Quarles v. Advocate Mines Limited (Cal. Ct. App. 2006)

The decision

Court: California Court of Appeal, 1st Appellate District, 2nd Division
Decided: December 14, 2006
Stage: Appeal from judgment after trial
State: California

Outcome. The Court of Appeal affirmed the judgment for Geronia Quarles against Advocate Mines Limited, rejecting the mining company's challenges to the liability findings, causation, expert testimony and damages.

What the court held. A supplier of raw asbestos fiber that is used in a finished product can be liable for design defect under the consumer-expectations test, and substantial evidence supported the jury's findings on liability, exposure, causation and damages.

Issues decided: Causation, Compensatory Damages, Design Defect, Expert Testimony, Product Identification.

The people and their exposure

Geronia Quarles: asbestosis, pleural plaques and thickening

Who	Work	Where	When	Products
Geronia Quarles	laborer, helper and pipe fitter (construction)	W.M. Lyles construction company job sites, Fresno, California	1970-1985	asbestos-cement pipe and sheet, chrysotile, crocidolite, Johns-Manville Transite pipe
Geronia Quarles	auto detailer and sometime repairman doing brake jobs			brakes, clutches and friction materials

The defendants

Advocate Mines Limited (supplier)

Mines named here

Asbestos mines this opinion is about. Each mine's page says who ran it, when it worked, and what it produced.

Advocate Mines, Burlington Peninsula, Newfoundland

All asbestos mines

Decisions this opinion cites

Earlier decisions in our library that the court cited:

Hamilton v. Asbestos Corp., Ltd. (California Supreme Court, 2000). The California Supreme Court reversed the Court of Appeal, holding that Mitchell's second action (for mesothelioma) was not time-barred and that Asbestos Corporation made a general appearance in the first action, so the plaintiffs prevailed on both issues; remanded to resolve remaining issues.
Jenkins v. T & N Plc (California Court of Appeal, 2nd Appellate District, 7th Division, 1996). The Court of Appeal affirmed the judgment for plaintiffs Milton and Maxine Jenkins against T&N PLC, rejecting T&N's argument that a bulk supplier of raw asbestos fiber cannot be strictly liable; each side bore its own costs.
Lineaweaver v. Plant Insulation Co. (California Court of Appeal, 1st Appellate District, 1st Division, 1995). The Court of Appeal reversed the nonsuit for Plant Insulation as to Lineaweaver and remanded for retrial, but affirmed the nonsuit against King and Ward for insufficient evidence of exposure to Plant-supplied Pabco.
Sparks v. Owens-Illinois, Inc. (California Court of Appeal, 1st Appellate District, 2nd Division, 1995). The Court of Appeal affirmed the judgment for Charles and Betty Sparks, upholding the jury's findings that Owens-Illinois's Kaylo insulation was defective and was 100 percent responsible, and holding that Owens-Illinois waived its claim to allocate fault to the Navy.
Smith v. ACandS, Inc. (California Court of Appeal, 1st Appellate District, 1st Division, 1994). The Court of Appeal reversed the jury judgment, directed entry of judgment for ACandS, and remanded for a new trial against PG&E.

Amounts in the opinion

$500,000 (compensatory)
$100,000 (compensatory)
$50,000 (compensatory)
$600,000 (compensatory)

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.

GERONIA QUARLES, Plaintiff and Respondent,

ADVOCATE MINES LIMITED, Defendant and Appellant.

A110073

December 14, 2006

Court of Appeal of California, First Appellate District, Division Two

HAERLE, J.

I. INTRODUCTION

This asbestos action filed by Geronia Quarles against numerous defendants ultimately went to jury trial against one, Advocate Mines Limited (AML), a Canadian mining company that supplied asbestos fibers to Johns-Manville, which manufactured Transite pipe at a California plant between 1963 and 1973. Quarles claimed injury from exposure to that pipe as a pipe fitter.

By a special verdict, a jury found AML liable on theories of defective design, failure to warn and negligence, and found that AML acted with malice or oppression. It held AML 20-percent responsible for damages consisting of future medical expenses ($500,000), loss of home services ($100,000), fear of cancer ($50,000), and other non-economic damages ($600,000). AML appeals from the ensuing judgment as modified by costs, prejudgment interest and settlement offsets, essentially reiterating arguments it raised on unsuccessful motions for new trial or judgment notwithstanding the verdict. We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

The parties stipulated that AML began open-pit mining, processing and sale of asbestos fiber in 1955, at an asbestos deposit discovered that year at Baie Verte, Newfoundland. AML supplied asbestos fiber for use in Transite pipe made at the Johns-Manville plant in Stockton, California, between 1963 and 1973. The amount of AML fiber used in that plant for all standard Transite pipe during that time period averaged 30 percent per batch, the rest being purchased from other sources. Transit pipe consisted of 10 to 20 percent asbestos fiber and the rest finely ground silicate sand and cement. Quarles. Born in Texas, Quarles was nearly 70 years old when he testified at trial. He had lived since early childhood in Fresno, California, where he attended school until the tenth grade. He had asthma-related breathing difficulties since childhood and served briefly in the Marines until a hospitalization and 1954 medical discharge for asthma. He then tried farm labor, which his asthma also prevented. He worked as an auto detailer and sometime repairman (doing 25 to 30 brake jobs), made boxes for a packing company, was a "place rock driller" (boring holes for dynamite), did some construction work, and then started in 1970 as a laborer for W.M. Lyles (Lyles), a construction company in Fresno. He worked exclusively for Lyles for about 15 years, ultimately as a pipe fitter, and afterward worked as an asphalt paver or raker for other firms until he retired about 15 years before trial. He had married (or remarried) a little over a year before trial and worked only as a deacon and caretaker at his church. He smoked a pack and a half of cigarettes a day for about 47 years, from joining the Marines as a teen in 1952 until he quit in 1999.

During his years with Lyles, Quarles worked laying water, sewer and telephone pipe for new subdivisions—first as a helper and ultimately as a pipe fitter. This involved trenching for each type of pipe, laying Johns-Manville Transite pipe ranging from four to 12 inches in diameter, and covering over it with dirt; on cross-examination, he said that the sewer pipe was always clay or plastic, never Transite. Quarles saw "Johns-Manville Transite" stamped on the pipes (and other testimony showed that Transite was a Johns-Manville trademark). The pipe was handed into the trenches and cut and beveled for connections to junctions like manholes (barrels) or prefabricated telephone line boxes. It was also drilled to make copper pipe connections from water mains to individual houses. Quarles made 30 cuts a day, on average, beveling each one, and the air

was "real dusty" when he did this. He worked at first without any breathing protection and without anyone telling him that he should wear it, but white paper masks were furnished after a few years (although it is unclear whether he ever wore one.) He was never told at Lyles about asbestos in the Transite pipe, and did not even know what asbestos was. He saw no warnings on the pipe and never thought that it might cause a lung problem. Asked when he first learned that asbestos was harmful, Quarles testified that a friend told him about it and that he heard "people talk about it. . . through jobs." Quarles "didn't know anything about it," he testified.

Quarles testified that he had "difficulty breathing" when he was "a kid," and "had asthma the majority all my life" (sic) but kept it "under control." He had been to doctors at the Veterans Administration "for asthma" but was not diagnosed with asbestosis until the law firm that brought this suit for him sent him to a doctor. Upon retiring, Quarles had no hobbies but liked to go to the park, walk and "hang out" with friends. He used to vacuum floors, mop and clean up at his church but had to cut down "about three months ago" because he could not "get my breath." He no longer acted as caretaker because he could not "lift or even walk, it's hard for me to breathe." "The doctor," he explained, "said I had the asbestos sickness and I didn't even know what that was." "I can't sleep that good. I can't breathe. I can't describe it. And to find out that I have this type of sickness and that I might get cancer, man." He felt "bad" about this.

Charles Ay. Quarles's occupational exposure expert, Charles Ay, did asbestos abatement and detection, following a career as an insulator. He explained that asbestos, a natural occurring substance in rock, is mined, extracted and crushed into smaller and smaller particles, producing varieties called chrysotile, amosite and crocidolite. Chrysotile (called white asbestos) was mined "primarily" in Canada and widely used for its insulating and binding properties. It is a flexible fiber with greater tensile strength than steel of the same size. The finest airborne particles one can see (like dust in a cross beam of light) are 50 to 55 microns in diameter, and the most hazardous asbestos fibers are those of 5 or fewer microns and detectable only by microscopes. These cannot be filtered out by the lungs and become permanently lodged in the alveoli, in time causing scarring that impedes the exchange of gases. They may ultimately pass through to the pleural tissues of the lung lining, causing a disease called asbestosis, or even the cancer called mesothelioma. There are no safe levels of the carcinogen, for it does cumulative harm, but there are evolving industry standards called permissible exposure limits (PEL's). Protective clothing and respiratory filters are essential to avoid inhalation. There are industry regulations in that regard, too, but these are often not observed. The fibers are very light, and the smaller the fiber, the more it becomes and remains airborne.

Ay had analyzed, tested, cut and worked with Transite. Transite is Johns-Manville's "trademark name." Other manufacturers "make a like product. And it's just called Transite made by company A, or Transite made by company B." Transite is "always a chrysotile product," and it consists of about 15 to 20 percent chrysotile and 5 to 7 percent crocidolite. Cutting the material breaks it into a powder containing fibers in variable levels that depend on wind direction, humidity and other factors, but always at "levels in excess of permissible limits." Cutting it without adequate breathing protection (a correctly fitting mask or alternative air supply) exposes one to a hazardous level of asbestos. The cutting action takes "this non-friable product" and reduces it "to a powder that is a friable product." Use of cutoff or power saw "is throwing the material out into the air," and the volume of asbestos being released "would exceed" the PEL.

Ay explained friability in different contexts. In describing reasons to abate (i.e., encapsulate or remove) asbestos, he said: "Abatement is necessary only when material is friable. Friable means it can be crumbled by hand pressure." "So when we have friable material that is subject to the air stream, air is moving around it, where fiber can be dislodged, we need to abate that." In discussing Transite specifically, he said that he had done his own "testing to see the ability, how much friable material is on the surface. . . ." Based on Transite pipe he had used in a microvac study that entailed capturing fibers through a suction tube and filter, he had measured a four-by-four inch area using "about the same pressure as if you took and just lightly run your hand across. . . . You just want a light pressure." He found that "about 8 million fibers" were released and concluded that it was "an extremely dusty material." Asked later, regarding that study, whether "simply handling Transit pipe cause[s] a release of asbestos," he replied, "Sure does."

Ay corroborated Quarles's testimony about the size and uses of Transite pipe and explained that it had to be cut and beveled, from 13-foot lengths, to fit job requirements, couplings and tees. He also found exposure to asbestos fibers from work on automotive brakes and, based on Quarles's history, opined that all of the occupational exposures were from Transite pipe and brakes.

Donald Breyer. Plaintiff presented testimony from diagnostic radiologist Donald Breyer, who had examined diagnostic imaging of Quarles's lungs through X-rays and the more sensitive tools of C.T. (computerized tomography) and high

resolution C.T. A C.T. joins X-ray and computer technology, giving a cross-sectional "slice" of the patient, and a high resolution scan is the best way to diagnose interstitial fibrosis because it "narrows" the width of the "slice" downwards from 10 to one and a half millimeters. This is needed to allow one to see an anatomical abnormality, which is "not detectable" with the thicker slice, and even the thin slice "is going to miss the very earliest changes," which exceed the scan's capabilities and resolution. Biopsy is a better and perhaps "definitive procedure" but is invasive. It cuts out "a piece of the chest," with a lot of associated morbidity and complications.

Breyer saw bilateral diaphragmatic pleural plaques, thickened irregular interlobular septa, increased profusion of ill defined centri-lobular opacities, and small opacities in the mid and lower lungs. The abnormalities indicated interstitial fibrosis (scarring) and pulmonary disease consistent with asbestos. He said: "[T]he patient has interstitial fibrosis and the patient has pleural disease that appears to be asbestos-related pleural disease." Breyer described a "slight overlap" between asbestos and smoking-related irregularities. Some smokers develop peribronchial fibrosis or a detectable condition called centri-lobular emphysema ("almost exclusively" a smoking-related disease), but he saw no evidence of smoking-related C.O.P.D. (chronic obstructive pulmonary disease) or other such illness in these images. On cross-examination, however, he testified that this did not rule out a smoking-related disease. Radiologists can differ in impressions of images, and signs sometimes, but not always, show up "in mild cases." The distribution and appearance of "parenchymal findings" here could also be compatible with idiopathic pulmonary fibrosis, "idiopathic" meaning, however, "a disease of essentially unknown cause." Breyer did not see asthma-related disease: "Asthma does not have specific X-ray or C.T. abnormalities. Only serious complications of asthma might show something." The distribution and appearance here were not compatible with silicosis, which had an "entirely different appearance."

Norman Moscow. Defense radiologist Norman Moscow (called out of order) disagreed with Breyer's findings, after having reviewed the same images, plus Quarles's work and medical history. He did not find "any evidence of asbestos related abnormality on any of the films" he reviewed. He saw no pleural abnormalities (scars or diffuse pleural thickening). Even in the C.T. scans that he agreed were a more sensitive diagnostic tool for fibrosis, he found no small irregular opacities (interlobular septae thickening). He did not find "any evidence of asbestos-related disease," even in the high resolution scans.

Addressing Breyer's use of the term "consistent with" in rendering conclusions, Moscow said this meant that "there could be other causes for a particular abnormality" but that it also "could be caused by that particular disease process" under discussion. For abnormalities showing something "without question," like a fractured wrist or gall stone, Moscow said: "We use the term diagnostic of. That means that the findings are certainly those which go along with the diagnosis." "On the other hand, in radiology, there are some things so-called nonspecific. In other words, they're not specific for a particular diagnosis. And then we come to the conclusion that it's consistent with that."

Moscow stressed that his views were limited to an analysis of the images he saw. He "certainly would rely on [his] own experience as far as the findings on the X-rays and scans," but "would defer to the pulmonary specialist for an overall diagnosis" adding, "I'm not in a position to tell you that [Quarles] absolutely does not have the abnormality that is not seen on X-rays or scans."

Herman Bruch. Quarles then called pulmonologist Herman Bruch. Bruch described the progressive effects of asbestos, from fibers of five microns or less lodging in the alveoli, to scarring caused by body defenses unable to assimilate or expel them, then interstitial fibrosis (asbestosis) and inflammation, a migration of fibers to the very thin pleural linings of the lung and chest wall, pleural thickening and plaques (scar tissue), and possible development of cancer of the lung, or the cancer of the pleura called mesothelioma. Asbestos fibers are carcinogenic, and heavy exposure increase the risk of cancer fivefold. The process begins slowly and progresses inevitably, but at differing rates for different people, some showing scarring within 20 years and others within 40. The link between exposure and disease was a "total dose response," meaning, "the more dose you get, the more apt you are to get disease from it." One will also continue to deteriorate 20 or 30 years after an exposure "because the fibers are "entrapped in your lung."

Bruch examines patients in several ways, one being to listen for a noise produced by scar tissue during breathing. Scarring tends to collapse a lung so that it is compressed as if by elastic or a rubber band; breathing in stretches "those rubber bands" and creates a "snap" produced by "abnormally collapsed lung units that are opening up." Listening for "rales" is done, although these are ordinarily not heard at an early stage. Next comes a pulmonary function test (P.F.T.), which is far more accurate than a physical examination. It tests how deeply the patient can breathe, how obstructed or free the breathing is, and yields a very sophisticated measure of pulmonary diffusing capacity, i.e., how easily gases are transferred

from the air into the blood. This may be followed by a search for scarring with C.T. scans, which are superior to X-rays, and then high resolution scans if there is high suspicion of asbestosis.

Chronic obstructive pulmonary disease (C.O.P.D.) has several components. Most commonly, it is caused by smoking and associated with inflammation and destruction of the airways. Sometimes it is due to emphysema, a closing off of alveoli sacs, also usually caused by smoking. Asthma is an inflammation around the airways that obstructs them. Distinguishing those forms from asbestosis is not difficult. The former each cause large airway obstruction whereas asbestos causes small airway obstruction. Thus, when you see severe airway obstruction, you know have something beyond asbestosis, and with asbestosis, you see scarring not seen with the other forms.

With the scarring and other complications of asbestos, particularly pleural reactions, come a greater risk of developing cancer. Also, while age brings about a shortness of breath from reduced lung capacity, asbestosis will hasten the deterioration, perhaps bringing about a loss of breath at age 60 rather than 90.

Bruch did a clinical workup on Quarles, taking his medical and occupational histories, and writing a report. In Bruch's opinion, Quarles had signs of pulmonary asbestosis and asbestos-related pleural disease. Also, he had significant respiratory problems in recent years, which Bruch attributed to C.O.P.D. from smoking. He had no history of heart disease or high blood pressure. His blood pressure was on "the high side of normal," and his heart sounds were normal. Of "greatest import" for asbestosis-related disease was Quarles's period of "high asbestos exposure" from 1972 through 1985, when work he did as a pipe fitter "exposed him to lots of dust" from asbestos in the pipe and asbestos in a mud compound mixed on site and used as insulation. Bruch found "severe airway obstruction" but no characteristic "rales or opening noises."

Review of a chest X-ray revealed minor abnormalities in the form of increased interstitial markings in the lower lung fields, which might be scarring or other things, and possible evidence of pleural thickening. High resolution C.T. scans then revealed scarring around the periphery of the lung plus small areas of pleural thickening, both characteristic of asbestos-related changes. Scarring on the periphery also indicated scarring in the middle of the lung, but this would be harder to read. Small dots on the scan represented scar tissue around the terminal bronchia. The progression was not yet severe but showed interstitial fibrosis of those lung units. This was abnormal and "consistent with mild to moderate interstitial fibrosis of the lungs." These signs, in someone with a history of asbestos exposure, made it "very reasonable" to say it was pulmonary asbestosis. While pleural thickening was a "nonspecific" finding that could have other causes, it was "more likely than not" caused by asbestosis in this case.

Pulmonary function testing of Quarles revealed severe airway obstruction and moderate improvement after use of a bronchodilator, consistent with C.O.P.D. Total lung capacity was normal, but Quarles's diffusing capacity was very abnormal, only half of normal. Reduced diffusing capacity could be caused by emphysema or asbestosis, but since the C.T. scan showed very little emphysema—too little to account for the marked reduction in diffusing capacity—Bruch concluded that the reduction was caused in large part by the interstitial fibrosis and asbestosis. He felt that Quarles had C.O.P.D. from smoking and asthma, chronic bronchitis, and pulmonary asbestosis and asbestosis-related pleural disease. Bruch explained his use of the term "consistent with" as meaning more likely than not, or the most obvious cause. Quarles was not disabled from his pulmonary asbestosis "alone," Bruch concluded, but was very disabled overall. The asbestosis was playing "a small role" in his disability now but, if it progressed, would play a larger role.

Bruch also estimated the type and costs of future medical care Quarles would need for asbestos-related diseases. We discuss that more fully in conjunction with an appellate challenge to that testimony (part III D, post). Barry Ben-Zion. Economist Barry Ben-Zion, called by Quarles, testified as to Quarles's life expectancy and how to express future costs of medical care in present value. We detail his testimony later in this opinion (part III E, post). Gerald Levine. Defense pulmonologist Gerald Levine had conducted an evaluation of Quarles that consisted of getting a personal and work history, reviewing X-rays (one set ordered by him, plus older X-rays), and doing a hands-on examination and lab tests. He found no asbestosis. He listened for a crackling sound in Quarles breathing and looked for finger tip changes (clubbing), reviewed X-rays for markings in the lungs and, lastly, tested pulmonary function for lung shrinkage due to scarring. He found no restrictive lung disease and, while he did find obstructive lung disease, concluded that this was due to asthma and smoking, not asbestos. He explained: "Asbestos doesn't cause this type of obstructive disease. There is, if you take a non-smoking individual who's had a lot of asbestos exposure, you may find what we call a very small amount of

small airways obstruction. This is usually not clinically significant but it has been described in the literature." Quarles did have a significant amount of C.O.P.D. but "due to the asthma and the cigarette smoking and emphysema." If ever there was a need for hospitalization for pulmonary reasons, he felt, "it would undoubtedly be due to that." Despite taking an occupational history from Quarles, Levine had learned that Quarles had 15 years of asbestos exposure from cutting Transite pipe.

Levine had not reviewed any C.T. scans, but explained that he did not "need any C.T. and H.R.C.T." because he "saw it on the pulmonary function [test]." Also, having looked at a lot of scans, he felt, "[I]n circumstances where very subtle changes may be present, I would personally defer to a radiologist who is skilled in looking at C.T. scans." He did agree that Transite, when cut with a skill saw, created "a lot of dust" and that every preventable asbestos exposure should be prevented. In his opinion, cutting and beveling Transite about 35 times a day, five to six days a week for 15 years, "could be" a hazardous level of exposure to asbestos.

Richard Cohen. Richard Cohen, a specialist in occupational medicine called by Quarles, testified not about any specific facts of this case, but about the evolving general state of knowledge in medicine, science and industry, and about the dangers of asbestos in the workplace.

III. DISCUSSION

Most of AML's contentions rest, in part, on claimed lack of substantial evidence. " `In reviewing the evidence on. . . appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in to uphold the [finding] if possible. It is an elementary, but often overlooked principle of law, that when a [finding] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [finding]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court [or jury].' " (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571, quoting Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429, last bracketed matter ours.)

A. Liability Theories

AML contends that none of the liability theories accepted by the jury—negligence, failure to warn, or design defect—is supported by substantial evidence. Quarles argues, initially, that all three challenges are barred procedurally, reasoning: " [AML's] appeal should be rejected out of hand because it never made any effort to take from the jury the theories of recovery which it now alleges were improper, and thus failed to give the trial court the opportunity to make the `right' decision." Quarles claims lack of any motions in limine or "objecti[ons] to the jury instructions regarding an asbestos miner's liability for design defect or failure to warn—to prevent the alleged errors from occurring." We reject this claim of forfeiture. First, a party may challenge an erroneous instruction without having objected below, unless the claim is that the instruction was too general, unclear, or incomplete. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7; Agarwal v. Johnson (1979) 25 Cal.3d 932, 948-949; Code Civ. Proc., § 647.) Second, AML insists that it does not challenge the correctness of the instructions, only whether substantial evidence supports the verdicts reached on them. A party does not forfeit a substantial evidence claim by not raising that objection at trial. A substantial evidence claim attacks the verdict, and "the verdict of the jury" is a matter expressly "deemed excepted to" by statute (Code Cov. Proc., § 647). Third, even if AML had to object to lack of substantial evidence below, it did so by claiming insufficient evidence for all three liability theories in its motions for judgment notwithstanding the verdict and new trial (id., §§ 629, 657, subd. 6).

In attacking the liability theories, AML's briefing necessarily overlaps as the concepts do, beginning with negligence. Instructions conveyed the "reasonably prudent person" standard, stressing tests of what a person would have done "in the same situation and possessed of the same knowledge" as that shown by the evidence, whether the person "would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction," and the needed degree of caution as "depend[ing] upon the conditions that are apparent or that should be apparent to a reasonably prudent person" in the circumstances shown.[1]

AML claims lack of evidence of the "circumstances" under which a mining firm such as itself could be found to have breached the reasonably-prudent-person standard. It stresses that negligence, even in a failure-to-warn context, requires

proof of the standard of care (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 994-995, 1001-1004), and that the properties of asbestos vary with mine location and use. (Setliff v. E. I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1537; Mullen v. Armstrong World Industries, Inc. (1988) 200 Cal.App.3d 250, 257-258.) AML urges that Quarles did not offer evidence of the specific characteristics of the fibers AML sold and "did not offer any evidence concerning a mining company's standard of care with respect to such fibers or. . . particular products into which they might be incorporated. Although there was evidence that certain sizes of asbestos fiber might be dangerous under particular conditions, there was no showing that [AML] had any such knowledge when it operated its mine in Newfoundland, Canada, many years ago. There was no showing that [AML] knew or should have known that its asbestos fibers might be incorporated into a finished product that might be used in a dangerous manner."

AML further argues that it cannot be liable on a strict liability theory because no evidence showed that it had any role in manufacturing the Transite pipe or any means of labeling raw asbestos with a warning to the ultimate user. Further, Quarles conceded in testimony that he was unaware of asbestos being in the Transite pipe he handled and thus could not have had any subjective expectations concerning the asbestos.

Quarles debates much of that reasoning but also relies on Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178 (Arena), which held that a supplier of raw asbestos may be liable under the consumer-expectations test for design defect. We find liability supported on that basis and, since this is enough to uphold the judgment (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 997, 1001), address only those of AML's arguments addressed to Arena. We first summarize the instructions on products liability.

A special instruction told jurors: "Asbestos fiber is a product for product liability purposes. . . . [¶] A manufacturer or supplier of asbestos fiber can be subject to products liability to an individual suffering from a disease caused by exposure to the manufacturer's or suppliers' fiber." Standard instructions explained that a product may be defective due to "defect in manufacture or design" or failure to "warn the consumer of a hazard involved in the foreseeable use of the product" (BAJI No. 9.00) and set out the elements of design defect (BAJI No. 9.00.5)[2] and failure to warn (BAJI No. 9.00.7),[3] also naming "asbestos fiber" as the product. We are concerned here with design defect as defined in Arena.

We observe first that decisions from our own Division, involving panel members here, had by the time of Arena accepted the consumer expectation test as applicable to design defects in asbestos products, although evidently not in a case involving a supplier of raw asbestos incorporated into those products. (Morton v. Owens-Corning Fiberglas Corp. (1995) 33 Cal.App.4th 1529, 1533-1536; Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 472-476.)

Arena built upon Jenkins v. T&N PLC (1996) 45 Cal.App.4th 1224 (Jenkins), which found liability for a defendant who, like AML, was a bulk supplier of raw asbestos fiber that made no finished product, including pipe insulation from which the plaintiff claimed harmful exposure. (Id. at pp. 1226-1227.) Jenkins noted the advent of strict liability in California in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, where a manufacturer was held strictly liable in tort for placing a defective article on the market knowing that it was to be used without inspection (Jenkins, supra, at pp. 1227-1228), and that California had adopted section 402A of the Restatement Second of Torts, which provides: " `(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer. . . is subject to liability for physical harm thereby caused to the ultimate user or consumer. . . if [¶] (a) the seller is engaged in the business of selling such a product, and [¶] (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. [¶] (2) The rule stated in Subsection (1) applies although [¶] (a) the seller has exercised all possible care in the preparation and sale of his product, and [¶] (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.' " (Id. at p. 1228.)

Noting that it was a novel question in California, Jenkins rejected an argument that "raw asbestos fibers cannot constitute a `product' for strict liability purposes" (Jenkins, supra, 45 Cal.App.4th at p. 1228), accepting instead a contrary view from other states having the same Restatement Second provision (id. at p. 1229). Noting that evidence in Jenkins showed that raw asbestos fibers did "not change after becoming a component part of [the] pipe insulation" (ibid.), Jenkins held: "As a matter of law, a bulk supplier of raw asbestos fiber incorporated into a finished product can be subject to strict products liability to an individual suffering from a disease caused by exposure to the supplier's asbestos." (Id. at p. 1231.) Jenkins was a Second District case, published solely on that point, and the defendant's petition for review was denied by a divided Supreme Court. (Id. at p. 1232.)

Arena, a decision by Division One of our own district, accepted Jenkins and, further, upheld liability for a supplier of raw asbestos on a consumer-expectations theory of product defect. It rejected an argument, like AML's, that raw asbestos fibers are not designed in a product liability sense. (Arena, supra, 63 Cal.App.4th at pp. 1184-1191.) That view, Arena reasoned, was "too literal" in that the term design defect, as described in Supreme Court cases, "relates more to a legal conclusion that a product has deviated in some manner from what is reasonably expected, than it does to a description of a specific mechanical shortcoming or flaw. [Citations.] To the extent that the term `design' merely means a preconceived plan, even raw asbestos has a design, in that the miner's subjective plan of blasting it out of the ground, pounding and separating the fibers, and marketing them for various uses, constitutes a design." (Id. at pp. 1186-1187, fn. omitted.) " `Asbestos fiber which is extracted by crushing an asbestos rock and compacting the fiber into bags is a product within the meaning of the Restatement; it is no different than a poisonous mushroom extracted from the ground, which regardless of the changes it undergoes, remains poisonous to the user or consumer. [¶] The fact that an item is processed before it is sold is not determinative of its status as a product. . . .' [Citation.]" (Id. at p. 1187, fn. 5.) Arena then considered at length and rejected elaborate arguments, some repeated here by AML, that Jenkins was wrongly decided, and had misconstrued or overlooked precedent. (Arena, supra, 63 Cal.App.4th at pp. 1187-1191.) Arena held, "[R]aw asbestos is a product that may have a design defect when it fails to meet the ` " `commonly accepted minimum safety assumptions of its ordinary consumers.' " ' [Citation.]" (Id. at p. 1191.)

AML claims that Jenkins and Arena are each (1) "wrongly decided" and (2) "factually distinguishable in any event." We reject challenge (1) as improperly raised. By disputing Jenkins's and Arena's holdings that raw asbestos fiber is a "product" for strict liability purposes and that such a product supports liability as defectively designed under the consumer expectations test, AML claims, in essence, legal error, not lack of sufficient evidence. Moreover, several instructions in this case expressly embodied those holdings. A special instruction stated that asbestos fiber "is a product for product liability purposes," and BAJI No. 9.00.5 (fn. 2, ante) told stated that a supplier of "asbestos fiber" could be liable for design defect under the consumer expectations test. Quarles asserted that any challenge to those instructions has been waived below, but AML responded that it was not raising instructional error on appeal. Rather, "[it] contends that, in making its findings of fact, the jury ignored the instructions by making findings without evidence to support them."

We have honored that distinction once. We rejected Quarles's forfeiture claim, noting that while a party may challenge an erroneous instruction without having objected below, AML "insists that it does not challenge the correctness of the instructions, only whether substantial evidence supports the verdicts reached on them." (Part IIIA, ante.) AML cannot now have it both ways, disclaiming instructional error on one hand, while asserting that the case law does not support the pertinent instructions.[4] We therefore accept the case law, like the unchallenged instructions, as correct and construe AML's argument (2) as being that the verdict lacked evidentiary support because the present case is "factually distinguishable" from the case law.[5]

AML would distinguish Jenkins as involving exposure to pipe insulation, rather than pipe, and as relying in part on an Illinois precedent that spoke of a " `proclivity of raw asbestos to give off dust' " when it left the defendant's control. (Jenkins, supra, 45 Cal.App.4th at p. 1229, quoting Hammond v. North American Asbestos Corp. (1983) 454 N.E.2d 210, 216.) AML urges: "Even assuming that the asbestos fibers mined by [AML] had a `proclivity' to give off dust at the time that they left [AML's] mine, there was no such `proclivity' after the fibers were incorporated into Johns-Manville's Transite pipe. It may be argued that pipe insulation has the same dangerous proclivities as raw asbestos fibers, in that both are exposed to the air and capable of emitting dust. However, the evidence in this case indicates that Transite pipe was not friable until it was cut by individuals, such as the plaintiff, over whom [AML] never had any control."

Whatever Quarles may mean by "proclivity," we need not assume that the asbestos fibers used in Transite pipe gave off dust. It was stipulated that Transite pipe was made of 10 to 20 percent asbestos, 30 percent of which on average was supplied by AML, and Quarles testified that the air got "real dusty" when he cut the pipe and used the same cutting saw, or a file, to bevel its edges. The jury saw a videotape of Transite pipe being cut, and Quarles confirmed that, except for the video being filmed indoors and with protective breathing apparatus and suits, it depicted the dust conditions he experienced. Thus, exposure to asbestos dust is amply supported.

AML's point that its product was transformed, by Johns-Manville, into a product that was not friable unless cut is, first, a gross misrepresentation of Ay's testimony on occupational exposure to Transite pipe. Ay did at one point equate "friable" with being able to be "crumbled by hand pressure" (seemingly excluding Transite pipe), but this was in explaining the need to abate asbestos of various sources found in place and exposed to an "air stream." Specifically addressing Transite pipe,

Ay testified that his microvac testing of surface fibers, with just a light pressure from the hand, released about eight million fibers, showing the material to be "extremely dusty" and releasing fibers by "simply handling" it.

Second, while the evidence certainly shows that cutting and filing of the pipe increase its friability, we do not see this as rendering Jenkins's reasoning inapplicable to a supplier selling raw asbestos for use in Transite pipe as opposed to, say, pipe insulation or another product whose fibers are more readily rendered airborne. The defect in raw asbestos, under Jenkins's analysis, is that it is sold in a dangerous condition (undisputed on our record) and is expected to and does reach the user or consumer without substantial change in that condition. (Jenkins, supra, 45 Cal.App.4th at p. 1228.) The change to something less friable (Transite pipe manufactured by Johns-Manville) still left the fibers dangerous in the same manner —inhalation—when the pipe is cut. Nothing in the pipe processing, as far as our record shows, changed the innate danger of the fibers, only the ease with which one could dislodge them. Thus, as in Jenkins, nothing shows that the raw asbestos fibers here "change[d] after becoming a component part" of the secondary or finished product. (Id. at p. 1229.) If AML means to suggest it did not subjectively expect its fibers to reach the user or consumer without substantial change, there is simply no evidence to support that notion.

Focusing further on intent, AML argues against Arena's consumer-expectations holding because: "There is no evidence whatsoever of the subjective plans of [AML]. There is no evidence of any intentions on the part of [AML] with respect to marketing. There is no evidence that [AML] even knew of any of the many possible uses of its raw material, some of which were entirely safe." We disagree. First, AML identifies no record evidence of possible uses that "were entirely safe." This notion, it seems, rests on inferences drawn from case law ruminations (e.g., Mullen v. Armstrong World Industries, Inc., supra, 200 Cal.App.3d at pp. 256-257 & fn. 7), not the record.

Second, Arena reasoned: "To the extent that the term `design' merely means a preconceived plan, even raw asbestos has a design, in that the miner's subjective plan of blasting it out of the ground, pounding and separating the fibers, and marketing them for various uses, constitutes a design." (Arena, supra, 63 Cal.App.4th at pp. 1186-1187, fn. omitted.) " `Asbestos fiber which is extracted by crushing an asbestos rock and compacting the fiber into bags is a product within the meaning of the Restatement; it is no different than a poisonous mushroom extracted from the ground, which regardless of the changes it undergoes, remains poisonous to the user or consumer. [¶] The fact that an item is processed before it is sold is not determinative of its status as a product. . . .' [Citation.]" (Id. at p. 1187, fn. 5.)

Arena's observation that fibers remain poisonous to users or consumers regardless of changes weakens AML's argument, but AML focuses on the "subjective plan" idea, insisting that there is no substantial evidence that it planned to market its fibers for Transite pipe. We disagree. It was stipulated that AML "supplied asbestos fiber for use in the Johns-Manville Transite pipe made at the Johns-Manville plant" (italics added). This left it perhaps ambiguous whether AML knew its fibers were to be used in Transite pipe, but that ambiguity allowed jurors to reasonably infer as much. Instructions required them to find harm from "a use of th[e] product that was reasonably foreseeable by the defendant" and that the product's defect arose from its failure to "perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner" (BAJI No. 9.00.5; fn. 2, ante). We infer in support of the verdict that jurors found foreseeability on AML's part.

Finally, AML improperly supposes that, because Quarles had no idea asbestos was in Transite or even what asbestos was, the record shows "no reasonable expectations concerning the raw materials used for the pipe." The consumer-expectations test looks to the safety expectations of ordinary consumers (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567; Barker v. Lull Engineering Co., Inc. (1978) 20 Cal.3d 413, 418; Arena, supra, 63 Cal.App.4th at p. 1191), not a particular plaintiff, and a jury employs "its `own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence' " (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 472, quoting Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126).

Substantial evidence supports liability findings consistent with Jenkins and Arena, making discussion of further bases of liability unnecessary.

B. AML as the Source of Fibers

Despite its trial stipulation that AML supplied, on average, 30 percent of the asbestos fibers for all standard Transite pipe manufactured at the Stockton plant for the years in question, AML seizes upon a testimonial allusion to pipe being

manufactured at a plant in Southern California to now argue lack of substantial evidence that Quarles was exposed to its own asbestos fibers. We disagree.

At issue is this exchange with Quarles's occupational exposure expert, Ay: "Q. When you were working as an insulator, did you ever have occasion to work around or work with Johns-Manville Transite pipe? [¶] A. Well, I worked at the plant where they made it in Southern California. [¶] Q. What was that? [¶] A. That was the Wilmington plant. They made Transite pipe." Stressing a plaintiff's duty to show some contact with the defendant's product (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976 (Rutherford)), AML urges: "It is certainly possible that all of the Transite pipe cut by [Quarles] came from Wilmington, and there is no evidence of the origin of the raw materials used by Johns Manville at its Wilmington plant"; " [t]hus, it is purely speculative to find that [Quarles] was actually exposed to any asbestos fibers emanating from the defendant mine in Newfoundland." We disagree.

Substantial evidence supports the conclusion that Quarles was exposed to Transite from the Stockton plant. In fact, it would have been "speculative" for a juror to conclude that any of the pipe Quarles handled came from the Wilmington plan. There was no testimony to this effect, only an inference that AML deems "possible." "Possible," of course, does not always equate with reasonable. Any jurors who gave Wilmington pipe any thought—despite lack of invitation to do so—would have had to wonder why Transite pipe would be brought up from Southern California when it was available in Stockton. They also would have had to guess, due to a complete lack of evidence on the point, whether pipe was manufactured in Wilmington during the years when Quarles worked with Lyles.

As for AML now questioning "the origin of the raw materials used by Johns-Manville at its Wilmington plant," we begin with Ay's testimony that Transite was a trademark name for Johns-Manville, and that while other companies made "a like product," "it's just called Transite made by company A, or Transite made by company B." Jurors could infer that any pipe made by companies other than Johns-Manville, if commonly called Transite pipe, did not bear the trademark Transite name; Quarles specifically testified that he saw "Johns-Manville Transite" written on the side of the pipes he worked with, and Ay testified that Transite is "always a chrysotile product."

In any event, we need not decide the reasonableness of AML's Wilmington-pipe hypothesis, because we must draw all reasonable inferences to support the verdict, even though contrary inferences also find support in the record (People v. Rodriguez (1999) 20 Cal.4th 1, 11).

The inference we draw against AML, moreover, is not based on guesswork, conjecture or speculation, but on rational inferences from solid evidence (see generally Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651; Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655), and this renders AML's cases distinguishable (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1420-1421 [boiler-room worker could not identify working with defendant's products, and evidence was that its products were used incidentally, as one of four suppliers of fill-in materials, on just three to four out of 100 ships at sprawling shipyard]; Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 87-88 [plaintiff could not identify working with defendant's products, and evidence showed, at best, that defendant might have installed insulation somewhere within a huge refinery during two occasions when he worked there]).

C. Causation

AML claims insufficient evidence of legal cause, an issue Division Three has recently summarized: " `Ultimately, the sufficiency of the evidence of causation will depend on the factual circumstances of each case. Although the plaintiff must, in accordance with traditional tort principles, demonstrate to a reasonable medical probability that a product or products supplied by the defendant, to which he became exposed, were a substantial factor in causing his disease or risk of injuries, he is free to further establish that his particular asbestos disease is cumulative in nature, with many separate exposures each having constituted a "substantial factor" [citation] that contributed to his risk of injury.' (Rutherford, supra, 16 Cal.4th at p. 958.) `The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.' (Id. at p. 978.) Factors to consider in determining whether inhalation of fibers from the particular products should be deemed a `substantial factor' in causing the cancer include `the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, any other potential causes to which the disease could be attributed (e.g., other asbestos products, cigarette smoking), and perhaps other factors affecting the assessment of comparative risk.' (Id. at p. 975.) In Rutherford, the court recognized that `a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor,' but warned that

`[u]ndue emphasis should not be placed on the term "substantial." For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the "but for" test, has been invoked by defendants whose conduct is clearly a "but for" cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the injury. [Citation.] Misused in this way, the substantial factor test "undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby." ' (Id. at p. 969.)" (Jones v. John Crane, Inc., supra, 132 Cal.App.4th at pp. 998-999.)

AML attacks the implied conclusion of the jury that Quarles's exposure was to a reasonable medical probability caused by AML fibers, and this rests on subarguments that experts (1) said that Quarles had symptoms "consistent with" exposure to asbestos, (2) never used the term "reasonable medical probability," and (3) agreed that his smoking and asthma had contributed to his respiratory problems.

Point (1) is answered by pulmonologist Bruch, who was specifically asked about the consistent with phrasing of his opinion that Quarles had moderate to mild "interstitial fibrosis of the lungs consistent with pulmonary asbestosis." He explained that doctors "always use" the term "consistent with," rather than "diagnostic of," and that his phrasing meant "more likely than not"—that the "most obvious cause of [Quarles's] interstitial fibrosis [was] asbestos exposure." His testimony that such phrasing was "always" used by "[w]e doctors" stood without objection and allowed the jury to extend it to radiologist Breyer, who similarly found, from a chest X-ray and CT scan, abnormalities "consistent with interstitial fibrosis" and "pulmonary disease," each related to or "consistent with" asbestos. On given instructions telling them to approach credibility and conflicts in expert testimony as they would any other testimony (BAJI No. 2.41), the jury could reasonably discount the evidently contrary explanation by defense radiologist Moscow.

For point (2), AML cites case law stating that a finding of reasonable medical probability as to the etiology of cancer must be based on competent expert testimony (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403), but cites no holding that a medical expert must use the phrase reasonable medical probability in order for a jury to reasonably find the standard met. Quarles presented medical experts in this case whose opinions were, in essence, that a preponderance of the pertinent medical-related evidence they had examined showed the existence of disease caused by asbestos exposure. The given jury instructions did not assign any definition to "reasonable medical probability" that would require further explication from experts,[6] and we are cited to no authority in that regard either.

On point (3), it is not entirely true that there was no disagreement between experts that Quarles's lifelong asthma and 47 years of smoking had contributed to his respiratory problems. Radiologist Breyer found no evidence of smoking- or asthma-related C.O.P.D. In any event, pulmonologist Bruch explained that asthma and smoking produced large airway obstruction, while asbestosis obstructed small airways and mostly reduced pulmonary diffusing capacity, producing distinctly different harm, albeit with some shared effect on obstruction and overall deterioration of breathing.

Returning now to the criteria for substantial-factor review (Rutherford, supra, 16 Cal.4th at p. 975), the length, frequency, proximity and intensity of the exposure here is undisputed. Intense exposure to asbestos had lasted over a decade. As for other potential causes, we have already noted that the effects of smoking and asthma were distinguished by at least one expert accepted by the jury, and the only other asbestos exposures were brake jobs Quarles had done—25 or 30 as an auto detailer and eight or nine for his own cars. There is no evidence that the intensity of exposure during brake jobs remotely approximated that of the dusty power-saw cutting and shaping of Transite pipe. Evidence of causation from fibers in the Transite pipe vastly exceeds the negligible or theoretical threshold set by Rutherford. (Id. at p. 978.) Causation is supported. D. Expert Testimony on Future Medical Expenses

Pulmonologist Bruch testified about future medical care costs related to Quarles's asbestos-related disease, and AML claims error in the court overruling its objections to this testimony. AML urges that "[n]one of this evidence should have been admitted" because it was speculative and lacked a sufficient foundation. A closer look, however, shows that AML failed to preserve this issue for most of Bruch's testimony and, where it did preserve the issue, does not show cognizable error. Bruch began by proposing medical monitoring, and setting costs. Each year, he recommended, Quarles should have chest X-rays and interpretation ($350), a pulmonary function test ($4,000), and an evaluation to advise him about his situation and discuss test results ($150-$200). Every three years, there should be a high resolution C.T. scan and interpretation ($3,600). Quarles might need supplemental oxygen toward the end of his life, and that cost would be some $400 or more per month.

No timely and specific objection appears to have been raised to this testimony below, and the issue is to that extent forfeited here. (Evid. Code, § 353, subd. (a).)

The first objection came when Bruch was asked, "Are you able to—let's assume that based on the progressive nature of his disease, are you able to approximate the cost of a potential future hospitalization?" Defense counsel stated: "Objection. It calls for speculation. We don't know for sure, you know, what year he's going to be hospitalized, if ever." The court agreed, telling counsel for Quarles, "You haven't established yet the fact that he might be hospitalized." The next question, about the "average hospital stay for someone with asbestos-related disease," drew a defense objection of "vague and ambiguous," and "incomplete hypothetical." No answer was given, however, and the court went back to the foundational problem, saying: "Hold on. You still haven't established that in the course of the plaintiff's lifetime he might be hospitalized." A side bar conference ensued that was neither reported nor memorialized. Afterward, Quarles's counsel withdrew the unanswered question and asked, "Doctor, based on the progressive nature of asbestos-related disease, are you able to give us a likelihood of potential for Mr. Quarles, what possible futures might he face?" After the court clarified that this meant "in terms of his medical care," Bruch answered: "I think he's going to face increasing disability. Based on what we know of him today, he's going to face increasing disability over the next decade. And it's possible that he would rapidly deteriorate because of his asbestos if it should decide to accelerate his— [¶] You sometimes see rapid acceleration of his asbestos and that would contribute to his disability; so it's — [¶] I would say that he's going to have increasing respiratory difficulty and if he develops any respiratory infections, he may end up in the hospital. Asked to approximate the length of any such stay, Bruch said, "In general, pulmonary patients with exasperations, assuming they get better, that usually calls for around seven to ten days." No further objection was raised at that point, and we find no error. The court had agreed with AML's objection about foundation, and when Bruch did answer with a foundational prediction of a hospital stay and its length, counsel for AML was silent, and evidently satisfied. AML now argues that this whole line of questioning was speculative and without proper foundation, but no such point has been preserved by timely and specific objection below (Evid. Code, § 353, subd. (a)). The only further objection came when Bruch was asked to approximate "the cost of a day in the hospital" under "this scenario that you described," and a colloquy clarifies that AML's objection—"vague and ambiguous as to time"—was that the question did not specify whether these would be costs "today" or as of some unspecified future date. The court admonished Quarles's counsel not "to ask him for amounts in the future," but for "amounts today in case some hospitalization could occur in the future," and counsel for AML was evidently satisfied. Bruch answered: "It's very variable depending on how sick you are. And if you're very sick, you may end up in the I.C.U. And I think the base price of I.C.U. without the extras. . . is over ten thousand dollars a day, maybe even twenty, depending on all the extras. [¶] The regular hospital stay is probably a thousand dollars a day. . . . By extras, I might mean respiratory therapy treatments. It might be oxygen. Everything in modern medicine is tallied up in the big adding machine and you're always stunned to see the cost." Again, no further objection was lodged. In fact, counsel for AML began cross-examination at that point, asking if Bruch to confirm that he district not "know for sure" whether Quarles would ever be hospitalized for asbestosis. The answer was: "Well, he's going to be hospitalized for his pulmonary condition which is a combination of chronic obstructive pulmonary disease plus asbestosis. That's what he's suffering from. Both. . . . [¶] And I don't know for sure that he will be hospitalized for it but most likely he will."

Thus, AML did not preserve for appeal any issue relating to an adequate foundation for Bruch's testimony. Indeed, AML itself elicited the response that an asbestos-related hospitalization was "most likely" in his future.

AML launches a similar broadside attack on the foundation and competency of economist Ben-Zion's testimony about future economic trends,[7] the complaint being that there was no "proof, to a reasonable medical probability, of what specific future treatment will be needed. . . and how much such treatment costs." The problem again, however, is the lack of any objection on this ground below. (Evid. Code, § 353, subd. (a).) The issue is forfeited.

E. Excessive Economic Damages

AML lastly claims insufficient evidence to support the jury's award of economic damages in the amount of $600,000. The special verdict broke this down into $100,000 for loss of home services and $500,000 for future medical expenses (before settlement offsets or apportionment). But these inherently subjective decisions regarding damages are left to the jury as the trier of fact to apply its collective experience, common sense, and diverse backgrounds. We do not question a jury's discretionary determinations, so long as they fall within a reasonable range permitted by the evidence. (Abbott v. Taz

Express (1998) 67 Cal.App.4th 853, 857.) A trier of fact is not bound by the exact value of nontechnical services announced by an expert, but may fix the value bringing to bear its own general knowledge. (Ibid.)

We begin with the home services award and find it supported. The only specific testimony on this component was from economist Ben-Zion, who suggested a figure of $17,000 a year, decreasing to $13,000 or $14,000 after age 75. Using the same expert's estimate that Quarles would likely live to 81.4 years, these figures support the $100,000 awarded, even substantially discounted to account for household chores that Quarles might still be able to do. We also take into account that, while the expert chose a life expectancy of 81.4 years on a statistical basis (fn. 6, ante), jurors had heard Quarles testify that his parents lived to ages 85 and 89, which rationally allowed the jury to depart upward from the expert's figure. AML insists that, because Quarles never directly testified that he did household work at all, the record cannot support a presumed lost value of his services, but we find substantial indirect evidence as support. Jurors could employ their common sense and experience to conclude that Quarles, like most people, commonly did things around the house. This inference is reinforced because Quarles indicated in his own testimony that, as a deacon at his church, he had done caretaker work there, vacuuming floors, mopping and cleaning bathrooms, and cleaning up on the outside, until shortness of breath and an inability to lift things recently forced him to cut back or stop "those types of activities."

The $500,000 for future medical expenses, while generous, is also supported by substantial evidence. AML's complaint that the testimonies of Bruch and Ben-Zion should have been excluded or stricken altogether as lacking foundation has, as noted, been forfeited (part III D, ante). While this leaves AML free to argue a lack of substantial evidence, we find such support. Recommended aggregate monitoring costs of $5,725 could rationally be multiplied by a life expectancy of greater than the expert's statistical estimate of 12 or so remaining years, to reach another $100,000 or so, given the long lives of Quarles's parents. Then there are the considerably more costly prospects of I.C.U. hospitalizations ranging eventually from eight to 10 days at $10,000 to $20,000 a day. These costs were reinforced by Quarles' testimony that he had been hospitalized just two years before trial and was already unable to catch his breath or sleep well. On top of serious and prolonged exposure to hazardous levels of asbestos that had already shown progression to seriously reduced pulmonary function, there was evidence (e.g., Bruch's testimony) that Quarles nevertheless had healthy heart sounds and blood pressure still in the high average range. The future medical expenses were certainly in a generous range, but still supported by substantial evidence.

IV. DISPOSITION

The judgment is affirmed.

We concur:

Kline, P.J.

Richman, J.

[1] "Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. [¶] It is the failure to use ordinary or reasonable care. [¶] Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. [¶] You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence." (BAJI No. 3.10.)

"One test that is helpful in determining whether or not a person was negligent is to ask. . . whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he or she would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction. If the answer to that question is `yes,' and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence." (BAJI No. 3.11)

"The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reasonably prudent person under circumstances similar to those shown by the evidence.'" (BAJI No. 3.12.) [2] BAJI No. 9.00.5 gave these elements for design defect: "1. The defendant was the manufacturer or supplier of a product, namely asbestos fiber; [¶] 2. The product possessed a defect in its design; [¶] 3. The defect in design existed at the time it left the defendant's possession; [¶] 4. The defect in design was a cause of injury to the plaintiff; and [¶] 5. Plaintiff's injury resulted from a use of the product that

was reasonably foreseeable by the defendant. [¶] A product is defective in design: [¶] if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner."

[3] BAJI No. 9.00.7 gave these elements for failure to warn: "1. The defendant was the manufacturer or supplier of a product, namely asbestos fiber; [¶] 2. The product was defective; [¶] 3. The product defect was a cause of injury to the plaintiff; [¶] 4. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable to the defendant. [¶] A product is defective if the manufacturer or supplier of a product has a duty to warn of dangers, and fails to provide an adequate warning of that danger. [¶] A manufacturer has a duty to warn if 1) the use of the product in a manner that is reasonably foreseeable by the manufacturer involves a substantial danger that would not be readily recognized by the ordinary user of the product, and 2) this danger was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of the manufacture and distribution. [¶] A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer either is aware or should be aware, and that would not be readily recognized by the ordinary user. [¶] A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution."

[4] Quarles notes that no published case has disagreed with Jenkins or Arena on these points (e.g., Jones v. John Crane, Inc., supra, 132 Cal.App.4th at pp. 1001-1002), and AML notes that our high court has not expressly passed on the issue and, in one case, deemed it an issue for remand after a statute of limitations holding (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1149-1150 & fn. 14). [5] At oral argument, counsel for AML continued to want it "both ways," insisting that the given instructions are not challenged and were correct as far as they went, but that their case law predicates are overbroad in failing to distinguish situations where, as here, an intermediate manufacturer assertedly renders raw asbestos safe or less dangerous before it reaches the consumer. This may explain why AML does not craft its claim as instructional error. The error would evidently be waived for failure to object to instructions that were incomplete or too general. (Lund v. San Joaquin Valley Railroad, supra, 31 Cal.4th at p. 7; Agarwal v. Johnson, supra, 25 Cal.3d at pp. 948-949.)

[6] Unchallenged instructions related the substantial factor test generally (BAJI No. 3.76), explained that there may be more than one concurrent contributing cause (BAJI No. 3.77), and stated that "[a]n exposure to defendant's product was a substantial factor in producing plaintiff's illness if plaintiff establishes by a preponderance of the evidence that in reasonable medical probability this exposure was a substantial factor contributing to the plaintiff's risk of developing asbestosis" (BAJI No. 3.78).

[7] Ben-Zion suggested present values for expenses conveyed by Bruch and for the value of lost home services. He suggested a statistical life expectancy for a 69-year-old (actually nearly 70-year-old) man of Quarles's race as 81.4 years. He offered a yearly value of a retired man's "home" or "household" services (things done around the house) as about $17,000 a year, decreasing to $13,000 or $14,000 after age 75.

Ben-Zion fixed the present value of medical costs by taking into account a pattern of such costs increasing at a rate greater than inflation or interest, and thus requiring more money in current value than the current costs estimated by Bruch. He came up with an annual cost of $5,725 which, multiplied by 12.4 years of remaining life, yielded about $71,105. For the possibility of hospitalization, he used an average figure of 8.5 days for the stay and multiplied it by $10,000, (Bruch's no-extras I.C.U. figure) for a total of $85,000.

Sources

This page is provided for general informational purposes and does not constitute legal advice. Every asbestos case turns on its own facts, exposure history, diagnosis, deadlines, available evidence, and applicable law. Reviewing this page does not create an attorney-client relationship. For advice about your specific situation, call 833-4-ASBESTOS for a free case review.

Asbestos

Exposure

Look it up

By location

Cell types

Treatment & help

Cancers

Lung disease

Not sure

Trust claims

Lawsuits

Benefits

Guides & deadlines

Look up

History

Read & watch

The firm

Reach us

Quarles v. Advocate Mines Limited (2006)