Wilson v. Crane
| Citation | 97 Cal.Rptr.2d 240,81 Cal. App.4th 847 |
| Court | California Court of Appeals |
| Decision Date | 18 May 2000 |
| Parties | (Cal.App. 1 Dist. 2000) DANIEL WILSON, SR. et al., Plaintiffs and Respondents, v. JOHN CRANE, INC., Defendant and Appellant. A087001 Filed |
Trial Judge: Honorable Douglas C. Munson
Counsel for Appellant and Cross-Respondent John Crane, Inc.:
Philip S. Ward, Esq., Hassard Bonnington LLP, Destie Lee Overpeck, Esq.,
Cullom Burland Bacon & Overpeck,
Counsel for Respondents and Cross-Appellants Daniel Wilson, Sr. and Lois Wilson,
Alan R. Brayton, Esq., Brayton, Purcell, Curtis & Geagan
Counsel for Amicus Curiae Thomas Dee Engineering Company, Hamilton Materials, Inc., Quintec Industries, Inc., S.B. Decking, Inc., and Saberhagen Holdings, Inc., Michael T. McCall, Esq., Walsworth, Franklin, Bevins & McCall, Scott S. Shepardson, Esq., Walsworth, Franklin, Bevins & McCall
Counsel for Amicus Curiae Kraft Foods, Inc., Kelly-Moore Paint Company, Inc., and American Insurance Association, Gabriel A. Jackson, Esq., Jackson & Wallace LLP,
Counsel for Amicus Curiae Civil Justice Association of California, Fred J. Hiestand, Esq.
Counsel for Amicus Curiae Owens-Illinois, Inc., Charles W. LaGrave, Esq.,
This is an appeal from a judgment for plaintiffs Lois and Daniel Wilson1 following a jury trial on their claims for personal injuries and loss of consortium arising from the latter's exposure to asbestos. Defendant John Crane, Inc., raises numerous challenges to the judgment. Plaintiffs have cross-appealed from the judgment insofar as it limits their recovery of noneconomic damages to that proportion of such damages as the jury found attributable to defendant. We find no merit in either side's arguments and affirm the judgment in its entirety.
The parties stipulated at trial that Daniel Wilson was suffering from mesothelioma caused by industrial exposure to asbestos. He testified that from 1955 through 1991, he worked for Arizona Public Service, a public utility, at various power plants. His duties included unpacking and repacking valves, including high temperature steam valves, and pumps. This sometimes involved chipping out old packing material, which would generate visible dust. He would then apply a small metal brush to the valve seat, followed by an air hose to blow it out, before repacking. The air hose would generate dust from the inside of the valve. While working on valves and pumps in this manner, his face would typically be an arm's length from the packing material. He had packed and unpacked too many valves or pumps to estimate, but "[p]eriodically" it was a regular part of his work.
Mr. Wilson also removed and installed gaskets. He would scrape off some of the gasket material with a scraper, but if it did not all come off he would have to buff it with a power tool. Like the packing material, gaskets "turned real crusty" if they had been in place for quite a while. He would have to use a screwdriver or a homemade tool, together with a hammer, to "tap it and keep popping it out." The remaining gasket material was removed using a pneumatically powered wire brush. This process would generate a visible "trail of dust."
Defendant was one of two manufacturers of the packing material and gaskets Daniel Wilson remembered using. At trial he identified products that looked familiar in one of defendant's catalogs. He testified that plant workers would select a material from a similar book, take the pertinent manufacturer's number to the warehouse, and receive a box of packing. He recognized one item in the catalog as a sheet gasket material that would typically be installed between two flanges without any adhesive. This material would later be difficult to remove, requiring scraping and wire brushing. He also identified spools of packing material that he used.
Daniel and Lois Wilson brought this action in November 1997 for personal injury and loss of consortium. The complaint named numerous defendants, identifying defendant as among those subject to liability for negligence, strict liability, false representation, intentional tort, and loss of consortium. Defendant answered the complaint with a general denial and various affirmative defenses. The court granted plaintiffs' motion for a calendar preference and advanced the case to trial on the ground that Daniel Wilson was terminally ill and that his survival beyond six months was in doubt.
Plaintiffs settled with various other defendants and went to trial against defendant alone. (See Section VI, below.) After various proceedings described more fully below, the jury returned a special verdict finding that plaintiffs suffered damages as a result of defective products manufactured by defendant; that 2.5 percent of the total causes contributing to plaintiffs' harm was attributable to defendant; that Daniel Wilson suffered economic damages of over $590,000 and noneconomic damages of $3,000,000; and that Lois Wilson suffered damages of $1,000,000 for loss of consortium. After entering judgment on this verdict, and denying defendant's motion for new trial or judgment notwithstanding the verdict, the trial court entered an amended judgment adjusting the net award to reflect a credit for plaintiffs' settlements with other defendants . Defendant appealed, and plaintiffs cross-appealed.2
Defendant contends that the trial court committed prejudicial error by permitting plaintiffs to reinstate their negligence theory after they had voluntarily dismissed all theories except strict products liability. We perceive neither error nor prejudice.
The original complaint stated claims against defendant based on negligence, strict liability, intentional wrongdoing, and loss of consortium. In his opening statement at trial, counsel for plaintiffs alluded to defendant's supposed failure to warn-a form of negligence. Thereafter, in unreported in camera proceedings, plaintiffs' counsel agreed to abandon any negligence claim and to proceed only under "the so-called consumer expectation test for design defect."
Meanwhile defendant had filed a "motion in limine to apply New Mexico's statute of limitations and substantive law." Defendant argued that plaintiffs' products liability claim was barred under New Mexico law.3 The trial court accepted this argument and entered an order of nonsuit on the strict products liability claim. However, the court expressed great uncertainty about the correctness of this order, and announced an intention to postpone the trial for slightly over a month to permit plaintiffs to seek appellate relief by extraordinary writ.4 The court stated that it had contacted the 18 jurors in the case (including alternates), and all but one had agreed to a month's continuance. The court ordered that the jury return on September 14.
Defense counsel initially disclaimed any objection to this mode of proceeding. However, plaintiffs then moved under Code of Civil Procedure section 473 to be relieved from their abandonment of the negligence theory and to "be allowed to proceed" on that theory "on the grounds of essentially changed circumstances in light of the motions on the statute and the development of the law and surprise and inadvertence." The court granted the request, characterizing the issue as a close one but noting the law's preference for trial on the merits, as well as the absence of prejudice to defendant. The court also ordered that discovery remain open "to the day of trial" and that both sides be allowed to "reopen their opening statements." Defense counsel expressed an intention to move for a mistrial.
On August 28, 1998, this court issued an alternative writ directing the trial court to set aside its order of nonsuit on the strict liability claims or show good cause why it should not do so. In an accompanying memorandum we expressed serious doubts that New Mexico law barred plaintiffs' product liability claims. (Wilson, et ex. v. Superior Court (Aug. 28, 1998, No. A083957) [nonpub. opn.].) Specifically we noted that defendant's limitations argument rested on a decision which in turn rested on "controlling authority" which had since been overruled. (Ibid., discussing Bassham v. Owens-Corning Fiber Glass Corporation (D.N.M. 1971) 327 F.Supp. 1007, 1008, citing Roybal v. White (1963) 72 N.M. 285 , overruled in Roberts v. Southwest Com. Health Serv. (1992) 114 N.M. 248 .) The trial court elected to comply with our alternative writ by vacating its order of nonsuit.
Meanwhile, on August 28, defendant filed its motion for mistrial, asserting that it would be prejudiced by a resumption of trial before the existing jury panel because (1) the jurors would have heard irrelevant matter in the original opening arguments insofar as both parties had argued the strict liability theories which had now been eliminated by the court's order of nonsuit; (2) given the court's plan to allow new opening statements, the jurors would hear plaintiff's negligence argument twice, but defendant's counterarguments only once; (3) the reintroduction of a negligence theory would require defense counsel to cross-examine plaintiff, who was seriously ill, in contravention of promises in his opening statement, thus causing jurors to mistrust and dislike counsel; and (4) jurors would be angered by the delay in proceedings, which they would blame on defendant. The trial court denied the motion on September 4.5 Later, during trial, plaintiffs again withdrew their negligence claims.
Defendant contends that the trial court abused its discretion by permitting plaintiffs to reinstate their negligence cause of action and by denying their motion for a mistrial. Defendant's argument apparently rests on the premise that the circumstances before the court were insufficient as a matter of...
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