.   See generally, Prelick v. Johns-Manville Corporation, 531 F.Supp. 96 (W.D.Penn.1982);  Starling v. Seaboard Coast Line Railroad Co., 533 F.Supp. 183 (S.D.Ga.1982).

“Accordingly, each plaintiff is precluded from relying upon the market share theory of liability in the present action.”  (In re Related Asbestos Cases, supra, 543 F.Supp. 1152 at 1158.)

Similarly, in the case at bench, plaintiff saw the names of the manufacturer of the asbestos cloth and knew “some of the sources of his asbestos exposure,” and also, each manufacturer used a different amount of asbestos in their cloth.   Clearly, under the reasoning of In re Related Asbestos Cases, supra, the market share theory is inapplicable to aid plaintiff in his contention that all the defendants in an asbestos case need not be before the court in order to give an instruction shifting the burden of proof.  (See also Bateman v. Johns-Manville (5th Cir.1986) 781 F.2d 1132, 1133).

 Nevertheless, we still think the burden shifting instruction should be available to Gard in the particular facts of the instant case.   In the case at bar, plaintiff Gard could identify each of the three defendants before the court as suppliers of some of the asbestos products to which he was exposed.   The other potential defendants who were not before the court were not before the court because Gard settled with them or because they were in bankruptcy proceedings.   Thus, the case before us presents facts where plaintiff knew the identity of other potential defendants but could not bring the other potential defendants before the court.   We hold that, for reasons we shall explain, in such a case, the plaintiff was properly given the burden of shifting instructions.   Stated another way, our holding is that, when plaintiff does not have all defendants before the court, because he has settled with those defendants who are not before the court, and the remaining defendants who are not before the court are immune from suit because they are in bankruptcy proceedings, plaintiff should not be precluded from shifting the burden of proof to defendants.7  The reasons for our holding are that (1) it is impossible to bring some defendants before this court because of the bankruptcy proceedings, so it is unfair to require plaintiff to bring those manufacturers before the court in order to shift the burden of proof;  (2) it is sound public policy to not discourage settling the cases with the other defendants;  and, (3) the three remaining defendants did contribute to Gard's exposure to the disease producing cloth.

Plaintiff Gard argues persuasively that the law favors settlement and “if the burden of proof cannot be shifted unless all potential tortfeasors participate in the trial, it would effectively halt all settlements in asbestos litigations.”   And, it is unreasonable that plaintiff be required to bring defendants who are in bankruptcy proceedings before the court prior to shifting the burden of proof where it is legally impossible to do so.   We hold it is consistent with fairness and with public policy favoring settlements that under the circumstances of this case where all defendants cannot be brought before the court, because these other absent defendants are bankrupt or because they have settled with plaintiffs, the burden of proof shifts to the remaining defendants.

The Restatement Second of Torts does not preclude the possibility of shifting the burden in cases such as this.   The Restatement of Torts, section 433(B) says:

“h. The cases thus far decided in which the rule stated in Subsection (3) has been applied all have been cases in which all of the actors involved have been joined as defendants.   All of these cases have involved conduct simultaneous in time, or substantially so, and all of them have involved conduct of substantially the same character, creating substantially the same risk of harm, on the part of each actor.   It is possible that cases may arise in which some modification of the rule stated may be necessary because of complications arising from the fact that one of the actors involved is not or cannot be joined as a defendant, or because of the effect of lapse of time, or because of substantial differences in the character of the conduct of the actors or the risks which they have created.   Since such cases have not arisen, and the situations which might arise are difficult to forecast, no attempt is made to deal with such problems in this Section.   The rule stated in Subsection (3) is not intended to preclude possible modification if such situations call for it.”  (Emphasis added.)

 In this case all of the actors cannot be joined.   Therefore, we hold where certain defendants cannot be joined because some are in bankruptcy proceedings, and because some other defendants have settled with the plaintiff, so long as all the defendants who can be joined are before the court, it is proper to shift the burden of proof to those defendants.   This case is to be distinguished from other possible cases where all potential defendants are not before the court for other reasons.8  That must be dealt with on a case-by-case basis.   We simply do not deal with these questions in this case, and limit our holding to cases where all other defendants are not before the court because they have settled with plaintiff or are in bankruptcy proceedings and are immune from suit.

III

 Raymark argues that the jury's verdict was not supported by competent substantial medical evidence.   Raymark points out that plaintiff's own expert, Dr. Aschenbrenner, a specialist in pulmonary diseases, and Dr. Sargent, the expert in reading x-rays involving exposure to asbestos dust, testified that they could not diagnose plaintiff as having parenchymal asbestos with reasonable certainty.

 Jurors may give an expert opinion the weight they deem it entitled, and they may reject it if, in their judgment, the reasons given for it are unsound.  (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 339, 145 Cal.Rptr. 47.)   A jury or judge may reject the conclusion of an expert even though it is uncontradicted (Lucientes v. Bliss (1958) 157 Cal.App.2d 565, 571, 321 P.2d 526) so long as the rejection is not arbitrary.  (Krause v. Apodaca (1960) 186 Cal.App.2d 413, 417, 9 Cal.Rptr. 10.)

In the case at bench, Dr. Aschenbrenner's and Dr. Sargent's testimony was contradicted by Dr. Blejer.   Dr. Blejer testified, “ ․ that Mr. Gard had both pleural and parenchymal changes produced by asbestos exposure.”   The jury was free to reject Dr. Aschenbrenner's and Dr. Sargent's testimony, and to accept the testimony of Dr. Blejer.

While it may be that expert testimony weighed more heavily in favor of a finding that Mr. Gard did not have parenchymal changes produced by asbestos exposure, conflicts must be resolved in favor of the prevailing party.  (Witkin, 9 Cal. Procedure (3d ed. (1985), Appeal, Section 278, p. 289.)   Dr. Blejer defined parenchymal asbestos for the jury and explained why he believed Mr. Gard had the disease.   This was sufficient evidence to support the verdict and we will not substitute our judgment for that of trier of fact.

 Raymark argues that Dr. Blejer was incompetent as an expert because he was not board certified in pulmonary diseases or in internal medicine, and he was not a “B Reader” of x-rays, nor did he personally review plaintiff's chest x-rays.

The competency of an expert witness is left to the sound discretion of the trial court.   Absent an abuse of discretion, the trial court's decision will not be reversed on appeal, unless the evidence shows that a witness clearly lacks qualifications as an expert and the judge has held the witness to be qualified as an expert witness.  (Bernard Jefferson, 2 Cal. Evidence Benchbook (2d ed. 1982), § 29.2, p. 986.)   In the case at bench, Dr. Blejer is board certified in preventative medicine and in the subspecialty of occupational medicine.   He has been on the staff of the School of Medicine at UCLA in the Department of Chest Medicine.   He teaches classes in occupational chest diseases and has examined 1,000 chest x-rays of persons exposed to asbestos.   The trial court's discretion should be upheld, and there was no error in qualifying Dr. Blejer as an expert.

 Raymark argues that it was unfairly surprised by Dr. Blejer's testimony because Dr. Blejer testified in his deposition that he did not diagnose plaintiff's condition and he was not hired to diagnose plaintiff's condition.   We agree with Gard that Raymark should not have been surprised by Dr. Blejer's testimony.   Dr. Blejer said in his deposition:

“Q. [by Mr. Norby]:  What was your diagnosis?

“A. Again, I am not making a diagnosis.   It was not my role to make a diagnosis in this place on this occasion․   I did not make any judgment or opinion, diagnostically on it.

“Q. So you have no diagnosis of the plaintiff from your own personal observations or opinions?

“A. Not from my own clinical examination of the individual.   From review of the records I would say the diagnosis made by a number of different physicians whose reports I read is throughout consistent with—

“․

“Q. Are you making a diagnosis or not making a diagnosis?

“A. If you were to ask me would I make a diagnosis on what I have read, I could say yes.

“Q. Have you made a diagnosis?

“A. Do you want me to make one?

“Q. I am not asking you that.   I am saying have you before right now made a diagnosis.

“Q. [sic ] I will answer it this way:  I am satisfied that the findings do reveal that Mr. Gard has both pleural and parenchymal changes produced by asbestos exposure.”

This was sufficient warning that Dr. Blejer would diagnose Gard as having asbestos related disease.

GARD APPEAL

Plaintiff Gard appeals solely against Raymark.

On Raymark's motion, the trial court ordered the trial bifurcated.   The liability and compensatory damages phase was severed from the punitive damage claim and liability and compensatory damages were tried first.

Motions in limine were brought by both sides.   Plaintiff Gard moved to exclude evidence of military specifications and government defense contracts.

Following argument, the court reserved decision as to whether military specifications and defense contracts defenses would apply.   The court said that if these defenses did apply, they would be tried in the second phase of the trial.

After trial, Raymark made a motion for mistrial, alleging that it would be inappropriate as a matter of law to proceed with the punitive damages phase of the trial, because plaintiff Gard did not produce evidence of Raymark's conduct during the liability/compensatory phase of the trial.   The court denied Raymark's motion, noting that the parties can litigate the second phase solely on the basis of conduct, i.e., the reprehensibility of the conduct.

However, the court ruled that punitive damages were inapplicable where a product is manufactured according to government specifications and the court granted Raymark's motion for a directed verdict on the issue of punitive damages.

Gard appeals the trial court's ruling that defendant Raymark cannot be liable, as a matter of law, for punitive damages, where Raymark followed government specifications in the manufacture of the product.

 Raymark first argues that the punitive damages phase of trial could not proceed, as a matter of law, since the compensatory damages verdict was not based on Raymark's conduct, and proof of bad conduct is essential to show punitive damages.

Raymark relies on BAJI 14.71 in part which reads as follows:

“If you find that plaintiff suffered damages as a proximate result of the conduct of the defendant on which you base a finding of liability․ if․ you find the preponderance of the evidence that said defendant was guilty of [oppression] [fraud] [or] [malice] in the conduct in which you base your finding of liability.”  (Emphasis added by Raymark.)

Raymark points out that in accord with BAJI 14.71, oppression, fraud or malice in the course of conduct is necessary for the imposition of punitive damages.   Raymark further reasons that where plaintiff has chosen to try the compensatory/liability phase of the case on the theory of consumer expectations, such that no evidence of defendant's conduct was presented in the first part of the trial, it would be “inappropriate to allow punitive damages based upon a compensatory damages verdict where there was no finding of liability based on the defendant's course of conduct.”   Raymark also argues that “a new jury on the punitive damages phase of the instant case would be precluded from deciding whether the defendant's conduct was a proximate cause of plaintiff's injuries, since evidence of conduct was excluded from the compensatory phase of the trial.”   Raymark asserts that since plaintiff's counsel eliminated conduct from the evidence submitted to the jury on the underlying liability phase of the trial, plaintiff Gard should not now be permitted to show evidence of conduct with a new jury in the second part of a bifurcated trial.

We do not agree with Raymark's reasoning.   The trial below was bifurcated and in the particular case before us, evidence of defendant's conduct, good or bad, was not necessary in the liability and compensatory damages phase of the trial.   Gard elected to try his case solely under the “consumer expectations” prong of Barker v. Lull, supra, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, and a manufacturer's bad conduct is not relevant to a case tried on the theory of the “consumer's expectations” prong.   Since the manufacturer's conduct was not relevant, there was no legitimate way to bring the evidence of the manufacturer's “bad conduct,” (if indeed there was bad conduct), before the trier of fact in the compensatory/liability phase of a case tried on the “consumer's expectations” theory.

It is our view that a plaintiff ought not be forced to try his case in the liability and compensatory phase, on some theory that the plaintiff believes to be legally inappropriate to the facts and law in his particular case, simply because the plaintiff will want to submit evidence on the issue of the manufacturer's conduct later in relation to punitive damages, in the second phase of a bifurcated trial.   Plaintiff should not be precluded from putting on evidence of conduct in the punitive damages phase, because he failed to put on evidence of Raymark's conduct when the conduct was not in issue, in the compensatory and liability phase of a bifurcated trial.   In conclusion, we agree with plaintiff Gard that his mere choice of Barker's consumer expectations test as his theory of liability, over other possible theories, should not, in and of itself, preclude plaintiff from seeking punitive damages in the second phase of the trial by showing defendant's conduct in that second phase of trial.

 Raymark next argues that plaintiff cannot try punitive damages in a “separate cause of action.”   There is no “separate cause of action” in the punitive damages part of a bifurcated trial.   It has been held that there is no cause of action for punitive damages, and punitive damages are merely incident to a cause of action.  (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391, 196 Cal.Rptr. 117.)

“Raymark also argues that by permitting evidence of conduct in the second phase, the express purpose of Code of Civil Procedure section 598 would be violated.   Raymark argues that the purpose of Code of Civil Procedure section 598 9 is to avoid the waste of time and money in the unnecessary trial of damage questions.   First of all, defendant Raymark does not deny that it was Raymark that sought the bifurcated trial, and Raymark is therefore precluded from now complaining that a bifurcated trial wastes time and money.   Secondly, the issues of liability and compensatory damages have already been litigated, so there would be little reason to litigate these issues, and therefore no waste of time and money in unnecessary relitigation.   And, even if there may be a repetition of some of the evidence in the second phase of trial, this in itself does not defeat the ends of justice and economy which are served by bifurcation of trial.   Where a trial court could conclude that while some evidence relating to damages would also be necessary on the issue of liability, where only a small fraction of the evidence is repeated, “the ends of justice were served by bifurcation.”  (Kaiser Steel Corp. v. Westinghouse Electric Corp. (1976) 55 Cal.App.3d 737, 745, 746, 127 Cal.Rptr. 838.)

Bifurcation of trial on the issue of punitive damages and compensatory damages is within the discretion of the trial court when the court believes the ends of justice and economy and efficiency of the litigation will be promoted thereby.  (Hilliard v. A.H. Robins Co., supra, 148 Cal.App.3d 374 at 393–394, 196 Cal.Rptr. 117.)   In the case at bar, there was no abuse of discretion by the trial court in bifurcating the trial into a compensatory/liability phase, and a punitive damage phase.

 However, a question remains as to whether there can be punitive damages where a defendant produces a product according to government specifications.   Gard argues that the California courts uphold a plaintiff's right to recover punitive damages in a products liability case (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 402–403, 185 Cal.Rptr. 654, 650 P.2d 1171;  Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, 890, 213 Cal.Rptr. 547;  Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 378, 196 Cal.Rptr. 117), and that a plaintiff may recover punitive damages if plaintiff can show Raymark acted with intent to vex, injure or annoy, or in conscious disregard of plaintiff's rights.  (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 467, 113 Cal.Rptr. 711, 521 P.2d 1103.)   Gard argues that there are no exceptions to this rule under the law where the defendant has manufactured a product according to government specifications.

We agree with plaintiff, for the reasons stated below, that he ought not be precluded as a matter of law from showing whether a defendant's conduct warrants the imposition of punitive damages where defendant manufacturer, Raymark, has followed government specifications.

Raymark does not appear to be relying on the theory that he used government specifications as a defense to liability.   Raymark appears to agree with plaintiff that the “federal government contract defense” and the “government contract specifications defense” are questionable under the facts of the instant case.   But Raymark alleges that, whether or not these affirmative defenses are available in this case, punitive damages cannot be imposed as a matter of law where the manufacturer follows government specifications.   Raymark argues that the “absolute requirement of an asbestos content [by the government] in its cloth product negates the intent necessary for a finding of punitive damages against Raymark, and this assertion is totally unrelated to whether or not the military defense specification defense or government defense is applicable.”  (Emphasis added.)   Raymark reasons that it would be absurd to impose punitive damages for supplying a product where the government mandated the amount of asbestos, regardless of government specification defenses, because Raymark's conduct was inconsistent with the imposition of punitive damages.

It would appear that where a defendant company manufactures a product according to government specifications, it would be unlikely that the company had conducted itself in a manner that would be consistent with imposing punitive damages.   Nevertheless, the company's intent and conduct are a question of fact.   It cannot be said that a defendant manufacturer of asbestos is not liable for punitive damages as a matter of law simply because it followed government specifications.10

We note that it has been held that where a defendant manufacturer discovered an engineering error in developing a properly designed prosthetic device, but concealed the error from the medical profession, its own sales personnel, and the orthopaedic surgeon who designed the prosthetic device, punitive damages were proper because defendant chose to market a defective product that caused excruiating pain and crippling.   The manufacturer's conduct was found to be reprehensible.  (Vossler v. Richards Manufacturing Co. (1983) 143 Cal.App.3d 952, 966, 192 Cal.Rptr. 219.)   Although there was no government specification in the above Vossler case, we see no reason why this same reasoning would not apply where a manufacturer acts in accord with government specifications.   The court in the Vossler case found that certain kinds of conduct involving intentional concealment and resulting physical suffering to be consistent with imposition of punitive damages.   The fact that an asbestos manufacturer acts in accord with government specifications should not preclude punitive damages if the trier of fact finds the conduct to be reprehensible, such as where there is intentional concealment and resulting great suffering.

Of course, we do not here suggest that Raymark did in fact conduct itself in such a way that the imposition of punitive damages would have been proper.   We hold that the mere fact that a company followed government specification should not always inexorably lead to the conclusion that the company behaved in a manner inconsistent with the imposition of punitive damages.   Raymark's egregious conduct or lack of egregious conduct was a question of fact and Gard should be entitled to present evidence of Raymark's conduct.

Raymark argues that punitive damages are not favored (Henderson v. Security Nat. Bank (1977) 72 Cal.App.3d 764, 140 Cal.Rptr. 388) and for that reason should be denied.   Raymark also argues that since a purpose of punitive damages is to deter a wrongdoer (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, 148 Cal.Rptr. 389, 582 P.2d 980), there is no point in imposing punitive damages in an asbestos case because asbestos is no longer used in shipyard construction.   Where a defendant's actions “are so egregious and the societal interest in deterring similar conduct in the future is so great there is a justification for awarding punitive damages.”  (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 478, 165 Cal.Rptr. 858, 612 P.2d 948.)   Even if asbestos is no longer used, (and Raymark does not cite us to evidence proving this) society still could have an interest in deterring similar conduct that is so detrimental to the public interest, and in such a case punitive damages are consistent with sound public policy.

It is arguable that the malice requirement for the purpose of imposing punitive damages is incompatible with the unintentional tort of marketing a defectively designed product.   It is also arguable that the malice requirement is incompatible with the marketing of a defectively designed product that is made according to government specifications.   In Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 810, 174 Cal.Rptr. 3, the court said that in a case where a manufacturer has designed a defective product, it is possible that the manufacturer's conduct evinced a callous and conscious disregard of public safety consistent with the imposition of punitive damages.   In the case at bench, we also think it is possible for a manufacturer's conduct to evince a callous and conscious disregard of public safety, even where that defective product is designed according to government specifications.   Again, although we do not here suggest that Raymark's conduct was callous and in conscious disregard of public safety, we cannot say that plaintiff should be denied an opportunity to prove that Raymark's conduct was consistent with the imposition of punitive damages.   Where a manufacturer designs a product according to government specifications, a plaintiff has a difficult hurdle to jump in showing the company acted with malice, but designing a product according to government specifications should not result in denial of punitive damages as a matter of law.11

Raymark's appeal is affirmed.   Gard's appeal is reversed and remanded in accordance with this opinion to be tried under pre-Proposition 51 principles.   Plaintiff Graydon Gard is to recover his costs on appeal in the above entitled action.   Defendant Raymark Industries, Inc., shall bear its own costs.

FOOTNOTES

1.   In Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 the Supreme Court said that a product is defective in design either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner, or (2) if in the light of relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design.  (20 Cal.3d at p. 418, 143 Cal.Rptr. 225, 573 P.2d 443.)

2.   Gard appeals from an order granting a new trial and from the judgment.

3.   Campbell said that since public transportation is a matter of common experience, no expert testimony was necessary on the issue of the safety expectation of the people.

4.   Note we are here discussing expert testimony on the issue of consumer expectation in an asbestos case, and not expert testimony in other matters related to asbestos.

5.   Lunghi and Campbell have been recently analyzed in West v. Johnson & Johnson (1986) 174 Cal.App.3d 831, 220 Cal.Rptr. 437.

6.   In Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1 there was an action against two defendants for injuries to plaintiff with birdshot discharge from a shotgun.   The court could not ascertain whether plaintiff was injured by one defendant or the other, although the shot could not have come from both defendants' guns, but only from one or the other.   The Summers court shifted the burden of proof to the defendants.

7.   Our case is distinguished from Sheffield v. Eli Lilly & Co. (1983) 144 Cal.App.3d 583, 192 Cal.Rptr. 870.  Sheffield held the injuries did not result from a drug generally defective but because some manufacturers distributed a defective product which was a deviant vaccine.  Sheffield held that Summers v. Tice is not applicable to a case of alternative liability, where there is no proof that the conduct of more than one actor has been tortious at all.  (144 Cal.App.3d at p. 596, 192 Cal.Rptr. 870.)   In the case at bar, all defendants were behaving tortiously in different proportions.   In any case, our theory of liability here does not depend on the market theory in its pristine sense.

8.   We do not suggest that the only circumstances where the burden shifting instructions may be given when all defendants are not before the court is necessarily limited to where the other defendants are bankrupt or there are settlements.   Each case shall depend on its individual circumstances.

9.   Section 598, Code of Civil Procedure, reads:  “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5.   The court, on its own motion, may make such an order at any time.   Where trial of the issue of liability as to all causes of action precedes the trial of other issues or parts thereof, and the decision of the court, or the verdict of the jury upon such issue so tried is in favor of any party on whom liability is sought to be imposed, judgment in favor of such party shall thereupon be entered and no trial of other issues in the action as against such party shall be had unless such judgment shall be reversed upon appeal or otherwise set aside or vacated.  [¶]  If the decision of the court, or the verdict of the jury upon the issue of liability so tried shall be against any party on whom liability is sought to be imposed, or if the decision of the court or the verdict of the jury upon any other issue or part thereof so tried does not result in a judgment being entered pursuant to this chapter, then the trial of the other issues or parts thereof shall thereafter be had at such time, and if a jury trial, before the same or other jury, as ordered by the court either upon its own motion or upon the motion of any party, and judgment shall be entered in the same manner and with the same effect as if all the issues had been tried at one time.”

10.   For example, it is entirely possible for some company to follow governmental specifications while knowing that the final product is highly dangerous and even lethal, while also knowing that the government lacks any information on that subject.   Failure to inform the government of the company's knowledge of the product's hazards could possibly be construed by a trier of fact to be the kind of egregious conduct for which punitive damages should be imposed.

11.   We note that punitive damages have been allowed in cases where there have been a multiplicity of actions.  (Roginsky v. Richardson-Merrell, Inc. (2d Cir.1967) 378 F.2d 832, 839, 841.)

KINGSLEY, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.

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