Phipps v. Copeland Corporation LLC ( 2021 )

Filed 6/10/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
WILLIAM PHIPPS et al., B302627
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 18STCV02021)
v.
ORDER MODIFYING
COPELAND CORPORATION OPINION AND DENYING
LLC, REHEARING [NO
CHANGE IN APPELLATE
Defendant and Appellant. JUDGMENT]
THE COURT:
The opinion filed on May 18, 2021 and certified for
publication is modified as follows:
1. On page 20, before the last full sentence in the top
paragraph, which says “That takes care of Trane,” add the
following sentence:
Hall did not testify how many gaskets a Copeland compressor
had, nor did Copeland introduce any evidence comparing the
total number of gaskets in a Copeland compressor to the number
in a Trane compressor.
2. On page 20, after the penultimate full sentence in the
bottom paragraph, ending with the phrase “compared to
Copeland’s (reasonably inferred) 30,” and before the sentence
beginning with the phrase “For another,” add the following
sentence:
Hall did not compare the total number of gaskets in a Carrier
compressor to the total in a Copeland, and Copeland did not
present any testimony comparing those numbers.
3. On page 20, in the last full sentence of the bottom
paragraph, beginning with the phrase “For another,” add the
word “thing” after “another,” so that the sentence reads:
For another thing, there was no evidence of how many gaskets
William tended to replace when “working on” a Carrier
compressor; if he tended to replace only one or two, that would be
half or less the number of gaskets he replaced when replacing a
Copeland compressor.
Appellant’s petition for rehearing is denied.
This order does not change the appellate judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
2
Filed 5/18/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
WILLIAM PHIPPS et al., B302627
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 18STCV02021)
v.
COPELAND CORPORATION LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michele Flurer, Judge. Affirmed.
Sidley Austin, David R. Carpenter, Collin P. Wedel and
Andrew B. Talai for Defendant and Appellant.
Shook, Hardy & Bacon and Patrick Gregory for Coalition
for Litigation Justice, Inc., as Amicus Curiae on behalf of
Defendant and Appellant.
The Paul Law Firm, Joshua Paul, Peter Beirne; Bartlett
Barrow, Brian P. Barrow and Jennifer L. Bartlett for Plaintiffs
and Respondents.
INTRODUCTION
William and Linda Phipps sued compressor-manufacturer
Copeland Corporation LLC and others alleging they exposed
William to asbestos that caused him to develop mesothelioma.
By the end of trial, Copeland was the only defendant remaining
in the case. The jury found Copeland liable, apportioned it
60 percent of the fault for William’s harm, and awarded, among
other damages, $25 million in noneconomic damages. On appeal
from the judgment Copeland contends that substantial evidence
did not support the jury’s allocation of fault, that the trial court
erred in denying a motion by Copeland for a new trial on the
ground of excessive damages or for remittitur, and that the
noneconomic damages award was excessive.
We hold that the defendant has the burden at trial to show
the percentage of fault attributable to other parties who may
have contributed to causing the plaintiff’s harm and that
Copeland has not met its burden on appeal to show as a matter of
law the evidence compelled an apportionment of fault more
favorable to Copeland. We also hold the trial court, in denying
Copeland’s motion for a new trial, did not err under Code of Civil
Procedure sections 657 and 658 in declining to consider a
spreadsheet created by Copeland’s attorneys that presented a
survey and comparative analysis of verdicts in California
asbestos cases over a recent five-year period. Finally, we
conclude substantial evidence supported the jury’s award of
noneconomic damages. Therefore, we affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. William Is Diagnosed with Mesothelioma, and the
Phippses File This Action
William Phipps was born in 1948, served from 1966 to 1969
in the United States Navy on the U.S.S. Porterfield, then spent
most of his adult life employed as a heating, ventilation, and air
conditioning (HVAC) technician. As an HVAC technician he
serviced large commercial air conditioning units, which included
working on their compressors. In April 2018, at the age of 69, he
was diagnosed with mesothelioma.1
In October 2018 William and his wife, Linda, filed this
action against Copeland and 22 other defendants for negligent
failure to warn, negligent failure to recall, strict liability design
defect, strict liability failure to warn, and loss of consortium,
alleging the defendants caused William’s mesothelioma by
exposing him to asbestos they provided or manufactured. By
June 2019, when the jury trial began, only four defendants
remained in the case, and during trial all of those but Copeland
settled.
1 “Mesothelioma is a relatively rare cancer that occurs in the
lining of the lung, which is called the pleura. [Citation.] As the
cancer grows, it ‘will eventually entrap the entire lung, creating
the tightening effect of a corset by preventing the lung from
expanding. The cancer also grows outward into the chest wall
where it irritates nerve roots, creating pain. People with
mesothelioma live, on average, 12 to 14 months.’” (Phillips v.
Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1068.)
3
B. Witnesses at Trial Testify About William’s Exposure
to Asbestos and Resulting Mesothelioma
At trial witnesses testified William’s mesothelioma was
caused by his exposure to asbestos, which was present both on
the U.S.S. Porterfield during his service there and in gaskets in
air conditioning compressors he worked on from 1977 to 1991,
including compressors manufactured by Copeland. Working on a
compressor often involved replacing gaskets inside it, which
required William to use a knife or chisel to scrape away the old
gasket, releasing asbestos dust that he inhaled. William was also
exposed to asbestos as a result of living for periods with his
father, who as an electrician in the Navy came into contact with
“asbestos-containing thermal insulation material.”
Mesothelioma, according to Copeland’s medical expert, is “a
very dreadful disease,” in which cancer is “chewing into the chest
wall, and patients are dying in horrible pain because it attacks
the nerves . . . . It is one of the worst cancers to have.” Another
expert opined that William, who was then 70 years old, would
live “maybe another year or two.” The trial court instructed the
jury that the average life expectancy of a man William’s age was
another 14.5 years.
That’s the short version. Because a longer version will help
resolve the issues on appeal, we describe the testimony of some of
the witnesses in more detail.
1. Dr. James Dahlgren
Dr. James Dahlgren, an internist specializing in toxicology,
testified there are two categories of “commercial asbestos fibers”:
chrysotile, the most commonly used commercial asbestos, and
4
amphibole,2 which was used in thermal insulation on the U.S.S.
Porterfield during William’s service there and on ships on which
William’s father served as a Navy electrician. Dr. Dahlgren
testified that “95 to 99 percent of all asbestos used in history is
chrysotile” and that therefore “it’s the main one . . . that causes
mesothelioma,” but that both categories of asbestos fiber “share
similar toxicity” and “there’s no difference” between them with
regard to their “impact on individuals coming down with an
illness from . . . exposures to asbestos.” Dr. Dahlgren based his
opinion that both categories of asbestos fibers “have similar
toxicity levels” on animal-based studies showing both categories
“have about the same effect in the lung and in the formation of
mesothelioma and lung cancers.” Having reviewed William’s
occupational history, William’s medical records, and “dozens of
articles . . . relevant to this case,” Dr. Dahlgren opined that
William was “exposed primarily to chrysotile,” the type of
asbestos used in gaskets in the compressors he worked on as an
HVAC technician.
Dr. Dahlgren explained that “the primary route of exposure
[to asbestos] is in the air. When the dust gets in the air, the
person will breathe it, and if they don’t have any protection, [if]
there’s no ventilation to remove the dust from their breathing
zone, it goes . . . deep into the lung. The smaller fibers . . . get
into the little pockets in the lung called alveoli and also . . .
deposit in the bronchial tubes. And those fibers, most of them
stay in the lung for the rest of the person’s life. We think that’s
one of the reasons that they get cancer, because these little fibers
actually penetrate the cell and cause DNA damage, and that
2 Dr. Dahlgren explained there are, in turn, two kinds of
amphibole fibers, crocidolite and amosite.
5
interferes with the function of the cell, and over time cancer
forms.” According to Dr. Dahlgren, “there’s no safe levels of
exposure” to asbestos, and “any exposure can increase the risk
and does increase the risk” of developing mesothelioma. He
stated that cancer associated with asbestos exposure was first
reported in 1935 and that since then researchers have published
“thousands” of papers “on the question of asbestos exposure and
cancer.”
Dr. Dahlgren testified the dust generated and inhaled
when scraping away an old gasket made with asbestos was “a
significant exposure” that “went well above the background level
of asbestos that’s just in the general air.” Having explained
asbestos exposure in this context is measured in fibers per cubic
centimeter of air, Dr. Dahlgren cited studies examining asbestos
“fiber levels associated with removing gaskets and cutting
gaskets” that showed exposure levels as high as “28.4 fibers [per
cubic centimeter] for 24 minutes, which means it was an acute,
high level.” Dr. Dahlgren stated, “OSHA [the Occupational
Safety and Health Administration] has a peak level nowadays of
one fiber [per cubic centimeter]. So that would be 28 times the
short-term exposure limit.”
2. William Phipps
William testified that during his career as an HVAC
technician he worked on two kinds of compressors, “hermetic”
and “semi-hermetic.” Hermetic compressors were sealed units
that had to be replaced when they failed, a task that did not
involve replacing any gaskets. Semi-hermetic compressors, by
6
contrast, could be taken apart and either repaired or “rebuilt,”3
tasks that involved replacing gaskets inside the compressor. The
number of gaskets that needed replacing depended “on what
you’re doing to” the compressor. A rebuild could mean replacing
as many as 30 gaskets, although that number depended on the
brand and size of the compressor. A repair might merely involve,
for example, identifying “a leak where a gasket is blown out” and
replacing that gasket. In addition, replacing an entire semi-
hermetic compressor, without repairing or rebuilding it, involved
replacing at least four gaskets. Scraping away old gaskets to
replace them made the air dusty and left dust and pieces of
gasket on the ground, which William had to sweep up and
dispose of.
William recalled working on compressors manufactured by
Copeland, Carrier Corporation, and Trane USA and helping “once
or twice” rebuild one made by York International Corporation.
From 1977 to 1991 William worked on 25 to 35 Copeland
compressors per year. This figure included both hermetic and
semi-hermetic Copeland compressors, though mostly the latter,
and included all Copeland compressors he repaired, rebuilt, or
replaced. He testified he “didn’t really rebuild that many
Copeland compressors because they weren’t as big,” which made
them “easier to replace . . . than rebuild,” whereas “a lot of Trane
and Carrier compressors [he would] rebuild.” Asked how often he
would “replace . . . rather than repair” a semi-hermetic Copeland
compressor, William answered, “It’s hard to say. It depends on
what was wrong with it. If the valves were bad, you’d do a valve
3 “Rebuilding” a compressor required William to “take out
everything and check it out and put in new bearings and new
valves and new everything on it.”
7
job on them because it was a lot easier to do the valve job than
get the old one out and go get a new one.” Even a valve job
required replacing multiple gaskets.
William testified he never saw any warning about asbestos
exposure on packages of Copeland replacement gaskets he
purchased or on Copeland compressors he serviced. He was
never “given any idea” there was any inherent danger in working
on Copeland compressors, and he did not wear a mask or take
other precautions to avoid breathing the dust from the gaskets he
scraped.
3. Bruce Hall
Bruce Hall was a co-worker of William’s in the HVAC
industry. In 1977, when William began his HVAC apprenticeship
at Western Air Refrigeration, Hall was a general foreman there.
Hall estimated he worked on jobs with William “probably . . . 200
times.” Asked what kind of compressors he saw William work on,
Hall stated, “[William] worked on a lot of Copelands. He worked
on other things, I’m sure, also. But Copeland seemed to be what
he was tangled up with.” Asked what kind of work he saw
William performing on Copeland compressors, Hall stated that “a
lot of times the top end expires on them, and you can get them
back running by changing the valve plates and the head gaskets
and whatever is entailed on the top end. . . . So there was a lot of
valve plates being replaced to get them back up online real
quick.” Hall testified “there was a lot of gasket scraping
involved” in working on the valve plates of a Copeland
compressor. He stated he saw William scraping gaskets from
Copeland compressors on “50 to a hundred” occasions, adding, “I
mean, a lot of years’ worth.” Hall also testified that “on a large
8
Carrier compressor . . . you can have up to 18 gaskets total” and
that “the Trane compressors roughly had 50 percent less gaskets
than a Carrier because they don’t have valve plates.”
4. Mark Gibson
Copeland representative Mark Gibson testified that until
1987 all semi-hermetic Copeland compressors had many gaskets
containing asbestos and that, prior to 1988, all its head gaskets
and valve plate gaskets contained asbestos. The percentage of
asbestos in the asbestos-containing gaskets Copeland used
between 1930 and 1985 ranged from 20 to 85 percent. By April
1988 Copeland knew that the asbestos content of gaskets in its
compressors was in this range and that some gaskets were in fact
85 percent chrysotile.
Gibson explained that part of Copeland’s business is to tear
down and refurbish, or “remanufacture,” old compressors that are
returned to the company. This process involves disassembling
the compressor and removing all gaskets and other material from
interior surfaces. Gibson testified that in 1988 Copeland hired an
industrial hygienist to test and monitor asbestos levels in the air
at Copeland, in particular for employees tearing down and
remanufacturing old compressors. Gibson testified that “there
was action taken based on results that were in the industrial
hygienist reports,” including that Copeland employees began
wearing fitted respirators. At no time, however, did Copeland
provide any warning to its customers about asbestos in its
gaskets or warn of any danger in working on its compressors.
Gibson also testified that in the late 1980s Copeland began
a “phase-out” of asbestos gaskets in its compressors. According to
interoffice correspondence from July and August 1988, Copeland
9
at that time had an inventory of asbestos gaskets worth
$1.3 million, which—to avoid losing the “dollar cost” of simply
disposing of that material—it decided to “use up” before
beginning to use non-asbestos gaskets. By February 1991,
however, Copeland had not used up its asbestos material, and an
interoffice memorandum from that date (subject: “Asbestos
Gasket System Purge”) announced the company would dispose of
its remaining asbestos material, which “had to be thrown away
. . . in specially marked bags.” By 1992 all “asbestos-bearing
gaskets were gone in both new and remanufactured
compressors,” and Copeland no longer supplied replacement
gaskets containing asbestos. At no point during this process did
Copeland advise customers its compressors contained asbestos.
C. Counsel Make Their Closing Arguments, and the Jury
Returns Its Verdict
In beginning his closing argument, counsel for the Phippses
acknowledged that they were not claiming Copeland “is the only
entity that contributed to [William’s] risk of developing
mesothelioma,” but stated that they were “here as the plaintiffs
to prove [their] case against Copeland.” Near the end of his
argument counsel addressed noneconomic damages. He argued
that, in light of William’s intense physical pain, significantly
reduced life expectancy, emotional suffering, and the loss of
enjoyment of his family, among other things, “$50 million is a
reasonable number.” He also argued that, on Linda’s cause of
action for loss of consortium, “$25 million sounds like a
reasonable number—half of what is a reasonable number for
what [William] is going through.” Counsel concluded by stating
that the jury would have an opportunity to apportion fault for
10
William’s harm among a number of parties and nonparties and
that it was Copeland’s burden to prove anyone other than
Copeland contributed to William’s harm. As for the “level” of
fault the jury should apportion Copeland, counsel told the jury,
“That’s for you to decide, based on what they can prove.” Counsel
added: “Based on the evidence, Copeland Corporation, based on
what you have in front of you, 80 percent? 80 percent fault?”
Counsel for Copeland argued it was not liable at all because
William was not exposed to asbestos from working with gaskets
in Copeland compressors or gaskets otherwise supplied by
Copeland and because any exposure William had to asbestos
gaskets in Copeland compressors was not a substantial factor in
causing his mesothelioma. Counsel argued: “This is a classic
case, ladies and gentlemen, where we can point directly to the
cause of [William’s] mesothelioma: his time in the Navy aboard
the Porterfield.” Counsel also emphasized William had additional
exposure to asbestos supplied by the Navy as a result of living
with his father while his father worked as an electrician for the
Navy. “So the other companies that he’s listed here,” counsel
stated, referring to the question on the verdict form concerning
apportionment of fault, “those are simply other companies that
he has claimed exposure to asbestos from.” Counsel for Copeland
concluded: “I’m not going to get into the issue of damages
because I don’t think you get there. The final questions that deal
with apportionment of fault, what I would suggest to you, ladies
and gentlemen, is that the plaintiffs . . . would be happy with a
finding of one percent fault for Copeland.”
The jury found Copeland liable on all causes of action. It
awarded $1.369 million in economic damages (a figure the parties
had stipulated to), $5 million in past noneconomic damages,
11
$20 million in future noneconomic damages, and $250,000 for
Linda’s loss of consortium claim. Question 21 on the special
verdict form read: “Assuming that 100% represents the total
fault for the injury, damage, loss or harm to plaintiff William
Phipps, what percentage of this 100% is attributable to the
negligence, or fault based on defective products or failure to
warn, if any, to the following: [¶] [Include a percentage only for
those that were a substantial factor contributing to plaintiff
William Phipps’ risk of developing mesothelioma?].” The verdict
form then listed the following parties and nonparties, to which
the jury assigned the following percentages: Copeland,
60 percent; the Navy, 17 percent; Western Air Refrigeration,
10 percent; Trane, 3 percent; Carrier, 3 percent; York, 3 percent;
and nine others, to each of which the jury assigned a percentage
between zero and one inclusive.
D. The Trial Court Denies a Motion by Copeland for New
Trial or Remittitur
Copeland filed a motion for new trial (Code Civ. Proc.,
§ 657)4 or, in the alternative, remittitur (§ 662.5, subd. (a)(2)).
Copeland argued that the evidence did not support finding
“causation as to Copeland” or allocating Copeland 60 percent of
the fault for William’s harm and that the award of noneconomic
damages was excessive. In support of the latter contention,
Copeland submitted a spreadsheet labeled “Plaintiff Verdict
Amounts in Asbestos/Mesothelioma Cases.” An accompanying
declaration explained that the spreadsheet was the result of “a
process for obtaining comparative verdicts in cases that, similar
4 Undesignated statutory references are to the Code of Civil
Procedure.
12
to this one, involved allegations of asbestos exposure leading to
mesothelioma.”5 The spreadsheet identified 15 cases, for each of
which it displayed information in seven columns: (1) the
plaintiff’s surname, (2) the case number, (3) the date of the
verdict, (4) the amount of past noneconomic damages, (5) the
amount of future noneconomic damages, (6) the total amount of
noneconomic damages, and (7) the ratio of past to future
noneconomic damages. Below the spreadsheet, a table displayed
the mean and the median for columns (4), (5), and (6). Copeland
included copies of the verdicts filed in the cases (or, for some
cases, judgments reflecting the verdicts filed in the cases).
Copeland argued its survey showed the amount of the
noneconomic damages award in this case was “well beyond the
normal range of awards in similar cases for similar injuries.”
The trial court denied the motion. After reviewing the
evidence concerning causation and allocation of fault, the court
ruled there was no basis to disturb the jury’s findings. On the
issue of noneconomic damages, the court sustained a relevance
objection by the Phippses to counsel for Copeland’s spreadsheet
5 The declaration described the process: “As a first step, we
used Lexis Advance® Verdict Analyzer to generate a list of
California state court asbestos/mesothelioma verdicts in favor of
plaintiffs over the past five years (2015-2019). We used that list
to pull the as-filed verdict forms (where available) from the
respective court websites. We then reviewed the verdict forms to
limit the list of cases to those involving personal injury claims by
a plaintiff with mesothelioma (as opposed to wrongful death
brought by heirs). We included in our final list of cases all
verdicts that we were able to obtain and that matched the
criteria above, except for those that we identified as involving
default judgments or as having settled prior to entry of
judgment.”
13
survey of other verdicts, stating: “The Court does not believe it is
proper for this Court to consider the case summaries for any
comparative analysis or to determine an appropriate amount for
an award in this matter. The Court does not consider the
evidence for the purpose of establishing a threshold or ratio. This
Court looks only to the evidence presented in this case, to
determine if the verdict is supported. While such cases may help
determine if an award results from passion or prejudice, they
cannot be used to determine an appropriate amount in a
particular case.” The court ruled that, “[h]aving heard
Mr. Phipps’s testimony, and those of the experts and other
witnesses,” it could not find the jury’s past or future noneconomic
damages awards were unsupported. Copeland timely appealed.
DISCUSSION
A. The Evidence Did Not Compel a Different
Apportionment of Fault
1. Applicable Law and Standard of Review
“In the context of a cause of action for asbestos-related
latent injuries, 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 injury, i.e., a substantial factor in bringing
about the injury. . . . [T]he plaintiff may meet the burden of
proving that exposure to defendant’s product was a substantial
factor causing the illness by showing that in reasonable medical
probability it was a substantial factor contributing to the
14
plaintiff’s or decedent’s risk of developing cancer.” (Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982 (Rutherford);
accord, LAOSD Asbestos Cases (2020) 44 Cal.App.5th 475, 488;
see Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 975
(Izell) [“As our Supreme Court explained in Rutherford, ‘[t]he
substantial factor standard is a relatively broad one, requiring
only that the contribution of the individual cause be more than
negligible or theoretical.’”].)
“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.” (Rutherford,
supra, 16 Cal.4th at p. 958.) The defendant “may reduce its own
comparative fault by pointing the finger at other tortfeasors,
including those who are not party to the case.” (Soto v.
BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 202
(Soto).)
“The comparative fault doctrine ‘is designed to permit the
trier of fact to consider all relevant criteria in apportioning
liability. The doctrine “is a flexible, commonsense concept, under
which a jury properly may consider and evaluate the relative
responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or
other theories of responsibility), in order to arrive at an ‘equitable
apportionment or allocation of loss.’” [Citation.]’ [Citations.] For
this reason, comparative negligence ‘does not lend itself to “the
15
exact measurements of a micrometer-caliper.”’” (Pfeifer v. John
Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285 (Pfeifer).)
“Generally, a defendant has the burden of establishing that
some nonzero percentage of fault is properly attributed to the
plaintiff, other defendants, or nonparties to the action.” (Pfeifer,
supra, 220 Cal.App.4th at p. 1285; accord, Soto, supra,
239 Cal.App.4th at p. 202.) More specifically, a defendant has
“the burden to establish concurrent or alternate causes 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.” (Sparks v. Owens-Illinois, Inc. (1995)
32 Cal.App.4th 461, 478 (Sparks); accord, Stewart v. Union
Carbide Corp. (2010) 190 Cal.App.4th 23, 33 (Stewart),
disapproved on another ground in Webb v. Special Electric Co.,
Inc. (2016) 63 Cal.4th 167, 188.)
Some cases have stated that we review a jury’s findings on
comparative fault “for the existence of substantial evidence.
[Citations.] On review for substantial evidence, we ‘consider the
evidence in the light most favorable to the prevailing party,
giving that party the benefit of every reasonable inference and
resolving conflicts in support of the judgment. [Citation.]’
[Citation.] Under this standard, ‘“the appellate court may not
substitute its judgment for that of the jury or set aside the jury’s
finding if there is any evidence which under any reasonable view
supports the jury’s apportionment. [Citation.]”’ [Citations.] For
this reason, courts rarely disturb the jury’s apportionment of
fault.” (Pfeifer, supra, 220 Cal.App.4th at p. 1286.)
16
Where, as here, however, “‘the trier of fact has expressly or
implicitly concluded that the party with the burden of proof did
not carry the burden and that party appeals,’” generally “‘the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.’”” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern
(2013) 218 Cal.App.4th 828, 838 (Dreyer’s); accord, Glovis
America, Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71;
Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734.)
2. Analysis
Copeland does not challenge the jury’s finding that
William’s exposure to asbestos from Copeland compressors was a
substantial factor contributing to his risk of developing cancer,
i.e., the “causation” finding regarding Copeland. Copeland does,
however, challenge the jury’s apportionment of comparative fault,
arguing it was “illogical, unfair, and unsupported by evidence.”
More specifically (if only marginally so), Copeland argues the
evidence did not support “assigning twenty times more fault to
Copeland than to any of the other compressor manufacturers,
and more fault than all other entities combined.”
But as the party with the burden to establish the
percentage of comparative fault attributable to others (Sparks,
supra, 32 Cal.App.4th at p. 478; Stewart, supra, 190 Cal.App.4th
at p. 33), Copeland, to obtain a reversal, must show the evidence
compelled a verdict in its favor on apportionment as a matter of
17
law. (See Dreyer’s, supra, 218 Cal.App.4th at p. 838.) At a
minimum, this means Copeland must demonstrate its percentage
of comparative fault could not, as a matter of law, be as large as
60 percent.6 Copeland has failed to do so for at least two reasons.
First, Copeland’s contention the apportionment verdict was
“illogical,” etc. rests on Copeland’s insistence the undisputed
evidence established that, “among the four relevant compressor
manufacturers”—Copeland, Carrier, Trane, and York—
“Copeland exposed [William] to less asbestos . . . than the other
companies” (italics omitted). Put differently, Copeland asserts
“there is no evidence, substantial or not, to support a finding that
Copeland was responsible for more asbestos exposure than any of
the other three main compressor companies.” But that is not so,
especially when we view the evidence, as we must, in the light
most favorable to the Phippses. Assuming, as Copeland argues,
uncontradicted evidence established the four relevant compressor
6 It is possible to read Stewart, supra, 190 Cal.App.4th 23 as
requiring Copeland to specify the amount of fault that must, as a
matter of law, be allocated to others. (See id. at pp. 33, 38
[affirming a verdict allocating 85 percent of comparative fault to
a defendant where, although the plaintiff admitted exposure to
asbestos from other sources, the defendant did not present
evidence at trial detailing that exposure and, in arguing on
appeal its “fault should have been allocated to other entities,” the
defendant did “not specify which entities or how much fault”].)
Which Copeland has not done. The closest it comes is asserting
that the “undisputed evidence required finding Copeland less
responsible than the other [compressor] manufacturers” (italics
omitted) and that, “[a]t most, the evidence might support a
roughly equal apportionment of fault between the compressor
companies.” As we will discuss, these assertions regarding the
evidence are not accurate.
18
manufacturers’ gaskets exposed William in equal degree (per
gasket) to asbestos, the amount of asbestos to which each
company exposed William depended on the number of each
company’s gaskets he replaced. Uncontradicted evidence did not
compel a finding that William replaced fewer Copeland gaskets
than he did Carrier, Trane, or York gaskets.
William estimated he worked on as many as 35 Copeland
compressors each year for 14 years, a total of nearly 500
Copeland compressors, most of them semi-hermetic. His work on
these semi-hermetic compressors included rebuilds that involved
replacing up to 30 gaskets, repairs that could involve replacing
one or more gaskets, and replacements of entire compressor
units, which involved replacing four gaskets. As Hall testified, he
saw William scraping “a lot of years’ worth” of Copeland gaskets.
As for York compressors, not so much: William testified he
worked on a York compressor only “once or twice.”
William testified he also worked on Trane compressors, but
he did not indicate how often, either in absolute terms or in
relation to other brands. He did testify he rebuilt Trane
compressors more often than he did Copeland compressors, but
that covers only one of the three categories of gasket-replacing
work (rebuilds, repairs, and replacements of entire units) William
did on compressors.7 No evidence compelled a finding that,
considering the evidence regarding all three categories of gasket-
replacing work, William rebuilt so many more Trane compressors
than Copeland compressors that he necessarily replaced more
7 Notably, Hall testified Trane compressors did not have
valve plates, an item William commonly repaired on Copeland
compressors.
19
Trane gaskets than Copeland gaskets. In fact, the evidence did
not compel a finding William replaced more Trane gaskets than
Copeland gaskets even in the “rebuilds” category. Asked “how
many gaskets are . . . in a compressor,” i.e., without regard to
brand, William testified “there’s probably 30 gaskets in the darn
thing.” The jury could reasonably infer that this figure applied to
Copeland compressors and that rebuilding a Copeland
compressor therefore involved replacing as many as 30 gaskets.
Hall testified that a Trane compressor, on the other hand, had a
total of only nine gaskets (50 percent of a Carrier compressor’s
maximum total of 18)—which meant William could have rebuilt
three times as many Trane compressors as Copeland compressors
and still not have replaced as many Trane gaskets as Copeland
gaskets in the rebuilds category. That takes care of Trane.
And Carrier? That’s a slightly closer question, at least at
first blush: Not only did William testify that he rebuilt more
Carrier compressors than Copeland compressors, he also
testified, as Copeland points out, that he “worked on” more
Carrier compressors than any other brand. Still, that testimony
does not compel a finding William rebuilt and generally “worked
on” so many more Carrier compressors than Copeland
compressors that he necessarily replaced more Carrier gaskets.
For one thing, according to Hall, rebuilding a Carrier compressor
meant replacing a maximum of 18 gaskets, compared to
Copeland’s (reasonably inferred) 30. For another, there was no
evidence of how many gaskets William tended to replace when
“working on” a Carrier compressor; if he tended to replace only
one or two, that would be half or less the number of gaskets he
replaced when replacing a Copeland compressor. And last, the
jury could reasonably interpret Hall’s statement that, although
20
he was sure William worked on other things, “Copeland seemed
to be what he was tangled up with” as conflicting with William’s
testimony that he worked on more Carrier compressors than
other brand compressors. Particularly because Hall was the
more experienced at the time in the HVAC field, the jury could
reasonably believe Hall rather than William. (See Morgan v. J-M
Manufacturing Co., Inc. (2021) 60 Cal.App.5th 1078, 1086 [“‘[i]t is
well settled that the trier of fact may accept part of the testimony
of a witness and reject another part’”].) And so that’s Carrier.
The second reason Copeland has failed to demonstrate the
evidence compelled a verdict in its favor on apportionment as a
matter of law is that “the jury was permitted to consider the
relative culpability of the parties in assessing comparative fault.”
(Pfeifer, supra, 220 Cal.App.4th at p. 1289; see Daly v. General
Motors Corp. (1978) 20 Cal.3d 725, 742 [principles of comparative
fault “elevate justice and equity above the exact contours of a
mathematical equation”]; Pfeifer, at pp. 1289-1290 [“the jury was
permitted to increase [the defendant’s] share of liability because
it determined that [the defendant’s] misconduct was more
egregious than the Navy’s misconduct”]; Scott v. County of Los
Angeles (1994) 27 Cal.App.4th 125, 148 [the jury in a personal
injury action could assign greater comparative fault to the “more
culpable” defendants].) As one treatise explains, the “factors for
assigning percentages of responsibility to each person whose legal
responsibility has been established include . . . [¶] . . . [t]he
‘nature of the person’s risk-creating conduct,’ including any
awareness or indifference with respect to the risks created by the
conduct and any intent with respect to the harm created by the
conduct.” (6 Witkin, Summary of Cal. Law (11th ed. 2020) Torts,
§ 1489.)
21
The Phippses presented evidence from which the jury could
reasonably infer that, although by 1988 Copeland knew the work
of removing asbestos gaskets from its compressors could be
dangerous, and even warranted having Copeland employees who
performed that work wear a respirator, it chose not to warn
others, like William, who regularly performed such work and,
instead of disposing of its asbestos gasket inventory, tried for
three years to use it up. These were years William was working
on Copeland compressors. This evidence, which was specific to
Copeland, supported an inference that Copeland, alone among
those who exposed William to asbestos, was consciously
indifferent to the risks of doing so. The jury was entitled to
increase Copeland’s share of fault accordingly. (See Pfeifer,
supra, 220 Cal.App.4th at pp. 1289-1290 [the jury could apportion
the defendant a greater share of liability compared to the Navy
because “the evidence supported the inference that [the
defendant] was consciously indifferent to the dangers that its
products posed to consumers [citation], while the Navy was
merely negligent regarding those dangers”].)
Pointing out that the trial court granted a motion by
Copeland for summary adjudication on the Phippses’ punitive
damages claim, Copeland argues permitting the jury to increase
its share of liability based on “moral blameworthiness” would
amount to “an impermissible form of punitive liability.” Based on
the evidence, however, the jury could reasonably find that
Copeland’s indifference, though justifying a finding Copeland was
more culpable than the other manufacturers, did not rise to the
level of the “‘“extreme indifference”’” required for punitive
damages. (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th
442, 455.) Copeland also argues permitting the jury to consider
22
relative culpability in apportioning fault conflicts with
“Proposition 51, which ‘shields every “defendant” from any share
of noneconomic damages beyond that attributable to his or her
own comparative fault’” (quoting DaFonte v. Up-Right, Inc. (1992)
2 Cal.4th 593, 602).8 But that argument begs the question: As
discussed, a defendant’s comparative fault includes its relative
culpability.
Finally, even assuming, as Copeland argues, it had the
burden to prove only that a nonzero percentage of fault was
attributable to other entities, with no burden to prove the
percentage attributable to them, so that the jury’s allocation of
fault is simply subject to review for substantial evidence,
substantial evidence supported allocating Copeland 60 percent.
Dr. Dahlgren testified William’s primary exposure was to
chrysotile, the kind of asbestos used in compressor gaskets he
replaced, rather than to amphibole, the kind of asbestos used in
insulation on the U.S.S. Porterfield during William’s Navy
service and on ships on which his father served. The evidence
showed a large number of the asbestos gaskets William replaced
were in Copeland compressors. As discussed, the evidence
8 “Proposition 51 amended [Civil Code] section 1431 and
added [Civil Code] section 1431.2,” the latter of which “declares
that in actions for wrongful death, personal injury, or property
damage based on comparative fault, ‘the liability of each
defendant for non-economic damages shall be several only and
shall not be joint.’ The statute further specifies that ‘[e]ach
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 . . . .’” (DaFonte v. Up-Right, Inc.,
supra, 2 Cal.4th at pp. 599-600; see Civ. Code, §§ 1431.1, 1431.2.)
23
relating to other brand compressors either showed William
replaced fewer gaskets in them or left gaps in which the jury
could only speculate on the relative number of gaskets he
replaced in them. As also discussed, the Phippses presented
evidence of Copeland’s greater culpability, based on which the
jury could increase Copeland’s share of comparative fault. In
light of these considerations, we cannot say allocating Copeland
60 percent of the comparative fault was unreasonable. (See
Pfeifer, supra, 220 Cal.App.4th at pp. 1286, 1289-1290
[substantial evidence supported allocating 70 percent of the
comparative fault to the defendant and 12.5 percent to the Navy
where “over half of [the plaintiff’s] exposure to asbestos from [the
defendant’s] products occurred after he left the Navy,” the jury
lacked evidence “quantifying [the plaintiff’s] exposure to asbestos
from the other sources,” and the evidence supported an inference
the defendant “was consciously indifferent to the dangers its
products posed”].)
B. The Trial Court Did Not Err in Denying Copeland’s
Motion for a New Trial or Remittitur
1. Applicable Law and Standards of Review
“‘Noneconomic damages compensate an injured plaintiff for
nonpecuniary injuries . . . . ’ [Citation.] Such injuries include
pain and suffering, emotional distress, as well as ‘such items as
invasion of a person’s bodily integrity (i.e., the fact of the injury
itself), disfigurement, disability, impaired enjoyment of life,
susceptibility to future harm or injury, and a shortened life
expectancy.’” (Burchell v. Faculty Physicians & Surgeons of the
Loma Linda University School of Medicine (2020) 54 Cal.App.5th
24515, 526 (Burchell); see Corenbaum v. Lampkin (2013)
215 Cal.App.4th 1308, 1332 (Corenbaum) [“Pain and suffering is
a unitary concept that encompasses physical pain and various
forms of mental anguish and emotional distress.”].) “Such
injuries are subjective, and the determination of the amount of
damages by the trier of fact is equally subjective. [Citation.]
There is no fixed standard to determine the amount of
noneconomic damages. Instead, the determination is committed
to the discretion of the trier of fact.” (Corenbaum, at p. 1332.)
As the Supreme Court has explained: “One of the most
difficult tasks imposed upon a jury in deciding a case involving
personal injuries is to determine the amount of money the
plaintiff is to be awarded as compensation for pain and suffering.
No method is available to the jury by which it can objectively
evaluate such damages, and no witness may express his
subjective opinion on the matter. [Citation.] In a very real sense,
the jury is asked to evaluate in terms of money a detriment for
which monetary compensation cannot be ascertained with any
demonstrable accuracy. . . . ‘Translating pain and anguish into
dollars can, at best, be only an arbitrary allowance, and not a
process of measurement, and consequently the judge can, in [the
judge’s] instructions, give the jury no standard to go by; [the
judge] can only tell them to allow such amount as in their
discretion they may consider reasonable. . . . The chief reliance
for reaching reasonable results in attempting to value suffering
in terms of money must be the restraint and common sense of the
jury.’” (Beagle v. Vasold (1966) 65 Cal.2d 166, 172; accord,
Corenbaum, supra, 215 Cal.App.4th at pp. 1332-1333.)
Thus, “‘[t]he amount of [noneconomic] damages is a fact
question, first committed to the discretion of the jury and next to
25
the discretion of the trial judge on a motion for new trial.’”
(Burchell, supra, 54 Cal.App.5th at p. 527; accord, Seffert v. Los
Angeles Transit Lines (1961) 56 Cal.2d 498, 506 (Seffert); see
§ 657 [a “new trial shall not be granted upon the ground of . . .
excessive or inadequate damages . . . unless after weighing the
evidence the court is convinced from the entire record, including
reasonable inferences therefrom, that the . . . jury clearly should
have reached a different verdict or decision”].) The jury and the
trial judge “see and hear the witnesses and frequently . . . see the
injury and the impairment that has resulted therefrom. As a
result, all presumptions are in favor of the decision of the trial
court.” (Seffert, at pp. 506-507; accord, Bigler-Engler v. Breg, Inc.
(2017) 7 Cal.App.5th 276, 299 (Bigler-Engler).) “We will not
disturb the trial court’s ruling on a motion for new trial unless
the record reveals a manifest and unmistakable abuse of
discretion.” (Soto, supra, 239 Cal.App.4th at p. 200; see
Charles D. Warner & Sons, Inc. v. Seilon, Inc. (1974)
37 Cal.App.3d 612, 616; see also Pearl v. City of Los Angeles
(2019) 36 Cal.App.5th 475, 486 [“We review the trial court’s use
of its power of remittitur to reduce excessive damages for abuse
of discretion.”].)
2. Analysis
Copeland contends the trial court abused its discretion in
denying Copeland’s motion for a new trial or remittitur because
the trial court’s “categorical refusal to consider verdicts in similar
cases was a reversible legal error.” (See Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th
359, 393 [a judicial decision resting on a mistaken legal premise
is an abuse of discretion].) Copeland refers primarily to the
26
court’s refusal to consider counsel for Copeland’s spreadsheet
survey of verdicts in other mesothelioma cases, which the court
ruled inadmissible. Copeland also appears to suggest the trial
court “declined to address” a published decision Copeland cited,
Izell, supra, 231 Cal.App.4th 962, which affirmed a trial court’s
order reducing an award of noneconomic damages for a
mesothelioma plaintiff from $15 million to $3 million. (See id. at
pp. 980-981.)
The trial court did not abuse its discretion in refusing to
consider Copeland’s survey of awards in other cases because, if
for no other reason,9 sections 657 and 658 prohibited the court
from considering such material. “Sections 657 and 658 establish
seven grounds for a new trial, which fall into two groups.
Motions seeking a new trial on the first four grounds [irregularity
in the proceedings, misconduct of the jury, accident or surprise,
and newly discovered evidence] ‘must be made upon affidavits’
. . . . [¶] In contrast, motions relying on the remaining three
grounds [excessive or inadequate damages, insufficiency of the
evidence, and error in law] ‘must be made on the minutes of the
9 “‘We will affirm the trial court’s ruling if it is correct on any
theory of law applicable to the case, even if for reasons different
than those given by the trial court.’” (Uspenskaya v. Meline
(2015) 241 Cal.App.4th 996, 1002, fn. 7; accord, Conservatorship
of McQueen (2014) 59 Cal.4th 602, 612; see Ceja v. Department of
Transportation (2011) 201 Cal.App.4th 1475, 1483 [“if the
exclusion of evidence is proper on any theory, the exclusion must
be sustained”]; see also Davey v. Southern Pacific Co. (1897)
116 Cal. 325, 330 [“[a]n objection to evidence is but a reason
offered for its exclusion,” and if the objection is “sustained, and
there appears any other reason for which the evidence should
have been excluded, the ruling must stand”].)
27
court.’ [Citation.] Here, ‘[t]he “minutes of the court” include the
records of the proceedings entered by the judge or courtroom
clerk, showing what action was taken and the date it was taken
[citation] and may also include depositions and exhibits admitted
into evidence and the trial transcript.’” (Wall Street Network,
Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1192;
see §§ 657, 658, 660.)
In moving for a new trial on the ground of excessive
damages, Copeland was required to do so “on the minutes of the
court.” (§ 658.) The survey Copeland prepared and submitted in
support of its motion were not among the minutes of the court.
Therefore, the trial court could not consider that material. (See
Maroney v. Iacobsohn (2015) 237 Cal.App.4th 473, 484-485
[“‘[b]ecause new trial motions are creatures of statute, “‘the
procedural steps . . . for making and determining such a motion
are mandatory and must be strictly followed’”’”]; People v.
Southern Cal. Edison Co. (1976) 56 Cal.App.3d 593, 601 [“‘It is
well established that the proceedings on a motion for new trial
are strictly statutory, and the procedure for seeking relief must
conform strictly to the statutory mandate.’”].)
The court’s decision in Frost v. Southern Pacific Co. (1960)
177 Cal.App.2d 40 confirms the trial court here acted properly.
After the plaintiffs in that personal injury case obtained a
favorable jury verdict, the defendant filed a motion for a new trial
on all statutory grounds and submitted an affidavit purporting to
relate newly discovered evidence suggesting one of the plaintiffs
was not as badly injured as she claimed. (Id. at pp. 40-41.)10 The
10 A few days after the plaintiffs prevailed at trial, one of the
plaintiffs was observed exhibiting “a marked improvement over
28
trial court granted the motion for new trial on damages only. (Id.
at p. 41.) The plaintiffs appealed, arguing the trial court
improperly used the affidavit “as a basis for granting a new trial
upon the ground that the evidence was insufficient to support the
award of damages.” (Id. at p. 42.) Although the court in Frost
rejected that argument, concluding the trial court correctly
determined “whether the evidence that was submitted to the jury
justified the amounts awarded as damages” (ibid.), the court
stated it would have been error to consider the affidavit. The
court held: “In considering the verdict in the light of the evidence
the court was required to determine whether the sums awarded
were in accordance with or opposed to the weight of the evidence.
[Citation.] It would have been improper for the court to take into
consideration in that connection evidence adduced on the hearing
of the motion. The affidavit could not properly have been
considered in determining whether the verdict was for amounts
in excess of those that would have been justified by the evidence.”
(Ibid.) The same rule applies here: The court would have erred
had it considered Copeland’s survey of awards in other cases.
This rule is further illustrated by Campbell v. Bradbury
(1918) 179 Cal. 364, where the Supreme Court affirmed the trial
court’s order denying the defendants’ motion for a new trial on
the ground of excessive damages. (Id. at pp. 366-367, 374-375.)
The Supreme Court stated: “It was the duty of the trial judge,
upon the motion for new trial, to consider the testimony, and if
the verdict was in his judgment too large, to either provide for a
reduction of the judgment, or in default thereof, grant a new
trial.” (Id. at p. 375.) The Supreme Court then addressed
the condition she allegedly had described at the trial . . . .” (Frost
v. Southern Pacific Co., supra, 177 Cal.App.2d at pp. 40-41.)
29
affidavits the defendants submitted in support of their motion,
which described certain unfavorable courtroom conditions “[f]or
the purpose of proving ‘passion or prejudice’ on the part of the
jury in awarding damages.” (Ibid.) Citing section 658, the
Supreme Court stated: “It is sufficient to say upon this subject
that on the question of excessive damages, these affidavits were
not admissible as evidence.” (Campbell, at p. 375.)
But what about the filed verdicts (and filed judgments
reflecting those verdicts) that accompanied Copeland’s survey—
could the trial court have considered them as “minutes of the
court,” albeit minutes of the court in other cases? Putting aside
the linguistic difference between the minutes of “the” court and
the minutes of “a” court (see Pineda v. Bank of America, N.A.
(2010) 50 Cal.4th 1389, 1396 [“[u]se of the indefinite articles ‘a’ or
‘an’ signals a general reference, while use of the definite article
‘the’ . . . refers to a specific person, place, or thing”]), stretching
“minutes of the court” in section 658 to include minutes of the
court in other cases would have allowed the trial court to consider
only the bare, as-filed verdicts and judgments. There would be
nothing to explain how these cases were selected (and thus how
representative of “similar cases” they were), no underlying facts
from the cases (and thus little assurance they were in fact
“similar”), and no indication whether the verdicts had survived
posttrial challenges or appellate review. Absent any contextual
information about those filed verdicts (and judgments), we could
not say the trial court abused its discretion in ruling the material
was insufficiently informative to be relevant and was therefore
inadmissible. (See Shaw v. County of Santa Cruz (2008)
170 Cal.App.4th 229, 281 [“[w]e review a trial court’s evidentiary
rulings for abuse of discretion,” and “[t]his is particularly so with
30
respect to rulings that turn on the relevance of the proffered
evidence”].)
In the only case Copeland cites approving a trial court’s
consideration of awards in other cases when ruling on a motion
for new trial on the ground of excessive or inadequate damages,
Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, it appears
the trial court looked only to (presumably published) Court of
Appeal and Supreme Court decisions. (See id. at p. 1055 [“the
totality of the record reflects that the trial court’s review of the
awards in other appellate and Supreme Court decisions were
used only for guideline purposes, in conjunction with a review of
other factors and the evidence”].) The Phippses do not address
Sprague. But they rely heavily on Bigboy v. County of San Diego
(1984) 154 Cal.App.3d 397, where the court reversed a trial
court’s order granting a new trial on the ground of excessive
damages, stating: “We conclude the trial judge’s personal opinion
based on the ranges of awards in other cases does not show the
jury should have clearly reached a different verdict in this case
and is therefore an irrelevant consideration, not a lawful basis,
for granting the new trial order and issuing the remittitur.” (Id.
at p. 407.) It is not clear whether the Bigboy court’s reference to
“awards in other cases” included awards in published decisions.
But even assuming that under Sprague v. Equifax, Inc.,
supra, 166 Cal.App.3d 1012 (or any other authority) it would
have been error for the trial court here to categorically refuse to
consider awards in published decisions, there is no indication the
court did that; it simply didn’t mention the published decision
Copeland cited. The court’s decision not to consider awards in
other cases appeared under the heading “Evidentiary Objection
and Ruling as to Defendant’s Case Summaries” and concerned,
31
specifically, the “case summaries” presented in Copeland’s
survey. We do not assume the trial court made a silent,
erroneous ruling on the propriety of considering awards in
published decisions. (See IIG Wireless, Inc. v. Yi (2018)
22 Cal.App.5th 630, 639 [“‘“‘Error is never presumed.’”’”].) And
Copeland does not argue the trial court’s mere failure to mention
Izell, supra, 231 Cal.App.4th 962 constituted an abuse of
discretion.
In the absence of any other case authority approving a trial
court’s consideration of awards in other cases (in published
decisions or otherwise), Copeland makes the following argument:
Because appellate courts “can and do consider amounts awarded
in past cases for similar injuries when reviewing non-economic
damages awards for excessiveness,” “it follows that trial courts
must be permitted to review the same information” (italics
omitted). To the extent Copeland refers to considering awards in
published decisions, which we agree with the parties an appellate
court may do (see Seffert, supra, 56 Cal.2d at p. 508 [“[w]hile the
appellate court should consider the amounts awarded in prior
cases for similar injuries, obviously, each case must be decided on
its own facts and circumstances”]), we need not decide whether a
trial court may consider such awards because, as discussed,
Copeland has not shown the trial court here ruled it could not do
so. Insofar as Copeland refers to considering the sort of
information it prepared and presented to the trial court in its
survey, however, Copeland has failed to establish its premise: It
cites no authority suggesting an appellate court may consider
such material. And we are unaware of any.
32
C. The Award of Noneconomic Damages Was Not
Excessive
1. Standard of Review
Appellate review of the jury’s determination of
noneconomic damages is “‘very narrow.’” (Soto, supra,
239 Cal.App.4th at p. 199; see Rufo v. Simpson (2001)
86 Cal.App.4th 573, 614 (Rufo).) “It must be remembered that
the jury fixed these damages, and that the trial judge denied a
motion for new trial, one ground of which was excessiveness of
the award. These determinations are entitled to great
weight. . . . The power of the appellate court differs materially
from that of the trial court in passing on this question. An
appellate court 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.” (Seffert, supra,
56 Cal.2d at p. 506; accord, Soto, at p. 199; see Bender v. County
of Los Angeles (2013) 217 Cal.App.4th 968, 985 [“The jury ‘is
entrusted with vast discretion in determining the amount of
damages to be awarded,’ and a reviewing court will reverse or
reduce the award only ‘“‘where the recovery is so grossly
disproportionate as to raise a presumption that it is the result of
passion or prejudice.’”’”].)
“Accordingly, ‘[w]e review the jury’s damages award for
substantial evidence, giving due deference to the jury’s verdict
and the trial court’s denial of the new trial motion.’” (Burchell,
supra, 54 Cal.App.5th at p. 527; see Bigler-Engler, supra,
7 Cal.App.5th at p. 300.) “[T]he appellate court must consider
the whole record, view the evidence in the light most favorable to
33
the judgment, presume every fact the trier of fact could
reasonably deduce from the evidence, and defer to the trier of
fact’s determination of the weight and credibility of the evidence.”
(Rufo, supra, 86 Cal.App.4th at p. 614.)
2. Analysis
Copeland argues the noneconomic damages award here was
excessive. Substantial evidence, however, supported the award.
Among other such evidence, medical experts testified at trial that
mesothelioma is “a very dreadful disease,” is “one of the worst
cancers to have,” and results in “patients . . . dying in horrible
pain” as the disease, in essence, suffocates them. William
described how fluid had begun to build up in his lungs and how
that felt (“you can’t breathe . . . you can’t take in any air”), his
increasing lack of physical energy and diminished activity (“I
used to get out all the time and trim the bushes and do
things. . . . Now I can’t do anything.”), the painful treatments to
drain his lungs (“you feel so much better afterwards that it’s
worth the pain”), and the chemotherapy sessions that would
continue for the rest of his life. Linda testified that prior to his
medical treatment for mesothelioma William “had never been to
the hospital in his entire life” (“He had never had any kind of
surgeries. He had never had any kind of nothing.”) and that after
his diagnosis his personality changed so that he was “angry” and
“very depressed.” As a result of his mesothelioma, William’s life
expectancy was reduced from 14.5 years to one or two.
Copeland asserts the noneconomic damages award was “the
result of passion and prejudice,” but does not cite anything to
suggest improper considerations influenced the award. (See
Bigler-Engler, supra, 7 Cal.App.5th at p. 299 [“relevant
34
considerations include inflammatory evidence, misleading jury
instructions, improper argument by counsel, or other
misconduct”].) Indeed, the record strongly suggests the jury
eschewed passion or prejudice: Counsel for the Phippses
recommended a finding of 80 percent fault against Copeland, but
the jury apportioned it only 60 percent; counsel argued for
$50 million in noneconomic damages, but the jury awarded half
that; and counsel asked for $25 million on the cause of action for
loss of consortium, of which the jury awarded but a tenth. (Cf.
Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, 553
[jury’s award of 13 times the amount counsel for plaintiffs
requested in noneconomic damages and three times the amount
requested for loss of consortium indicated jury acted out of
passion and prejudice], disapproved on another ground in Kim v.
Toyota Motor Corp. (2018) 6 Cal.5th 21, 38, fn. 6.) The
significantly lower-than-requested damages awards are
especially significant given that counsel for Copeland did not
even bother to rebut the arguments made by counsel for the
Phippses.
Copeland’s only substantive argument is that a comparison
of the size of the award here with the size of the awards in its
survey and in Izell, supra, 231 Cal.App.4th 962 shows the award
here is excessive. But as the court explained in Rufo, supra,
86 Cal.App.4th 573: “This method of attacking a verdict was
disapproved by our Supreme Court in Bertero v. National General
Corp. [(1974)] 13 Cal.3d 43, 65, footnote 12, where it said,
‘Defendants have compiled a lengthy list of judgments awarding
damages which have been reversed on appeal as excessive. Those
cases do not, in and of themselves, mandate a reversal here. The
vast variety of and disparity between awards in other cases
35
demonstrate that injuries can seldom be measured on the same
scale. The measure of damages suffered is a factual question and
as such is a subject particularly within the province of the trier of
fact. For a reviewing court to upset a jury’s factual
determination on the basis of what other juries awarded to other
plaintiffs for other injuries in other cases based upon different
evidence would constitute a serious invasion into the realm of
factfinding . . . . Thus, we adhere to the previously announced
and historically honored standard of reversing as excessive only
those judgments which the entire record, when viewed most
favorably to the judgment, indicates were rendered as the result
of passion and prejudice on the part of the jurors. We cannot
conclude that the award of damages could be so characterized in
the instant case.’” (Rufo, at p. 616; see id. at pp. 614-616
[affirming an $8.5 million award of noneconomic damages where
the defendant’s argument on appeal “essentially comes down to
this: the largest award his counsel could find in California
reported cases for the loss of comfort and society in the wrongful
death of an adult child was $2 million”]; see also Leming v.
Oilfields Trucking Co. (1955) 44 Cal.2d 343, 355-356 [“‘The
appellant’s claim that the amount of damages awarded . . . is
excessive, concerns an issue which is primarily factual in nature
and is not therefore a matter which can be decided upon the basis
of the awards made in other cases. . . . [Damages] are not
excessive as a matter of law because a lesser amount has been
deemed adequate compensation for a similar injury.’”].) Nor can
we here.
36
DISPOSITION
The judgment is affirmed. The Phippses are to recover
their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
37