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
During the liability phase, the court granted BWMT's motion for partial nonsuit as to Eli's
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.
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).)
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.
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
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.
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
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.
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 often wore home. Medina described the dirt both as "not dusty, but just you put your hands on him and it was there," and "like heavy dust."
Medina lived with his father until about 1946 or 1947, when he struck out on his own to drive a taxi and serve in the Air Force. Medina's father got him a job as a laborer at ASARCO when he returned to El Paso with his wife and infant daughter Yolanda in 1955. Medina worked as a laborer at ASARCO for three years, until he was laid off as part of a reduction in force in 1958. He never received any training regarding the hazards of asbestos.
As a laborer, Medina opened bins of dirt and shoveled the dirt onto conveyors running to the smelting furnaces. He also performed general
Medina also breathed in dust when he was assigned to clean up debris generated by workers using utility knives to cut off and replace insulation on pipes in the furnace and boiler houses. This did not happen frequently because he was not assigned to that area often and the insulation lasted a long time. The insulation was "some kind of material that was then wrapped with — in tinfoil or something like that." One side of the covering was black and the other was silver like tinfoil. The inside was yellow and thick, not chalky, and the pieces of insulation were shaped "like blankets." Workers cut new insulation pieces to size and wrapped them around the pipes.
Plaintiffs' expert, Dr. Longo, opined during plaintiffs' case-in-chief that Medina's father "maybe" exposed Medina to asbestos when he worked as a laborer at ASARCO during Medina's youth. Dr. Longo testified that although he had "worked on cases in that plant," and knew that ASARCO "has asbestos-containing products," he did not "have quite enough information exactly what the dad did" to come to a definitive conclusion. Similarly, Dr. Longo opined that Medina "had the potential" to be exposed to asbestos in the course of his own three-year tenure at ASARCO. Dr. Longo testified that he "didn't see that [Medina] actually had any hands-on exposure to asbestos." Dr. Longo continued, "[i]f [Medina] was around people who were using asbestos-containing products or removing them, yes, he would have. If he was not around them, no." Dr. Longo testified that "[t]here [was] asbestos-containing material there" at the ASARCO plant, "thermal insulation, but there also is other non-asbestos-containing products." He explained that he could not definitively conclude that Medina was exposed to the known asbestos-containing-products at ASARCO without more information because "[y]ou have to put Medina using the product or around others using the product."
BWMT explored the issue of Medina's potential asbestos exposure at ASARCO with plaintiffs' other expert witnesses during cross-examination. Dr. Barry Castleman, a doctor of occupational environmental health policy with a specialty in toxic substances control, agreed that the types of tasks Medina engaged in at ASARCO "had the potential to expose [him] to asbestos-containing products," "if the materials you're talking about actually had asbestos." Dr. Castleman conceded that it was "probably true" that "a majority of the thermal insulation products used in the United States did, in fact, contain asbestos" in the 1950's. Dr. Castleman also characterized "pipe covering and block insulating cement" as "thermal insulating products." On redirect examination, Dr. Castleman agreed with plaintiffs' counsel that there was nothing in the scientific literature to suggest that a worker who was "exposed to dirt which was being put into the smelter, to make bullets," would have been exposed to asbestos. On recross-examination, he testified that no dust mask would have been 100 percent effective at preventing exposure to asbestos.
BWMT also asked Dr. Horn about Medina's possible exposure to asbestos at ASARCO. Dr. Horn agreed that Medina's work "cleaning up thermal insulation that others had removed from pipes and ... clean[ing] up empty 100-pound bags of insulating cement ... contributed to his risk of mesothelioma" "if the insulation materials were asbestos and that insulating cement was asbestos." He offered the same opinion with respect to the secondhand exposure Medina may have received from his father.
BWMT read into the record Medina's responses to contention interrogatories outlining his alleged exposure from his and his father's work at ASARCO. During cross-examination of Dr. Longo, BWMT characterized these interrogatory responses as detailing "the types of exposure he [Medina]
BWMT's expert, Dr. Andrew Churg, an anatomic and experimental pathologist, testified that, "[b]ased on the information [he was] provided from the Medina family's answers to interrogatories," he understood that Medina worked at ASARCO and "had been exposed potentially to amphibole fibers [(a type of abestos)] while working at ASARCO." Dr. Churg further opined, based on the records provided to him, "if his father was exposed to amosite or crocidolite at ASARCO and brought his work clothes home and had them laundered at home, that's a potential source of exposure to Medina himself." On cross-examination, Dr. Churg opined that "dirt exposure ... did not cause his mesothelioma."
Another BWMT expert, Dr. Patrick Hessel, an epidemiologist, testified that he understood from Medina's testimony and interrogatory answers that his job at ASARCO "was to clean up the place." Based on that understanding, and his familiarity with epidemiological studies "that have looked at thermal insulation and the risk of mesothelioma among people who are exposed to thermal insulation," Dr. Hessel opined that Medina's work and tasks he performed at ASARCO increased his risk of mesothelioma. Dr. Hessel further opined that epidemiological literature indicates that people who work "near and are close enough to be exposed" to thermal insulation or insulating cement are at increased risk of mesothelioma.
BWMT presented its final expert, industrial hygienist Dr. William Krebs, with a hypothetical involving a laborer who worked at an ASARCO smelting plant in El Paso, Texas, from 1955 to 1958, "cleaned up after people removing and installing asbestos-containing thermal insulation," "removed hundred pound bags of insulating cement and cleaned up after fire brick had been removed from furnaces and boilers." Based on that hypothetical, Medina's "own testimony, which goes beyond a little bit ... the hypothetical," and his own knowledge "of the insulating materials that are used in those kinds of operations," Dr. Krebs opined that "the way that he was handling them, gave me the suggestion that he clearly could have been excessively exposed to amphibole minerals which would have resulted — which potentially could have resulted in the development of the disease he's contracted."
In April 2007, Medina's granddaughter Aviana Canett, her husband, Gabriel Canett, and their young son Eli moved from their mobile home into Medina's
Initially, the Canetts gave Medina approximately $250 per month toward his $358 monthly lot rent, but Medina stopped regularly accepting the payments soon thereafter. Aviana testified that he "probably" let them pay "about four times a year." Medina also paid for all of the utilities except satellite television, for which the Canetts paid $90 per month. When the Canetts sold their mobile home, Medina would not let them repay the $10,000 he had given them for a down payment; he told them to save the money to buy a house.
Aviana explained there was no formal division of food expenses. Medina "would just leave and come back with bags full of stuff from the grocery store." "It was the type of thing where whoever just went to the store went and just brought home food. It wasn't, like: Hey, it's your turn to go get food. It was: Hey, I'm going to the store. I'll be back. And we would all take turns just getting food." "Whoever decided to go went and paid." Medina also sometimes purchased clothes for Eli and "would just come home with stuff" like clothes and shoes for Eli, even though Aviana and Gabriel did not know he was going to do so. He also bought Eli some toys and books. Aviana testified that Medina "liked to just make sure everybody was taken care of."
Eli attended a pre-preschool program from 9:00 a.m. to 3:30 p.m. three days a week. Medina sometimes dropped Eli off and always picked him up. He watched Eli on the two weekdays that Eli was not in pre-preschool and every night that Aviana worked her second job and Gabriel worked overtime. Medina took Eli to the donut shop, the park, and church. Gabriel testified that "taking care of Eli" was "the majority of him helping us out." "He devoted his time for Eli when Eli got off school or when he had to watch Eli." When Medina got sick, Gabriel had to turn down overtime to care for Eli or ask his own parents to watch Eli. Gabriel testified that his inability to work overtime "cut a lot for me and my wife."
At trial, Aviana testified that "every once in a while," maybe twice a month, Medina paid Eli's pre-preschool tuition of approximately $100 to $150 per week. However, she said during her deposition that, "as far as
After Medina's death, Aviana and Gabriel bought a house and had a second child. Aviana testified that they would not have been able to save up for the house or continue Eli's private school education without Medina's help. Aviana further testified that home ownership and the addition of a second child made it "financially ... a little harder to pay for everything." Nonetheless, she and Gabriel were still able to meet Eli's "financial needs," including keeping him fed, clothed, and enrolled in private school.
Medina testified that prior to his diagnosis with mesothelioma, he "was in great health." His daughter Leticia testified that she always told her sisters that Medina "was healthier than them two put together," and his daughter Patricia testified that he "had more energy than me" and "was just not his age." Medina went to the gym every day and worked out "all the time," took care of his house and his daughter's house, and cared for Eli. He did not take medication and was able to walk unassisted.
In 2009, Medina started losing weight, feeling tired, and coughing a lot. He thought he hurt his ribs at the gym. His doctors thought he had pneumonia. Medina went to the emergency room with pain in his chest, where he was given pain medication and told that his lung was full of water. A few weeks later, doctors drained two and a half bottles of bloody fluid that "looked like Pepsi Cola" from his lungs. They also looked in his chest with a camera and "scraped" tissue to conduct pathology tests. In July or August of 2009, doctors "shut ... off" one of his lungs by coating the lining with a powder, relieving his pain but rendering the lung useless. Medina visited what he described as a "parade" of specialists, who ultimately concluded he had mesothelioma. His daughter Patricia got a second opinion from UCLA (University of California at Los Angeles) confirming the diagnosis.
Medina tried one round of chemotherapy but it made him feel like he was going to throw up all the time. He became sicker and started to "hurt all over, joints, shoulders, arms." After that, his doctors referred him to a palliative care doctor and a hospice program. He started taking Vicodin for his pain, and his breathing became shallow and more frequent. He began having difficulty eating and digesting food and going to the bathroom. His doctors
Eventually, Medina's family members and hospice nurses had to care for him around the clock, giving him medication, bathing him, and changing his diapers. In the months between his diagnosis and death, Medina's weight declined precipitously. Medina died on July 4, 2010, in his home and in the presence of his family. The parties stipulated that Medina's medical expenses were $21,301. Forensic economist Robert Johnson opined that the normal life expectancy of a 79.55-year-old man like Medina would have been an additional 8.22 years.
BWMT objected to much of the evidence concerning Medina's decline in health as irrelevant and unduly prejudicial during the liability phase of trial. It filed a motion for mistrial after the jury heard Patricia's testimony and viewed Medina's videotaped depositions depicting his rapid physical decline. The court denied the motion on the grounds that, "for some purpose, some of his pain and suffering might be admissible," "the punitive damages is allowed and one of the elements to consider is the harm to the decedent," and "in effect the limit of damages is taken care of in the jury instructions."
After the court denied its mistrial motion, BWMT objected to the introduction of Gabriel's testimony on similar grounds. Plaintiffs argued that Gabriel's anticipated testimony regarding Medina's pain and suffering was relevant for both punitive damages and to demonstrate "the economic value of what it took to take care of him," that is, as "evidence about what the services were that were needed to care for him because of his disability." BWMT argued that evidence of Medina's pain and suffering was not relevant until the punitive damages phase of the bifurcated trial. Plaintiffs conceded that their proffered evidence regarding economic damages was "closely connected" to pain and suffering. The court noted that Gabriel's anticipated testimony brought plaintiffs "dangerously close to getting into evidence, in some way, pain and suffering of the decedent, which is not recoverable as a general rule." The court nonetheless permitted Gabriel to testify about "[h]elping out Grandpa towards the end," including giving him morphine, changing his diapers, lifting him up, and watching his bedroom transform into a hospital room.
All three of Medina's daughters provided emotional testimony about their relationships with their father and the effect his death had on them. His youngest daughter, Patricia, testified that she had a "pretty close relationship"
Medina's middle daughter, Leticia, also testified that she had a close relationship with her father, whom she described as "fun and always there." Like Patricia, Leticia "considered [her]self the boy out of the two girls, the other two girls" and learned a lot of "handyman-type work" from her father. Leticia moved out of the family home after she graduated from high school, but she moved back several times "during periods of breakup or divorce." Medina would help her "get back on [her] feet" and "emotionally encourage [her] to move on." He also took in Leticia and her children for about a year when her husband had to care for his ailing mother. Leticia eventually moved to Las Vegas, but still talked to Medina "all the time." Medina moved to Las Vegas for about six months to work with Leticia in the property management business, and came to visit her every year for her birthday, even when he was ill. Leticia testified that "everybody looked to him for advice and everybody told him their problems and everything," and "until the end, he was still trying to help people." She described Medina as "the glue that held everybody together." Since Medina's death, Leticia "no longer ha[s] that person to talk to every week," "that support system."
Medina's eldest daughter, Yolanda, had a close relationship with Medina dating back to her childhood, when he took her camping, showed her how to change tires and belts on a car, and taught her how to build things and do electrical repairs. Yolanda lived a block away from her father for the last 15 to 20 years of his life and saw him almost every day. He had a key to her house and frequently stopped in to visit. She described Medina, whom she
Without any objection from BWMT, plaintiffs' counsel made a variety of emotionally charged arguments during closing. She contended that BWMT "knew they were poisoning workers, poisoning bystanders to workers, contaminating clothing that would be driven home to family members and killing wives and children," "participated in what was a mass poisoning of entire populations of people," and moved operations to South America to "make sure [its] gravy train, which was selling poison, would not be cut off." Plaintiffs' counsel urged the jury to award plaintiffs "a big pile of money," starting at $50 million. She implored the jury to consider the testimony about Medina "going to the doctors, going to chemotherapy therapy [sic], becoming fatigued, falling, being a fall risk and people having to help him up, take him to the bathroom" when evaluating the financial and economic value of the care he received during his illness. However, she also cautioned the jury that it could not "award or even consider any amount of money that would replace his pain and his suffering."
As it indicated it would when ruling on BWMT's motion for mistrial, the court instructed the jury not to consider "plaintiffs' grief, sorrow, or mental anguish" or "Medina's pain and suffering" when determining plaintiffs' loss.
BWMT asked the court to include in the instructions the names of several of the defendants named in plaintiffs' amended complaint for purposes of apportioning liability to those entities. Plaintiffs submitted a competing instruction, ultimately given by the court, that "only add[ed] in General Motors and ASARCO." Accordingly, the jury was instructed that it could allocate some responsibility to nonparties ASARCO and General Motors if it found that BWMT proved the negligence or fault of those entities was a substantial factor in causing Medina's harm. The court denied plaintiffs' request to include additional questions about ASARCO's and General Motors' negligence on the special verdict form. The "allocation section" of the special verdict form consequently read, "If 100% represents the total fault
The jury unanimously concluded that Medina was exposed to asbestos released by a product manufactured or sold by BWMT's predecessor, Borg-Warner Corporation. It also unanimously concluded that this exposure to asbestos was a substantial factor in causing Medina's death. The jury further determined unanimously that Borg-Warner Corporation's products had potential risks that were known or knowable in light of the scientific and medical knowledge that was generally accepted in the scientific community at the time of the manufacture or sale of the product, and that Borg-Warner Corporation's failure to adequately warn of those risks was a substantial factor in causing Medina's death. The jury unanimously awarded $60,000 in economic damages to Medina's estate, $130,455.70 each in economic damages to Patricia, Leticia, and Yolanda, and $2 million each in noneconomic damages to Patricia, Leticia, and Yolanda. The jury unanimously allocated 35 percent of the total fault that was a substantial factor in causing Medina's death to Borg-Warner Corporation. It allocated 25 percent of the fault to ASARCO, and the remaining 40 percent to General Motors.
Nine of the 12 jurors found by clear and convincing evidence "that an officer, director, or managing agent of Borg-Warner Corporation acted with malice or oppression in the conduct upon which you base your findings of liability in favor of plaintiffs." The trial therefore proceeded to a punitive damages phase.
Prior to the second phase of trial, BWMT moved to exclude the anticipated testimony of plaintiffs' expert, forensic economist Robert Johnson. BWMT argued that Johnson's testimony should be excluded as irrelevant because it concerned the financial health of BorgWarner, Inc., rather than BWMT. BorgWarner, Inc., is "[a] different, separate corporation" from BWMT. Plaintiffs, who had not sought any discovery regarding BWMT's financial condition, conceded Johnson's two-page expert report and 14 accompanying presentation slides focused entirely on BorgWarner, Inc., and did not "breakout the separate condition of BWMT." They argued that some of the publicly available financial documents for BorgWarner, Inc., on which Johnson relied,
The court denied BWMT's motion to exclude and permitted Johnson to testify. It limited Johnson's testimony to 30 minutes on direct, 30 minutes on cross, and 10 minutes of rebuttal.
Johnson testified that he was prepared to offer an expert economic opinion on the financial health and condition of BWMT. He enumerated the various corporate financial metrics he typically examines when assessing the financial health of a corporation, including its cash flow, profits, available lines of credit, net worth, cash on hand, expenditures on capital and research and development, accounting fees, market capitalization, bond ratings, and CEO compensation. Johnson stated that he evaluated "[a]ll the factors that were available to [him] through publicly available information" for BWMT. That publicly available information consisted solely of BorgWarner, Inc.'s audited financial statements from 2009 through 2012 and an excerpt from an audited financial statement that documented the revenue and earnings of BWMT before interest and taxes in 2002.
Based on that information, Johnson opined, "I know that BorgWarner Morse TEC manufactures — one of the major products they manufacture is turbo chargers, and these are the items that go into engines. And the dollar amount of the revenue for BorgWarner Morse TEC in 2002 was one billion — .... [¶] If we fast forward to 2012, we know that the BorgWarner Inc. breaks out the sales of turbo chargers, which is not all that Morse Tec does. Turbo chargers has 26 percent of the engine group, which is 4.9 billion or for Morse Tec solely 1,277,000,000 in revenue." Johnson continued, "What it tells me about the financial condition is BorgWarner Morse TEC does a number of things in addition to turbo chargers. Also, there's time and change, et cetera. But what I can definitively say is that the minimum revenue for BorgWarner Morse TEC would be that almost $1.3 billion in one year." "Based on the factor that, in 2002 the earnings before interest and taxes was approximately 159 million, which makes it a little more than 15 percent, and the factor that Borg-Warner has not stated that the profitability of even the turbo chargers alone has declined over the years, particularly in 2012," Johnson ultimately opined that "the revenue of BorgWarner Morse TEC is ... greater than $1.3 billion."
On cross-examination, Johnson conceded that his opinion was constrained by the dearth of publicly available information on BWMT and was limited to
Johnson acknowledged that BWMT was one of "many" subsidiaries of BorgWarner, Inc. Johnson explained that "nothing in the financial documents... specifically broke out the profitability of BorgWarner Morse TEC." He therefore looked at the most recent profitability figures he could find, the ones from 2002, and concluded that the figures "probably stayed the same" because BorgWarner, Inc., had not told its shareholders that profitability declined.
Plaintiffs played previously unplayed excerpts of Medina's videotaped depositions in which he described his precipitous weight loss and need for hospice care. They also called Patricia back to the stand, and she testified that Medina weighed only about 80 pounds at the time of his death. Patricia further testified that "every day he just died a little bit more and just experienced all these symptoms more and more each day." In a "fast progression," Medina became unable to eat, swallow, or speak. He eventually became completely unable to communicate and had difficulty recognizing family members he had known all his life. The only relief Patricia and other family members could provide to Medina was staying with him and holding his hand.
BWMT moved for nonsuit at the close of plaintiffs' evidence. It argued that plaintiffs failed to carry their burden of proof as to BWMT's financial condition. The court denied the motion, although it noted that "the approach of the punitive damage thing should have been a lot different," such that "[t]here should have been information discovered with a protective order" or "a reasonable notice to produce somebody from Borg-Warner."
The jury unanimously awarded punitive damages of $32.5 million to Medina's estate.
BWMT filed a motion for judgment notwithstanding the verdict (JNOV) and a motion for new trial. The motion for JNOV focused entirely on the punitive damages award, while the motion for new trial attacked all of the damage awards, punitive, economic, and noneconomic. The court denied both motions.
Eli, BWMT, and plaintiffs all filed timely notices of appeal and cross-appeal.
"In reviewing a judgment of nonsuit, `we must view the facts in the light most favorable to the plaintiff. "[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant's motion for nonsuit if plaintiff's evidence would support a jury verdict in plaintiff's favor. [Citations.] [¶] In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and
Code of Civil Procedure section 377.60 describes three groups of people who may assert a cause of action for wrongful death:
The parties agree that subdivision (c) of Code of Civil Procedure section 377.60 is the only provision that conceivably could confer standing upon Eli. They also agree that Eli resided in Medina's household for the requisite 180 days prior to Medina's death. They dispute whether the evidence showed that Eli was "dependent on [Medina] for onehalf or more of [his] support." (Code Civ. Proc., § 377.60, subd. (c).)
Whether there is financial dependence is a question of fact that is assessed on a case-by-case basis. (Chavez, supra, 91 Cal.App.4th at p. 1445; Perry, supra, 192 Cal.App.3d at p. 610.) The extent of any financial dependence likewise presents a question of fact. (See Chavez, supra, 91 Cal.App.4th at pp. 1447-1448.) Unlike Code of Civil Procedure section 377.60, subdivision (b), which contains no minimum threshold for dependence, subdivision (c) by its plain terms requires that the minor be "dependent on the decedent for one-half or more of the minor's support." (Code Civ. Proc., § 377.60, subd. (c).) Thus, we must determine whether the evidence, when viewed in the light most favorable to Eli, was such that a reasonable jury could conclude that he relied upon Medina for one-half or more of the financial support for his necessaries of life. (See Chavez, supra, 91 Cal.App.4th at p. 1447 ["The evidence supports an inference that appellants relied on decedent's contributions for necessities...."].)
We conclude that it was not. Even if we consider Eli's private pre-preschool a necessary of life, which is somewhat dubious on the facts of this case inasmuch as there was no testimony to that effect and Eli attended only three days per week, nothing in the record suggests that Eli financially relied on Medina for the necessaries of life. Instead, Medina's generous contributions to the Canetts' living expenses enabled all of them to enjoy "some of the niceties of life they might not otherwise be able to afford" (Perry, supra, 192 Cal.App.3d at p. 610), such as satellite television and the opportunity to save for a house and private school tuition. Aviana testified that the family was able to support itself prior to moving in with Medina. She and Gabriel both worked before the move and continued to do so afterward. Gabriel indicated that Medina's availability and willingness to care for Eli enabled him to work more overtime shifts than he could before, which improved the family's already self-supporting financial situation.
Although it was undisputed that Medina paid for many of the Canetts' day-to-day expenses and benevolently declined their offers to financially contribute to the household, there was no testimony that the Canetts could not afford to pay rent, buy groceries, provide clothes for Eli, or otherwise make ends meet (contra, Chavez, supra, 91 Cal.App.4th at p. 1447). To the
We accordingly affirm the trial court's grant of nonsuit on the record before us.
In its cross-appeal, BWMT challenges the punitive damages awarded to Medina's estate and the noneconomic damages awarded to his three daughters.
BWMT contends that the $32.5 million punitive damages award to Medina's estate cannot stand because it is unsupported by the evidentiary record. We agree with BWMT that the record lacks meaningful evidence of BWMT's financial condition and ability to pay a punitive damages award. We accordingly conclude that the award must be reversed on that basis. We need not and do not reach BWMT's alternative arguments concerning the state of the evidentiary record or its due process rights.
It is the province of the trial court to ensure that both parties comply with the letter and spirit of these discovery provisions. (See Mike Davidov Co.,
Evidence of a defendant's financial condition is a legal precondition to the award of punitive damages. (See Mike Davidov Co., supra, 78 Cal.App.4th at p. 607.) We examine the record to determine whether the challenged award rests upon substantial evidence. (See Baxter, supra, 150 Cal.App.4th at p. 681; Pfeifer, supra, 220 Cal.App.4th at pp. 1309-1310.) If it does not, and if the plaintiffs had a full and fair opportunity to make the requisite showing, the proper remedy is to reverse the award. (Kelly, supra, 145 Cal.App.4th at pp. 919-920.)
BWMT contends that the record does not contain adequate evidence of its financial condition to support an award of punitive damages. We agree.
As discussed above, the only evidence of BWMT's financial condition was the somewhat muddled testimony of plaintiffs' expert, Robert Johnson. Johnson analyzed the publicly available financial statements of BWMT's parent company, BorgWarner, Inc., and used extrapolation to estimate that BWMT's revenue was greater than $1.3 billion. Johnson's use of data regarding BorgWarner, Inc., rather than data directly pertaining to BWMT, while perhaps not ideal, was not in and of itself problematic, as BWMT contends. Unlike the plaintiff in Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th at page 1283, who introduced evidence pertaining only to the defendant's corporate parent, Johnson testified about BWMT specifically. Johnson's testimony about BWMT's revenue stream associated with turbochargers constituted some evidence of BWMT's financial condition.
The problem is that this evidence was, at best, pertinent to only half of BWMT's balance sheet and therefore was not, standing alone, meaningful evidence of BWMT's financial condition. (Mike Davidov Co., supra, 78 Cal.App.4th at p. 607.) Johnson's testimony did not shed any light on BWMT's liabilities or expenses, with respect to either the turbocharger line or BWMT's business as a whole. Indeed, Johnson acknowledged on cross-examination that revenue "doesn't tell you anything about" profits, losses, debts, or available credit. In other words, revenue alone provides little information about a defendant's ability to pay punitive damages. This case is analogous to Baxter, in which the plaintiff submitted evidence demonstrating
Plaintiffs contend that Johnson's testimony establishing "the historical net revenue" associated with BWMT's turbocharger line in 2002 — the 15 percent figure — and opining that nothing in BorgWarner, Inc.'s reports suggested that number had changed, shifted the burden of producing contrary evidence to BWMT. We disagree. Even construed in the light most favorable to plaintiffs, Johnson's testimony at most demonstrated that some portion of BWMT's business turned a profit. It did not provide any of the requisite current information about BWMT's overall financial condition outside the turbocharger line. (See Kelly, supra, 145 Cal.App.4th at p. 915.) This partial showing does not in our view shift the burden of producing evidence regarding BWMT's ability to pay to BWMT. In Pfeifer, we found expert testimony identifying the defendant's total assets and total liabilities, characterizing asbestos litigation funds as a liability, and describing the function of those litigation funds to be "sufficient to shift the burden of producing evidence regarding [the defendant's] ability to pay to [the defendant]." (Pfeifer, supra, 220 Cal.App.4th at. p. 1310.) The evidence here fell far short of that introduced by the plaintiffs in Pfeifer and accordingly did not shift any burden to BWMT.
Plaintiffs also suggest that the evidentiary shortfall was precipitated by BWMT. The record reflects otherwise.
In response to BWMT's oral request to exclude Johnson's expert testimony on the ground he analyzed the wrong company (BorgWarner, Inc., instead of BWMT), plaintiffs argued that BWMT and BorgWarner were one and the same and, moreover, "they don't get to avoid punitive damages and net worth because if that were the case, then they need to be standing here right now with a packet to hand me and my economist under 3295 as to what their particular financial information is for purposes of making that financial evaluation." The court asked plaintiffs if they had sent "any discovery or
The court suggested that plaintiffs could give BWMT a notice to appear, which prompted BWMT to object that such notice would be untimely on the eve of the punitive damages trial. Plaintiffs stood silent as BWMT and the court reviewed the notice requirements set forth in Code of Civil Procedure section 1987 and discussed "the traditional way" parties obtain financial data, namely by making a formal request prior to trial. They remained silent when the court mentioned and immediately rejected the possibility of a continuance.
The next morning, plaintiffs brought Johnson to court to testify, and the court allowed him to take the stand after plaintiffs represented that he was prepared to testify to the financial condition of BWMT. At the close of his testimony, plaintiffs indicated that they had issued notices to appear and called to the stand "whoever BorgWarner Morse TEC has brought to court to discuss this matter." BWMT objected that the notices were untimely and ineffective because they had been issued the night before to a corporation and an individual located in Michigan. The court sustained the objection "[o]n the grounds that it's untimely and it's unreasonable notice." Later, the court commented, "I believe that the approach of the punitive damage thing should have been a lot different. There should have been information discovered with a protective order. There should have been ... a reasonable notice to produce somebody from Borg-Warner, the defendant Borg-Warner. It wasn't done."
BWMT contends that the jury's awards of $2 million in noneconomic damages to each of Yolanda, Leticia, and Patricia was excessive. It argues that the awards were the product of improperly admitted evidence of Medina's pain and suffering, as well as the charged arguments plaintiffs' counsel made in closing. We reject these contentions and affirm the awards.
"We have very narrow appellate review of the jury's determination of the amount of compensation for [the plaintiffs'] loss of comfort and society." (Rufo v. Simpson, supra, 86 Cal.App.4th at p. 614.) "The jury `is entrusted with vast discretion in determining the amount of damages to be awarded,' and a reviewing court will reverse or reduce the award only `"`where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice ....'" [Citations.]' [Citation.]" (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 985 [159 Cal.Rptr.3d 204].) We typically defer to the jury's discretion "in the absence of some other factor in the record, such as inflammatory evidence, misleading instructions or improper argument by counsel, that would suggest the jury relied upon improper considerations." (Rufo v. Simpson, supra, 86 Cal.App.4th at p. 615.) "`It must be remembered that the jury fixed these damages, and that the trial judge denied a motion for new trial .... These determinations are entitled to great weight.... [A]ll presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.'" (Bender v. County of Los Angeles, supra, 217 Cal.App.4th at p. 986, quoting Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507 [15 Cal.Rptr. 161, 364 P.2d 337]; see Rufo v. Simpson, supra, 86 Cal.App.4th at p. 614.)
Our review of the court's rulings concerning the admissibility of evidence and BWMT's motion for new trial are similarly deferential. "`"Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion."' [Citation.]" (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332 [71 Cal.Rptr.3d 469].) "The court's `"discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered."' [Citation.]" (Ibid.) Even if the trial court abused its discretion in admitting evidence, any error requires reversal only if BWMT can demonstrate a reasonable probability that a more favorable result would have been reached absent the error.
BWMT suggests that plaintiffs' closing argument improperly inflamed the passions of the jury. BWMT contends that plaintiffs "seized" upon evidence of Medina's pain and suffering "to urge the jury to convert Mr. Medina's pain and suffering into a `big pile of money.'" Although it now repeatedly asserts that this and other similar arguments were improper, BWMT did not object to any of them during trial. "Generally, an appellant forfeits the right to attack error by expressly or impliedly agreeing at trial to the procedure objected to on appeal." (Pfeifer, supra, 220 Cal.App.4th at p. 1309.) By remaining silent during plaintiffs' counsel's zealous closing argument, BWMT forfeited any right to challenge the remarks as improper or inflammatory at this juncture.
BWMT's final contention is that the noneconomic damages awards are grossly excessive when compared to those awarded in factually similar cases. Although we may consider amounts awarded in similar cases, "in the final analysis the question in each case must be determined from its own peculiar facts and circumstances ...." (Daggett v. Atchison, T. & S. F. Ry. Co. (1957) 48 Cal.2d 655, 666 [313 P.2d 557].) "There is no fixed standard by which we
Factors such as the closeness of a family unit, the depth of their love and affection, and the character of the decedent as kind, attentive, and loving are proper considerations for a jury assessing noneconomic damages (Mendoza, supra, 206 Cal.App.4th at p. 721), and evidence of those factors was abundant in this case. The record reflects that Medina was an exceptionally generous, kind, and compassionate man who cared deeply for his family. Each of his daughters — the recipients of the challenged awards — provided compelling testimony about her close bond with Medina and the profound effect that his death had on her. Patricia testified that Medina helped her "find [her] way as an adult," gave her advice, and provided her with wisdom and comfort during difficult times in her life. Leticia testified that Medina was "the glue that held everybody together" and provided her and the rest of the family with encouragement, advice, and support. Yolanda, who described Medina as her best friend and confidant, testified that he always made the family smile and laugh and provided her with guidance and support. This evidence amply supports the jury's awards. As noted above, noneconomic damages "may be considerable in cases where ... the decedent had demonstrated a `kindly demeanor' toward the statutory beneficiary and rendered assistance or `kindly offices' to that person." (Corder v. Corder, supra, 41 Cal.4th at p. 661.) This case exemplifies this principle.
The wrongful death cases BWMT cites in support of its claim the awards for noneconomic damages are excessive, including Collins v. Plant Insulation Co. (2010) 185 Cal.App.4th 260, 265 [110 Cal.Rptr.3d 241], and Ehret v. Congoleum Corp. (2001) 87 Cal.App.4th 202, 204 [104 Cal.Rptr.2d 370], provide no information about the facts that underlay their smaller damages awards. They therefore furnish no basis for useful comparison. One of plaintiffs' cases, Mendoza, supra, 206 Cal.App.4th at pages 720-721, however, suggests that the evidence in the instant case justifies the awards. In Mendoza, a jury awarded $750,000 in noneconomic damages to each of the adult sons of a decedent who died while in police custody. (Mendoza, supra, 206 Cal.App.4th at p. 706.) The appeals court concluded the awards were not excessive because the record demonstrated that the sons had a loving and caring relationship with their father, even though they lived in a different country and received emotional support from him only via telephone. (See Mendoza, supra, 206 Cal.App.4th at p. 721.) The record here depicts
In their cross-appeal, plaintiffs contend that the jury's decision to allocate 25 percent of the fault for Medina's mesothelioma to ASARCO was not supported by substantial evidence. They argue that there was no substantial evidence to support a finding that Medina was actually exposed to asbestos as a result of his or his father's work at ASARCO, and that even if there was, there was no evidence — or a specific finding — that ASARCO was negligent in exposing its employees to asbestos or that any such negligence contributed to Medina's illness. We reject these contentions and affirm the jury's apportionment of liability.
We review the jury's allocation of fault for substantial evidence. (Pfeifer, supra, 220 Cal.App.4th at p. 1286.) That means that we "`consider the
There is other evidence, however, that supports the jury's implicit finding that it is more likely than not that Medina was exposed to asbestos at ASARCO. Medina testified that he was exposed to dust at ASARCO when his coworkers removed and replaced pipe-covering insulation in the furnace and boiler houses. Dr. Longo opined that ASARCO likely had thermal insulation in place in the 1940's and 1950's, and further testified that he had personally been to the plant and knew that asbestos was present there.
Plaintiffs argue that Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650 [33 Cal.Rptr.2d 702] (Dumin) compels the opposite conclusion. We disagree. In Dumin, the plaintiff alleged that he was exposed to asbestos-containing insulation manufactured and/or distributed by the defendant while he worked on two different Navy ships. (Dumin, supra, 28 Cal.App.4th at p. 653.) To prove his exposure, the plaintiff relied on deposition testimony from a different case in which the witness listed some of the insulation materials used at a naval shipyard and testified that he may have seen the insulation in question "somewhere around the '50s," and testimony from an engineer who said it was "`[q]uite probable'" that supplies on the Navy ships would be the same as those used at the shipyard. (Id. at pp. 653-654.) The trial court granted the defendant's motion for nonsuit, and the Court of Appeal affirmed. The Court of Appeal concluded that, when viewed in the best light, the evidence established only that the plaintiff was aboard a Navy ship in 1953 and 1954, that his duties included making repairs using insulation materials, that the ship was home ported at a particular shipyard at which the defendant's asbestos-containing product was one of many used, and that the ship's repair supplies probably came from the shipyard. The court determined that on this evidence, "a conclusion that Dumin was exposed to [defendant's product] while aboard [the Navy ship] in 1953 and 1954 would require a stream of conjecture and surmise." (Id. at p. 656.)
The evidence linking Medina to any asbestos-containing material at ASARCO is appreciably less tenuous. Medina's testimony placed him at the ASARCO plant, breathing dust from thermal insulation. The experts, one of whom had been to the ASARCO plant, collectively testified (1) ASARCO likely had thermal insulation in place in the 1940's and 1950's, (2) a majority of the thermal insulating products used in the United States during that time contained asbestos, (3) individuals exposed to thermal insulation face an increased risk of mesothelioma, and (4) this is particularly true where the
Finally, plaintiffs assert that the trial court's refusal to include on the special verdict form their requested questions pertaining to ASARCO's liability "was error and undoubtedly contributed to the jury's confusion in allocating fault in the absence of proof." Essentially, they contend that the special verdict form was defective because it did not require the jury to make explicit findings that Medina was exposed to asbestos at ASARCO and that such exposure was a substantial factor in causing his mesothelioma. As they explained to the trial court, they believe "it should be the same questions for those entities because [BWMT has] the same burden of proof, and the jury needs to make the same findings." We find no prejudicial error.
We presume that the jury followed the court's instructions regarding ASARCO's potential liability, which plaintiffs have not challenged. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 803-804.) The court instructed the jury that parties not named as defendants may nevertheless bear some responsibility for Medina's injury and that BWMT claimed ASARCO and General Motors contributed to Medina's harm. The court further instructed the jury that BWMT had to prove that ASARCO was "negligent or at fault," and that ASARCO's negligence or fault "was a substantial factor in causing
The question the court included on the special verdict form fully incorporated these concepts into a succinct query: "If 100% represents the total fault that was a substantial factor in causing Secundino Medina's death, what percentage of this 100% was due to the fault of Borg-Warner Corporation or others listed below who you have determined was a substantial factor? (The total fault allocations below must add up to 100%.)" The question by its terms required the jury to find both fault and causation before apportioning liability. There was substantial evidence in the record enabling the jury to make these findings, and we have no reason to conclude that the jury did not understand the special verdict form.
In their reply brief, plaintiffs rely heavily on Vollaro v. Lispi (2014) 224 Cal.App.4th 93, 168 Cal.Rptr.3d 323 (Vollaro) to support their contention that the special verdict form in this case was defective. We do not find their analogy to Vollaro persuasive.
The award of punitive damages is reversed. The remainder of the judgment is affirmed. The parties are to bear their own costs on appeal.
Epstein, P. J., and Manella, J., concurred.
