Filed 12/20/13




                            CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

KEVIN BUCKNER,
                                                                     F065140
         Plaintiff and Respondent,
                                                           (Super. Ct. No. CV239569)
                 v.

MILWAUKEE ELECTRIC TOOL                                            OPINION
CORPORATION,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Tulare County. Lloyd L. Hicks,
Judge.
         Robinson &Wood, Arthur J. Casey and Colin G. McCarthy, for Defendant and
Appellant.
         Fitzgerald & Lundberg, Kenneth M. Fitzgerald and Barbare A. Lundberg, for
Plaintiff and Respondent.
                                           -ooOoo-
         In this product liability action, defendant appeals from an order granting a new
trial on plaintiff’s claims of failure to warn of the dangers of the product. The order was
entered on the ground of insufficiency of the evidence to support the verdict, after the
jury found in favor of defendant on its sophisticated user defense (Johnson v. American
Standard, Inc. (2008) 43 Cal.4th 56 (Johnson)). The jury found plaintiff was a
sophisticated user of the product who already had, or should have had, knowledge of the
dangers of the product; therefore, no warning to him was required. We find no abuse of
the trial court’s discretion in granting the motion and affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff was employed by Central California Tristeza Eradication Agency
(Tristeza), to do maintenance work. On October 7, 2009, he was using a power drill to
drill a hole in a piece of angle iron when the drill bit bound and the drill counter rotated,
twisting his arm and causing serious injuries. The drill was a Milwaukee Magnum one-
half inch pistol grip drill, model No. 0235-1, manufactured by defendant, Milwaukee
Electric Tool Corporation (Milwaukee), 17 years earlier. Plaintiff sued defendant and
others, alleging causes of action sounding in negligence and strict products liability. In
response to the allegations of failure to warn, defendant asserted that plaintiff was a
sophisticated user of the drill, and any failure to warn was not a legal cause of plaintiff’s
injuries because plaintiff already knew or should have known of the dangers involved in
the use of the product.
       Plaintiff’s theory at trial was that the drill could not be used safely without a side
handle, also known as an anti-torque bar.1 Plaintiff contended the drill was negligently
and defectively designed because it did not include an interlock device that would
prevent the drill from being used when the side handle was not attached. He also asserted
defendant failed to adequately warn of the dangers of using the drill, because there was
no label on the drill advising that the side handle had to be used to avoid serious injury,
and the warnings in the operator’s manual were insufficient to advise of the need to use
the side handle and the potential for serious injury if it was not used.

1       A side handle is a handle that screws into the side of the drill and is used for torque
control. When the bit binds and the drill begins to counter rotate, the user, with one hand on the
drill handle and the other on the side handle, can put pressure on the side handle and resist the
counter rotation until he or she can let go of the trigger so the drill stops operating.



                                                2.
       The drill originally came with a side handle, which could be installed on either
side of the drill for left- or right-handed use. The operator’s manual for the drill advised
the user to “[a]lways use a side handle for best control.” A label on the drill itself read:
“WARNING / HIGH ROTATING FORCE / HOLD OR BRACE SECURELY TO PREVENT PERSONAL
INJURY OR DAMAGE TO TOOL / READ SAFETY INSTRUCTIONS BEFORE OPERATING.”                        At the
time of plaintiff’s accident, however, Tristeza no longer possessed either the operator’s
manual for the drill or the side handle. When plaintiff was given the drill to use, it did
not have a side handle; he looked it over briefly, then began to use it. Tristeza’s
maintenance supervisor, Robert Parrott, who was plaintiff’s supervisor, testified that,
although the drill had an odd key chuck, plaintiff took the drill and changed the bit like he
knew what he was doing.
       Defendant contended the drill was not negligently designed or defective, the
warnings on the drill and in the operator’s manual were adequate, and no warning was
required in any event, because plaintiff was a sophisticated user of the drill. Evidence of
plaintiff’s employment history was presented. Plaintiff was not a licensed contractor, but
he had been using power tools and doing handyman work since high school. In the 20
years before going to work for Tristeza, he had worked doing construction for
contractors, and had worked for himself, doing kitchen remodeling and other small jobs.
He had experience in maintenance, roofing, flooring, electrical work, plumbing,
carpentry, cement finishing, and framing. He represented to Parrott that he was a
certified electrician and plumber. He had used power tools and drills in his employment,
and considered himself to be handy with power tools. There was conflicting evidence
regarding whether plaintiff had used the subject drill or one like it prior to the accident.2

2      Plaintiff testified he used the drill for the first time the day of the accident; he had never
used a drill like Tristeza’s, or one that required a side handle, before the accident. His
coemployees testified plaintiff had used Tristeza’s drill in the days prior to the accident while
assembling a screen house, which involved using the drill to screw in hundreds of screws. A


                                                  3.
       Witnesses to the accident testified they observed plaintiff using the drill
improperly, holding the drill with one hand, pushing it into the metal he was drilling,
while holding the metal with the other hand, pulling it toward the drill, and ignoring
warnings from his supervisor not to force the drill. The drill then bound and counter
rotated, breaking the bit and twisting plaintiff’s arm.
       There was evidence that plaintiff, like his coemployees, knew drills can bind and
counter rotate when not used properly, or when they hit obstacles, such as nails or knots
in wood. There was conflicting evidence regarding whether plaintiff knew about using a
side handle in such situations. Plaintiff’s expert admitted that someone with plaintiff’s
background and experience should have known that a drill could bind, counter rotate, and
injure the user. Another expert opined that, with his work experience, knowledge, and
skill set, plaintiff would be aware of what the subject drill was capable of and that it did
have a side handle. Some maintenance worker witnesses testified they did not know the
subject drill could not be used safely without a side handle. Some stated it could be used
safely; plaintiff’s coworkers and an expert testified they had used Tristeza’s drill or a
similar drill without the side handle numerous times without injury.3 Plaintiff and his
coworkers testified they did not know an injury as serious as plaintiff’s could result from
using the drill.
       The jury, in a special verdict, found the drill was not negligently or defectively
designed. The jury did not determine whether there was a failure to warn or inadequate

coemployee also testified plaintiff told him he had used a similar drill in other employment in the
past.
3       Parrott testified he used the Tristeza drill without a side handle for hundreds of times
without injury; Barnett testified he used the Tristeza drill without a side handle 50 or more times
without incident. Expert Thomas Pendergraft testified he used safely a similar drill without a
side handle over 2,000 times. William Corkins, the Tristeza employee who investigated
plaintiff’s accident on its behalf and who had 50 years of experience with power tools, stated he
had used similar drills without a side handle, and had observed many other people doing the
same, without advising them it was unsafe to do so.



                                                4.
warning, because it resolved the failure to warn issue by finding plaintiff was a
sophisticated user. Plaintiff moved for a new trial on the ground of insufficiency of the
evidence, asserting, among other things, that there was insufficient evidence to support
the jury’s finding that plaintiff was a sophisticated user. Plaintiff defined the danger of
which he should have been warned as “this drill could only be used safely with a side
handle,” and asserted there was no evidence any witness knew of the danger, much less
that it was common knowledge among maintenance workers like plaintiff. In opposition,
defendant argued the relevant danger was the danger the drill would bind and counter
rotate, twisting the user’s wrist or arm. It asserted there was sufficient evidence this
danger was common knowledge among maintenance workers, and plaintiff’s training,
experience and knowledge were sufficient to prove he was a sophisticated user.
Defendant also argued plaintiff admitted knowing drills could counter rotate and a side
handle can prevent this. The trial court granted plaintiff’s motion for a new trial as to the
failure to warn claims only, on the ground of insufficiency of the evidence to support the
verdict. (Code Civ. Proc., § 657, subd. (6).)4 Defendant appeals, challenging both the
order granting a new trial and the pretrial denial of defendant’s motion for summary
adjudication, which was based on the contention the undisputed facts established plaintiff
was a sophisticated user of the drill.
                                         DISCUSSION
I.     Motion for New Trial
       A.      Standard of review
       An order granting a new trial is appealable. (§ 904.1, subd. (a)(4).) “When a new
trial is granted, on all or part of the issues, the court shall specify the ground or grounds
on which it is granted and the court’s reason or reasons for granting the new trial upon

4       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.



                                                5.
each ground.” (§ 657.) A new trial may be granted on all or part of the issues on the
ground of “[i]nsufficiency of the evidence to justify the verdict or other decision.” (Id.,
subd. (6).) A new trial shall not be granted on this ground “unless after weighing the
evidence the court is convinced from the entire record, including reasonable inferences
therefrom, that the court or jury clearly should have reached a different verdict or
decision.” (§ 657.)
       “The determination of a motion for a new trial rests so completely within the
court’s discretion that its action will not be disturbed unless a manifest and unmistakable
abuse of discretion clearly appears.” (Jimenez v. Sears, Roebuck & Co. (1971) 4 Cal.3d
379, 387.) “[A]n order granting a new trial under section 657 ‘must be sustained on
appeal unless the opposing party demonstrates that no reasonable finder of fact could
have found for the movant on [the trial court’s] theory.’ [Citation.]” (Lane v. Hughes
Aircraft Co. (2000) 22 Cal.4th 405, 412 (Lane).) “‘[T]he presumption of correctness
normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of
the [new trial] order.’ [Citation.]” (Ibid.) “The reason for this high level of deference is
the trial court is much closer to the evidence than a reviewing court and sits as a trier of
fact independent of the jury. [Citation.]” (McCoy v. Pacific Maritime Assn. (2013) 216
Cal.App.4th 283, 303.) “[S]o long as the outcome is uncertain at the close of trial—that
is, so long as the evidence can support a verdict in favor of either party—a properly
constructed new trial order is not subject to reversal on appeal.” (Lane, supra, 22 Cal.4th
at p. 414.) Thus, it is defendant’s burden on this appeal to demonstrate that no reasonable
trier of fact could have found in favor of plaintiff on the theory set out by the trial court in
its new trial order.
       B.      The trial court’s order
       The trial court granted plaintiff a new trial on the failure to warn claims on the
ground of insufficiency of the evidence to support the verdict, explaining the jury was
clearly wrong when it found plaintiff was a sophisticated user. To establish the

                                               6.
sophisticated user defense, the trial court concluded, defendant was required to prove
plaintiff knew or should have known that the drill “could only be used safely with a side
handle.” The trial court defined plaintiff’s class as “handyman,” and found he had
insufficient training and experience to be classified as a sophisticated user. Additionally,
there was no evidence supporting a finding plaintiff should have known of the hazard;
Parrott, Barnett, and defendant’s retained expert, Pendergraft, all with years of experience
in construction or maintenance, did not know it was unsafe to use the drill without a side
handle. The trial court rejected defendant’s contention the relevant hazard was the
danger the drill bit would bind, the drill would twist, and the user would be injured. It
stated the relevant issue was whether defendant had a duty to warn plaintiff about what
was necessary to safely operate the product. Defendant’s “own hazards analysis showed
that the drill was not safe to operate (that there was a possibility of serious injury) without
using the side handle.” The trial court concluded there were three parts to an adequate
warning: “1) advise of what the hazard is; 2) advise of the consequences of ignoring the
warning, and 3) advise what needs to be done to safely operate the product,” and a
sophisticated user must be aware of all three. Accordingly, the trial court concluded the
evidence did not support the jury’s finding plaintiff was a sophisticated user to whom
defendant owed no duty to warn and the jury’s finding was clearly wrong.
       C.     Sophisticated user
       Under California’s product liability law, “[a] product may be defective if it is
dangerous because it lacks adequate warnings or instructions.” (Blackwell v. Phelps
Dodge Corp. (1984) 157 Cal.App.3d 372, 377.) “[M]anufacturers are strictly liable for
injuries caused by their failure to give warning of dangers that were known to the
scientific community at the time they manufactured and distributed the product:
‘Whatever may be reasonable from the point of view of the manufacturer, the user of the
product must be given the option either to refrain from using the product at all or to use it
in such a way as to minimize the degree of danger.’ [Citation.]” (Carlin v. Superior

                                              7.
Court (1996) 13 Cal.4th 1104, 1108–1109.) The supplier of a product must “‘exercise
reasonable care to give to those who are to use the chattel the information which the
supplier possesses and which he should realize to be necessary to make its use safe for
them…. There are many chattels which, even though perfect, are unsafe for any use or
for the particular use for which they are supplied unless their properties and capabilities
are known to those who use them. If such a chattel is supplied to another whom the
supplier should realize to be unlikely to know its properties and capabilities, the supplier
is required to exercise reasonable care to give to the other such information thereof as he
himself possesses.’ [Citation.]” (Gall v. Union Ice Co. (1951) 108 Cal.App.2d 303, 309–
310 (Gall), quoting from Rest.2d Torts, § 388, com. g, pp. 1043–1044.)
       Two types of warnings may be given. If the product’s dangers may be avoided or
mitigated by proper use of the product, “the manufacturer may be required adequately to
instruct the consumer as to how the product should be used.” (Finn v. G. D. Searle & Co.
(1984) 35 Cal.3d 691, 699 (Finn).) If the risks involved in the use of the product are
unavoidable, as in the case of potential side effects of prescription drugs, the supplier
must give an adequate warning to enable the potential user to make an informed choice
whether to use the product or abstain. (Id. at pp. 699–700.) “[D]irections or warnings are
in order where reasonably required to prevent the use of a product from becoming
unreasonably dangerous. It is the lack of such a warning which renders a product
unreasonably dangerous and therefore defective.” (Gonzales v. Carmenita Ford Truck
Sales, Inc. (1987) 192 Cal.App.3d 1143, 1151.)
       In Johnson, supra, 43 Cal.4th, the California Supreme Court for the first time
recognized the sophisticated user defense to a cause of action for failure to warn. There,
the plaintiff, a trained and certified heating, ventilation, and air conditioning (HVAC)
technician, alleged the defendant, a manufacturer of air conditioning equipment, was
negligent and strictly liable for injuries he sustained, because the defendant failed to warn
the plaintiff that brazing the refrigerant lines to repair the air conditioning equipment

                                              8.
would create phosgene gas, the inhalation of which could result in potentially fatal lung
disease. The plaintiff had received formal training in HVAC systems and had passed an
examination to become certified by the Environmental Protection Agency as an HVAC
technician. Only those with such certification were permitted to purchase the R-22
refrigerant used in commercial air conditioning systems, which can decompose when
exposed to heat, such as when a technician brazes air conditioner pipes containing
residual refrigerant. The dangers of R-22 were noted on material safety data sheets that
were provided to the plaintiff each time he purchased the refrigerant. (Id. at pp. 61–62.)
       The defendant moved for summary judgment, asserting it had no duty to warn of
the potential dangers of R-22 refrigerant, because it could assume the plaintiff and the
group of professionals to which he belonged were already aware of those dangers,
through their training and experience. (Johnson, supra, 43 Cal.4th at pp. 63–64.) The
trial court granted the defendant’s motion. (Id. at p. 64.) The California Supreme Court
discussed the sophisticated user defense:

              “The sophisticated user defense exempts manufacturers from their
       typical obligation to provide product users with warnings about the
       products’ potential hazards. [Citation.] The defense is considered an
       exception to the manufacturer’s general duty to warn consumers, and
       therefore, in most jurisdictions, if successfully argued, acts as an
       affirmative defense to negate the manufacturer’s duty to warn. [Citation.]

              “Under the sophisticated user defense, sophisticated users need not
       be warned about dangers of which they are already aware or should be
       aware. [Citation.] Because these sophisticated users are charged with
       knowing the particular product’s dangers, the failure to warn about those
       dangers is not the legal cause of any harm that product may cause.
       [Citation.] The rationale supporting the defense is that ‘the failure to
       provide warnings about risks already known to a sophisticated purchaser
       usually is not a proximate cause of harm resulting from those risks suffered
       by the buyer’s employees or downstream purchasers.’ [Citation.] This is
       because the user’s knowledge of the dangers is the equivalent of prior
       notice. [Citation.]” (Johnson, supra, 43 Cal.4th at p. 65.)




                                             9.
       The court noted the sophisticated user defense is a natural outgrowth of
California’s obvious danger rule—the rule that “‘there is no duty to warn of known risks
or obvious dangers.’” (Johnson, supra, 43 Cal.4th at p. 67.) The court described the
sophisticated user defense, as it applies in this state, as follows:

               “A manufacturer is not liable to a sophisticated user of its product
       for failure to warn of a risk, harm, or danger, if the sophisticated user knew
       or should have known of that risk, harm, or danger. It would be nearly
       impossible for a manufacturer to predict or determine whether a given user
       or member of the sophisticated group actually has knowledge of the
       dangers because of the infinite number of user idiosyncrasies. For
       example, given users may have misread their training manuals, failed to
       study the information in those manuals, or simply forgotten what they were
       taught. However, individuals who represent that they are trained or are
       members of a sophisticated group of users are saying to the world that they
       possess the level of knowledge and skill associated with that class. If they
       do not actually possess that knowledge and skill, that fact should not give
       rise to liability on the part of the manufacturer.

              “Under the ‘should have known’ standard there will be some users
       who were actually unaware of the dangers. However, the same could be
       said of the currently accepted obvious danger rule; obvious dangers are
       obvious to most, but are not obvious to absolutely everyone. The obvious
       danger rule is an objective test, and the courts do not inquire into the user’s
       subjective knowledge in such a case. In other words, even if a user was
       truly unaware of a product’s hazards, that fact is irrelevant if the danger
       was objectively obvious. [Citations.] Thus, under the sophisticated user
       defense, the inquiry focuses on whether the plaintiff knew, or should have
       known, of the particular risk of harm from the product giving rise to the
       injury.” (Johnson, at p. 71.)
       The court held the defense applies to both negligence and strict liability causes of
action. (Johnson, supra, 43 Cal.4th at pp. 71–72.) “In the context of the sophisticated
user defense, because the intended users are deemed to know of the risks, manufacturers
have no obligation to warn, and providing no warning is appropriate. The focus of the
defense, therefore, is whether the danger in question was so generally known within the
trade or profession that a manufacturer should not have been expected to provide a
warning specific to the group to which plaintiff belonged. Consequently, there is no

                                              10.
reason why the sophisticated user defense should not be as available against strict
liability causes of action as it is for negligence causes of action. In both instances, the
sophisticated user’s knowledge eliminates the manufacturer’s need for a warning.” (Id. at
p. 72.)
          The user’s sophistication is determined as of the time the user was injured.
(Johnson, supra, 43 Cal.4th at p. 73.) “The timeline focuses on the general population of
sophisticated users and conforms to the defense’s purpose to eliminate any duty to warn
when the expected user population is generally aware of the risk at issue.” (Id. at p. 74.)
The defendant’s motion for summary judgment presented undisputed evidence that it was
widely known among HVAC technicians that heating R-22 refrigerant could cause it to
decompose and form phosgene gas, and such technicians could reasonably be expected to
know of the hazard of brazing refrigerant lines. Accordingly, the danger of exposing R-
22 to heat by brazing the lines was “well known within the community of HVAC
technicians to which plaintiff belonged,” and the sophisticated user defense applied,
precluding liability of the defendant to the plaintiff for failure to warn of the hazard.
(Ibid.)
          Thus, in order to establish the defense, the defendant must identify the relevant
risk, show that sophisticated users are already aware of the risk, and demonstrate that the
plaintiff is a member of the group of sophisticated users. The parties in this case disagree
about how to define the relevant risk and about the scope of knowledge of the risk the
group of users must possess in order to be considered sophisticated users. Defendant
contends the group need only know of the danger the product poses, and the relevant
danger in this case is the possibility that the drill bit will bind or stop, causing the drill to
counter rotate and twist the user’s arm. Because there was testimony that maintenance
workers, including plaintiff’s coemployees, knew that drill bits can bind while drilling,
causing counter rotation and injury, and plaintiff himself admitted having this knowledge,
defendant asserts the danger was generally known among members of plaintiff’s group,

                                               11.
and the jury correctly found plaintiff was a sophisticated user. Plaintiff asserts the danger
of which the group of sophisticated users was required to have knowledge was that the
drill was unsafe when used without a side handle. There was testimony plaintiff and
other maintenance or construction workers were unaware of this, so plaintiff contends
maintenance workers were not aware of the danger and the jury erred in finding plaintiff
to be a sophisticated user who knew or should have known of the danger.
       California cases have not defined the danger that needs to be generally known in a
trade, profession, or other group in order for members of that group to be considered
sophisticated users who require no warning of the danger. The purpose of the
requirement that a manufacturer warn consumers about inherent hazards in its products is
to permit the consumer to choose to refrain from using the product altogether or to avoid
the danger by careful use. (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1304.)
Because the sophisticated user’s knowledge is essentially a substitute for a warning from
the supplier of the product, in order for the defense to apply, the scope of knowledge of
the sophisticated user must parallel the scope of the warning that would otherwise be
required. Thus, authorities discussing the scope of the warning to be given are
instructive.
       The supplier of a product must use reasonable care to give users of the product the
information the supplier possesses which is necessary to make its use safe. (Gall, supra,
108 Cal.App.2d at p. 309; Rest.2d Torts, § 388, com. g, pp. 1043–1044.) The supplier
may be required to warn of the risks of the product, or to instruct the user how to use the
product safely. (Finn, supra, 35 Cal.3d at p. 699.) “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

                                             12.
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.” (BAJI No. 9.00.7.) Considerations in determining whether a failure to
warn makes the product defective include: “the normal expectations of the consumer as
to how the product will perform, degrees of simplicity or complication in the operation or
use of the product, the nature and magnitude of the danger to which the user is exposed,
the likelihood of injury, and the feasibility and beneficial effect of including a warning.”
(Cavers v. Cushman Motor Sales, Inc. (1979) 95 Cal.App.3d 338, 347–348.)
       We conclude the danger of which the sophisticated user must be aware in order to
establish the defense is broader than that suggested by defendant. It is not enough that
the user be aware of the danger that the drill may bind and counter rotate when it is used
improperly or when the drill bit strikes an obstacle. In order to establish the defense, a
manufacturer must demonstrate that sophisticated users of the product know what the
risks are, including the degree of danger involved (i.e., the severity of the potential
injury), and how to use the product to reduce or avoid the risks, to the extent that
information is known to the manufacturer. Thus, in this case, defendant was required to
prove sophisticated users know there is a danger the drill may bind and counter rotate,
this may cause serious injury to the user, and the risk may be reduced or eliminated by
proper use of a side handle.
       The trial court instructed the jury using CACI No. 1244 as follows: “Milwaukee
Electric Tool Corp. claims that it is not responsible for any harm to Kevin Buckner based
on a failure to warn because Kevin Buckner is a sophisticated user of the Magnum 0235
Drill. To succeed on this defense, Milwaukee Electric Tool Corp. must prove that, at the
time of the injury, Kevin Buckner, because of his particular position, training, experience,
knowledge, or skill, knew or should have known of the Magnum 0235 Drill’s risk, harm,
or danger.” The instructions did not define the relevant “risk, harm, or danger.”



                                             13.
       In its order granting a new trial, the trial court described the danger a sophisticated
user is charged with knowing as: “that the drill in question … could only be used safely
with a side handle”; it clarified this meant “that the drill was not safe to operate (that
there was a possibility of serious injury) without using the side handle.” It also stated the
sophisticated user must be aware of three things: what the hazard is, the consequences of
ignoring the warning, and what needs to be done to safely operate the product. It
concluded that, in this case, for the sophisticated user defense to apply, it was not enough
for plaintiff and other maintenance workers to know that drills may bind and counter
rotate; they must also know that drills like the one in issue pose a danger of serious injury
that may be mitigated by use of a side handle. With this test in mind, the trial court
concluded the jury’s finding that plaintiff was a sophisticated user was clearly wrong.
       The trial court noted plaintiff was a maintenance man with a history of being a
handyman in residential construction; he was not a licensed contractor. There was no
evidence drills of similar torque to the one in issue were commonly used in such work.
Plaintiff testified he had never before used a drill with the power of Tristeza’s, and the
drills he had used in the past stopped when they bound; he could always control them.
Plaintiff had no formal training in tool safety. Parrott and Barnett, who worked with
plaintiff, were unaware the drill had a side handle or needed one. Pendergraft, an expert
with years of experience in construction, was unaware it was unsafe to use the drill
without a side handle. Defendant was aware serious injury could result from use of the
drill without the side handle.
       The trial court correctly determined the scope of knowledge a sophisticated user
must have or be deemed to have in order for the defense to apply and the defendant to be
excused from warning the user of the danger. The sophisticated user must know or be
deemed to know not only the bare hazard posed by the product, but also the severity of
the potential consequences, and any mitigation techniques of which the manufacturer is



                                              14.
aware. All are necessary in order for the potential user to make an informed decision
regarding whether and how to use the product.
       We conclude the trial court did not abuse its discretion by granting a new trial.
Defendant has not demonstrated that no reasonable finder of fact could have found that
plaintiff was not a sophisticated user of the drill. (Lane, supra, 22 Cal.4th at p. 412.) At
the close of trial the outcome was uncertain and the evidence would have supported a
finding in favor of plaintiff on the sophisticated user issue. (Id. at p. 414.) Consequently,
defendant has not established an abuse of discretion that would justify reversing the new
trial order.
       D.      Harmless error
       Defendant argues that, even if the sophisticated user defense did not apply,
plaintiff was not prejudiced by the judgment against him because he cannot establish that
any failure to warn caused his injuries. It asserts that, even if the language “always use
side handle” had been added to the drill’s warning label, as plaintiff contended it should
have been, Tristeza would not have retained the side handle or the operator’s manual; the
label still would have been largely illegible, and plaintiff would not have read it.
       A new trial may not be granted “unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “‘“[P]rejudicial error is
the basis for a new trial, and there is no discretion to grant a new trial for harmless error.
[Citation.] … [¶] Accordingly, the order granting a new trial is valid only if prejudicial
error occurred at the trial.” [Citation.]’ [Citation.]” (Garcia v. Rehrig International, Inc.
(2002) 99 Cal.App.4th 869, 875.)

       “‘The trial judge is familiar with the evidence, witnesses and proceedings,
       and is therefore in the best position to determine whether, in view of all the
       circumstances, justice demands a retrial. Where error or some other ground
       is established, his discretion in granting a new trial is seldom reversed. The
       presumptions on appeal are in favor of the order, and the appellate court


                                              15.
       does not independently redetermine the question whether an error was
       prejudicial, or some other ground was compelling. Review is limited to the
       inquiry whether there was any support for the trial judge’s ruling, and the
       order will be reversed only on a strong affirmative showing of abuse of
       discretion.’ [Citation.]” (Bell v. State of California (1998) 63 Cal.App.4th
       919, 931 (Bell), italics added.)
       Because the jury found plaintiff was a sophisticated user of the drill, it did not
reach the questions whether defendant failed to adequately warn of the risks of the drill
and whether any such failure to warn was a substantial factor in causing plaintiff’s injury.
There was conflicting evidence regarding what warnings should have been given to
adequately warn of the danger; plaintiff presented evidence there should have been a
label on the drill that told the user to always use the side handle in order to avoid serious
injury, as well as instructions in the operating manual for safe use of the drill. Plaintiff
testified he had never used a drill like the one that injured him, or a drill that required a
side handle, before the accident; he had used only battery powered and smaller drills.
When he was handed the drill, plaintiff looked it over; he checked the cord for fraying,
made sure the bit was tight, and looked at the body, but saw nothing that stood out as a
warning. Plaintiff stated that, if there had been a noticeable warning on the drill that it
required a side handle to avoid serious injury, he would have looked for the side handle
and used it; he would not have operated the drill without a side handle.
       Adequacy of the warnings and causation were questions of fact and conflicting
evidence was presented to the jury. We cannot say as a matter of law that, if the jury had
found plaintiff was not a sophisticated user of the drill, plaintiff would have been unable
to prove causation, and therefore there was no prejudice. The trial court is in the best
position to determine the issue of prejudice; we will not independently review that
decision or substitute our decision for the trial court’s. (See Bell, supra, 63 Cal.App.4th
at p. 931.) There was adequate support for the trial court’s ruling, and we will not reverse
it.




                                              16.
II.    Motion for Summary Adjudication
       Defendant contends the trial court improperly denied its motion for summary
adjudication of the duty to warn claims, which was based on the ground plaintiff could
not prevail on those claims at trial because he was a sophisticated user who did not
require a warning of what he already knew or should have known. The motion sought to
prove plaintiff was a maintenance worker, and maintenance workers generally know of
the danger that a power drill like the one used by plaintiff could “kick back” and counter
rotate if it binds, and a side handle decreases the risk of injury.
       When the plaintiff prevails at trial and, on appeal, the defendant challenges the
denial of its pretrial motion for summary judgment, courts have held the erroneous denial
of that motion “cannot result in reversal of the final judgment unless that error resulted in
prejudice to defendant.” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) If the
trial was fair, there was no prejudice. (Ibid.)

       “When the trial court commits error in ruling on matters relating to
       pleadings, procedures, or other preliminary matters, reversal can generally
       be predicated thereon only if the appellant can show resulting prejudice,
       and the probability of a more favorable outcome, at trial. Article VI,
       section 13 [of the California Constitution], admonishes us that error may
       lead to reversal only if we are persuaded ‘upon an examination of the entire
       cause’ that there has been a miscarriage of justice. In other words, we are
       not to look to the particular ruling complained of in isolation, but rather
       must consider the full record in deciding whether a judgment should be set
       aside. Since we are enjoined to presume that the trial itself was fair and
       that the verdict in plaintiffs’ favor was supported by the evidence, we
       cannot find that an erroneous pretrial ruling based on declarations and
       exhibits renders the ultimate result unjust.” (Waller, supra, 12 Cal.App.4th
       at p. 833.)
       “‘A decision based on less evidence (i.e., the evidence presented on the summary
judgment motion) should not prevail over a decision based on more evidence (i.e., the
evidence presented at trial).’ [Citation.]” (Gackstetter v. Frawley (2006) 135
Cal.App.4th 1257, 1269.)



                                              17.
       Here, although defendant’s motion for summary adjudication was denied,
defendant prevailed at trial. Thus, while the trial court found triable issues of material
fact remaining and denied the motion, after a full hearing of the evidence at trial, the jury
found in favor of defendant. The judgment, which was based on more evidence,
superseded the ruling on the motion for summary adjudication, which was based on more
limited evidence. The trial court then entered its order granting defendant a new trial,
based on its conclusion that, after a full presentation of the evidence, the jury’s verdict
was clearly wrong. The trial court’s decision was based on all of the evidence presented
at trial. Based “upon an examination of the entire cause,” we are not persuaded the denial
of the motion for summary adjudication resulted in a miscarriage of justice. (Cal. Const.,
art. VI, § 13.)
       The motion for summary adjudication suffered from the same shortcoming as
defendant’s trial presentation. It assumed sophisticated users need only know a limited
amount of information about the danger posed by the product: the possibility the drill
would bind and counter rotate without a side handle. The motion did not take into
account the duty to give users of the product all the information defendant possessed
which is necessary to make its use safe, including the facts of which defendant was aware
that a user would need to know to make an informed choice to refrain from using the
product altogether, or to use it in accordance with instructions that would mitigate or
eliminate the danger. Defendant has not demonstrated that its motion presented
undisputed facts and supporting evidence showing that plaintiff was a member of a group
which had knowledge of all the information that would otherwise have been required in a
warning or instructions accompanying the product.
       Defendant contends it presented expert opinion “that those in the maintenance
community know that if the bit binds the Drill will counter-rotate, and a side handle
decreases the risk of injury from such an incident.” It asserts plaintiff did not dispute its
evidence or present a counter declaration, thereby admitting the truth of defendant’s

                                             18.
evidence. Plaintiff, however, disputed defendant’s facts, citing deposition testimony of
plaintiff’s coworkers, who had many years of experience in maintenance work, that they
did not know the drill required a side handle to be used safely and did not know the
severity of the potential injury if the drill bound and counter rotated. The trial court did
not err in concluding triable issues of material fact remained or in denying the motion.
                                          DISPOSITION
       The order granting a new trial on the failure to warn claims is affirmed. Plaintiff
is entitled to his costs on appeal.



                                                                  _____________________
                                                                              HILL, P. J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
PEÑA, J.




                                             19.
