Phipps v. Copeland Corp.

• Decision Date: 18 May 2021
• Docket Number: B302627
• Citation: 278 Cal.Rptr.3d 688,64 Cal. App. 5th 319
• Court: California Court of Appeals
• Parties: William PHIPPS et al., Plaintiffs and Respondents, v. COPELAND CORPORATION LLC, Defendant and Appellant.

64 Cal.App.5th 319

278 Cal.Rptr.3d 688

William PHIPPS et al., Plaintiffs and Respondents,

v.COPELAND CORPORATION LLC, Defendant and Appellant.

B302627

Court of Appeal, Second District, Division 7, California.

Filed May 18, 2021

As Modified on Denial of Rehearing June 10, 2021

Sidley Austin, David R. Carpenter, Collin P. Wedel and Andrew B. Talai, Los Angeles, for Defendant and Appellant.

Shook, Hardy & Bacon and Patrick Gregory, San Francisco, 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, Long Beach, for Plaintiffs and Respondents.

SEGAL, J.

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 657and658 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.

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.

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 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 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 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 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...