Jones v. John Crane, Inc.

• Decision Date: 24 August 2005
• Docket Number: No. A106160.,No. A105673.,A105673.,A106160.
• Parties: Elleree JONES, Plaintiff and Appellant, v. JOHN CRANE, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

35 Cal.Rptr.3d 144

132 Cal.App.4th 990

Elleree JONES, Plaintiff and Appellant, v. JOHN CRANE, INC., Defendant and Appellant.

No. A105673.

No. A106160.

Court of Appeal, First District, Division 3.

August 24, 2005.

Brayton-Purcell, Alan R. Brayton, Gilbert L. Purcell, Novato, Lloyd F. DeRoy, Counsel for plaintiff and appellant.

Hassard Bonnington LLP, Philip S. Ward, Robert L. Nelder, San Francisco, Richard G. Katerndahl, San Rafael, Counsel for defendant and appellant.

THE COURT:

Defendant John Crane, Inc. (Crane) appeals from a judgment entered in favor of plaintiffs Edward and Elleree Jones on their complaint for personal injury and loss of consortium.¹ Crane contends there is no substantial evidence to support the jury's finding that the exposure of Edward Jones (Jones) to its asbestos-containing products was a substantial factor contributing to his development of lung cancer. Defendant also disputes the applicability of the consumer expectations test to plaintiffs' product liability causes of action. In a consolidated appeal, plaintiffs challenge the trial court's refusal, in determining the net amount of the judgment against Crane, to allocate amounts recovered in pretrial settlements pursuant to the terms of the settlement agreements. Plaintiffs also appeal the denial of their request for prejudgment interest and expert witness costs. We shall affirm the judgment in all respects.

Factual and Procedural History

Jones began his career in the Navy as a fireman's apprentice in 1950 and ultimately retired in 1977 as a lieutenant commander. He married Elleree Jones in 1981. Throughout the course of his 27-year naval career he was regularly exposed to asbestos products, including valve and pump packing materials manufactured by Crane.

Jones was diagnosed with lung cancer in December 2001. Plaintiffs' complaint against 46 defendants for personal injury and loss of consortium alleges that defendants were negligent, that their asbestos-containing products were defective in design in that they failed to meet the ordinary consumer's expectation of safety, that defendants failed to provide adequate warnings for their products and that defendants' products were a substantial factor in causing Jones's illness.

Prior to trial, plaintiffs settled with all but two of the named defendants for sums totaling $1,512,582. The settlement agreements purported to release the settling defendants from all claims arising from Jones's exposure to asbestos and allocated the settlement proceeds between Jones's personal injury claim, his wife's loss of consortium claim and any future wrongful death claims made by Jones's heirs. Defendant rejected plaintiffs' offer pursuant to Code of Civil Procedure² section 998 to settle Jones's claim for $19,999 and his wife's claim for $9,999.

The jury returned a special verdict in favor of plaintiffs. The jury found that Crane's products contained a design defect, that Crane failed to give an adequate warning and was negligent, and that its products caused Jones to suffer injury. The jury also found in favor of Mrs. Jones on her loss of consortium claim. The jury found Jones's economic damages to be $1,048,000 and his non-economic damages to be $3,500,000, and Mrs. Jones's damages to be $500,000. The jury apportioned 1.95 percent of the fault for plaintiffs' injuries to Crane. Judgment was entered and Crane thereafter filed a timely notice of appeal (A105673).

Plaintiffs subsequently served a notice of entry of judgment and, on the same day, filed a memorandum of costs. A month later they filed two additional motions. The first sought to allocate the proceeds of pretrial settlements pursuant to Civil Code section 1431.2. The other sought to recover expert witness costs under section 998 and prejudgment interest under Civil Code section 3291. The trial court denied as untimely plaintiffs' request for expert witness fees and prejudgment interest, and issued an order allocating the proceeds of the pretrial settlements. Plaintiffs filed a timely notice of appeal from the court's posttrial orders (A106160). Plaintiffs' appeal has been consolidated with defendant's appeal for all purposes.

Discussion

I. CRANE'S APPEAL (A105673)

A. Substantial evidence supports the verdict finding that Crane's products were a substantial factor in causing Jones's cancer.

Crane contends there is no substantial evidence to support the jury's finding that its valve and pump packing was a legal cause of harm to Jones. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 67 Cal.Rptr.2d 16, 941 P.2d 1203 (Rutherford) sets forth the controlling standard for proving causation in an asbestos-induced personal injury case. "[T]he 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." (Id. at p. 982, 67 Cal.Rptr.2d 16, 941 P.2d 1203, fn omitted.) "In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant's product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the 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 plaintiff's or decedent's risk of developing cancer." (Id. at pp. 982-983, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) Put another way, the critical question is whether a "plaintiff's exposure to [a] defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer." (Id. at pp. 976-977, 67 Cal.Rptr.2d 16, 941 P.2d 1203, fn. omitted.)³

Defendant does not dispute that Jones satisfied the requisite threshold showing of exposure to its asbestos containing products, but contends that the jury's finding that this exposure was a substantial factor contributing to Jones's cancer is not supported by substantial evidence. Crane argues that the fiber releases from its product were comparable to ambient levels of asbestos in the community at large and cannot be found to have increased Jones's risk of cancer.

"Ultimately, the sufficiency of the evidence of causation will depend on the factual circumstances of each case. Although the plaintiff must, in accordance with traditional tort principles, demonstrate to a reasonable medical probability that a product or products supplied by the defendant, to which he became exposed, were a substantial factor in causing his disease or risk of injuries, he is free to further establish that his particular asbestos disease is cumulative in nature, with many separate exposures each having constituted a `substantial factor' [citation] that contributed to his risk of injury." (Rutherford, supra, 16 Cal.4th at p. 958, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) "The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." (Id. at p. 978, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) Factors to consider in determining whether inhalation of fibers from the particular product should be deemed a "substantial factor" in causing the cancer include "the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, any other potential causes to which the disease could be attributed (e.g., other asbestos products, cigarette smoking), and perhaps other factors affecting the assessment of comparative risk." (Id. at p. 975, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) In Rutherford, the court recognized that "a force which plays only an `infinitesimal' or `theoretical' part in bringing about injury, damage, or loss is not a substantial factor," but warned that "[u]ndue emphasis should not be placed on the term `substantial.' For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the `but for' test, has been invoked by defendants whose conduct is clearly a `but for' cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the injury. [Citation.] Misused in this way, the substantial factor test `undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.'" (Id. at p. 969, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)

Here, the record amply supports the jury's finding that Jones's exposure to Crane's products was a substantial factor contributing to the risk of his developing lung cancer. Dr. Samuel Hammar, an expert pathologist, examined the concentration levels of asbestos in Jones's lung tissue and concluded that his lung cancer had been caused by asbestos exposure. Dr. Barry Horn testified that Jones had substantial occupational exposure to asbestos while in the Navy and that every exposure, including asbestos releases from defendant's packing and gasket products, contributed to the risk of developing lung cancer. The testimony of the experts provided substantial evidence that Jones's lung cancer was caused by cumulative exposure, with each of many separate exposures having constituted substantial factors contributing to his risk of injury. (See also Rutherford, supra, 16 Cal.4th at p. 958, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)

Defendant argues that the fibers released from its products were no greater than the ambient level of asbestos in the atmosphere. Its industrial hygienist testified that the general range of fibers released from installation and removal of Crane's products is 0.01 to 0.1 fibers per cubic...