Damages Award Against Defendant Pipe Supplier Affirmed On Appeal

Court of Appeal of California, First Appellate District, Division Five, December 9, 2020

From September 1976 to March 1977, Frank Hart (the decedent) worked in California cutting asbestos-cement pipe for new sewer lines. He was later diagnosed with mesothelioma, allegedly as a result of his exposure to asbestos through that work. On November 8, 2016, the decedent and his wife, Cynthia (the plaintiff), filed a complaint for personal injury and loss of consortium against numerous entities, including defendant Keenan Properties, Inc. The decedent passed away on October 3, 2019. By the time of trial, Keenan was the only remaining defendant, all other defendants settled or were dismissed.

After the trial concluded, the jury returned its verdict finding Keenan supplied the pipe to the decedent’s worksite that exposed him to asbestos. As to the personal injury cause of action, the jury awarded $1,821,050 in economic damages and $3,000,000 in noneconomic damages for pain and suffering. As to the loss of consortium cause of action, the jury awarded $500,000 to the plaintiff. The jury allocated fault among ten entities, finding Keenan was 17 percent at fault.

In its amended judgment, the court apportioned 45 percent of prior settlements to potential future wrongful death claims. After accounting for portions of the settlement proceeds attributable to noneconomic and loss of consortium damages, the court determined that the remainder, $789,532.18, was Keenan’s credit against the economic damages awarded by the jury. Keenan argued that this amount “was substantially and wrongfully altered” by the court’s allocation of 45 percent of prior settlement funds to a future wrongful death action. Based on the credit against economic damages and comparative fault reductions to the noneconomic damages, the net verdict against Keenan was $1,626,517.82.

On appeal, Keenan first argued there was no evidence the plaintiff paid nor was liable for medical expenses, and that the plaintiff’s expert relied upon documents that “did not provide a reasonable basis for his opinions.” Keenan claimed “[t]he evidence of medical charges presented to the jury was based on improper matter and therefore inadmissible. Keenan complained that “[t]he notice of lien does not constitute evidence of medical expenses actually incurred,” that the plaintiff “did not produce any evidence of amounts owed for Mr. Hart’s treatment,” and “[i]f the existence of a lien indicates a debt is owed, there is no evidence in this case regarding how much, or to whom.”

The court reviewed the trial court’s evidentiary rulings for an abuse of discretion. Moore v. Mercer, 4 Cal.App.5th 424, 444 (2016). They reviewed de novo whether a plaintiff is entitled to a particular measure of damages. Pebley v.Santa Clara Organics, LLC, 22 Cal.App.5th 1266, 1273 (2018). “The amount of damages, however, is a question of fact. The award will not be disturbed if it is supported by substantial evidence.”

Here, the court disagreed with Keenan finding evidence of the amount the decedent incurred for his medical treatment from September 2016 to May 2017, and evidence the decedent’s insurer has or had a lien against the plaintiff’s judgment as a means of recouping costs paid on the decedent’s behalf. Therefore, the plaintiff met their burden of showing that she (or the insurer) incurred medical expenses and the amount incurred.

Next, the court considered Keenan’s challenge to the allocation of past settlements between this action and a prospective wrongful death case.  After trial, Keenan argued the plaintiff should not be included among the potential wrongful death heirs because she alleged a “permanent” loss of consortium. Keenan argued the plaintiff was barred by principles of res judicata from seeking such damages in a wrongful death action.

In its order regarding the apportionment of settlement credits, the trial court rejected Keenan’s argument. The trial court found the plaintiff “did not allege a ‘permanent’ loss or expressly seek any damages beyond the date of plaintiff’s premature death.” Based on the language of the jury instructions, the verdict form, and the arguments of counsel, the court found “the jury was not asked to consider permanent loss of companionship, but solely pre-death loss of consortium,” and “a claim for a permanent loss was not litigated or resolved in this case.” The trial court found that “Mrs. Hart remains as a potential wrongful death heir along with the adult children of plaintiff.” On appeal, Keenan renewed its argument that the plaintiff was barred from recovery under a potential wrongful death action.

Under Civil Code section 1431.2,12 principles of comparative fault apply to a defendant’s liability for noneconomic damages, including damages for loss of consortium. Jones v. John Crane, Inc., 132 Cal.App.4th 990, 1006 (2005); Wilson v. John Crane, Inc., 81 Cal.App.4th 847, 863 (2000). A defendant’s liability for economic damages is not subject to an adjustment for its share of comparative fault because defendants are jointly liable for economic damages. Hackett v. John Crane, Inc., 98 Cal.App.4th 1233, 1239 (2002). However, under Code of Civil Procedure section 877, a defendant is entitled to a credit against its liability for economic damages for any portion of settlement proceeds that are properly attributable to the claims for economic damages resolved at trial.

The appellate court again did not agree with Keenan’s arguments here, finding that the arguments failed to establish that the trial court’s decision to allocate 45 percent of the settlement proceeds to future wrongful death claims was an abuse of discretion. The appellate court, therefore, affirmed the trial court’s ruling.