Polensky v. Kyocera Internat., Inc.

• Decision Date: 31 May 1996
• Docket Number: No. G014464,G014464
• Citation: 45 Cal.App.4th 1649,53 Cal.Rptr.2d 507
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 45 Cal.App.4th 1649, 50 Cal.App.4th 516 45 Cal.App.4th 1649, 50 Cal.App.4th 516, 96 Cal. Daily Op. Serv. 3990, 96 Daily Journal D.A.R. 6377 Donald POLENSKY et al., Plaintiffs and Appellants, v. KYOCERA INTERNATIONAL, INC., Defendant and Appellant.

Page 507

53 Cal.Rptr.2d 507

Previously published at 45 Cal.App.4th 1649, 50 Cal.App.4th 516

45 Cal.App.4th 1649, 50 Cal.App.4th 516,

96 Cal. Daily Op. Serv. 3990,

96 Daily Journal D.A.R. 6377

Donald POLENSKY et al., Plaintiffs and Appellants, v. KYOCERA INTERNATIONAL, INC., Defendant and Appellant.

No. G014464.

Court of Appeal, Fourth District, Division 3, California.

May 31, 1996.

As Modified June 25, 1996.

Review Granted Sept. 18, 1996.

Review Transferred to the Court of Appeal Dec. 23, 1997.

Brayton, Gisvold & Harley, Brayton, Harley, Curtis, Philip A. Harley, Novato and James L. Oberman, Richmond, and Bryce C. Anderson, Concord, for Plaintiffs and Appellants.

Ropers, Majeski, Kohn & Bentley, Michael J. Brady, Redwood City and R.Q. Shupe, Santa Anna and Leslie R. Roseman, Newport Beach, for Defendant and Appellant.

OPINION

CROSBY, Associate Justice.

A jury found defendant Kyocera International, Inc. partially responsible for plaintiff Donald Polensky's ¹ injuries resulting from exposure to beryllium. Defendant argues the court misinstructed the jury on the statute of limitations, abused its discretion in admitting testimony of an expert witness who had an allegedly confidential relationship with defendant, and the award of economic damages is disproportionate to its fault. Plaintiff also appeals, claiming the court improperly reduced non-economic damages under Proposition 51. We agree with plaintiff and affirm the judgment as modified.

I

Polensky worked at Ceradyne ² from 1982 to 1984. Kyocera, Ceradyne's corporate parent, negligently administered Ceradyne's worker safety program, causing plaintiff's exposure to beryllium, which ultimately resulted in a diagnosis of berylliosis. Kyocera was found 10 percent at fault.

II

Defendant first complains the court misinstructed the jury on the statute of limitations. Both sides agree the one-year limitations period of Code of Civil Procedure section 340, subdivision (3) applies, ³ as modified by the "discovery rule." The defense was bifurcated and tried to the jury first on the following facts:

Plaintiff began working for Ceradyne in September 1982 as a sales engineer. Based on previous work and schooling, he knew beryllium and its compounds were toxic and inhaling them could result in an emphysema-like disease called berylliosis. Berylliosis is a very rare and incurable condition that results from the inhalation of minute particles of beryllium dust. A few people who inhale the dust have an allergic reaction, usually within a year, which causes their bodies to form cells around the particles in the lungs. Scar tissue develops that causes shortness of breath, coughing and fatigue, and can also result in damage to the liver and spleen. The disease has a latency period of anywhere from months to decades, where there are no clinical symptoms other than a gradual onset of fatigue or a nagging cough. Plaintiff's work at Ceradyne occasionally brought him into contact with beryllium dust. Polensky left Ceradyne in 1984 and had no further contact with beryllium.

Polensky had an episode of fatigue while hiking in the mountains in late 1984 or 1985. In August 1987 he was referred to internist/rheumatologist Dr. Thomas Abel for psoriatic arthritis. ⁴ Dr. Abel prescribed methotrexate, whose side effects included lung inflammation and shortness of breath. After taking the drug for a little over a year, plaintiff complained of increased fatigue, shortness of breath, psoriasis, and subnormal lung function. Lung X-rays were abnormal, but consistent with methotrexate reaction. Use of the drug was discontinued.

Plaintiff learned in December 1988 that a co-worker at Ceradyne had been diagnosed with chronic beryllium disease. On December 20, after more abnormal X-rays, he wrote Dr. Abel with his suspicions that he might have the same thing. Ten days later he was examined by pulmonologist Daniel Persyn. Persyn did not believe beryllium was the cause of plaintiff's problems, although berylliosis was a "remote" possibility. Plaintiff underwent more tests during January and February 1989. He tested positive for beryllium sensitivity on February 24. In April, plaintiff underwent a complete examination at the National Jewish Hospital in Denver, after which Persyn made the diagnosis. Polensky filed his complaint on January 24, 1990.

The court instructed that Kyocera had the burden of proving the following: "[Plaintiff] knew, prior to January 24, 1989, that he was suffering from beryllium-related disease; or [p] that there were facts known to [plaintiff] prior to January 24, 1989, which gave him reason to know that he was suffering from beryllium-related disease." Defendant claims the "reason to know" language was erroneous and that the statute of limitations began to run when plaintiff suspected, or should have suspected, he was suffering from the disease. We disagree.

The court's instruction was drawn from Anderson v. Southern Pac. Co. (1964) 231 Cal.App.2d 233, 41 Cal.Rptr. 743. There, plaintiff allegedly contracted pulmonary emphysema resulting from exposure to dust and fumes he inhaled while working as a painter over a period of approximately 20 years. Anderson concluded the statute of limitations issue was improperly submitted to the jury: "We are satisfied that the record contains nothing from which the jury could find as a fact that prior to June 16, 1958, plaintiff either knew, or in the exercise of ordinary care should have known, that he was suffering from pulmonary emphysema, or any disease occupationally contracted and either disabling or probably disabling." (Id. at p. 244, 41 Cal.Rptr. 743.)

The court cited several federal cases to the effect that a worker should not be expected to make a self-diagnosis of a progressive disease: " 'On the other hand, other types of injuries are not immediately detectable. Since the effects are usually long delayed, the victim does not know that he has been injured till he observes definite symptoms referable to the injury. Moreover, when the injury becomes apparent it may be totally impossible to determine precisely when it was inflicted....' [p] '... [W]hen the nature of the injury is such that it does not manifest itself immediately, the determination of when the cause of action accrues does not depend on when the injury was inflicted. To the contrary the cause of action accrues only when the plaintiff has reason to know he has been injured. Generally this will be when his condition is diagnosed, unless it is shown that the plaintiff "should have known" at an earlier date that he was injured....' " (Id. at pp. 245-246, 41 Cal.Rptr 743, italics added, citing Young v. Clinchfield R.R. Co. (4th Cir.1961) 288 F.2d 499, 502-503.)

Defendant relies on Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 245 Cal.Rptr. 658, 751 P.2d 923. There, plaintiff sued for personal injury caused by an allegedly defective drug (DES) taken by her mother while plaintiff was in the womb. In 1972, she was diagnosed with a precancerous condition and "was aware, or at least suspected, that her condition was a result of her mother's ingestion of DES during pregnancy." (Id. at p. 1107, 245 Cal.Rptr. 658, 751 P.2d 923.) She thereafter attempted to discover who manufactured the DES her mother took. Her condition became more acute in 1976. As of 1978, she knew of the pendency of DES lawsuits, felt that someone had done something wrong to her concerning DES and that it was a defective drug, and she thought she should be compensated. In 1980, the Supreme Court decided Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, which required DES manufacturers to disprove their involvement. She filed suit within a year of Sindell.

Jolly concluded the one-year statute began to run no later than 1978: "Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. As we said in Sanchez [v. South Hoover Hospital (1976) 18 Cal.3d 93, 99, 132 Cal.Rptr. 657, 553 P.2d 1129] ... the limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry.... [Citations.] A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1110-1111, 245 Cal.Rptr. 658, 751 P.2d 923, italics added, fns. and internal quotation marks other than for emphasis omitted.) According to the court, "The foregoing is fully consistent with the policy of deciding cases on the merits as well as the policies underlying the statute of limitations.... [T]he fundamental purpose of the statute is to give defendants reasonable repose, that is, to protect parties from defending stale claims. A second policy underlying the statute is to require plaintiffs to diligently pursue their claims. Because a plaintiff is under a duty to reasonably investigate and because a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period, suits are not likely to be unreasonably delayed, and those failing to act with reasonable dispatch will be barred. At the same time, plaintiffs who file suit as soon as they have reason to believe that they are entitled to recourse will not be precluded." (Id. at pp. 1111-1112, 245 Cal.Rptr. 658, 751 P.2d 923, italics added.)

As plaintiff notes, and as the above italicized language of Jolly demonstrates, the statute begins to run when plaintiff knows "the harm and its cause" and suspects wrongdoing. The first...