BIGELOW, P. J. —
Plaintiff and appellant Wilfredo Velasquez appeals from a judgment after jury trial of his product-related personal injury action. Velasquez alleged his lung disease was caused by workplace exposure to a chemical compound, diacetyl, that was distributed by defendant and respondent Centrome, Inc., doing business as Advanced Biotech (Advanced). The trial court entered judgment on the jury's special verdict which included findings, as to multiple causes of action, that Advanced's acts were not a substantial factor in causing harm to Velasquez.
In the summer of 2003, Velasquez started working as a temporary employee at Gold Coast, a company that made food flavorings. At some point in 2004, he became a permanent employee. While working at Gold Coast, Velasquez moved diacetyl, in both closed and open bags and containers, throughout the company's facility. He breathed ambient diacetyl particles in the air while using a sprayer to mix diacetyl into batches of liquid and dry flavorings, and while hand pouring the compound into mixes.
During the time that Velasquez worked at Gold Coast, Advanced supplied roughly 80 percent of the diacetyl that Gold Coast used in its facility. Advanced did not manufacture the diacetyl. Advanced purchased the compound from suppliers then distributed it to customers like Gold Coast. Advanced attached material safety data sheets (MSDS's) to the containers of diacetyl it distributed to its customers. The MSDS's warned that diacetyl was "harmful by inhalation," but did not include specific warnings about the risks of any particular diseases from exposure to the compound. At trial, it was undisputed that Advanced's warnings were consistent with flavorings industry practices at the time that Velasquez was working at Gold Coast. The California Division of Occupational Safety and Health did not issue exposure limits for diacetyl until 2010, more than four years after Velasquez stopped working at Gold Coast. There were no federal regulations governing exposure limits for diacetyl while Velasquez worked at Gold Coast. Even by the time of trial of Velasquez's current case in 2012, the Federal Drug Administration continued to classify diacetyl as "Generally Regarded as Safe."
During a mixing incident in September 2005, Velasquez inhaled fumes from a concentration of compounds that included acetaldehyde, but not diacetyl. Following the incident, Velasquez experienced trouble breathing, and first sought medical attention for breathing issues. A doctor at a local
In late November 2005, Velasquez went to Mike Mirahmadi, M.D., for treatment. Velasquez complained of shortness of breath. Dr. Mirahmadi noted Velasquez was using an inhaler intended for asthma, and that Velasquez attributed his breathing problems to work. Dr. Mirahmadi instructed Velasquez to continue using the inhaler and to stop working for 30 days to see if absence from his workplace helped his symptoms. Dr. Mirahmadi referred Velasquez to a lung specialist. It is not clear from the parties' briefs or the record on appeal whether Velasquez followed through on this medical plan. From January to August 2006, Randall Caldron, M.D., treated Velasquez. Dr. Caldron diagnosed Velasquez as suffering from a reactive airway disease or allergic rhinitis. Dr. Caldron prescribed medications commonly used for treating those conditions. According to his complaint, Velasquez was first diagnosed with bronchiolitis obliterans, a rare form of lung disease which is usually progressive and fatal, in December 2006. The circumstances of this first diagnosis are not readily apparent from the parties' briefs on appeal, or their references to the record.
In April 2007, Velasquez filed a complaint for personal injuries against several manufacturers and distributors of chemical compounds used to make food flavorings, including Advanced. In June 2011, Velasquez filed his operative first amended complaint. Velasquez's first amended complaint alleged various chemicals and chemical compounds to which he was exposed while working at Gold Coast caused his lung disease. The following causes of action, listed respectively, were eventually tried to a jury and submitted for its consideration by way of a special verdict form: negligence (breach of duty, including duty to warn of risks); negligence per se (negligence based on violations of regulations governing mandatory hazardous materials warnings); strict products liability — design defect (the consumer expectation test); strict products liability — design defect (the risk-benefit test); and strict products liability — failure to warn of risk that is unknown to user.
In the months leading up to trial, Velasquez filed a number of motions in limine, including motion in limine No. 46 to preclude Advanced (and, at the time, a number of other defendants) from presenting any evidence or making any comment about his citizenship or immigration status, or showing that he had used falsified information or documents when applying for employment. Velasquez argued that evidence on such matters was inadmissible because (1) it was irrelevant as he was not claiming loss of earnings or earnings capacity; (2) it was more prejudicial than probative on any material issue, and thus excludable under Evidence Code section 352; and (3) it would constitute evidence of "bad acts" tending to prove character, and thus was inadmissible to challenge credibility under Evidence Code section 787.
In its opposition to Velasquez's motion in limine No. 46, Advanced argued that evidence of Velasquez's immigration status was admissible "for the limited purpose of allowing expert testimony ... on ... his ability to participate in a lung transplant," which his complaint alleged he would need in the future. Advanced offered to stipulate to granting Velasquez's motion in limine No. 46, provided he dropped his claim that he would need a lung transplant in the future.
In addition to the issues raised by motion in limine No. 46, Advanced filed motion in limine No. 80 to preclude Velasquez from presenting expert evidence related to his alleged need for a future lung transplant. Advanced argued Velasquez's claimed need for a lung transplant was speculative. In support of its argument, Advanced pointed to one of Velasquez's own designated experts, David Ross, M.D., who had recently issued a report indicating Velasquez's medical condition did not require an immediate lung transplant, and concluding only that he would need one "in the future." Advanced also pointed to another of Velasquez's designated experts, David Egilman, M.D., who had recently indicated Velasquez "may not be eligible for a lung transplant." Advanced requested an order excluding evidence regarding the need for a lung transplant, and the associated costs of such a procedure. Alternatively, Advanced requested that the trial court conduct a hearing under Evidence Code section 402 regarding the factual foundation for Dr. Ross's anticipated opinion at trial that Velasquez would need a lung transplant at some point in the future.
At a pretrial status conference hearing, the trial court deferred a ruling on either motion in limine until after the experts had been deposed. In stating its decision, the court made the following comments: "If it weren't for the need of the lung transplant, I would just exclude all evidence about his alienage status and that would be the end of it. [¶] I think it's clear under Evidence
After several weeks of hearings on motions and pretrial matters, the case was called for trial and the lawyers announced they were ready. The prospective jurors, who had previously filled out a questionnaire, were then called into the courtroom. The trial court started voir dire with broad questions to the prospective jurors en bloc on subjects such as whether they could keep an open mind, whether they would follow the court's instructions, and the concept of the burden of proof.
At the start of the afternoon session, before the prospective jurors returned, the trial court and the lawyers took up the issue of the possible trial testimony of Velasquez's "transplant expert," Dr. Ross, a physician at UCLA Medical Center. Dr. Ross had recently seen Velasquez (either as a treating physician or as a plaintiff's expert) regarding a possible lung transplant. Among the matters discussed regarding Dr. Ross's anticipated testimony were whether he could and would testify to a degree of medical certainty or probability that Velasquez needed a lung transplant, and Dr. Ross's insights on whether Velasquez would be accepted for a lung transplant in light of his undocumented status. During the course of these extended discussions, the following exchange transpired:
The trial court then tentatively granted Advanced's motion in limine No. 80 to exclude evidence of Velasquez's need for a transplant. At the same time, the court ordered all of the lawyers "not to refer at all to Mr. Velasquez's immigration status, ask no questions about it, refer to nothing about it." The court indicated its ruling would be reconsidered at an Evidence Code section 402 examination of Dr. Ross at a time of the lawyers' choosing, based on Dr. Ross's availability. The court then continued: "If Mr. Metzger wishes to voir dire the jury on alienage status, he may do so. And that would, of course, void my order immediately. He will just have to let me know. But at this point, with the understanding Mr. Metzger does not want that to come in, it will not. [¶] The court in limine will bar all references to Mr. Velasquez's immigration status. And as I said, I look forward to the 402 because it could
A few days later, the court took a break from voir dire and conducted an Evidence Code section 402 (hereafter section 402) hearing on the possible testimony of Dr. Ross. Dr. Ross testified that Velasquez suffered from constrictive bronchiolitis obliterans, and that it was likely he would require a lung transplant. Dr. Ross explained that bronchiolitis obliterans is an unpredictable condition and, five years from diagnosis, only about 28 to 30 percent of patients survive without a transplant. Dr. Ross testified that his team at UCLA had never rejected a lung transplant candidate because of national origin or because the patient was an undocumented worker. He further indicated that the policies of the United Network for Organ Sharing (hereafter UNOS)
At the conclusion of the section 402 hearing, the trial court ruled: "[T]here is no question but that Mr. Velasquez's immigration status is going to have a role in this." When counsel for Velasquez attempted to offer an argument, the trial court responded: "Mr. Metzger, I've heard enough. I heard what [Dr. Ross] said. It plays a role. His immigration status will be admitted in this trial. I'm going to deny your in limine motion to keep it out. That's my ruling." In making its ruling, the court acknowledged that evidence of immigration status was "highly, highly prejudicial," but that its probative value in Velasquez's case was "definitely more than a little." The trial court denied Velasquez's request to certify the issue for an immediate appeal and to stay the case, noting the court and the parties were in the "middle of jury selection."
Upon objection from Velasquez's counsel, the trial court started the next morning's session by revisiting its ruling of the previous day that evidence about Velasquez's undocumented immigration status would be admissible at trial. The court indicated that it was not inclined to change its view, noting Dr. Ross had "testified very clearly" that Velasquez's immigration status would "play a role" when his doctors decided whether he would receive a lung transplant. The court ruled: "[T]he evidence is probative and the tendency to unduly prejudice does not substantially outweigh the probative
Velasquez's counsel orally moved for a mistrial, and the trial court denied the motion.
Eventually, it was agreed that the court would advise the jurors about the issue. As the court summarized the situation: "I'll basically just say that ... based on some rulings I've made, you are going to hear some information regarding his alienage status.... [¶] ... I want to be the one to raise it. And I may well take on some blame for not letting the topic out earlier. I want to be the lightning rod to the extent the jury feels anything was hidden from them."
When the prospective jurors returned to the courtroom, the trial court made the following statement:
The trial court then instructed the prospective jurors as follows: "[Y]ou are not to consider his immigration status as bearing on his credibility as to whether what you hear from him is truthful or not truthful. I don't want you to consider his immigration status for that purpose. It's only to be considered with respect to his eligibility for a certain type of medical procedure."
At the end of its statements and instructions to the prospective jurors on the issue of Velasquez's immigration status, the trial court asked again about their attitude regarding the issue as follows: "So will you all agree that you will not consider his status as a citizen, a noncitizen, authorized, or unauthorized — you will not consider that as bearing on his ... truth telling? Is that a promise?" The prospective jurors, answering in unison, responded "yes." At this point, Velasquez's counsel resumed his individual voir dire of the jurors.
During further voir dire, four other prospective alternates openly expressed views regarding Velasquez's immigration status. One favored Velasquez; another stated that he did "have an issue with him being here illegal and suing," and explained that his "beliefs are part of who I am because of my experiences. I'm sure they would play some factor in a decision. Maybe not number one, but those feelings would, quite honestly, factor in somewhere." Another admitted he could not be fair, and stated, "If he weren't here illegally, maybe he wouldn't have gotten injured." Another stated the blame for Velasquez's injury was with the employer, and she was "concerned that ... the employer for Mr. Velasquez hired him to begin with."
At the end of the day, Velasquez's counsel expressed concern to the court about the prospective alternate juror who made a comment about Velasquez's employer having illegally hired him. Velasquez's counsel requested permission to voir dire all of the prospective jurors (including going back to the 12 who were already sworn) on their attitudes toward employers who illegally hire undocumented immigrants. The following exchange ensued:
In accord with the wishes of Velasquez's counsel not to draw attention to the issue, the trial court did not give a specific cautionary instruction on Velasquez's status as an undocumented immigrant.
Trial was dominated by expert testimony. Nearly a dozen medical doctors testified on the subject of Velasquez's medical history, his current medical condition, his prognosis, his medical treatment to date, and his need for future medical treatment, including his need for a lung transplant.
David Egilman, M.D., testified on Velasquez's behalf on the issue of whether diacetyl caused Velasquez's bronchiolitis obliterans. Brent Findley, Ph.D., testified on behalf of Advanced on the issue of causation, focusing more broadly on the state of ongoing scientific research regarding whether diacetyl causes bronchiolitis obliterans. The testimony of these causation experts is discussed in more detail below.
After a number of witnesses had testified, Velasquez filed a written motion for mistrial. The motion was supported by a declaration from Mark Nicas, Ph.D., an adjunct professor of environmental health sciences at the University of California, Berkeley, and the director of the industrial hygiene graduate program at the university's school of public health. Dr. Nicas's declaration addressed the subject of whether there was a "statistically significant difference of expressed alienage bias" as between the group of 18 prospective jurors from whom the 12 jurors ultimately empanelled had been selected (so-called group A), and the group of 18 prospective jurors who were voir dired to be alternate jurors (group B). Dr. Nicas stated there was a numerical difference in responses between the two groups and that it was "unlikely," based upon an application of a generally accepted statistical analysis procedure, that the difference was "due to chance alone." Dr. Nicas expressly indicated he could not identify a cause for his statistical conclusions; he only concluded there was a significant difference in responses between the groups,
Dr. Ross testified for Velasquez regarding his need for a transplant. Dr. Ross testified that Velasquez did not currently need a lung transplant, but would need a transplant in the future because there were few other treatment options for bronchiolitis obliterans. According to Dr. Ross, he was "very confident that [Velasquez] will need a transplant within the next five years." Dr. Ross also testified regarding the myriad of medical, psychological, cost, support and other factors which are considered in the decision as to whether a particular patient will receive a lung transplant, or, more generally, "the topic of lung transplant candidacy." Dr. Ross explained that Velasquez had no medical or psychiatric factors which would disqualify him from receiving a lung transplant, and that he had sufficient family and social support structures for a possible lung transplant. Dr. Ross further explained that the lung transplant program at UCLA had never rejected a lung transplant patient based on his or her race, national origin, or residency or naturalization status, and that "we're prohibited from considering that." Dr. Ross explained that UNOS had recently issued "new" policies which provided that it would not consider residency and immigration status when making decisions on transplant approvals. The new UNOS policies were put in place in September 2012.
Velasquez made yet another motion for mistrial, which was denied. Advanced filed a written motion for nonsuit as to Velasquez's claim for punitive damages, and his causes of action for strict liability on design defect and failure to warn theories, and for common law negligence. On the common law negligence issue, Advanced argued Velasquez had not presented any evidence establishing the standard of care in the food flavoring industry at the time Velasquez was exposed to diacetyl.
The trial court subsequently conducted a section 402 hearing on the potential trial testimony of defense expert Gordon Yung, M.D., regarding Velasquez's need for a lung transplant. Dr. Yung opined that Velasquez would not need a transplant. Dr. Yung was also a representative from one of the regional administrative bodies of UNOS, and a member of UNOS's lung transplant subcommittee. During the section 402 hearing, the court addressed Dr. Yung's possible testimony on the issue of whether Velasquez's immigration status would be a factor in his eligibility for a lung transplant. Dr. Yung testified that immigration status would "never" be considered as a "pure criteria" that disqualified a patient from receiving a lung transplant. At the conclusion of Dr. Yung's testimony, the trial court made the following ruling:
Shortly after the trial court's ruling, the following exchange ensued:
The presentation of the witnesses' testimony continued and came to an end. The lawyers gave closing arguments. The jury began its deliberations.
A jury poll revealed that the findings that Advanced had been negligent and violated the Hazard Communication Standard were unanimous. The remaining findings were reached by a nine to three vote.
The trial court granted Advanced's motion for nonsuit on Velasquez's common law negligence theory. The court then entered a minute order indicating it signed and entered a judgment on the jury's special verdict.
Velasquez filed a timely notice of appeal.
Advanced contends Velasquez forfeited any claim of error related to the trial court's statements to the jurors during voir dire concerning his immigration status. We disagree.
First, Advanced asserts Velasquez invited the trial court to make its statements to the jurors regarding his status as an undocumented immigrant. Second, Advanced contends Velasquez may not complain on appeal because
An error is invited when a party purposefully induces the commission of error. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [87 Cal.Rptr.2d 453, 981 P.2d 79].) The doctrine of invited error bars review on appeal based on the principle of estoppel. (Ibid.) The doctrine is intended to prevent a party from leading a trial court to make a particular ruling, and then profiting from the ruling in the appellate court. (Ibid.) Accordingly, the doctrine of invited error contemplates "affirmative conduct demonstrating a deliberate tactical choice on the part of the challenging party." (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 706 [17 Cal.Rptr.3d 397].)
The record shows no such affirmative conduct in Velasquez's case. Here, Dr. Ross gave testimony, not elicited by Velasquez, during a section 402 hearing which led to the trial court's initial evidentiary ruling on Velasquez's undocumented status. While Advanced's assertion that Dr. Ross's testimony provided the foundation for the court's statements to the jurors regarding Velasquez's immigration status is correct, this does not mean that Velasquez "invited" any error. A fair reading of the record establishes that the court made an initial ruling — later withdrawn by the court as unsustainable — that a person's status as an undocumented immigrant could be a factor in the decision to provide or deny the person a lung transplant. The court's initial ruling effectively boxed Velasquez into agreeing to the court's statements to the jury regarding his immigration status. From the very beginning, Velasquez sought to prevent the jury from hearing about his immigration status. Under these circumstances, we decline to find a forfeiture.
This brings us to the issue of whether Velasquez was required to file a motion for new trial in order to save his jury-related claims of error on appeal. Advanced argues that Velasquez forfeited his claims by failing to raise them in a new trial motion supported by admissible evidence of juror bias. While Advanced's argument might be persuasive in another context, it is not here. Developing a factual record by a motion for new trial was not necessary in this case to facilitate meaningful appellate review.
Finally, we note that forfeiture is "not automatic" and "does not deprive appellate court[s] of authority" to entertain appeals. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [13 Cal.Rptr.3d 786, 90 P.3d 746].) Forfeiture is largely a
Velasquez contends the trial court erred when it informed the prospective jurors during voir dire that he is an undocumented immigrant. We agree.
But even when evidence is relevant, a trial court may exclude it pursuant to Evidence Code section 352. Under that section, a trial court is vested with discretion to exclude relevant evidence when "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) A trial court's exercise of discretion under Evidence Code section 352 is reviewed under the abuse of discretion standard, and will not be disturbed on appeal except upon the objecting party's showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (People v. Brown (2003) 31 Cal.4th 518, 534 [3 Cal.Rptr.3d 145, 73 P.3d 1137].)
Our conclusion is the same with respect to Velasquez's immigration status and his claim that he will require future medical treatment, specifically, a lung transplant. Dr. Ross testified at the section 402 hearing only that he would have to "look into the issue" of whether UNOS policy allowed his team to consider immigration status in granting a lung transplant. He never testified he was certain it would or could be considered. And, both party's experts eventually testified that UNOS policies preclude consideration of alienage status in a transplant decision. As such, the evidence was simply irrelevant. When evidence of a plaintiff's immigration status is irrelevant to the issue of whether or not he will receive future medical treatment, it is inadmissible. (Evid. Code, § 350.) In light of these principles, the jurors should not have been informed that Velasquez is an undocumented immigrant.
We understand the trial court did not foresee that Velasquez's immigration status would turn out to be entirely irrelevant, given that at the section 402 hearing Dr. Ross initially indicated he was uncertain whether UNOS would allow its consideration, and he only clarified that it could not be considered when he testified at trial. Though the nondiscrimination policy became effective in September 2012, before Dr. Ross testified at the section 402 hearing on October 3, 2012, apparently he was unaware of the new policy at that time.
But even before the experts clarified the UNOS policy, we believe the trial court abused its discretion in determining Velasquez's alienage status was
As Velasquez and the amici curiae parties accurately point out, cases both in California and in multiple other jurisdictions have recognized the strong danger of prejudice attendant with the disclosure of a party's status as an undocumented immigrant. (See, e.g., Hernandez v. Paicius (2003) 109 Cal.App.4th 452 [134 Cal.Rptr.2d 756]; Rodriguez, supra, 186 Cal.App.3d 1145; Salas v. Hi-Tech Erectors (2010) 168 Wn.2d 664 [230 P.3d 583]; Republic Waste Services, Ltd. v. Martinez (Tex.Dist.Ct.App. 2011) 335 S.W.3d 401; Maldonado v. Allstate Ins. Co. (Fla.Dist.Ct.App. 2001) 789 So.2d 464; Klapa v. O & Y Liberty Plaza Co. (1996) 168 Misc.2d 911 [645 N.Y.S.2d 281]; Gonzalez v. Franklin (1987) 137 Wis.2d 109 [403 N.W.2d 747]; Peterson v. Neme (Va. 1981) 222 Va. 477 [281 S.E.2d 869].) In such cases, reviewing courts have found that rulings to exclude evidence of a party's immigration status were not error, or that admitting evidence of a party's immigration status was error because the evidence was irrelevant to any material issue or because it was only marginally relevant to any material issue, and that the error justified reversal. We agree.
Velasquez contends the trial court erred in denying his multiple motions for a mistrial, "especially upon recognizing that [his] residency status was irrelevant." We agree.
It is well settled that a trial court has the discretion to declare a mistrial when "an error too serious to be corrected has occurred." (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 593 [167 Cal.Rptr.3d 141]; see Abbott v. Mandiola (1999) 70 Cal.App.4th 676, 682 [82 Cal.Rptr.2d 808].) Among the recognized grounds for a mistrial are "`any ... irregularity that either legally or practically prevents ... either party from having a fair trial.'" (Clemente v. State of California (1985) 40 Cal.3d 202, 217 [219 Cal.Rptr. 445, 707 P.2d 818].) Whether a particular trial incident has incurably damaged a party's right to a fair trial is by its nature largely a qualitative matter requiring an assessment of the entire trial setting. For this reason, trial courts are vested with wide discretion in ruling on mistrial motions. (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 679 [40 Cal.Rptr.3d 509].) The trial court, "present on the scene, is obviously the best judge of whether any error was so prejudicial to one of the parties as to warrant scrapping the proceedings up to that point." (Id. at p. 678, italics omitted.) A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged. (Id. at p. 679.)
From the earliest stages of trial, even before voir dire of the jurors began, the trial court openly recognized the strong risk of prejudice inherent in evidence of Velasquez's immigration status. At a pretrial status conference, during a discussion with the lawyers about the then pending motions in limine regarding the immigration status issue, the court made the following comments: "If it weren't for the need of the lung transplant, I would just exclude all evidence about his alienage status and that would be the end of it. [¶] I think it's clear under Evidence Code [section] 352 it would be unduly prejudicial." The court's concern was not assuaged even as it ruled at the
The trial court correctly assessed the prejudice inherent in informing the jury of Velasquez's immigration status. Further, the trial court was correct in the ultimate ruling that evidence of Velasquez's immigration status was irrelevant on the issue of his possible future medical treatment. Overall, the record shows, without room for meaningful dispute, that the court recognized at all times during the trial proceedings that there was a risk of undue prejudice from this evidence, but nevertheless initially determined there was a counterbalancing reason for admitting the evidence. Once the court determined that this counterbalancing reason for admitting the evidence did not exist, the only remaining weight on the scales was on the side of the strong inherent risk of prejudice from the evidence. Having already informed the jurors that Velasquez was an undocumented immigrant we are amply satisfied that, at this juncture, the trial court should have declared a mistrial.
We find the error prejudicial.
As noted above, David Egilman, M.D., testified on Velasquez's behalf on the issue of whether diacetyl caused Velasquez's bronchiolitis obliterans.
Apart from the competing expert testimony, there was extensive evidence at trial regarding the shortcomings of Velasquez's employer, Gold Coast, regarding safety in the workplace. Further, there was evidence showing that Velasquez did not follow workplace safety rules. All of this evidence was certainly admissible to show multiple possible factors in the cause of Velasquez's health problems. But, we must acknowledge that Velasquez's immigration status could have affected the jurors' assessment of causation. A juror could have concluded that Velasquez would never have gotten sick but for working at Gold Coast, which should never have occurred because he was in the country illegally. In other words, the causation issue in this case is difficult to divorce from the issue of immigration status. When all of the evidence is taken into consideration, we find it reasonably probable that a result more favorable to Velasquez would have been reached in the absence of this error.
In its respondent's brief on appeal, Advanced argues that no alleged defect in the jury's special verdict supports reversal of the trial court's order granting the company's motion for nonsuit on Velasquez's cause of action for common law negligence. As the company correctly notes, the court ruled nonsuit was proper because Velasquez failed to present any evidence during trial on the standard of care in the food flavoring industry at the time Velasquez was exposed to Advanced's diacetyl, a required element for a cause of action for common law negligence.
The judgment is reversed except as to the trial court order granting Advanced's motion for nonsuit on the common law negligence cause of action. The case is remanded to the trial court for further proceedings consistent with this opinion. Appellant is awarded costs on appeal.
Rubin, J., and Grimes, J., concurred.