Filed 2/21/14;pub. & mod. order 3/2/414 (see end of opn.)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                           DIVISION THREE



ELAINE M. PAULUS et al.,                                    B246505

        Plaintiffs and Respondents,                         (Los Angeles County
                                                            Super. Ct. No. BC437739)
        v.

CRANE CO.,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Los Angeles County,

Kevin C. Brazile, Judge. Affirmed.

        K&L Gates, Geoffrey M. Davis, Nicholas P. Vari and Michael J. Ross for

Defendant and Appellant.

        Simon Greenstone Panatier Bartlett and Brian P. Barrow for Plaintiffs and

Respondents.



                         _______________________________________
       Plaintiffs’ decedent, William Paulus, died from mesothelioma caused by asbestos

exposure. After trial, a jury found defendant and respondent Crane Co. 10% responsible

for plaintiffs’ damages. Crane appeals, arguing: (1) plaintiffs failed to introduce expert

testimony that Crane’s asbestos alone (as opposed to acting in combination with others’

asbestos) constituted a substantial factor in the development of decedent’s

mesothelioma; and (2) the trial court erred in not reducing the damages awarded against

it to account for settlements plaintiffs could obtain from other potentially liable parties’

bankruptcy trusts. We reject both arguments and affirm.

                            PROCEDURAL BACKGROUND

       Plaintiffs Elaine Margie Paulus, individually and as personal representative of

the Estate of William Paulus; Dee Anne Walker; Gregory Paulus and Mark Paulus1

brought a wrongful death and survival action against dozens of defendants, seeking

recovery in negligence and strict liability. Plaintiffs settled with most of the defendants;

by the time of trial, only three defendants remained; by the time the case was given to

the jury, only Crane remained. Decedent had been a commercial plumber; Crane was

a valve manufacturer. Plaintiffs alleged Crane was partially responsible for decedent’s

mesothelioma due to decedent’s work with Crane valves, which, as we shall discuss,

often involved work with Crane asbestos gaskets.




1
       Elaine Margie Paulus was decedent’s wife; the other three plaintiffs were his
children.

                                              2
       The jury concluded Crane was negligent and Crane’s negligence was

a substantial factor in causing harm to decedent.2 The jury concluded that the plaintiffs’

economic damages were $398,6353 and their non-economic damages were $6,500,000.

When asked to allocate liability among 46 different entities, the jury allocated 10% of

the fault to Crane.4

       Plaintiffs requested entry of judgment on the special verdict. Plaintiffs, who had

settled with other defendants for a total of $5,150,000, proposed judgment in an amount

which accounted for those settlement proceeds.5 Crane filed an opposition, arguing that

the plaintiffs’ proposed judgment did not account for credits due Crane “from additional

monies that plaintiffs will recover or be permitted to recover in the future as a result of

the same claims made in this action.” Specifically, Crane argued that plaintiffs would

be able to recover funds from asbestos bankruptcy trusts. The trial court, which had not

received Crane’s opposition, entered judgment as requested by plaintiffs. Upon

receiving the opposition, the court set the matter for hearing.

       In the meantime, Crane filed a motion for judgment notwithstanding the verdict.

Crane’s motion argued that plaintiffs had failed to introduce sufficient expert testimony


2
        The jury also made findings against Crane on the theories of strict liability and
failure to warn.
3
       The parties had stipulated to this number.
4
       The jury concluded that five entities were not responsible at all. Each of the
other entities was assigned a percentage of fault ranging from 0.125% to 20%.
5
      There was, however, a mathematical error in plaintiffs’ calculations. Plaintiffs
would ultimately concede the error.

                                             3
that exposure to Crane’s asbestos constituted a substantial factor in the development of

decedent’s mesothelioma.

       At the hearing on Crane’s opposition to plaintiffs’ request to enter judgment, the

trial court rejected Crane’s argument that some setoff should be made for amounts

plaintiffs could recover from asbestos bankruptcy trusts. The court concluded that any

recovery from such trusts was wholly speculative. The court further stated that it had no

authority to direct plaintiffs to report on, and account for, any future recoveries.6 It

therefore rejected Crane’s opposition. The court did, however, correct, nunc pro tunc,

a mathematical error in the judgment. Judgment was entered against Crane for $99,935

in economic damages and $650,000 in noneconomic damages.

       The hearing on Crane’s motion for judgment notwithstanding the verdict

occurred shortly thereafter. Crane conceded that it was not asserting that there was an

insufficient factual basis for the jury’s verdict against it; Crane was simply arguing that

there was no expert testimony supporting the conclusion that Crane’s asbestos alone

constituted a substantial factor in causing decedent’s mesothelioma. The court denied

the motion, concluding that sufficient evidence existed to support the jury’s conclusion

that Crane’s asbestos was a substantial factor. Crane filed a timely notice of appeal.

                               FACTUAL BACKGROUND

       It is undisputed that decedent died from malignant mesothelioma. It is also

undisputed that the mesothelioma was caused by asbestos exposure. The dispute, at



6
       Crane agreed that no law existed supporting the result that it sought.

                                              4
trial, was over which entities were responsible for that mesothelioma exposure, and in

what amounts.

       The evidence showed that decedent’s greatest, most toxic, exposure to asbestos

was in the form of asbestos-cement pipe. Indeed, the jury allocated 80% of the liability

in this case to the four entities involved with asbestos-cement pipe. We are here

concerned with the relatively smaller exposures decedent suffered in connection with

valve work.

       The exposures occurred in two ways. First, when decedent was attaching valves

to pipe in most situations, decedent simply welded the valves. However, when working

in a boiler or pipe room, he could not weld. In those situations, the valves were attached

with flanges. It was necessary to use gaskets to make the attachments water-tight. The

valves did not come with flange gaskets; the plumbers would make them. They had

sheets of gasket material from which they would punch out gaskets. There were two

types of gasket material decedent used almost exclusively: Cranite, which was

distributed by Crane; and Garlock, which was not. Cranite was 75 to 85 percent

asbestos. When punching a new gasket out of Cranite, asbestos would be freed into the

environment, and decedent inhaled it.

       The second type of exposure relating to valve work occurred when there was

a leak in a valve, requiring decedent to open the valve to repair it. Upon opening the

valve, decedent would be required to clean it of old gasket materials, and install a new

gasket. Decedent would remove the worn out gasket by scraping it with a piece of

threaded rod. This process released asbestos into the environment, and decedent inhaled


                                            5
it. Gasket removal involves not the flange gasket on the outside of the valve, but

a bonnet gasket inside the valve. Bonnet gaskets are unique to the valve; a plumber

cannot simply make a bonnet gasket out of Cranite as he or she would a flange gasket.

Crane valves (with bonnets) would come with asbestos bonnet gaskets pre-installed.

Crane also sold asbestos bonnet gaskets as replacement parts, but when a plumber

encountered a replacement bonnet gasket inside a Crane valve, the plumber could not be

certain whether the replacement gasket came from Crane or another supplier. It cannot

be disputed, however, that decedent removed some originally-installed bonnet gaskets

from Crane valves, thereby being exposed to asbestos from the Crane bonnet gaskets.

       There was also evidence that, when decedent worked on Crane valves, the valves

may have been insulated with asbestos materials, which were released when decedent

cut into them. However, it is undisputed that Crane was not responsible for any

asbestos insulation.

                                 ISSUES ON APPEAL

       Crane raises two contentions on appeal: first, the trial court should have granted

Crane’s motion for judgment notwithstanding the verdict because plaintiffs’ expert

testimony was insufficient to establish that decedent’s work with Cranite and Crane

bonnet gaskets – as opposed to decedent’s work with Cranite and Crane valves (with

any manufacturer’s gaskets) – constituted a substantial factor in causing his

mesothelioma; second, that the trial court erred in not reducing the judgment against

Crane to account for settlements plaintiffs may in the future obtain from asbestos

bankruptcy trusts.


                                            6
                                       DISCUSSION

        1.     Standard of Review

        “[An] appeal from the trial court’s denial of [a] motion for judgment

notwithstanding the verdict is a challenge to the sufficiency of the evidence to support

the jury’s verdict and the trial court’s decision. The standard of review is essentially the

same as when the trial court has granted the motion. [¶] ‘ “ . . . [T]he trial court may

not weigh the evidence or judge the credibility of the witnesses, as it may do on

a motion for a new trial, but must accept the evidence tending to support the verdict as

true, unless on its face it should be inherently incredible. Such order may be granted

only when, disregarding conflicting evidence and indulging in every legitimate

inference which may be drawn from plaintiff’s evidence, the result is no evidence

sufficiently substantial to support the verdict. [¶] On an appeal from the judgment for

defendant notwithstanding the verdict, the appellate court must read the record in the

light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him

the benefit of all reasonable inferences in support of the original verdict. . . . ” ’ ”

(Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687,

703.)

        2.     Law of Causation

        A plaintiff in an asbestos case must establish “that exposure to the defendant’s

asbestos products was, in reasonable medical probability, a substantial factor in causing

or contributing to his risk of developing cancer.” (Rutherford v. Owens-Illinois, Inc.

(1997) 16 Cal.4th 953, 957-958.) “[P]laintiffs may prove causation in asbestos-related


                                               7
cancer cases by demonstrating that the plaintiff’s exposure to defendant’s

asbestos-containing product in reasonable medical probability was a substantial factor in

contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or

ingested, and hence to the risk of developing asbestos-related cancer, without the need

to demonstrate that fibers from the defendant’s particular product were the ones, or

among the ones, that actually produced the malignant growth.”7 (Id. at pp. 976-977,

fn. omitted.) “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.)

       “Many factors are relevant in assessing the medical probability that an exposure

contributed to plaintiff’s asbestos disease. Frequency of exposure, regularity of

exposure, and proximity of the asbestos product to plaintiff are certainly relevant,

although these considerations should not be determinative in every case. [Citation.]

Additional factors may also be significant in individual cases, such as the type of

asbestos product to which plaintiff was exposed, the type of injury suffered by plaintiff,

and other possible sources of plaintiff’s injury. [Citations.] ‘Ultimately, the sufficiency

of the evidence of causation will depend on the unique circumstances of each case.’

[Citation.]” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409,

1416-1417.)

7
        Throughout Crane’s briefing, it misstates this standard. The plaintiff must prove
that the defendant’s asbestos products were a substantial factor in contributing to the
risk of developing mesothelioma, not the mesothelioma itself. Crane, however,
repeatedly argues that plaintiffs were required to establish that Crane’s products were
a substantial factor “in causing [decedent’s] disease.”

                                             8
       Although proof must be made to a reasonable medical probability, a medical

doctor need not expressly link together the evidence of substantial factor causation.

(Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 675.) Nor is there

a requirement that “specific words must be recited by [plaintiffs’] expert.” (Ibid.)

       The connection, however, must be made between the defendant’s asbestos

products and the risk of developing mesothelioma suffered by the decedent.

A defendant may not be liable for the harm caused by another manufacturer’s asbestos

simply because it was foreseeable that the other manufacturer’s asbestos would be used

in conjunction with the defendant’s product. (O’Neil v. Crane Co. (2012) 53 Cal.4th

335, 342.) Or, putting it more concretely, Crane cannot be held liable for decedent’s

exposure to replacement asbestos bonnet gaskets used in its valves, if the bonnet gaskets

were made by another manufacturer. (Ibid.) Nor can Crane be held liable for another

manufacturer’s asbestos insulation used on or near its valves.

       3.     Plaintiffs’ Evidence was Sufficient

       The dispute in this case centers on one word of testimony given by

Dr. Edwin Holstein, plaintiffs’ expert in preventive medicine and occupation medicine.

Dr. Holstein testified that his opinions were within a reasonable degree of scientific and

medical certainty. He testified that his opinion was that “Cranite and Crane Co. valve

work was a substantial factor in causing [decedent’s] mesothelioma.” (Emphasis

added.) He similarly testified that, if decedent’s disease had been lung cancer,8


8
       Another defendant, which was dismissed from the case during trial, had taken the
position that decedent died of lung cancer, not mesothelioma.

                                            9
decedent’s “exposures from Cranite gaskets and Crane valves were a substantial factor

in the development” of decedent’s lung cancer. (Italics added.) In both places,

Dr. Holstein’s testimony referred the exposures from Crane valves, which, according to

Crane, could have encompassed exposures from non-Crane replacement bonnet gaskets

and non-Crane insulation. In other words, Crane argues that Dr. Holstein did not testify

that decedent’s exposures to Cranite and Crane gaskets alone constituted a substantial

factor, but included non-Crane asbestos in the exposures which cumulatively constituted

a substantial factor causing decedent’s mesothelioma. We disagree. First, we conclude

that Dr. Holstein’s testimony, when considered in context, can and should be interpreted

to refer to exposures for which Crane alone is liable. Second, we conclude that

Dr. Holstein’s other testimony, when combined with other evidence, was sufficient to

give rise to the inference that decedent’s exposures to Crane asbestos constituted

a substantial factor in increasing his risk of mesothelioma.

       First, we consider Dr. Holstein’s intended meaning. Dr. Holstein was the first

witness to testify. His opinions were based on his review of deposition testimony of

fact witnesses who would later testify at trial. Dr. Holstein’s opinion specifically

referred to Cranite sheet gasket material, not Garlock. In other words, it is clear that

Dr. Holstein was not charging Crane with exposures to Garlock gasket material, even

when used with Crane valves. Moreover, when considering decedent’s work removing

used gaskets from Crane valves, Dr. Holstein’s testimony clearly indicated that he was

concerned with original gaskets supplied from Crane. Before he stated the opinion

challenged on appeal, Dr. Holstein testified that decedent frequently worked with Crane


                                            10
valves “and the Crane Co. valves, when they were new, came supplied with gaskets.”

Later, Dr. Holstein emphasized that the plumbers knew whether the gaskets they were

removing from Crane valves were original or replacement gaskets. In short, it is

apparent from Dr. Holstein’s testimony that when he referred to “Crane valves,” he was

referring to original Crane valves which came shipped with Crane asbestos gaskets

preinstalled.9 To the extent there is any possible ambiguity in Dr. Holstein’s reference

to Crane valves, we draw all reasonable inferences in favor of the verdict. Dr. Holstein

was properly referring only to Crane asbestos products.10

       Second, we consider whether, apart from the challenged statement, there was

sufficient evidence for the jury itself to infer that decedent’s exposure to Crane asbestos

products alone constituted a substantial factor in contributing to decedent’s risk of

developing mesothelioma. Dr. Holstein testified that any exposure increases risk, but

only larger exposures constitute a substantial factor. He then discussed the amount of

9
       That Dr. Holstein’s testimony should not be interpreted as Crane argues is clear
when one considers Crane’s argument that Dr. Holstein’s reference to Crane “valve
work” encompassed non-Crane insulation. Dr. Holstein did not testify to the removal of
insulation as part of the work decedent did with Crane valves. There is no reason to
believe, therefore, that it was encompassed in his reference to Crane “valve work.”
10
        It is also clear that plaintiffs had no intention of holding Crane liable for asbestos
which was not Crane asbestos. In the course of a discussion regarding jury instructions,
plaintiffs’ counsel stated, “I’m not going to say that if another brand’s gaskets were
used in a Crane valve and they didn’t sell it that they were responsible. I’ve never
claimed that. It’s not going to come up in this trial.” Crane’s counsel argued that if the
jury was instructed that Crane could be liable for its valves, it could be “misunderstood
by the jury that putting a Garlock gasket . . . into a Crane . . . valve is an asbestos
product of Crane.” Plaintiff’s counsel responded, “That’s not even an issue. I’ve never
said it, no one has ever implied it.” The jury was properly instructed that Crane was not
responsible for asbestos products it did not manufacture, sell or distribute, even if those
products were installed on or in Crane valves.

                                             11
fibers to which decedent was exposed when doing various tasks. He explained, for

comparison, that OSHA has a standard that workplace asbestos exposure must be below

0.1 fibers per cubic centimeter of air, on average, over an 8-hour day, with a maximum

of 1 fiber per cubic centimeter short-term exposure.11 Cutting a gasket out of Cranite

releases, on average, between 0.1 and 2 fibers per cubic centimeter of air. Scraping

a used gasket off a valve releases, on average, between 0.1 and 15 fibers per cubic

centimeter of air. Dr. Holstein testified that if someone performed these tasks for ten

seconds and never did them again, “it’s not going to be dangerous; so there is a time

element, in addition to the air concentration; but if you asked me to assume that

a person does this kind of work for a living and, therefore, he does it for days, weeks,

months, and years, then there’s a real hazard of mesothelioma.”

       As to the frequency of decedent’s exposure to Cranite asbestos fibers, decedent’s

co-worker testified that, in the 1960’s and 1970’s, decedent used Garlock and Cranite

for gasket materials. Decedent made gaskets out of those products on nearly every job.

While it was only necessary to make flange gaskets for valves in boiler and pump

rooms, there were many valves involved in those jobs. A pump room alone would have

30 or 40 valves in it. Cranite and Garlock were different colors; decedent’s co-worker

testified that he probably used more Cranite than Garlock. In short, decedent worked

with Cranite for “many, many years” and punched hundreds, if not thousands, of



11
       Even with this standard, it was estimate that there would still be 400 cases of
mesothelioma per year in the United States. In other words, the OSHA standards do not
establish a safe level of exposure.

                                            12
gaskets from it. This is not a brief, fleeting exposure, but a repeated exposure to

hazardous concentrations of asbestos over many years.

       As to the frequency of decedent’s exposure to Crane bonnet gaskets when

removing the worn gaskets, there was substantial evidence from which it could be

inferred that most bonnet gaskets – even replacement gaskets – removed from Crane

valves were Crane gaskets. This is because bonnet gaskets were unique to the valve.

Decedent’s son, who worked with him, explained that they would use Crane gaskets in

Crane valves. He added that it was “the standard of our industry” to replace the gaskets

in Crane valves with Crane gaskets. Decedent removed and replaced gaskets “all the

time.” Crane valves themselves were common in decedent’s work. Crane was one of

the leading valves and the most popular for lines of a certain size. This is evidence that

decedent’s asbestos exposures from the removal of Crane bonnet gaskets from Crane

valves were frequent and numerous.

       Considering the amount of fibers released per cubic centimeter of air and the

frequency with which decedent cut gaskets from Cranite and removed worn Crane

bonnet gaskets over many years, the jury had a sufficient basis on which to conclude

that decedent’s exposure to Crane’s asbestos products constituted a substantial factor in

increasing his risk of mesothelioma. The trial court therefore did not err in denying

Crane’s motion for judgment notwithstanding the verdict.

       4.     Crane was Not Entitled to a Setoff

       After the jury verdict, plaintiffs disclosed the amounts of its settlements with

other defendants, and the trial court properly calculated a setoff for those settlements.


                                            13
Crane argued that it was entitled to a further setoff for settlements plaintiffs would be

entitled to recover, but had not yet sought, from various asbestos bankruptcy trusts. The

trial court disagreed.

       On appeal, Crane argues that authority exists for such a setoff based on Code of

Civil Procedure section 877 and a court’s broad equitable powers. We disagree. Code

of Civil Procedure section 877 provides for a setoff when a settlement is given “before

verdict or judgment.” It has no application to a post-judgment settlement. Similarly,

a court has no equitable power to modify a judgment for a settlement which may or may

not be sought, may or may not occur, and would be in an unknown amount. Crane’s

argument is based on nothing more than speculation about future events.

       Crane argues that refusing a setoff in this case will allow plaintiffs an improper

double recovery. On the contrary, the judgment against Crane does not constitute

a double recovery in any way; all other settlements in existence have been properly

taken into account. If a later settlement subsequently allows plaintiffs a double

recovery, that does not retroactively make the instant judgment improper.12




12
        Crane also suggests that a setoff is mandatory because plaintiffs’ failure to obtain
available settlements from asbestos bankruptcy trusts constitutes a failure to mitigate
their damages. Assuming without deciding that obtaining recovery from bankruptcy
trusts related to other responsible entities is a part of a plaintiffs’ duty to mitigate
damages in an asbestos action, the duty to mitigate is an issue to be resolved by the trier
of fact at trial (see CACI No. 3930) not something to be raised on new evidence after
judgment.

                                            14
                                 DISPOSITION

    The judgment is affirmed. Plaintiffs are to recover their costs on appeal.




                                                                   CROSKEY, J.

WE CONCUR:




    KLEIN, P. J.




    ALDRICH, J.




                                        15
Filed 3/24/14
                           CERTIFIED FOR PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                      DIVISION THREE



ELAINE M. PAULUS et al.,                               B246505

        Plaintiffs and Respondents,                    (Los Angeles County
                                                       Super. Ct. No. BC437739)
        v.

CRANE CO.,                                             ORDER
                                                       (1) MODIFYING OPINION
        Defendant and Appellant.                       (2) CERTIFYING OPINION
                                                           FOR PUBLICATION


                                                       [NO CHANGE IN JUDGMENT]




THE COURT:

        The opinion filed in this matter on February 21, 2014 is hereby modified as

follows:

        On page 9, No. 3 Plaintiffs’ Evidence . . . , line 5, please change (Emphasis

added.) to (Italics added.).




                                            16
       Page 10, line 3, the sentence that begins: Dr. Holstein’s testimony referred the

exposures . . . should now read as follows: Dr. Holstein’s testimony referred to the

exposures . . . .

       When the opinion in this matter was originally filed, it was not certified for

publication. For good cause now appearing, it is hereby ordered that the opinion in this

matter, filed on February 21, 2014 is certified for publication.

       [NO CHANGE IN JUDGMENT]




                                            17
