Soto v. Borgwarner Morse Tec Inc.

Citation239 Cal.App.4th 165,191 Cal.Rptr.3d 263
Decision Date15 July 2015
Docket NumberB252995
CourtCalifornia Court of Appeals
Parties Patricia SOTO et al., Plaintiffs and Appellants, v. BORGWARNER MORSE TEC INC., Defendant and Appellant.

The Arkin Law Firm, Sharon J. Arkin ; Farrise Firm, Simona A. Farrise, Los Angeles, for Plaintiffs and Appellants.

Selman Breitman, Santa Ana, Jerry C. Popovich ; Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Los Angeles, Joshua S. Lipshutz, and Joseph C. Hansen, San Francisco, for Defendant and Appellant.

Fred J. Hiestand, Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Appellant.

COLLINS, J.

Secundino Medina died of asbestos-related mesothelioma

. Medina's estate, his daughters Patricia Soto, Yolanda Isaak, and Leticia Medina, and his great-grandson Eli Canett asserted claims for negligence, strict liability, and wrongful death against a host of defendants, alleging that their asbestos-laden products contributed to Medina's mesothelioma. Their claims against defendant BorgWarner Morse TEC Inc. (BWMT), as successor-by-merger to Borg–Warner Corporation, proceeded to a bifurcated jury trial.

During the liability phase, the court granted BWMT's motion for partial nonsuit as to Eli's1 claims on the ground that Eli lacked standing to bring a wrongful death action under Code of Civil Procedure section 377.60, subdivision (c). The other plaintiffs' claims moved forward, and the jury ultimately found that BWMT's negligence was a substantial factor in causing Medina's death and allocated 35 percent of the total fault to BWMT. By special verdict, the jury awarded economic damages of $60,000 to Medina's estate and $130,455.70 to each of Medina's daughters. The jury further awarded $2 million to each of Medina's daughters for their noneconomic losses. After hearing evidence of BWMT's financial condition and Medina's pain and suffering during the second phase of trial, the jury awarded Medina's estate $32.5 million in punitive damages. The court entered judgment in plaintiffs' favor after denying BWMT's motions for judgment notwithstanding the verdict and for a new trial. The parties timely filed a total of three appeals and cross-appeals.

Eli appealed the court's grant of nonsuit. He contends that substantial evidence showed that he was dependent on Medina for one-half or more of his support, thereby conferring upon him standing to assert wrongful death claims. We disagree and affirm the trial court's ruling granting nonsuit.

BWMT filed a cross-appeal challenging the noneconomic damages awarded to Medina's daughters and the punitive damages awarded to his estate. We affirm the noneconomic damages awards, which we conclude were amply supported by the record and were not the product of passion or improper evidence. We reverse as to the punitive damages, however, because plaintiffs' limited evidence of BWMT's financial condition was not sufficient to sustain an award of punitive damages.

Plaintiffs also filed a cross-appeal. In it, they challenge the jury's allocation of fault. They contend that there was no substantial evidence to support the jury's finding that nonparty American Smelting and Refinery Company (ASARCO) was 25 percent responsible for causing Medina's mesothelioma

. We disagree and affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings

In December 2009, Medina was diagnosed with mesothelioma

, a type of cancer usually caused by exposure to asbestos. He filed a personal injury complaint against numerous defendants in March 2010, alleging causes of action for negligence, breach of implied warranty, strict products liability, fraud/failure to warn, and conspiracy to defraud/failure to warn. Medina preserved his testimony in video-recorded depositions taken before his death on July 4, 2010.

On November 12, 2010, Medina's three adult daughters, Patricia Soto, Yolanda Isaak, and Leticia Medina, filed an amended complaint, adding claims for wrongful death and survivorship to the claims asserted by Medina's estate. They added Medina's great-grandson Eli Canett as a plaintiff on January 12, 2011, on the theory that he was a minor residing in Medina's household and was preponderantly supported by Medina at the time of his death. (See Code Civ. Proc. § 377.60, subd. (c).)

Plaintiffs' claims against BWMT proceeded to a bifurcated jury trial in July 2013. (See Civ.Code § 3295, subd. (d).)

B. Liability Phase of Trial

Although BWMT vigorously disputed at trial that asbestos released from its predecessor's products contributed to Medina's mesothelioma

and death, it does not presently contest the jury's findings that its predecessor's asbestos-containing products and negligence were substantial factors in causing Medina's death. It likewise does not contest the economic damages awarded to Medina's daughters and estate. We accordingly provide only a limited overview of the facts pertinent to those and other uncontested issues and devote the bulk of our recitation to the facts most germane to the issues presented in the instant appeal and cross-appeals.

1. Mesothelioma
& Asbestos
Mesothelioma

is a rare cancer of the mesothelial cells of the pleura, a "Saran Wrap"—like membrane that "makes the lungs airtight balloons." Mesothelioma is caused by the inhalation of all types of asbestos fibers, including chrysotile asbestos. Mesothelioma typically is diagnosed 10 to 80 years after exposure to asbestos fibers. Medina was diagnosed with mesothelioma in 2009 at the age of 78 or 79. There was no dispute that Medina's mesothelioma

was caused by breathing air contaminated with asbestos fibers.

2. BWMT

BWMT is the successor-by-merger to Borg–Warner Corporation. Borg–Warner Corporation's Borg & Beck division (Borg & Beck) riveted automobile clutch facings containing chrysotile asbestos to metal clutch plates, thereby producing asbestos-containing automobile clutches for passenger cars. Borg & Beck sold these asbestos-containing clutches to General Motors, which installed them in newly manufactured manual-transmission automobiles.

At all times prior to 1982, all of the clutches Borg & Beck sold to General Motors contained asbestos. Borg & Beck stopped making asbestos-containing clutches sometime between 1982 and 1988.

3. Medina's Relevant Exposures to Asbestos
a. Exposure at General Motors

Medina worked at a General Motors assembly plant in Van Nuys from 1959 to 1988. From 1959 to 1975, he worked as a painter and painting supervisor in the "final process" or "final repair" portion of the 26–mile assembly line, where cars with imperfections were tuned up to pass final inspection.

From 1975 until his retirement in 1988, Medina worked as a security guard at the plant. As a security guard, Medina was assigned to walk around the plant, particularly after he became a supervisor in 1983. He stopped and chatted with some of his old friends who still worked in the final process area, including Evan Gooch, whose duties as a "heavy hoist, heavy repair" man included replacing damaged clutches. Gooch testified that clutches in the newly manufactured cars became damaged due to "operator error" along the assembly line or as the cars were being driven out of the plant for shipment.

Gooch testified that ground-down friction material on a damaged clutch left a fine dust in the bell housing that contained the clutch. Gooch used a high-pressure air gun to blow out the dust, which clouded the air before settling on the floor. Some of the dust was captured by a ventilation system. Gooch blew the dust that settled on the floor into the aisle with his air gun. Sweepers came by after every shift to "sweep the aisles and take it away." The sweepers, which only cleared about 95 percent of the debris in the aisles, would throw dust into the air as they passed.

Gooch performed about 90 percent of the clutch work in the final process area. On average, he replaced about 15 damaged clutches per week, about two to three per shift. Most, if not all, of the clutches he saw had "Borg and Beck" stamped or embossed on the metal hub in the center.

Gooch could not recall a specific instance when Medina was present during the dust-clearing process but recalled him being present in the resultant dusty conditions. Gooch remembered talking with Medina while Gooch was replacing clutches; Medina stood alongside him, about two to three feet away. When Medina was around, Gooch "could stop and BS" with him. Gooch could not recall precisely how often Medina came through the final process area. Sometimes Gooch would not see Medina at all for several days, and other times he saw Medina four or five times in a single night.

Plaintiffs' expert Dr. William Longo, a doctor of material science and engineering, opined that Medina was exposed to "significant levels of asbestos fiber" from Borg–Warner products during his tenure at General Motors, specifically during his 13 years as a security guard. Plaintiffs' expert Dr. Barry Horn, a pulmonologist critical care specialist, opined that Medina's occupational exposure to asbestos at the General Motors plant caused his mesothelioma

. Dr. Horn further opined that Medina's exposure to asbestos from Borg–Warner's asbestos products was a substantial factor in causing his death, and that all of Medina's lifetime exposures to asbestos, "each of them in and of themselves," were a substantial factor in causing his mesothelioma.

b. Potential Exposure at ASARCO

Medina's father began working full-time as a laborer at an ASARCO smelting plant in El Paso, Texas in 1940 or 1941, when Medina was about 10 or 11 years old. According to Medina, his father's duties included feeding bins of raw materials into the furnace and performing general cleanup tasks. Medina hugged his father every day when his father returned home from work. Medina recalled his father "always rubbing heavy dirt" off of his work clothes, which he...

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