Hart v. Keenan Properties CA1/5

Filed 12/9/20 Hart v. Keenan Properties CA1/5
On remand
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
CYNTHIA HART,
Plaintiff and Respondent,
A152692
v.
KEENAN PROPERTIES, INC., (Alameda County
Defendant and Appellant. Super. Ct. No. RG16838191)
This case returns to us from the California Supreme Court “for
consideration of . . . contentions left unresolved” by a previous appeal,
following a jury verdict in favor of the plaintiffs, Frank C. Hart and Cynthia
Hart (collectively, the Harts). (Hart v. Keenan Properties, Inc. (2020)
9 Cal.5th 442, 454.) In this opinion, we address the claims of defendant
Keenan Properties, Inc. (Keenan) that the trial court “improperly allowed
medical cost testimony from Plaintiffs’ expert based on unpaid medical
charges,” and abused its discretion by understating Keenan’s setoff against
economic damages based upon proceeds of settlements with other defendants.
We affirm.
1
FACTUAL AND PROCEDURAL HISTORY
Mr. Hart suffered from mesothelioma, which is caused by exposure to
asbestos.1 From September 1976 to March 1977, he worked in McKinleyville,
California, and his job involved cutting asbestos-cement pipe for new sewer
lines. On November 8, 2016, the Harts filed a complaint for personal injury
and loss of consortium against numerous entities, including Keenan. By the
time of trial, Keenan was the only remaining defendant, all other defendants
having settled or been dismissed.
The jury returned its verdict finding Keenan supplied the pipe to the
McKinleyville site that exposed Mr. Hart to asbestos. As to the personal
injury cause of action, the jury awarded $1,821,050 in economic damages and
$3,000,000 in noneconomic damages for pain and suffering. As to the loss of
consortium cause of action, the jury awarded $500,000 to Mrs. Hart. The
jury allocated fault among ten entities, finding Keenan was 17 percent at
fault.
In its amended judgment, the court apportioned 45 percent of prior
settlements to potential future wrongful death claims. After accounting for
portions of the settlement proceeds attributable to noneconomic and loss of
consortium damages, the court determined that the remainder, $789,532.18,
was Keenan’s credit against the economic damages awarded by the jury. It is
this figure that Keenan contends “was substantially and wrongfully altered”
by the court’s allocation of 45 percent of prior settlement funds to a future
wrongful death action, which would presumably include Mrs. Hart as a
plaintiff. Based on the credit against economic damages and comparative
fault reductions to the noneconomic damages, the net verdict against Keenan
was $1,626,517.82.
Mr. Hart passed away on October 3, 2019. On June 29, 2020, we
1
substituted Mrs. Hart as successor in interest to Mr. Hart.
2
On appeal, Keenan raised a number of issues including whether the
trial court properly admitted evidence that Keenan was the supplier of the
pipes. On May 21, 2020, the California Supreme Court held that a foreman’s
observation of Keenan’s name and logo on invoices was circumstantial
evidence of Keenan’s identity as the source of the pipes, and, thus, the trial
court properly admitted the evidence. (Hart v. Keenan Properties, Inc., supra,
9 Cal.5th at pp. 447, 449–450.)
DISCUSSION
In this opinion, we address Keenan’s remaining appellate arguments.
We begin with Keenan’s challenge to Mr. Hart’s medical costs.
I. The Trial Court’s Evidentiary Rulings Regarding Mr. Hart’s
Medical Expenses
Keenan argues there was no evidence the Harts paid or were liable for
medical expenses, and that an expert relied upon documents that “did not
provide a reasonable basis for his opinions.” We disagree.
A. Governing Law and Standard of Review
We review a trial court’s evidentiary rulings for an abuse of discretion.
(Moore v. Mercer (2016) 4 Cal.App.5th 424, 444 (Moore).) We review de novo
whether a plaintiff is entitled to a particular measure of damages. (Pebley v.
Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1273.) “The amount
of damages, however, is a question of fact. The award will not be disturbed if
it is supported by substantial evidence.” (Ibid.)
Damages for past medical expenses are limited to the lesser of (1) the
amount paid or incurred, and (2) the reasonable value of the services.
(Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 556
(Howell).) When a plaintiff’s insurer negotiates an amount less than the
medical provider’s ordinary rates, the plaintiff may not recover the full or
ordinary rates, even if they are reasonable, because the plaintiff “never
3
incurred the full bill.” (Id. at p. 563.) Howell’s holding is that “an injured
plaintiff whose medical expenses are paid through private insurance may
recover as economic damages no more than the amounts paid by the plaintiff
or his or her insurer for the medical services received or still owing at the
time of trial.” (Id. at p. 566.)
Howell also addressed cases involving a medical provider’s lien against
the plaintiff’s judgment. (Howell, supra, 52 Cal.4th at pp. 553–554.) For
example, in Nishihama v. City and County of San Francisco (2001)
93 Cal.App.4th 298, the Court of Appeal found a medical provider’s lien did
“not extend beyond the amount it agreed to receive from” an insurance
company. (Id. at p. 307.) Similarly, in Parnell v. Adventist Health
System/West (2005) 35 Cal.4th 595, our high court held that a hospital that
asserted a lien against a patient’s judgment could not seek to recover from
the patient “the difference between its usual and customary charges and the
amount received from the patient and his insurer” when it “agreed to accept
that payment as ‘payment in full’ for its services.” (Id. at p. 598.)
By contrast, in cases involving a medical provider’s lien against an
uninsured plaintiff’s recovery, the plaintiff generally remains liable for the
full amount billed, and that amount is admissible and relevant when
considering the reasonable value of the uninsured plaintiff’s medical care.
(Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1330–1331, 1336;
Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1295–1296.) Similarly, if
an insured plaintiff receives treatment from doctors not covered by his or her
insurance, the plaintiff is personally liable for the medical costs, and the
plaintiff may introduce evidence of the “billed charges” and expert witness
testimony to establish the reasonable value of the services rendered. (Pebley
v. Santa Clara Organics, supra, 22 Cal.App.5th at p. 1278.)
4
B. Dr. Horn’s Testimony Regarding Medical Expenses
To prove Mr. Hart’s medical costs, the Harts relied on the expert
testimony of Barry Horn, M.D.2 Before permitting Dr. Horn to testify before
the jury, the court conducted an Evidence Code section 402 hearing.3
1. The Section 402 Hearing
For purposes of the hearing, the court marked exhibits for
identification. They included a letter from an entity called The Rawlings
Company providing notice that Kaiser Foundation Health Plan, Inc. (Kaiser)
was its client, and stating “our client has a lien for medical benefits paid or
furnished on behalf of” Mr. Hart. The letter further indicates that the lien is
of first priority and pertains to any recovery obtained, whether by judgment,
settlement or compromise. The exhibits also included the Rawlings
summary, which is a 22-page chart describing Mr. Hart’s treatment from
September 2016 to May 2017, which included charges under columns labeled
“Bill Amount” and “Paid Amount.” The amounts in these columns are the
same, and they total $471,395.60.4
2 Earlier in the trial, Dr. Horn testified regarding Mr. Hart’s disease
and its cause.
3Undesignated references are to the Evidence Code. Section 402
provides in part that “[w]hen the existence of a preliminary fact is disputed,”
the court “may hear and determine the question of the admissibility of
evidence out of the presence . . . of the jury.”
4 Although the heading on each page of the Rawlings summary states,
“Paid Amount Subject to Change,” the Rawlings letter states: “The amount
of the lien is subject to change based on charges for additional services
related to the injuries or illnesses.” The exhibits also included another
document listing various charges for Mr. Hart’s treatment. The significance
of this document was never explained to the court at the section 402
hearing. Most importantly, when testifying before the jury, Dr. Horn relied
only on the Rawlings summary regarding the amount of Mr. Hart’s past
medical care and was not questioned about this other document.
5
During the hearing, Dr. Horn acknowledged he was not familiar with
Kaiser’s billing practices and did not know how Kaiser creates or negotiates
its bills. Dr. Horn had previously seen a document similar to the Rawlings
summary, but he was not familiar with The Rawlings Company. Dr. Horn
did not know if Kaiser had a lien on the Harts’ judgment or if anyone paid
Mr. Hart’s medical bills. However, regarding the amounts in the Rawlings
summary, Dr. Horn stated “the bulk of the money here is for . . . chemo-
therapy,” and he opined that other institutions around the United States
have billed similar or higher amounts for the same treatment.
Keenan twice stated that it objected to “Dr. Horn’s testimony on
medical billing” under Howell, supra, 52 Cal.4th at page 566. Keenan argued
“the record establishes that Dr. Horn doesn’t have any personal knowledge
regarding . . . Kaiser billing,” and that the notice of a lien was not evidence
any entity paid for Mr. Hart’s treatment. The Harts responded that “there is
a notice of lien and . . . the Rawlings billing records are the breakdown of
what will be enforced by lien.” They argued they were “on the hook for the
full amount billed by virtue of the lien,” and that The Rawlings Company was
“going to enforce a lien for the care provided by Kaiser.”
The trial court stated “there’s not a Kaiser case on point that I’m aware
of, . . . [but] there is case law [that] . . . in the absence of any evidence that
there is a negotiated amount, if there’s evidence that the plaintiff is
potentially liable or on the hook or responsible for the total paid amount, I
think the case law generally says that’s the amount that goes to the jury.”
The trial court overruled “the request to exclude Dr. Horn’s testimony before
the jury, not on the lien. That’s not going to go to the jury one way or the
other. That’s why we had this hearing.”
6
2. Dr. Horn’s Testimony Before the Jury
In his testimony to the jury, Dr. Horn stated he reviewed the Rawlings
summary, which he described as providing “a detailed summary of the care
that was delivered for mesothelioma, specifically for the mesothelioma from
September 30, 2016 . . . to May 5, 2017.” Dr. Horn testified that the cost of
Mr. Hart’s past medical care was $471,395.5
Dr. Horn was a physician at Alta Bates Hospital, and, from 1985 to
2000, he was the “medical director of clinical quality and resource
management” at the hospital. In this role and others, Dr. Horn “learned an
enormous amount about the cost of care and delivery of care . . . all over the
United States.”
When asked, on direct examination, “if this total amount [for Mr.
Hart’s medical care] . . . was actually incurred by Mr. Hart,” Dr. Horn stated:
“I don’t know that.” However, Dr. Horn opined that, based on his experience,
the total amount charged was reasonable. Dr. Horn opined that Mr. Hart
was not likely to live for longer than another year, and he estimated the cost
of Mr. Hart’s future care would range from $50,000 to $150,000.6 Defense
counsel did not cross-examine Dr. Horn before the jury. Instead, defense
counsel renewed “its objections previously from this morning.”7
Dr. Horn omitted 60 cents from the total stated in the Rawlings
5
summary.
6 In fact, Mr. Hart lived for over two more years.
7 Dr. Horn testified regarding both the cost of Mr. Hart’s care and its
reasonableness. By doing so, he “relate[d] as true case-specific facts asserted
in hearsay statements.” (People v. Sanchez (2016) 63 Cal.4th 665, 686.)
Keenan did not object at trial (or argue in its opening appellate briefs) that
Dr. Horn’s testimony was hearsay or that it was inadmissible under Sanchez,
even though Sanchez was decided in June 2016, about a year before the
Harts’ trial. Accordingly, Keenan forfeited this challenge. (People v.
Stevens (2015) 62 Cal.4th 325, 333 [“the failure to object to the admission of
7
C. No Abuse of Discretion in Permitting Dr. Horn to Testify
Regarding the Cost of Mr. Hart’s Medical Treatment
On appeal, Keenan claims “[t]he evidence of medical charges presented
to the jury was based on improper matter and therefore inadmissible.
Keenan complains that “[t]he notice of lien from Kaiser does not constitute
evidence of medical expenses actually incurred,” that the Harts “did not
produce any evidence of amounts owed for Mr. Hart’s treatment,” and “[i]f the
existence of a lien indicates a debt is owed, there is no evidence in this case
regarding how much, or to whom.”
Keenan is wrong. The Rawlings summary is evidence of the amount
Mr. Hart or Kaiser incurred for Mr. Hart’s medical treatment from
September 2016 to May 2017, and there was also evidence Kaiser has or
had a lien against the Harts’ judgment as a means of recouping its costs.
Therefore, the Harts met their burden of showing that they (or their insurer)
incurred medical expenses and the amount incurred. (Moore, supra,
4 Cal.App.5th at p. 437.)
We recognize that in many cases involving insured plaintiffs, the
insurer negotiates a discounted rate from medical providers, and the
discounted amount caps the plaintiff’s recovery. (Howell, supra, 52 Cal.4th
at p. 555.) In those circumstances, it also caps the amount a hospital can
recover based on the hospital’s lien against any judgment or settlement the
injured patient obtains from the tortfeasor. (See, e.g., Parnell v. Adventist
Health System/West, supra, 35 Cal.4th at pp. 598, 609.)
But here, there was no evidence of a discounted rate or that
expert testimony or hearsay at trial forfeits an appellate claim that such
evidence was improperly admitted”]; cf. People v. Perez (2020) 9 Cal.5th 1, 9
[failure “to object at trial before Sanchez was decided did not forfeit a claim
on appeal”].)
8
Kaiser would accept a lesser amount as full satisfaction of its lien.8 As
a result, Keenan’s reliance on cases like Corenbaum v. Lampkin (2013)
215 Cal.App.4th 1308, 1328, in which the medical provider agreed to a
discounted rate for the services provided, is misplaced. Here, based on the
Rawlings summary and Kaiser’s lien, Kaiser can recover the full amount
charged, and Dr. Horn testified that the amount was reasonable. (Howell,
supra, 52 Cal.4th at p. 551 [“any reasonable charges for treatment the
injured person has paid or, having incurred, still owes the medical provider
are recoverable as economic damages”].)
As explained in Pebley v. Santa Clara Organics, LLC, supra,
22 Cal.App.5th at pages 1275 to 1276, which also involved a plaintiff who
had Kaiser insurance, “if the plaintiff has an expert who can competently
testify that the amount incurred and billed is the reasonable value of the
service rendered, he or she should be permitted to introduce that testimony.
The defendant may then test the expert’s opinion through cross-examination
and present his or her own expert opinion testimony that the reasonable
value of the service is lower.” Notably, Keenan failed to offer any expert
testimony challenging the reasonableness of the charges in the Rawlings
summary, or challenging Kaiser’s ability to recoup the full amount charged
based on its lien. We conclude the trial court did not abuse its discretion by
permitting Dr. Horn to testify regarding the cost of Mr. Hart’s medical care.
In arguing otherwise, Keenan relies on Katiuzhinsky v. Perry, supra,
152 Cal.App.4th at page 1291, and Moore, supra, 4 Cal.App.5th at page 444,
but these cases hurt rather than help Keenan’s argument. In both of these
cases, evidence of the full amounts billed was relevant and admissible
because the plaintiffs remained liable for the full amounts even after hospital
To the contrary, the Rawlings summary indicates the billed and paid
8
amounts are the same.
9
liens were sold to a medical finance company. (Katiuzhinsky, at p. 1291;
Moore, at pp. 438–441, 444.) Similarly here, the Rawlings summary shows
the amounts charged for Mr. Hart’s medical treatment, and, in the absence of
evidence that Kaiser would accept less to satisfy its lien, we can reasonably
infer Mr. Hart or Kaiser incurred those expenses. (In re Eric S. (2010)
183 Cal.App.4th 1560, 1565 [victim, who was a Kaiser member, could obtain
restitution for medical expenses because, even if the victim did not pay them,
the “charges were nonetheless incurred on his behalf”].)
Here, unlike in Moore, supra, 4 Cal.App.5th at page 446, there was no
testimony from the plaintiff that he incurred the charges reflected in the
summary of bills, and his treating physicians did not testify either.
Typically, the parties will either stipulate to the admissibility of a summary
of the plaintiff’s medical bills (Bermudez v. Ciolek, supra, 237 Cal.App.4th
at p. 1324), or doctors or other hospital representatives will testify regarding
the amounts. (Moore, at p. 446.) Concerns about disclosing to the jury that
Mr. Hart was a Kaiser member or that Kaiser had a lien against his
judgment may have been a factor in the Harts’ decision to rely exclusively
on Dr. Horn to present evidence of Mr. Hart’s medical expenses to the jury.
(See Howell, supra, 52 Cal.4th at pp. 552, 563 [describing evidentiary aspect
of collateral source rule].) The trial court was correctly concerned about
violating the collateral source rule by allowing in evidence of insurance
coverage.9
9 “The collateral source rule states that ‘if an injured party receives
some compensation for his injuries from a source wholly independent of the
tortfeasor, such payment should not be deducted from the damages which
the plaintiff would otherwise collect from the tortfeasor.’ ” (Howell, supra,52 Cal.4th at p. 551.) Generally, evidence that a collateral source paid or
incurred the costs of an injured plaintiff’s medical treatment is inadmissible.
(Id. at p. 552.)
10
Nevertheless, at the section 402 hearing, Keenan did not dispute that
Mr. Hart received medical care, that there were charges for his treatment, or
that Kaiser had a lien against the judgment.10 Similarly, on appeal, Keenan
does not dispute the existence of Kaiser’s lien, and Keenan acknowledges the
Rawlings summary may have evidentiary value as “a billing statement.”
Based on the court’s legitimate concern about disclosing the Kaiser lien to the
jury, and in the absence of any evidence that Kaiser would accept less than
the full amount to satisfy its lien, we conclude that Dr. Horn’s testimony
regarding the cost of Mr. Hart’s medical care was sufficient to meet Mr.
Hart’s burden of proving he incurred those costs. (Moore, supra, 4
Cal.App.5th at pp. 446–447.)
D. Keenan Forfeited Its Challenge to Dr. Horn’s Opinion
Regarding the Future Cost of Mr. Hart’s Medical Care
As well as testifying regarding the cost of Mr. Hart’s treatment from
September 2016 to May 2017, Dr. Horn also opined regarding the likely
future cost of Mr. Hart’s medical treatment. Relying on Corenbaum v.
Lampkin, supra, 215 Cal.App.4th at page 1331, Keenan argues this opinion
was “not supported by a reasonable basis and must also be excluded,” and
Keenan implies that Dr. Horn’s opinion was based on evidence of the full
amount charged. We deem the argument forfeited.
Objections to the admissibility of evidence must be timely and specific.
(§ 353, subd. (a).) “ ‘Specificity is required both to enable the court to make
an informed ruling on the motion or objection and to enable the party
10 Keenan claims the Harts mischaracterize what was undisputed, and
Keenan points to its counsel’s statement that plaintiffs are not “ ‘responsible
for the lien if there’s no recovery in this case.’ ” But this statement shows
Keenan did not dispute the existence of Kaiser’s lien. Indeed, it presumes the
Harts would be responsible for the lien if there were a recovery—the very
reason to base an award on that figure in order to make the plaintiffs whole.
11
proffering the evidence to cure the defect in the evidence.’ ” (People v.
Boyette (2002) 29 Cal.4th 381, 424.) The failure to raise a specific objection
to the admission of evidence results in forfeiture of appellate review. (People
v. Doolin (2009) 45 Cal.4th 390, 434.)
Here, Keenan did not object at trial to Dr. Horn’s testimony regarding
future medical costs. Keenan claims to have objected at the section 402
hearing, but during that hearing Keenan examined Dr. Horn regarding the
Rawlings summary, which is a summary of past medical expenses, and
Keenan moved to exclude Dr. Horn’s testimony “on medical billing,” not
future expenses.11 As a result, Keenan forfeited its challenge to Dr. Horn’s
testimony regarding Mr. Hart’s future medical costs.
Even if the argument was not forfeited, the record does not support
Keenan’s claim that Dr. Horn based his testimony on the Rawlings summary.
Instead, Dr. Horn relied on his general experience as a physician and hospital
director, which provided a reasonable basis for his opinion regarding future
medical costs. (§ 801, subd. (b).) We reject Keenan’s challenge to this
testimony.
II. Including Mrs. Hart’s Wrongful Death Claim When Considering
How to Allocate Past Settlements
Next, we consider Keenan’s challenge to the allocation of past
settlements between this action and a prospective wrongful death case.
11 Notably, Keenan did not cross-examine Dr. Horn on this point, either
at the section 402 hearing or before the jury. Indeed, even though Keenan
deposed Dr. Horn a second time late in the trial, Keenan still had no specific
objections to the lien or his testimony regarding the reasonableness of Mr.
Hart’s medical expenses.
12
A. Governing Law and Standard of Review
Under Civil Code section 1431.2,12 principles of comparative fault
apply to a defendant’s liability for noneconomic damages, including damages
for loss of consortium. (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th
990, 1006; Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 863.) A
defendant’s liability for economic damages is not subject to an adjustment
for its share of comparative fault because defendants are jointly liable for
economic damages. (Hackett v. John Crane, Inc. (2002) 98 Cal.App.4th 1233,
1239 (Hackett).) However, under Code of Civil Procedure section 877,13 a
defendant is entitled to a credit against its liability for economic damages for
any portion of settlement proceeds that are properly attributable to the
claims for economic damages resolved at trial. (Hackett, at p. 1239.)
When the settlements do not apportion the settlement funds between
economic and noneconomic damages, the determination of a nonsettling
defendant’s credit is straightforward: the posttrial allocation should mirror
12 The section provides in part: “In any action for personal injury,
property damage, or wrongful death, based upon principles of comparative
fault, the liability of each defendant for non-economic damages shall be
several only and shall not be joint. Each defendant shall be liable only for
the amount of non-economic damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault, and a separate judgment
shall be rendered against that defendant for that amount.” (Civ. Code,
§ 1431.2, subd. (a).) Subdivision (b)(2) provides that “non-economic damages”
include “loss of consortium.”
13 This provision provides in part that “[w]here a release, dismissal with
or without prejudice, or a covenant not to sue or not to enforce judgment is
given in good faith before verdict or judgment to one or more of a number of
tortfeasors claimed to be liable for the same tort, or to one or more other co-
obligors mutually subject to contribution rights, it shall have the following
effect: [¶] (a) It shall not discharge any other such party from liability
unless its terms so provide, but it shall reduce the claims against the others
in the amount stipulated by the release, the dismissal or the covenant, or in
the amount of the consideration paid for it, whichever is the greater.”
13
the jury’s apportionment of economic and noneconomic damages. (Espinoza
v. Machonga (1992) 9 Cal.App.4th 268, 276–277; Greathouse v. Amcord,
Inc. (1995) 35 Cal.App.4th 831, 840–841.) For example, in Espinoza, one of
the defendants settled, the plaintiff obtained a judgment against the
nonsettling defendant, and economic damages comprised 29 percent of the
total judgment. (Espinoza, at pp. 276–277.) The Court of Appeal held that
for purposes of calculating the credit, 29 percent of the settlement should be
attributed to economic damages to mirror the fact finder’s apportionment of
damages. (Ibid.)14
The calculation of the credit is more complicated when the settlements
purport to encompass claims not resolved at trial or specify an allocation of
the settlement funds. As explained in Hackett, when the settlements claim to
encompass the husband’s personal injury claim, the wife’s loss of consortium
claim, and the heirs’ potential future wrongful death claims, the credit should
be calculated as follows: “First, excluding the wife’s loss of consortium
damages, determine the ratio of economic to total damages as awarded by the
jury. Second, subtract from the amount of the pretrial settlement the
portions of the settlement properly found to be allocable to the wife’s loss of
consortium claim and the heirs’ potential wrongful death claims. Third,
multiply the two figures together to determine the amount of the defendant’s
settlement credit for economic damages.” (Hackett, supra, 98 Cal.App.4th at
p. 1240.)
“The trial court has wide discretion in allocating portions of a
prior settlement to claims not adjudicated at trial.” (Hackett, supra,
98 Cal.App.4th at p. 1242.) Applying this standard requires us to “examine
14 The ratio of the economic damages to the total compensatory
damages is often referred to as “the Greathouse ratio.” (Pfeifer v. John Crane,
Inc. (2013) 220 Cal.App.4th 1270, 1319.)
14
the court’s findings, whether express or implied, for the existence of
substantial evidence.” (Pfeifer v. John Crane, Inc., supra, 220 Cal.App.4th
at p. 1321.)
B. The Proceedings Below
Here, based on Mr. Hart’s personal injury cause of action, the jury
awarded $1,821,050 in economic damages, $3,000,000 in noneconomic
damages for pain and suffering, and, for Mrs. Hart’s loss of consortium cause
of action, they awarded $500,000. The jury found Keenan was 17 percent at
fault, and, as a result, the court initially entered judgment against Keenan in
the amount of $2,416,050, which reflected the full amount of the jury’s award
for economic damages, and 17 percent of the award of noneconomic
damages.15
The trial court subsequently heard argument from the parties
regarding the appropriate calculation of a credit against Keenan’s economic
damages based on prior settlements. The Harts averred they settled with
seven defendants, releasing them from all actual and potential claims. The
aggregate amount of the settlement agreements was $4,195,000. According
to the Harts, in all but one case, the settling parties allocated 50 percent of
the settlement to Mr. Hart’s personal injury claim and Mrs. Hart’s pre-death
loss of consortium claim, and 50 percent to potential future wrongful death
claims.16
Keenan argued below that a 50/50 allocation would be improper;
instead, Keenan proposed that the settlement proceeds should be allocated
Seventeen percent of $3,500,000 is $595,000. $1,821,050 plus
15
$595,000 is $2,416,050.
16 According to a declaration submitted below, the settlement
agreements were submitted to the trial court for in camera review. They
are not part of the record on appeal.
15
75.6 percent to Mr. Hart’s personal injury claim, 9.4 percent to Mrs. Hart’s
loss of consortium claim, and 15 percent to potential future wrongful death
claims. One of Keenan’s arguments was that Mrs. Hart should not be
included among the potential wrongful death heirs because she alleged a
“permanent” loss of consortium. Relying on Boeken v. Philip Morris USA,
Inc. (2010) 48 Cal.4th 788 (Boeken), Keenan argued she was barred by
principles of res judicata from seeking such damages in a wrongful death
action.
In its order regarding the apportionment of settlement credits, the trial
court rejected Keenan’s argument. The trial court found that the Harts “did
not allege a ‘permanent’ loss or expressly seek any damages beyond the date
of plaintiff’s premature death.” Based on the language of the jury
instructions, the verdict form, and the arguments of counsel, the court found
“the jury was not asked to consider permanent loss of companionship, but
solely pre-death loss of consortium,” and “a claim for a permanent loss was
not litigated or resolved in this case.” The trial court found that “Mrs. Hart
remains as a potential wrongful death heir along with the adult children of
plaintiff.”
The trial court allocated 45 percent of the prior settlement proceeds to
the wrongful death action. In the amended judgment, after deducting 45
percent of the settlement proceeds, the trial court also deducted 9.4 percent of
the remaining settlement proceeds as attributable to the loss of consortium
damages, and then it determined, based on the Greathouse ratio, that the
amount of the appropriate settlement credit available to Keenan against its
economic damages was $789,532.18.
16
C. No Abuse of Discretion in the Allocation Decision
On appeal, Keenan reiterates its argument that the trial court
“improperly included . . . [Mrs. Hart] as a prospective wrongful death heir
when allocating prior settlements between the personal injury action and
prospective wrongful death claim[s].” Keenan disagrees with the trial court’s
finding that the complaint did not allege a permanent loss of consortium
claim, Keenan contends the jury instructions and the verdict form were
ambiguous, and Keenan argues that under Boeken, supra, 48 Cal.4th at page
804, and principles of res judicata, Mrs. Hart is barred from seeking loss of
consortium damages in a wrongful death action. It follows from these points,
Keenan implies, that no portion of settlement proceeds should have been
attributed to Mrs. Hart’s wrongful death action. And thus, the settlement
proceeds attributable to this action and the related setoff here should have
been greater.
Keenan’s first argument is belied by the record, which does not support
Keenan’s argument that Mrs. Hart alleged a “permanent” loss of consortium.
Instead, the complaint alleged Mrs. Hart’s loss of consortium damages were
“presently unknown,” but would be “proved at time of trial.” As Keenan
points out, paragraph 168 of the complaint—part of the loss of consortium
cause of action—incorporated by reference the earlier allegations, and, in
paragraph 15, it was alleged that “Plaintiff was exposed to respirable
asbestos, which he inhaled and which thereby entered his body, and which
caused the severe and permanent harm set forth herein.” In addition, in
paragraph 16, the Harts alleged that “Plaintiff suffered permanent injuries.”
But the complaint defined “Plaintiff,” in paragraph 1, as Mr. Hart.
Therefore, the complaint alleged Mr. Hart suffered permanent harm or
17
injuries, and there is no specific allegation regarding the duration of Mrs.
Hart’s loss of consortium claim.
Keenan contends the trial court “abused its discretion” by finding the
Harts did not allege a “permanent” loss of consortium and implies the trial
court’s interpretation of the complaint was unreasonable. “The appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that
of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.)
Here, based on the allegations, the trial court’s interpretation of the
complaint was reasonable. We defer to its conclusion that the complaint did
not allege a permanent loss of consortium.17
Next, Keenan claims the jury instructions and the special verdict form
were ambiguous. The jury was instructed that Mrs. Hart “may recover for
harm she proved she has suffered to date,” and the special verdict form
required the jury to award loss of consortium damages “measured from the
date of Frank Hart’s mesothelioma diagnosis to the date of his projected
death.”
Generally, a party forfeits an appellate challenge to a trial court’s
instruction or the special verdict form by failing to object below or before the
trial court discharges the jury. (Electronic Equipment Express, Inc. v. Donald
H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856–857 [jury instruction]; Jensen
v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [special
verdict form].) Here, there is no indication Keenan objected at trial to either
17 Even if we assume the word “permanent” was incorporated into the
loss of consortium cause of action, the Harts may have simply intended to
allege that the loss was more than “temporary.” (Anderson v. Northrop Corp.
(1988) 203 Cal.App.3d 772, 780.) Nevertheless, Keenan fails to show the trial
court’s interpretation of the complaint was unreasonable.
18
this instruction or the language at issue in the special verdict form.
Therefore, we deem Keenan’s argument forfeited.
Even considering the argument, it was certainly reasonable for the trial
court to find that “the jury was not asked to consider permanent loss of
companionship, but solely pre-death loss of consortium.”18 Indeed, Keenan’s
suggestion that the jury verdict may have encompassed post-death loss of
consortium damages is unreasonable. Keenan’s argument depends on the
assumption that the jury may have awarded loss of consortium damages from
the date of Mr. Hart’s mesothelioma diagnosis to the date of his “ ‘projected
death’ given the median life expectancy for someone Mr. Hart’s age.” But the
jury was told that, as a result of Mr. Hart’s mesothelioma, he was not likely
to live for longer than another year. It makes no sense that the jury would
have considered “ ‘projected death’ ” to mean the median life expectancy of
someone not diagnosed with mesothelioma.
Keenan’s final point—regarding res judicata—fares no better. “Res
judicata bars a cause of action that was or could have been litigated in a
prior proceeding if: ‘(1) the present action is on the same cause of action as
the prior proceeding; (2) the prior proceeding resulted in a final judgment on
18 Without a citation to the record, Keenan argues the “jury instructions
and special verdict form were unknown to the settling defendants in the
personal injury action at the time of their settlements. The only information
the settling defendants had was Mrs. Hart’s allegation of ‘permanent’ harm
as stated in her Complaint.” But we do know that, in all but one case, the
settling defendants agreed to allocate 50 percent of their settlements to
potential wrongful death claims. While the trial court was not bound by that
allocation (Jones v. John Crane, Inc., supra, 132 Cal.App.4th at p. 1009), it
nevertheless indicates the settling defendants viewed the potential wrongful
death damages as significant. Moreover, given its claim regarding the scope
of Mrs. Hart’s allegation in the complaint, Keenan can hardly argue that the
other defendants did not settle any potential wrongful death claims with Mrs.
Hart, including post-death loss of consortium damages.
19
the merits; and (3) the parties in the present action or parties in privity with
them were parties to the prior proceeding. [Citation.]’ ” (Federal Home
Loan Bank of San Francisco v. Countrywide Financial Corp. (2013)
214 Cal.App.4th 1520, 1527.) The doctrine of res judicata “ ‘ “gives certain
conclusive effect to a former judgment in subsequent litigation involving the
same controversy.” ’ ” (Boeken, supra, 48 Cal.4th at p. 797.)
Here, the doctrine of res judicata does not apply because, at the time of
the trial court’s allocation decision, there was no prior proceeding or former
judgment. Whether Mrs. Hart is barred from seeking wrongful death
damages because she asserted a claim for loss of consortium in this personal
injury action is a question that should be decided, if at all, in the pending
wrongful death action, not here.19 (Boeken, supra, 48 Cal.4th at pp. 791–792
[considering whether principles of res judicata barred plaintiff’s “current
wrongful death action”].)
Moreover, whether Mrs. Hart is precluded from seeking post-death loss
of consortium damages in a wrongful death action and whether she was
required to seek them here misses the point. Based on the language in the
special verdict form, we agree with the trial court that she did not receive
such damages here. But she obviously did receive such damages by way of
settlement with other defendants, and in this action Keenan “was entitled to
credit only insofar as economic damages were compensated by settlement.”
(Wilson v. John Crane, Inc., supra, 81 Cal.App.4th at p. 863.)
19 In their supplemental briefing, Keenan requests judicial notice of
the wrongful death complaint filed in March 2020, and Mrs. Hart requests
judicial notice of a stipulation to stay the wrongful death action and her
request for dismissal of her loss of consortium claim in the wrongful death
action. We grant the unopposed requests. We take judicial notice of the fact
the wrongful death complaint was filed, not the truth of any of its allegations.
(Guarantee Forklift, Inc. v. Capacity of Texas, Inc. (2017) 11 Cal.App.5th
1066, 1075.)
20
The range of settlement proceeds courts have allocated to potential
future wrongful death claims varies widely—from zero to 50 percent—and it
generally depends on the evidence presented to justify a proposed allocation.
(Jones v. John Crane, Inc., supra, 132 Cal.App.4th at pp. 1008, 1010–1011
[no abuse of discretion in trial court’s refusal to allocate any portion of prior
settlements to potential wrongful death claims because there was no
information regarding the number of heirs or the nature of their relationship
with the decedent]; Hackett, supra, 98 Cal.App.4th at pp. 1241–1242 [no
abuse of discretion in trial court’s allocation of 34 percent of the settlement
to potential future wrongful death claims based on evidence of plaintiff’s
relationship with his wife and sons]; Hellam v. Crane Co. (2015)
239 Cal.App.4th 851, 858, 860–862 [no abuse of discretion in allocating
50 percent of settlement proceeds to future wrongful death claims because
evidence of plaintiff’s relationship with sons provided a reasonable basis for
the allocation].) Here, Keenan’s appellate arguments fail to establish that
the trial court’s decision to allocate 45 percent of the settlement proceeds to
future wrongful death claims was an abuse of discretion.
DISPOSITION
We affirm. Mrs. Hart is entitled to costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1).)
21
_________________________
Reardon, J.*
WE CONCUR:
_________________________
Needham, Acting P.J.
_________________________
Burns, J.
A152692
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
22