Clemmer v. John Crane, Inc. (2008)

Our plain-English summary of Clemmer v. John Crane, Inc. (California Court of Appeal, April 16, 2008).

Charlton Clemmer, a Navy machinist from 1952 to 1972, and his wife Kay sued John Crane Inc. and others after he developed mesothelioma. The opinion describes his work repacking steam valves and pumps on Navy ships, where he used packing from Johns Manville, Garlock and Crane. A jury found John Crane 7.5 percent liable and Thorpe Insulation 20 percent liable. The trial court granted John Crane a new trial because the Clemmers' lawyer urged the jury to treat John Crane and Crane Co., a separate settled company, as one entity. It conditioned that order on a cut in John Crane's share to 1 percent. The Court of Appeal upheld the misconduct finding. It held that a remittitur may be used only for excessive damages, not to fix an improper apportionment of fault, so it vacated that condition. It limited the new trial to apportionment of liability, found no error in the causation instruction or in allowing Clemmer's brief live testimony, and dismissed the cross-appeal as moot.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: California Court of Appeal, 1st Appellate District, 4th Division
• Decided: April 16, 2008
• Stage: Appeal from post-trial motions
• State: California

Outcome. The Court of Appeal vacated the part of the new-trial order that required the Clemmers to accept a remittitur, and limited the new trial to apportionment of liability, so the jury's liability finding against John Crane stood; the cross-appeal was dismissed as moot.

What the court held. A remittitur may be used only when a new trial is warranted solely because damages are excessive, not to correct an improper apportionment of fault. Counsel's closing argument urging that two separate companies were the same entity, after counsel conceded they were separate, was misconduct that could justify a new trial.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Compensatory Damages, Trial Procedure and Discovery.

The people and their exposure

• Charlton Clemmer: mesothelioma

Who	Work	Where	When	Products
Charlton Clemmer	fireman apprentice (the Navy)	USS Myles C. Fox	1950s	gaskets and packing, Johns Manville packing, Garlock packing, Crane packing
Charlton Clemmer	machinist second class, later machinist first class (the Navy)	USS Wilkinson	1954-1960	gaskets and packing, Johns Manville packing, Crane packing, John Crane packing

The defendants

• John Crane Inc. (manufacturer)
• Thorpe Insulation Company
• Crane Co. (manufacturer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

CHARLTON CLEMMER et al., Plaintiffs and Appellants,

v.

JOHN CRANE INC., Defendant and Appellant.

A114774, A115133

April 16, 2008

Court of Appeals of California, First Appellate District, Division Four

RIVERA, J.

John Crane Inc., appeals from a judgment entered in favor of Charlton and Kay Clemmer in this asbestos litigation, and from an order conditionally granting its motion for a new trial. John Crane also appeals from the judgment nunc pro tunc and certain posttrial orders. The Clemmers have filed a cross-appeal from the judgment and the court's order conditionally granting a new trial. We have consolidated the appeals for disposition. John Crane contends that the trial court erred in: (1) ordering a conditional new trial; (2) instructing the jury; and (3) permitting Charlton Clemmer to testify at trial although it earlier found that he was unavailable to testify and allowed the admission of his deposition testimony. In their cross-appeal, the Clemmers contend that the trial court abused its discretion in finding that their counsel committed misconduct and in conditionally ordering a new trial. We vacate the court's order granting the new trial insofar as it requires the Clemmers' consent to a remittitur and modify the order to limit the new trial to the issue of the apportionment of liability. I. FACTUAL BACKGROUND

Clemmer joined the Navy in 1952 and trained for 14 weeks in San Diego. He then went to machinist mate school in Great Lakes, Illinois. He was first assigned to do precommission detail for the USS Wilkinson. He was an apprentice and primarily loaded supplies aboard. He was subsequently assigned to the USS Myles C. Fox for approximately seven to eight months where he was a fireman apprentice. One of his duties included repair of the condensate pump. He also performed security watches in the boiler room and had regular watch duty in the engine room. Clemmer further observed repairs take place when the ship was in port in Philadelphia. These repairs included replacement of gaskets which involved replacing packing material on steam valves. Clemmer performed some of the repairs including the packing. He recalled using Johns Manville, Garlock, and Crane packing materials. He also recalled that Crane valves were used on the Fox to condensate lines and steam lines.

In August 1954, Clemmer began work on the Wilkinson. He was assigned to the auxiliary department and was responsible for hydraulics, air conditioners, refrigeration, winches, and other mechanical equipment. His work included repair, overhauling of compressors, removal and installation of gasket material, and replacement of expansion valves. He also stood watches in the engine and boiler rooms.

Clemmer was promoted to a machinist second class approximately a year later. He worked in the engine room where his duties included standing watches, making repairs, and doing upkeep. He worked on needle valves, IMO pumps, Crane valves, and Worthington condensate pumps. In the maintenance of the valves, he used replacement packing material manufactured by Johns Manville and Crane.

Clemmer, then a machinist first class, left the Wilkinson in March 1960. He subsequently became a chief machinist mate in Charleston working in the mine craft support unit, doing repairs for small ships, primarily working on refrigeration and hydraulics. After two years of shore duty, he was transferred to the USS Yorktown in San Diego in 1963. He was in charge of the hydraulic division and also had regular watch duties in the main engine room. He joined the USS Bordelon on November 22, 1963, where he was in charge of the engine rooms. Clemmer served on two additional ships before being transferred to the San Diego Naval Training Center. He retired from the Navy in April 1972.

Clemmer suffers from mesothelioma due to his exposure to asbestos. Dr. Allan Smith, an epidemiologist specializing in asbestos caused mesothelioma, testified that Clemmer suffered exposure to asbestos from working with valve packing and pump packing that contained asbestos. Dr. David Schwartz, a specialist in pulmonary critical care medicine, opined that

Clemmer's exposures to asbestos dating back to the 1950's and 1960's contributed to his risk of developing mesothelioma, and that his risk of disease was increased by his added exposures to asbestos products.

Clemmer's videotaped deposition was played for the jury because he was too ill to travel when trial commenced. Later during the trial, counsel for the Clemmers announced that he planned to call Clemmer as a witness to testify regarding an exhibit concerning John Crane packing and two photographs that were shown to an expert witness, and to update his medical circumstances. The court ruled that it would permit the testimony.

Clemmer testified that his last chemotherapy session was in late December and he was feeling better. He further testified that John Crane packing material shown on certain pages of a brochure was used by him, including John Crane packing material on a spool. He said the packing material was used in his work on pumps and valves.

The jury rendered a special verdict in favor of the Clemmers and against John Crane and Thorpe Insulation Company. The jury found that John Crane was 7.5 percent liable for the Clemmers' damages, and that Thorpe was 20 percent liable. John Crane moved for a new trial on the grounds of misconduct of counsel, instructional error, jury misconduct, and excessive damages. The court granted the motion, finding that the Clemmers' counsel improperly urged the jury to conclude that John Crane and Crane Co. were the same corporate entity, a conclusion that the parties knew to be false inasmuch as they were two separate companies and Crane Co. had settled with the Clemmers before trial. The court found that the misconduct resulted in an excessive verdict against John Crane given the evidence in the case,[1] and conditionally granted the motion for a new trial unless Clemmer agreed to a reduction in the percentage of responsibility attributable to John Crane to 1 percent. The Clemmers accepted the remittitur of the damages award against John Crane. On August 14, 2006, the court entered a judgment nunc pro tunc reflecting the jury's verdict and the court's orders on posttrial motions. II. DISCUSSION

A. Standard of Review

A motion for a new trial is addressed to the sound discretion of the trial court. (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 452 (Schelbauer); Malkasian v. Irwin (1964) 61 Cal.2d 738, 747 (Malkasian).) Its ruling will not be disturbed on appeal absent an abuse of discretion. (Ibid.) " `[T]he trial court, in ruling on [a new trial] motion, sits. . . as an independent trier of fact.' [Citation.] Therefore, the trial court's factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury's factual determinations." (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) In reviewing a trial court's ruling that a counsel's challenged argument constitutes misconduct, the appellate court determines "whether [the argument] was sufficiently misleading so that the trial court that had seen and heard the witnesses could find that it was improper. If that point is even reasonably debatable, the discretion of the trial court cannot be disturbed." (Malkasian, supra, 61 Cal.2d at p. 748.) B. Clemmers' Counsel Committed Misconduct in Closing Argument

During the course of the trial, counsel for John Crane, citing a "danger of confusion," sought to introduce evidence that John Crane and Crane Co. were separate entities. Clemmers' counsel objected to the introduction of that evidence and argued, inter alia, "[p]laintiffs have no argument with the notion that Crane Company is a distinct and separate company, and that Crane valves have nothing to do with John Crane Company. And we can enter into a stipulation to that effect if that's what is necessary to prevent any confusion. I think it's pretty clear from the evidence that's been received that we are talking about two different entities. . . ."

Yet, in closing argument, the Clemmers' counsel argued that John Crane failed to prove that it and Crane Co. were not the same entity: "[Counsel for John Crane] also talked a little bit about Crane Co. Crane Co. Okay. Now, what did he say about Crane Co.? He said some rather extraordinary things about Crane Co. He said John Crane did not make the Crane Co. valves. Look through your notes. Who said that? Nobody said that. Where is there evidence to support that statement? It's extraordinary. There is no evidence of that whatsoever. [¶] The only evidence he cited to that back in the day Crane Packing Company—you see, there is no doubt that the Crane Packing Company is the same company as John Crane. There is no evidence that Crane Packing Company, to support his claim that John Crane, Crane Packing Company, did not make Crane Company valves, or that they are indeed on the verdict form, as you get talking about, we don't know what's in those Crane

Co. valves, there is no evidence it wasn't Crane Packing Company. For them to be in the all others, he wants you to put Crane Co. Packing in the `all others' line [on the verdict form]. [¶] . . . [¶] Ask yourselves, who told you that Crane and Crane Co. were different companies? And it's no mistake, Ladies and Gentlemen. Because remember, what [counsel for John Crane] said in his Opening. [¶] `You should also be informed that John Crane or Crane Packing Company didn't make valves, but that Crane Co. did, and they put the name Crane on every one of their valves in metal stencil. So that[`s] also what Mr. Clemmer has identified.' [¶] Crane being a valve. And he went on to say: [¶] `There was a company called Crane Company or Crane Co. And you are going to hear evidence in this case about that company that was also a company in Illinois, not far from where John Crane was. You will hear evidence that it was a completely separate company.' [¶] And you haven't heard one jot or tittle about Crane Co. being different from Crane Packing Company back in the 50s, 60s and 70s. [¶] Ask it, ask somebody among your group to say who said Crane Co. isn't the same thing as Crane Packing Company, also known as John Crane? And for you to move any of the Crane Co. valve work away from John Crane, you have got to ask [counsel for John Crane], what supported your claim that John Crane did not make Crane Co. valves and didn't have any involvement with Crane Packing Company? It's not there."

John Crane moved for a mistrial, contending that the Clemmers' counsel committed misconduct during this rebuttal argument. The court found that the motion was timely and expressed shock at Clemmers' counsel's argument. Again, the court encouraged the parties to agree on a stipulation establishing that John Crane and Crane Co. were separate entities. The parties were unable to agree on a stipulation. After the jury rendered its verdict finding John Crane 7.5 percent liable, the court asked each juror whether "[i]n the course of your deliberations, did any of you, individually, conclude that John Crane and Crane Company are the same corporate entity?" Four jurors responded that they had considered the entities to be the same company.

The suggestion of counsel for the Clemmers to the jury that it could find Crane Co. and John Crane were the same corporate entity was improper in light of the fact counsel knew they were two separate companies and indeed that the Clemmers had settled with Crane Co. before trial. He not only misrepresented the facts to the jury but had earlier during the trial represented to the court and John Crane that he knew Crane Co. was a separate entity. While counsel for the Clemmers urged, in opposing the motion for a new trial, that he had not committed misconduct because he did not affirmatively claim that John Crane and Crane Co. were the same entity, but only argued that there was no evidence to support the finding that they were not, the court correctly rejected this distinction. On these facts, we see no abuse of discretion in the court's finding of misconduct.

C. The Misconduct of Clemmers' Counsel Justified a New Trial

Code of Civil Procedure[2] section 657, subdivision 1 provides that a new trial may be granted for "[i]rregularity in the proceedings of the court, jury or adverse party. . . by which either party was prevented from having a fair trial." "It is well settled that misconduct of counsel is such an irregularity and a ground for a new trial. [Citations.] It is also well settled that misconduct has often taken the form of improper argument to the jury, such as by urging facts not justified by the record. . . ." (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870 (Decker).)

In Decker, the court addressed a similar incident of misconduct of counsel. There, the attorney representing the City of Los Angeles misrepresented to the jury the value of property it sought to acquire by eminent domain. (Decker, supra, 18 Cal.3d at pp. 864, 871.) The city's attorney, in his argument to the jury, denied that there was a need for airport parking and that the defendant's property had a higher value because it could fulfill that need. (Ibid.) In fact, the city had already submitted an environmental impact report for a parking facility utilizing the defendant's property. (Id. at p. 865.) The court held that the attorney's argument constituted misconduct. "[T]he city by improperly denying the need for airport parking, misled the jury, failed to develop a full and fair record, and breached its responsibility to arrive at just compensation. We hold that this constitutes misconduct requiring a new trial." (Id. at p. 871.)

As in Decker, counsel in argument misrepresented to the jury a key factor it needed to determine the liabilities of the parties. The problem compounding counsel's misstep during argument was that in addition to misleading the jury, he had earlier represented to the court and John Crane that he knew John Crane and Crane Co. were different entities, and that this was not an issue in dispute. In sum, counsel's argument constituted misconduct justifying a new trial. The trial court properly so determined.

The court, however, abused its discretion in conditioning the new trial on Clemmer's agreement to a remittitur reducing the percentage of responsibility attributable to John Crane to 1 percent. It is well settled that a remittitur is to be used "only when a new trial is warranted solely on the grounds of excessive damages." (Schelbauer, supra, 35 Cal.3d at pp. 452-453.) Section 662.5 specifically so provides: "In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion: [¶] . . . [¶] (b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a [remittitur]." As section 662.5 makes clear, a remittitur may be used only to reduce excessive damages; there is no statutory authority for its use beyond that limited context. (Schelbauer, at p. 454.) "A remittitur may not be used to condition a new trial order if a damage award is excessive only because it reflects an improper apportionment of liability." (Ibid.)

Even though the court erred in ordering a conditional remittitur, our invalidation of that remittitur does not invalidate the trial court's order granting a new trial. " `[A] void condition can have no effect on an otherwise valid order. The condition is simply disregarded and the order stands.' " (Schelbauer, supra, 35 Cal.3d at p. 455.)

"When the trial court provides a statement of reasons as required by section 657, the appropriate standard of judicial review is one that defers to the trial court's resolution of conflicts in the evidence and inquires only whether the court's decision was an abuse of discretion." (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 636.) Here, the trial court did not conclude that the evidence was insufficient to support the verdict on liability against John Crane, but that the apportionment of damages was incorrect given the evidence in the case. The trial court, thus, concurred with the jury's special verdict that John Crane was liable to the Clemmers for its defective products and negligence but disagreed only with the jury's apportionment of liability. The record supports the trial court's finding of liability. Substantial evidence was adduced at trial showing that Clemmer was exposed to John Crane packing materials during his Navy service and that his exposure to asbestos in those materials caused his mesothelioma. A new trial on the issue of liability is not warranted.[3] D. The Trial Court Did Not Err in Giving CACI No. 435 (New 2003)

John Crane also contends that the trial court committed instructional error by omitting certain "substantial factor" language from the standard CACI No. 435 (new 2003). We have reviewed the instructions given to the jury and conclude that there was no error.

Our Supreme Court addressed the issue of causation in asbestos cases in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford). The court, noting the difficulties inherent in proving causation in asbestos cases, formulated a special instruction for use in asbestos litigation. The court stated that a jury should be instructed that "the plaintiff's or decedent's exposure to a particular product was a substantial factor in causing or bringing about the disease if in reasonable medical probability it was a substantial factor contributing to the plaintiff's or decedent's risk of developing cancer." (Id. at p. 977.) The court reasoned that "[w]ithout such guidance, a juror might well conclude that the plaintiff needed to prove that fibers from the defendant's product were a substantial factor actually contributing to the development of the plaintiff's or decedent's cancer." (Ibid.)

Here, the jury was given the standard instructions on substantial factor in the language of CACI Nos. 430 and 431. The jury was further instructed in the language of CACI No. 435 (new 2003) on causation for asbestos-related cancer claims that " [p]laintiffs may prove that exposure to asbestos from John Crane, Incorporated's, and/or Thorpe Insulation Company's product was a substantial factor in causing Charlton Clemmer's illness by showing, through expert testimony, that there is a reasonable medical probability that the exposure contributed to his risk of developing cancer." These instructions were consistent with the dictates of the Rutherford case.

John Crane argues that the CACI No. 435 (new 2003) omitted language that the Rutherford court used because it eliminated a second reference to "substantial factor" in the phrase, "in reasonable medical probability it was a substantial factor [italics added] contributing to the plaintiff's or decedent's risk of developing cancer." (Rutherford, supra, 16 Cal.4th at pp. 982-983.) John Crane urges that the court erred in eliminating the second reference to "substantial factor." We disagree. First, the Supreme Court in Rutherford recognized that it is " `neither possible nor desirable to reduce [the term, substantial factor,] to any lower terms' " and cautioned that the term should not be given "[u]ndue emphasis." (Id. at p. 969.) Second, the instruction given was consistent with Rutherford and the jury was further instructed on the definition of substantial factor in other instructions. Finally, considering the instructions in their entirety, there is no indication that the jury was misled.

(Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1047-1048 [in the absence of showing that instructions as a whole do not accurately state the law, they are unobjectionable].) We discern no error.

E. The Trial Court Properly Allowed Clemmer to Testify "[L]ive" at Trial

John Crane further contends that the trial court erred in allowing Clemmer to testify after he had earlier testified by video deposition. It argues that a party may not avoid live confrontation at trial for the majority of his testimony and then proceed to testify in the trial on a " `cherry pick[ed]' "issue.

Here, the record establishes that Clemmer, who lived in North Carolina, was too ill to travel at the time trial began. The court, thus, permitted him to testify by video deposition. The court, however, allowed Clemmer to give limited live testimony when his counsel informed the court that Clemmer's current health circumstances permitted him to testify on an issue that was not cumulative of those addressed in his deposition testimony. Counsel indicated that the testimony would be 15 minutes in duration. John Crane vigorously objected to Clemmer's testifying in court. Counsel for Clemmer indicated in an offer of proof that Clemmer would update his medical circumstances and testify about two photographs that were shown to an expert witness as well as photographs of John Crane packing contained in an exhibit. The court ruled that it would permit the testimony.

We cannot conclude that the trial court abused its discretion in allowing Clemmer to testify. Contrary to John Crane's argument, Clemmer was not estopped from testifying simply because his counsel had informed the jury that Clemmer would testify at trial by video deposition because he was too ill to travel. The record established that Clemmer had recently undergone a long course of chemotherapy and had suffered a severe allergic reaction. At the time of trial, his prognosis was very poor and it was likely that he would die within the next six to nine months. Given these circumstances, this is not a case, as John Crane argues, where Clemmer was " `playing fast and loose with the courts' " and seeking to benefit by taking inconsistent positions in the same proceeding. That Clemmer was well enough to travel and testify for a limited period during the trial was fortuitous. Finally, the record shows that his testimony was extremely limited and of very short duration, encompassing less than 23 pages of reporter's transcript. The trial court did not err in admitting the testimony. III. DISPOSITION

We vacate the order conditionally granting John Crane's motion for a new trial insofar as it requires Clemmer's consent to a remittitur, and modify the order to limit the scope of the new trial to the issue of the apportionment of liability among the parties. The cross-appeal is dismissed as moot. The parties shall bear their own costs on the appeals.

We concur:

RUVOLO, P.J.

REARDON, J.

[1] The court summarized the evidence against John Crane as follows: "John Crane made, among other things, packing for valves. The packing contained asbestos. John Crane Company never made valves. During the time frame relevant to this case, other companies also made valve packing. [¶] There was no evidence presented showing that the valves that Crane Company sold contained packing made by John Crane. [¶] There was also no evidence of any corporate connection between John Crane and Crane Company. The Clemmers sued each company separately. Both appeared in the trial court and were represented by separate counsel. Crane Company settled before the jury was brought in. . . . [¶] . . . [¶] There was evidence in the record that Charlton Clemmer worked on Naval ships that had a very large number of Crane Company valves. Periodically, the packing in those valves would wear out. In the course of his work, Mr. Clemmer sometimes repacked valves. . . . The process of removing the packing released respirable asbestos into his breathing zone. There is no way to determine what company manufactured the old packing. He testified that he would repack the valves sometimes using John Crane packing."

[2] All further statutory references are to the Code of Civil Procedure.

[3] In light of our conclusion, we need not address the issue of whether the trial court erred in polling the jury after its verdict about whether any of the jurors concluded that John Crane and Crane Co. were the same corporate entity.

Sources

• The opinion on Google Scholar
• California asbestos laws
• California asbestos exposure sites