Howard v. Corning

Opinion

This appeal arises from a lawsuit alleging permanent personal injuries arising from exposure to asbestos and products containing asbestos. Denis B. Howard (Howard) and Malee C. Howard (collectively appellants) appeal a special jury verdict for respondent Owens Coming^[1] finding that Howard’s exposure to asbestos was not a cause of injury, damage, loss or harm to him. Appellants contend the trial court erred in denying a directed verdict in their favor, and there was insufficient evidence as a matter of law to support the jury verdict for Owens Coming. We affirm the judgment.

Howard and his wife filed the instant lawsuit in March 1995. The complaint alleged seven causes of action based on various theories including negligence, strict liability, emotional distress, intentional tort, conspiracy and loss of consortium; and sought general, special and punitive damages against no fewer than 215 named defendants and 300 unnamed does. Specifically, the complaint alleged that as a result of his exposure to asbestos and asbestos-containing products while employed by the United States Navy • and Army between 1960 and 1989, Howard had suffered “severe and permanent injury . . . including, but not limited to breathing difficulties, asbestosis, lung and/or other cancer, mesothelioma, and/or other lung damage”; and that the defendants “knew, or should have known, and intended” that their asbestos-containing products would suffer deterioration or be put to uses which would result in the release of airborne asbestos fibers foresee-ably causing damage to persons like Howard.

For administrative purposes, Howard’s lawsuit was grouped together with a number of other asbestos personal injury cases, collectively captioned In re Brayton Group 115, and proceeded to trial against Owens Corning alone.

Howard was bom in October 1942. He enlisted in the United States Navy in 1960, soon after graduation from high school. At trial, Howard testified in detail to his occupational history, including his alleged exposure to asbestos. From 1960 until 1963, Howard was engaged in land-based basic training, classroom training in antisubmarine warfare, and assignment to service at Pearl Harbor, Hawaii, as a torpedoman’s mate. His duties included cleaning and maintenance of torpedoes and delivery of torpedoes to ships stationed at Pearl Harbor. Howard testified that during this period his shipboard work

process.^[2] As part of his duties, Howard had occasion to walk through areas of the ship, including the boiler and engine rooms, where insulation was being removed by other seamen. Howard testified that there was “evident dust” visible “on many occasions” during this process.

In late November 1969, Howard was transferred from the Weiss to his last ship, the USS Current, on which he served as a bosun’s mate until the end of March 1970. Howard did not testify to any suspected asbestos exposure on board the Current. He was discharged from the Navy in April 1970 after almost 10 years of service. Howard testified that during the entire period he was in the Navy, he never removed, applied, installed or worked directly with any material that he thought contained asbestos.

Five weeks after leaving the Navy, Howard enlisted in the United States Army. He served in the Army another 10 years, performing noncombatant duties in Alaska, Vietnam, Thailand, South Carolina and Panama. To the best of his knowledge, Howard was not exposed to any asbestos or asbestos-containing products during the entire time he served in the Army. After retiring from the Army in August 1980, Howard obtained a college degree and went into federal civil service. In August 1989, he applied for and obtained disability retirement based on his health. Howard testified that he was not exposed to asbestos either in college or while working in the civil service.

Howard testified that he began smoking cigarettes around the age of 11 or 12. Since the age of 17, he had been smoking at least 2 packs of unfiltered Camels cigarettes every day. Although he quit on three separate occasions for periods of approximately six months each, most recently following his surgery for lung cancer, Howard nevertheless resumed each time. As of the time of trial, Howard was still smoking approximately two packs of unfiltered cigarettes a day, as he had for forty years.

None of Howard’s personal treating physicians testified on his behalf at trial. Instead, he offered the testimony of two expert witnesses. Dr. Carolyn Ray, an internist, testified that she examined Howard once, on October 16, 1995. At the time, Howard complained of shortness of breath, inability to climb stairs, and extremely limited ability to engage in other physical activities. Based on this physical examination, Howard’s statements to her, pulmonary-function testing, and examination of Howard’s medical records and a chest X-ray showing bilateral pleural thickening with plaques,

On cross-examination, Dr. Smith admitted that (a) the minimum threshold amount of asbestos exposure necessary before developing asbestosis was unknown; (b) virtually everyone has some “background” exposure to asbestos; and (c) there is no reason to believe such background exposure would cause asbestosis. Asked whether his opinion of the cause of Howard’s lung cancer would change on the basis of evidence Howard’s only contact with asbestos beyond normal background exposure had been during a two-month period when he had intermittently walked through an area where other persons were performing work with asbestos-containing insulation, Dr. Smith testified “it would change my answer. I guess it would become a question.” However he reiterated his opinion that “the asbestos caused the lung cancer,” based on the assumption Howard’s chest X-ray provided evidence of asbestos exposure.

Owens Coming’s trial counsel failed to file a timely designation of expert witnesses or tender expert reports to Howard’s counsel. The trial court denied Owens Coming’s motion to submit its expert witness list, and granted Howard’s cross-motion to exclude any testimony from. Owens Coming’s experts. Owens Coming was therefore barred from introducing any expert witness testimony at trial.

After the defense rested, Howard’s trial counsel moved for a directed verdict finding that Howard had suffered damage, loss or harm from exposure to asbestos. He argued “there is no defense expert testimony whatsoever” to counter either Dr. Ray’s diagnosis of asbestosis, asbestos-related pleural disease and asbestos-related lung cancer or Dr. Smith’s expert opinion that Howard’s lung cancer was caused by exposure to asbestos. The trial court denied the motion on the ground the jury could disregard or reject the expert testimony offered on behalf of Howard if there was any reasonable basis to do so, such as a finding that there was insufficient factual foundation for the expert testimony, Dr. Ray’s diagnosis was suspect because of her lack of current technical certification in reading X-rays, or the expert testimony was neither impartial nor unbiased.

The trial court instmcted the jury on expert testimony in accordance with BAJI Nos. 2.40, 2.41 and 2.42.^[3] The jury returned a special verdict in favor of Owens Coming finding that Howard’s exposure to asbestos was not “a cause of injury, damage, loss or harm” to him. Judgment was entered in favor of Owens Coming. Howard moved for a new trial, contending the jury

was required to accept the opinions of his expert witnesses. After oral argument, the trial court denied the motion.^[4] This appeal followed.

On appeal, Howard argues the trial court erred in denying him a directed verdict based on the expert witness testimony that he is suffering from asbestos-related illnesses. Because Owens Coming presented no expert witness testimony of its own, leaving Howard’s own expert witness testimony uncontradicted, Howard contends there was no evidence either to justify the denial of a directed verdict in his favor, or to support the jury’s ultimate verdict for Owens Coming. Howard is wrong.

Like a motion for nonsuit, a motion for a directed verdict is in the nature of a demurrer to the evidence. (Walters v. Bank of America (1937) 9 Cal.2d 46 , 49 [ 69 P.2d 839 , 110 A.L.R. 1259 ]; Metzenbaum v. R.O.S. Associates (1986) 188 Cal.App.3d 202 , 208 [ 232 Cal.Rptr. 741 ]; Fuchs v. Southern Pac. Co. (1935) 5 Cal.App.2d 409 , 412 [ 42 P.2d 704 ]; 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 430, p. 491.) In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. It may not grant a directed verdict where there is any substantial conflict in the evidence. (7 Witkin, Cal. Procedure, supra, Trial, §§ 419, 431-432, pp. 480-481, 492-494.) A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there

is no evidence of süfficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. (Casey v. Proctor (1963) 59 Cal.2d 97 , 103 [ 28 Cal.Rptr. 307 , 378 P.2d 579 ]; Walters v. Bank of America, supra, 9 Cal.2d at p. 49; Estate of Lances (1932) 216 Cal. 397 , 400-401 [ 14 P.2d 768 ]; Shapiro v. Hu (1986) 188 Cal.App.3d 324 , 334 [ 233 Cal.Rptr. 470 ]; Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374 , 394-395 [ 196 Cal.Rptr. 117 ]; Grafton v. Mollica (1965) 231 Cal.App.2d 860 , 862 [ 42 Cal.Rptr. 306 ]; Estate of Easton (1931) 118 Cal.App. 659 , 662 [ 5 P.2d 635 ]; 7 Witkin, Cal. Procedure, supra, Trial, §§419, 431-432, pp. 480-481, 492-494.)^[5]

Thus, if the party resisting a motion for directed verdict produces sufficient evidence to support a jury verdict in his or her favor, the motion must be denied. In this case, of course, the jury found in Owens Coming’s favor at the conclusion of trial. Howard’s assertion that he was “unfairly denied a directed verdict” is therefore functionally equivalent to contending there was insufficient evidence to support the jury verdict against him. Only if there was no substantial evidence in support of the verdict could it have been error for the trial court earlier to have denied Howard’s motion for directed verdict. (Grafton v. Mollica, supra, 231 Cal.App.2d at p. 862.)

Our consideration of the issue whether the judgment was supported by substantial evidence is governed by the well-established standard of review applicable to any claim that a judgment or finding is not supported by the evidence in the record. Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51 , 60 [ 148 Cal.Rptr. 596 , 583 P.2d 121 ]; County of Mariposa v. Yosemite West Associates (1988) 202 Cal.App.3d 791 , 807 [ 248 Cal.Rptr. 778 ]; Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86 , 97 [ 178 Cal.Rptr. 831 ]; 9 Witkin, Cal. Procedure, supra, Appeal, § 359, pp. 408-410.)

It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a

lung cancer to the extent it was based on Dr. Ray’s examination of Howard’s chest X-rays, because this evidence was uncontroverted, concerned a matter that was within the knowledge of experts only, and was not within the scope of common knowledge. Appellants do not stop here, however. They go so far as to argue that, as a matter or law, “[i]t is only when there is a conflict between expert testimony and the facts of the case, that the jury may determine the relative weight of the evidence. But when the expert testimony is uncontroverted, and no conflict exists, as here, the 1uncontroverted testimony upon matters of expert knowledge is conclusive.’ ” (Italics in original, fns. omitted.) In support of this assertion, appellants cite two cases involving alleged professional negligence or malpractice (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234 , 277 [ 7 Cal.Rptr.2d 101 ]; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278 , 313 [ 136 Cal.Rptr. 603 ]), and several older negligence cases (Mittelman v. Seifert (1971) 17 Cal.App.3d 51 , 69 [ 94 Cal.Rptr. 654 ]; Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89 , 94 [ 199 P.2d 302 ]; Lindsay v. County of San Diego Ret. Bd. (1964) 231 Cal.App.2d 156 , 160 [ 41 Cal.Rptr. 737 ]).

Appellants have seriously misstated the law. A careful examination of the cases they cite reveals that the stated principle—uncontroverted expert opinion testimony may be “conclusive” on the jury—is actually the “single exception” to the general rule that “expert testimony, like any other, may be rejected by the trier of fact-, so long as the rejection is not arbitrary.” ('Conservatorship of McKeown (1994) 25 Cal.App.4th 502 , 507-510 [ 30 Cal.Rptr.2d 542 ].) Thus, “[a]s a general rule, ‘[provided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]’ [Citation.] This rule is applied equally to expert witnesses.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 , 890 [ 92 Cal.Rptr. 162 , 479 P.2d 362 ].) The exceptional principle requiring a fact finder to accept uncontradicted expert testimony as conclusive applies only in professional negligence cases where the standard of care must be established by expert testimony. In such instances, “the plaintiff must prove by members of the defendant’s profession the standard of care or skill ordinarily used in the practice of that profession at a particular place” (Liberty Mut. Ins. Co. v. Industrial Acc. Com., supra, 33 Cal.2d at p. 95); only then may this “standard of care, when testified to by experts who are uncontradicted, ... be conclusively shown by such testimony.” (Conservatorship of McKeown, supra, 25 Cal.App.4th at p. 509.)^[6]

Because the instant case does not present any issues of professional negligence or medical malpractice, there was no reason to require the trier of

fact to accept as “conclusive” the uncontradicted testimony of appellants’ experts. Instead, the general rule applies. Under this rule, as the trial court correctly instructed the jury, the opinion of any expert witness “is only as good as the facts and reasons on which it is based. . . .” (BAJI No. 2.40.) If the jury finds that the party offering expert testimony has failed to prove any foundational fact, or that some fact on which the expert’s opinion is based has been disproved by the opposing party, the jury is required to consider that in evaluating the expert testimony. Although a jury may not arbitrarily or unreasonably disregard the testimony of an expert, it is not bound by the expert’s opinion. Instead, it must give to each opinion the weight which it finds that opinion deserves. So long as it does not do so arbitrarily, a jury may entirely reject the testimony of a plaintiff’s expert, even where the defendant does not call any opposing expert and the expert testimony is not contradicted. (BAJI No. 2.40; Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 890; Conservatorship of McKeown, supra, 25 Cal.App.4th at pp. 507-510; Lubetzky v. Friedman (1991) 228 Cal.App.3d 35 , 40 [ 278 Cal.Rptr. 706 ]; Beard v. David (1960) 179 Cal.App.2d 175 , 177-178 [ 3 Cal.Rptr. 651 ] [testimony of plaintiff’s expert was not conclusive, but was to be weighed by jury]; Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167 , 170-172 [ 249 P.2d 846 ] [jury not bound to accept the opinions expressed by medical experts even where no opposing opinion is offered].)^[7]

In this case, there was substantial evidence in the record contradicting or disproving the foundational facts on which the testimony of appellants’ two experts was based. Although Dr. Ray testified at trial (and appellant repeats in his briefs) that Howard’s exposure to asbestos was “significant and heavy,” with conditions “like walking in a snowstorm,” this description was hers, not Howard’s. In fact, Howard’s trial testimony supports a conclusion he had at most only incidental exposure to asbestos for a brief period during

“significant exposure to asbestos” was an essential component of the clinical examination and diagnostic process. She then testified she based her asbestosis diagnosis in part on Howard’s single interview with her in October 1995, and his description of an occupational history of “significant and heavy” asbestos exposure over a period of 10 years during which he personally worked in a Navy machine shop in conditions “like walking in a snowstorm,” ripping out asbestos-containing insulation and pipe-wrapping. On cross-examination, Dr. Ray admitted she had not heard Howard’s trial testimony, which clearly contradicted her understanding of Howard’s occupational history. As the record shows, Howard did not work personally or directly on the removal of asbestos-containing insulation. The jury could conclude either that Dr. Ray had misunderstood the nature of Howard’s occupational history, or that Howard had been less than accurate in how he described it to Dr. Ray. In either case, the conflict between Dr. Ray’s understanding of Howard’s occupational history and his trial testimony describing that history undermines the factual foundation for much of Dr. Ray’s expert opinion evidence, and with it the credibility of her testimony.

Alternatively, the jury could have disbelieved Dr. Ray’s testimony based on her admitted lack of certification in the commonly accepted system used to read, grade, and make diagnoses of occupational pulmonary disease from chest X-rays. Aside from her (faulty) understanding of Howard’s occupational history, the primary basis for Dr. Ray’s clinical diagnosis of asbestos was her analysis of Howard’s chest X-ray. In evaluating her opinion testimony, the jury could take into account the fact Dr. Ray had failed to take the examinations necessary to maintain her X-ray reading certification. It could also consider her acknowledgment on cross-examination that she had previously written that pleural plaques do not impair lung functioning, which was directly contrary to her earlier trial testimony and the stated basis for her diagnosis of asbestos in Howard’s case.^[8]

Finally, with regard to Dr. Smith’s relatively brief testimony, the record shows his expressed opinion that asbestos exposure was a cause of Howard’s lung cancer was explicitly based on Dr. Ray’s diagnosis of Howard. To the extent the jury rejected Dr. Ray’s testimony, it could also reject that of Dr. Smith. In any event, Dr. Smith’s testimony was based on the hypothetical assumption that Howard had “substantial exposure” to asbestos and worked “routinely” around or with it on board ship. The jury could properly reject