                                                     • I "l   !.*.'!




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




ESTATE OF BARBARA BRANDES,
                                                                       No. 73748-1-1
              Respondent/Cross-Appellant,
                                                                       DIVISION ONE
       v.



BRAND INSULATIONS, INC.                                                UNPUBLISHED OPINION



              Appellant/Cross-Respondent.

       and


KAISER GYPSUM COMPANY, INC.,
ATLANTIC RICHFIELD COMPANY.HANSON
PERMANENTE CEMENT, INC., f/k/a KAISER
CEMENT CORPORATION; METALCLAD
INSULATION CORPORATION;
METROPOLITAN LIFE INSURANCE
COMPANY; and UNION CARBIDE
CORPORATION,

                      Defendants.                                      FILED: January 23. 2017

       Spearman, J. — Brand Insulation, Inc. (Brand) appeals the trial court

verdict finding it liable for the asbestos-related personal injuries of Barbara

Brandes (Barbara).1 Brand subcontracted to install asbestos-containing

insulation at ARCO's Cherry Point Refinery. Barbara was the wife of Raymond

Brandes (Raymond), who was exposed to asbestos while employed at the ARCO


       1We refer to Ms. Barbara Brandes by her first name to avoid confusion with Respondent
Brand, LLC.
No. 73748-1-1/2


Cherry Point Refinery from 1971 to 1975. Raymond brought asbestos home on

his clothes, which Barbara regularly laundered. She eventually developed

mesothelioma. On August 16, 2014, Barbara filed a lawsuit in King County

Superior Court against numerous defendants for personal injuries sustained due

to asbestos exposure. The case proceeded to trial with Brand as the sole

remaining defendant. The jury rendered a verdict in favor of Barbara and

awarded her $3,500,000 in damages, which was reduced to $2,500,000 on

remittitur. Brand appeals, and Barbara cross-appeals the remittitur. We affirm the

verdict and reverse the remittitur.

                                      FACTS


       Brand was an insulation subcontractor to general contractor Ralph M.

Parsons (Parsons) during the construction phase of the ARCO Cherry Point

Refinery. Brand sold to Parsons the insulation that it installed on pipes and other

installations. Brand began work in January 1971 and concluded in February

1972. At the beginning of the project, Brand used asbestos-free insulation. At

some point, Brand began installing asbestos-containing insulation because the

asbestos-free insulation performed poorly. The asbestos insulation was

purchased by Brand in containers bearing warnings. Brand did not pass along

those warnings to Parsons or to ARCO employees. Brand did not label the pipes

it fitted with asbestos insulation. Brand's installation work produced asbestos

dust and ARCO employees were nearby when the work was performed. Brand
No. 73748-1-1/3


did not employ industrial hygiene practices to contain asbestos dust or to prevent

exposed employees from transporting asbestos away from the work site.

      Raymond was an operator at Cherry Point. In November 1971, he began

work in the crude unit, which Brand insulated. An operator was responsible for

maintaining continuous operation of the processing unit, which required walking

through the unit six to eight times a day to monitor and ensure proper operation

of the equipment. An operator also prepared equipment for maintenance by

removing insulation to gain access to a pipe. Raymond removed insulation by

hammering it offor sawing through it. This sometimes produced dust. He

performed this activity at least twice each month.

       Barbara washed her husband's uniform about twice each week. She

shook his uniform before placing it in the washing machine. She also swept up

the floor of the laundry area. Barbara was diagnosed with mesothelioma at the

age of79. It caused shortness of breath, fatigue, weight loss, nausea, and
neuropathy. She underwent chemotherapy, but her disease was terminal.
       Prior to trial, Brand moved for summary judgment on numerous grounds.

Co-defendant Metalclad moved for summary judgment based on the contractor's

statute of repose. In its reply to Barbara's response, Brand adopted that defense
and incorporated it by reference.2 Barbara also moved for summary judgment to
strike Brand's affirmative defenses, including their statute of repose defense. The

trial court granted Brand's motion to dismiss Barbara's strict liability claims, but


       2 Barbara did not object to Brand raising this issue on reply.
                                                3
No. 73748-1-1/4


denied the remainder of Brand's motion. The trial court also denied Barbara's

motion to strike Brand's statute of repose defense. Brand moved for

reconsideration on the statute of repose issue, which the trial court denied.

       Trial began on April 6, 2015. On the day before closing arguments,

Barbara passed away at the age of 80. Her counsel filed a Notice of Death and

Motion for Substitution, requesting that the trial proceed despite her passing. The

trial court granted the motion for substitution and authorized continuation of the

litigation as a survivorship action. The trial judge advised the jury of Barbara's

death and gave instructions on the new procedural posture of the case.

       The jury rendered a verdict in favor of Barbara's estate and awarded

$3,500,000 in damages. Barbara's estate brought a motion to allocate fifty

percent of the settlement proceeds to a future wrongful death claim. Brand

opposed the motion and filed a motion for new trial, or in the alternative,

remittitur. The trial judge denied Brand's motion for a new trial but granted

remittitur, reducing the verdict by $1,000,000. The trial judge granted Barbara's

motion and set off twenty percent of the settlement proceeds to the statutory

heirs' future wrongful death claim.

                                      DISCUSSION


Statute of Repose

       We review a summary judgment order de novo, engaging in the same

inquiry as the superior court. Lvbberts v. Grant County, 141 Wn.2d 29, 34, 1 P.3d

1124 (2000). We view the facts and all reasonable inferences therefrom in the
No. 73748-1-1/5


light most favorable to the nonmoving party, id. However, we will only review trial

court decisions as a matter of right as provided in RAP 2.2. Summary judgment

orders are not reviewable under RAP 2.2 after a trial on the merits. Johnson v.

Rothstein. 52 Wn. App 303, 759 P.2d 471 (1988).

       Brand argues that the six year construction statute of repose bars

Barbara's claims because the refinery's insulation is an improvement on real

property and Barbara brings her claim well after the repose period ended.

Barbara argues that this issue is not properly before the court because it was

denied on summary judgment and the case proceeded to trial and judgment.

       A statute of repose terminates a potential claim after a specified time,

even if an injury has not yet occurred. Wash. State Major League Baseball

Stadium Pub. Facilities Dist. v. Huber. Hunt & Nichols-Kiewit Constr. Co., 176

Wn.2d 502, 511, 296 P.3d 821 (2013). It bars an action for construction defects

that does not accrue within six years from the time construction is completed.

RCW 4.16.310. The statute of repose applies to "all claims or causes of action of

any kind against any person, arising from such person having constructed,

altered or repaired any improvement upon real property . . . ." RCW 4.16.300.

       The statute of repose only "protects individuals who work on structural

aspects of the building." Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 111,

676 P.2d 466 (1984). "[T]he statute focuses on individuals whose activities relate

to construction of the improvement." Id at 110. The Condit court endorsed New

Jersey's interpretation of its statute of repose:
No. 73748-1-1/6


       the intent of the language of the statute was to protect those who
       contribute to the design, planning, supervision or construction of a
       structural improvement to real estate and those systems, ordinarily
       mechanical systems, such as heating, electrical, plumbing and air
       conditioning, which are integrally a normal part of that kind of
       improvement, and which are required for the structure to actually
       function as intended.

Id at 110-111 (citing Brown v. Jersey Central Power & Light Co.. 163 N.J. Super.

179, 195, 394 A.2d 397 (1978)). In Condit. a conveyer-belt freezer tunnel was not

"integral" to the factory in which it was installed. Condit affirmed the holding in

Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co.. 81 Wn.2d

528, 503 P.2d 108 (1972) that a refrigeration system used to cool a cold

warehouse is integral to the warehouse and falls within the scope of the statute

of repose. But in Morse v. City of Toppenish, 46 Wn. App. 60, 64, 729 P.2d 638

(1986), the court held that a diving board is not integral to a swimming pool.

       The threshold question is whether this court should consider the summary

judgment ruling after the case proceeded to trial and judgment. "A denial of

summary judgment cannot be appealed following a trial if the denial was based

upon a determination that material facts are disputed and must be resolved by

the trier of fact." Johnson, 52 Wn. App at 303-304. "The primary purpose of a

summary judgment procedure is to avoid a useless trial." id. at 307 (citing

Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 602, 611 P.2d 737 (1980)).

Once a trial on the merits is held, review of summary judgment does nothing to

further this purpose. Id, However, an appellate court may review such a denial

where the disputed issues of fact were not material and the decision on summary
No. 73748-1-1/7


judgment turned solely on a substantive issue of law. Kaplan v. Northwestern

Mut. Life Ins. Co.. 115 Wn. App. 791, 804, 65 P.3d 16 (2003) (citing Univ. Vill.

Ltd. Partners v. King County. 106 Wn. App. 321, 324-25, 23 P.3d 1090 (2001)).

       In this case, the trial court considered summary judgment motions by both

parties on the statute of repose. The court found that there were disputed

material facts on whether the statute of repose applied, and denied both parties'

motions for summary judgment on that issue. We agree that the disputed

questions of fact are material. Given the requirement in Condit to determine

whether insulation was "integral" to the refinery, disputed material facts include

the purpose, necessity, and permanence of the insulation that Brand installed in

the refinery. Because material disputed facts must be resolved by the trier of fact,

the summary judgment order cannot be appealed because it was followed by a

trial. Johnson, 52 Wn. App 303.

       Nevertheless, Brand asks this court to review the denial of summary

judgment and find that the statute of repose applies. But even if this issue turned

on a question of law and were reviewable under Kaplan, we would still decline to

review it. We will not consider an error that was not raised in the trial court. RAP

2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). This rule

encourages the efficient use of judicial resources: parties must allow the trial

court to rule on all disputed issues and correct an error in order to avoid appeal.

Scott, 110 Wn.2d 682; State v. Ramirez, 62 Wn. App. 301, 305, 814 P.2d 227

(1991); See Adcox v. Children's Orthopedic Hosp. and Medical Center. 123
No. 73748-1-1/8


Wn.2d 15, 35 n.9, 864 P.2d 921 (1993). At trial, Brand did not elicit expert

testimony or offer exhibits to develop the material facts which formed the basis

for the trial court's denial of summary judgment. Nor did Brand renew the issue at

trial by moving for a directed verdict or offering jury instructions on the statute of

repose for this court to review. As a result, we conclude that Brand failed to

preserve the issue for review by this court and we decline to consider it on

appeal.

Duty of Care

       Whether the defendant owes duty of care is a question of law reviewed de

novo. Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871, 288 P.3d 328

(2012). Brand contends that there is no precedent that establishes a duty of care

in a take-home asbestos case where the defendant did not have control over the

actions of the individual exposed to asbestos. It argues that recognizing such a

duty would result in a slippery slope of liability.

       A duty of care is an essential element of common law negligence. It is an

"obligation, recognized by the law, requiring the actor to conform to a certain

standard of conduct, for the protection of others against unreasonable risks."

Daly v. Lynch, 24 Wn. App. 69, 76, 600 P.2d 592 (1979) (quoting W. Prosser,

Law of Torts § 30, at 143 (4th ed.1971)). Whether an affirmative duty to act exists

depends upon many factors, including "mixed considerations of logic, common

sense, justice, policy, and precedent." Snyder v. Med. Serv. Corp., 145 Wn.2d

233, 243, 35 P.3d 1158 (2001) (internal quotation omitted).      A person has a duty


                                            8
No. 73748-1-1/9


to prevent unreasonable risk of harm to others from his or her own actions.

Minahan v. Western Wash. Fair Ass'n. 117Wn. App. 881, 897, 73 P.3d 1019

(2003) (quoting Restatement (Second) of Torts § 321 (1965)). An

unreasonable risk gives rise to a duty of care only if a reasonable person would

have foreseen the risk. Parrilla v. King County. 138 Wn. App. 427, 436, 157 P.3d

879 (2007) (citing Minahan, 117 Wn. App. at 897).

      The asbestos insulation at Cherry Point posed a danger to workers and

their families. The insulation was habitually removed in the general maintenance

of the refinery. This created asbestos dust that could injure those who inhaled it.

When Brand installed asbestos insulation, it did not label the material as

asbestos-containing. Brand also created dangerous asbestos dust while

installing insulation but it did not take protective measures to prevent exposure to

nearby ARCO employees. Brand's failure to label asbestos insulation and

contain asbestos dust during construction created an unreasonable risk of harm.

       Barbara presented evidence that exposure to families of asbestos workers

was foreseeable when Brand insulated Cherry Point. Medical, scientific, and

industry/trade literature in the decades leading up to Barbara's exposure had

conclusively established the risk of inhaled asbestos dust. Additional studies

linked asbestosis or mesothelioma in the spouses and children of asbestos

workers to asbestos dust brought home by the worker. Given the availability of

information about the risk of harm to the families of asbestos workers, Brand

could have foreseen injuries to the spouses of ARCO employees such as
No. 73748-1-1/10


Barbara stemming from the unreasonable risk of harm it created in its installation

of asbestos insulation at Cherry Point.

       Brand contends that Barbara has not identified a legal duty because

Washington law has recognized a duty for "take-home" exposure only in the

context of strict liability and premises liability where the premises owner was also

the general contractor. Lunsford, 125 Wn. App. 784 (strict liability); Arnold v.

Saberhagen Holdings. Inc.. 157 Wn. App. 649, 240 P.3d 162 (2010) (general

contractor premises liability). This argument sidesteps the basic negligence

principles that establish a duty of care in this case. The recognition of a duty of

care in the context of strict liability and premises liability does not preclude

recognizing such a duty here under well-established principles of negligence.

       Brand also argues that its activities should be characterized as inaction or

nonfeasance, which does not give rise to a duty of care. This argument fails

because Brand acted affirmatively when it installed insulation. And it engaged in

this activity in a way that created an unreasonable risk of harm was foreseeable

as to Barbara. Under these circumstances, we conclude that Brand owed a duty

of care to Barbara.

       Finally, Brand argues no duty of care exists because there is no special

relationship between the parties. A special relationship is required ifthe plaintiff's

injury is caused by the criminal conduct of a third party or a defendant's

nonfeasance. See Tae Kim v. Budget Rent A Car Svs., Inc, 143 Wn.2d 190,

195,15 P.3d 1283 (2001); 16 David K. DeWolf & Keller W. Allen, Washington


                                          10
No. 73748-1-1/11


Practice: Tort Lawand Practice § 2.8 at 52 (4th ed. 2013). Barbara's injuries

were not caused by criminal conduct, nor by Brand's nonfeasance. No special

relationship is required to establish duty of care in this case.

       Brand did not label the location of asbestos insulation, knowing that it

would be habitually removed and create dust. Brand did not employ industrial

hygiene practices to control asbestos dust during installation. The risks of

asbestos dust to workers and others residing in their household was foreseeable

at the time of these activities. Under these circumstances, we hold that a duty of

care exists because Brand created a foreseeable risk of harm to Barbara.

Causation


       Appellate courts review a motion for directed verdict de novo. Ramey v.

Knorr, 130 Wn. App 672, 675-76, 124 P.3d 314 (2005). A directed verdict is

granted if "there is no legally sufficient evidentiary basis for a reasonable jury to

find or have found for that party with respect to that issue." CR 50(a)(1).

       Brand argues that there is not a sufficient basis to find causation because

Barbara did not demonstrate how much asbestos she was exposed to. In

response, Barbara points to an expert witness who testified that Barbara's

mesothelioma was caused by Brand and argues that this is sufficient for a

reasonable jury to find causation.

       To prove causation in an asbestos-related case, the plaintiff must present

evidence that the defendant's conduct was a substantial factor in bringing about

the plaintiff's harm. Morgan v. Aurora Pump Co., 159 Wn. App. 724, 740, 248


                                          11
No. 73748-1-1/12


P.3d 1052 (2011). Courts consider several factors when evaluating whether there

is sufficient evidence of causation against a particular defendant: (1) plaintiffs

proximity to the asbestos product when the exposure occurred and the expanse

of the work site where asbestos fibers were released; (2) the extent of time the

plaintiff was exposed to the product; (3) the types of asbestos products to which

plaintiff was exposed and the ways in which the products were handled and

used, and (4) the evidence presented as to medical causation of the plaintiffs'

particular disease. Morgan, 159 Wn. App. at 740 (citing Lockwood v. AC &S, Inc.,

109 Wn.2d 235, 248-49, 744 P.2d 605 (1987)). "Ultimately, the sufficiency of the

evidence of causation will depend on the unique circumstances of each case,"

but "[nevertheless, the factors listed above are matters which trial courts should

consider when deciding if the evidence is sufficient to take such cases to the

jury." Lockwood. 109 Wn.2d at 249.

       Barbara's expert witness, Dr. Andrew Churg, testified about the cause of

mesothelioma. He testified that Brand's activities as an insulation contractor

contributed to Barbara's mesothelioma. Dr. Churg also testified that the asbestos

exposure threshold for mesothelioma is even lower than .1 asbestos fiber per

cubic centimeter (.1 f/cc) per working year. Brand cross-examined Dr. Churg on

the latter point, noting his prior testimony in another case that mesothelioma

requires asbestos exposure to at least a .1 f/cc per working year. VRP 567-568.

Brand argues that there is no evidence that Barbara was exposed in excess of .1

f/cc per working year, so there is a legally insufficient basis to find causation. But


                                          12
No. 73748-1-1/13


Barbara presented expert medical testimony that her mesothelioma was caused

by Brand's activities. Based on this testimony, a reasonable jury could, and in

this case did, find causation. The jury was made aware of Dr. Churg's

purportedly contradictory testimony and it was free to credit or discredit his

opinion. We do not reweigh the evidence or question the jury's credibility

determinations on appeal. Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125

(2003). Because Barbara presented sufficient evidence of causation, we

conclude that the trial court did not err when it denied Brand's motion for a

directed verdict.

Duty to Warn

       We review alleged errors of law in jury instructions de novo. Blanev v. Int'l

Ass'n of Machinist & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210, 87

P.3d 757 (2004). Jury instructions are proper when they allow parties to argue

their theories of the case, do not mislead the jury, and properly inform the jury of

the applicable law. id

       Brand argues that the trial court erred by instructing the jury to consider

whether Brand was negligent with respect to its sales of insulation at the refinery.

It contends that if Brand is not a "seller" for the purposes of Barbara's dismissed

strict liability claim under Restatement (Second) of Torts § 402A, it cannot be a

"supplier" for the purposes of a negligent sales claim under Restatement

(Second) of Torts § 388.




                                         13
No. 73748-1-1/14


         Under the law of negligence, a defendant's duty is to exercise ordinary

care. A manufacturer's duty of ordinary care includes a duty to warn of hazards

involved in the use of a product, which are or should be known to the

manufacturer. Simonetta v. Viad Corp.. 165 Wn.2d 341, 348, 197 P.3d 127, 131

(2008) citing Restatement (Second) of Torts § 388 (1965). Restatement (Second)

of Torts § 388 applies to "sellers, lessors, donors, or lenders, irrespective of

whether the chattel is made by them or a third person." Restatement (Second) of

Torts § 388, cmt.c (1965). The rule encompasses "any person who ... gives

possession of a chattel for another's use ... without disclosing his knowledge that

the chattel is dangerous for the use for which it is supplied." id Simonetta

clarifies that "the duty to warn is limited to those in the chain of distribution of the

hazardous product." Simonetta, 165 Wn.2d at 354.

         Brand selected, ordered, supplied, and sold the insulation that it installed

in the refinery.3 Brand invoiced general contractor Parsons for the cost of

materials. Brand had some discretion to select its materials. It did not simply

procure the material that Parsons or ARCO specified. While Parsons and/or

ARCO were sophisticated buyers, they did not select the exact material for Brand




         3 Brand selected its insulation from several options. Brand's subcontract specified that
the insulation be either from PABCO or Johns-Manville. The contract specification stated that the
insulation could be Unibestos, Kaylo, Thermobestos, or Super Caltemp. Valve bodies had to be
insulated with PABCO #127 insulated cement. Brand selected PABCO to supply the majority of
the insulation for the project. Johns-Manville and Owens Corning product was also used. Brand
selected PABCO material because it was the cheapest to ship. Brand purchased and took
possession of the insulation at Cherry Point, and invoiced Parsons for the insulation on a monthly
basis.

                                                 14
No. 73748-1-1/15


to purchase. It follows that Brand has a duty to warn about the danger of the

product it selected and sold.

        Brand argues that if it is not a seller under Restatement (Second) of

Torts § 402A (1965), then it cannot be a seller for the purposes of Restatement

(Second) of Torts § 388. This argument fails. These two sections of the

restatement have different language, interpretive caselaw, and policy rationales.

In addition, the trial court's dismissal of Barbara's § 402A strict liability claim does

not bind this court to an outcome on § 388 that is inconsistent with the law. We

conclude that Brand is a supplier within the chain of distribution of asbestos

insulation. Accordingly, the trial court did not err when it instructed the jury on

negligent sales.

Contractor's Defense

        Brand contends the trial court erred when it refused to give a "contractor's

defense" instruction.4 Jury instructions are proper when they permit the parties to

argue their theories of the case, do not mislead the jury, and properly inform the

jury of the applicable law. Blanev, 151 Wn.2d 203. The instruction is erroneous if

any of these elements are missing, but an erroneous instruction is reversible

error only if it prejudices a party. Anfinson v. FedEx Ground Package System,




        4 Brand also argues that the trial court erred by denying summary judgment on
contractor's defense grounds. "'A summary judgment denial cannot be appealed following a trial if
the denial was based upon a determination that the material facts are disputed and must be
resolved by the factfinder.'" Kaplan. 115 Wn. App. at 799 (quoting Brothers v. Pub. Sch.
Employees of Washington, 88 Wn. App. 398, 409, 945 P.2d 208 (1997)). The trial court denied
Brand's summary judgment motion on its affirmative contractor's defense due to questions of fact
on the negligence claim. We do not review a motion for summary judgment after a trial.
                                               15
No. 73748-1-1/16


Inc., 174 Wn.2d 851, 281 P.3d 289 (2012). We review alleged errors in

instructing the jury de novo. Blanev. 151 Wn.2d at 210.

       Brand's proposed instruction advised the jury that a contractor who

performs work in accordance with specifications provided by the owner is not

liable if specified construction materials are later proven to be defective. The trial

court gave a general negligence jury instruction instead. Employing this general

negligence instruction, Brand argued in closing that it was not negligent because

its contract specifications called for asbestos insulation. Brand was permitted to

argue its theory of the case, the instructions did not mislead the jury, and the jury

was properly informed of the applicable law. The trial court did not err by refusing

to instruct the jury on a contractor's defense.

Allocation to Wrongful Death Cause of Action

       A trial court's ruling on the reasonableness of a settlement is a factual

determination. This court reviews the trial court's approval of settlement

agreements for substantial evidence. Brewery. Fibreboard Corp., 127 Wn.2d

512, 523, 901 P.2d 297 (1995) (citing Glover v. Tacoma General Hosp., 98

Wn.2d 708, 711, 658 P.2d 1230 (1983) (overruled on other grounds).

       Brand argues that the trial court erred when it allocated twenty percent of

settlement proceeds to a future wrongful death claim. Prior to trial, Barbara

settled her personal injury claims against multiple defendants. The parties agree

that Barbara explicitly or impliedly released future wrongful death claims in

exchange for settlement monies. After trial, the plaintiff requested that half of the


                                          16
No. 73748-1-1/17


settlement proceeds be allocated to the wrongful death claim released by

Barbara, and the other halfallocated to the personal injury claim released by

Barbara. Under principles of joint and several liability, Brand was not entitled to

set-off the value of claims that were not pursued against it at trial, such as

wrongful death. Thus, Brand opposed this allocation, which reduced the amount

of settlement proceeds that would set off the $3,500,000 judgment against it.

Brand requested that the court allocate none of the settlement to a wrongful

death action. This would allocate all of the settlement proceeds to the released

personal injury claims and reduce the personal injury judgment against Brand.

The trial court ordered that twenty percent of the settlement proceeds be

allocated to future wrongful death claims:

      The jury awarded noneconomic damages in the amount of
      $3,500,000.00. On Brand's motion, the Court granted remittitur,
      reducing the judgment to $2,500,000.00. The total settlement
      proceeds prior to judgment were $1,965,710.76. Under RCW
      4.22.060(2), Brand is entitled to a set-off of 80% of that amount.

       [Brand] is liable for Plaintiff's damages in the amount of
       $927,431.39.

Clerk's Papers (CP) at 5426-27.

       On appeal, Brand argues that any allocation of settlement proceeds to a

wrongful death action was improper because the settlement of Barbara's

personal injury claim extinguished a wrongful death claim. "When the death of a

person is caused by the wrongful act, neglect, or default of another his or her

personal representative may maintain an action for damages against the person

causing the death. . . ." RCW 4.20.010. The wrongful death action is for the

                                         17
No. 73748-1-1/18


benefit of statutory heirs. RCW 4.20.020. But a decedent, in her lifetime, may

pursue a course of action that extinguishes an heir's cause of action for wrongful

death. Deggs v. Asbestos Corp. Ltd.. 186 Wn.2d 716, 725, 381 P.3d 32 (2016).

"[A] release and satisfaction by the person injured of his right of action for the

injury bars the right in the beneficiaries to maintain an action for his death

occasioned by the injury." Brodie v. Washington Water Power Co., 92 Wash.

574, 576-77, 159 P.791 (1916). Brand asks that we reverse the trial court's

allocation of settlement proceeds because Barbara's settlement bars the

wrongful death action under Brodie and Deggs.

       But on the facts before us, Brodie and Deggs do not control. The issue

here is not whether Barbara's personal representative can maintain a wrongful

death suit, but whether a settlement would have occurred at all but for settlement

of the potential wrongful death claim. Stated differently, because the release of

Barbara's wrongful death claim was a necessary concession to reach a

negotiated settlement, it is clearly valuable consideration which is reflected to

some degree in the settlement amount. We conclude that the trial court did not

err when it allocated a portion of the settlement to the potential wrongful death

claim. The only issue is to what degree. But because Brand does not challenge

the trial court's finding that the release was worth twenty percent of the

settlement proceeds, that issue is not before us.




                                          18
No. 73748-1-1/19


Work Simulation Video

       We review the trial court's decision to admit or exclude evidence for

manifest abuse of discretion. Degrootv. Berkley Const.. Inc.. 83 Wn. App. 125,

128, 920 P.2d 619 (1996).

        Brand argues that the trial court erred when it refused to exclude from

evidence a work simulation video that showed a worker sawing asbestos-

containing insulation and shaking out asbestos-containing clothes. Brand argues

that the evidence was irrelevant and prejudicial because it did not replicate the

conditions experienced by Barbara and Raymond.

       Demonstrative evidence is permitted "if the experiment was conducted

under substantially similar conditions as the event at issue." State v. Finch. 137

Wn.2d 792, 816, 975 P.2d 967 (1999) (citing Jenkins v. Snohomish County Pub.

Util. Dist. No. 1. 105 Wn.2d 99, 107, 713 P.2d 79 (1986)). Determining whether

the similarity is sufficient is within the discretion of the trial court, id If the

evidence is admitted, any lack of similarity goes to the weight of the evidence, id

We review the trial court's evidentiary ruling for abuse of discretion and will only

disturb the ruling if it is manifestly unreasonable or based on untenable grounds.

In re Pers. Restraint of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009). A

ruling is manifestly unreasonable if it "'adopts a view that no reasonable person

would take.'" \± (quoting Maverv. Sto Indus.. Inc., 156 Wn.2d 677, 132 P.3d 115

(2006)).




                                             19
No. 73748-1-1/20


       Brand argues there are substantial differences between the work

simulation video and the actual conditions under which Barbara and Raymond

were exposed to asbestos. It points out that the video was illuminated to enhance

the visibility of the asbestos particles and that Raymond's work took place

outside in windy conditions. Whereas the video was filmed inside with no air

currents and a different brand of insulation was used in the video. Brand also

argues the video was prejudicial because the individuals in the video wore

protective clothing and facemasks. The trial court determined that in spite of

these differences, the conditions shown in the video were substantially similar to

the conditions experienced by Raymond and Barbara because it showed

individuals sawing insulation and shaking out clothing that had been exposed to

the dust created by that activity. We cannot say that no reasonable person would

adopt this view. In addition, in light of the similar conditions, the relevance of the

video outweighs any prejudicial effect of seeing workers handle asbestos in

protective gear. We conclude that the trial court did not abuse its discretion by

denying Brand's motion in limine and admitting the video. There was no error.

Remittitur

       Barbara cross appeals the trial court's reduction of her damages award

from $3,500,000 to $2,500,000. A decision to decrease a jury's award is

reviewed de novo. RCW 4.76.030; Robinson v. Safeway Stores. Inc., 113 Wn.2d

154, 161-62, 776 P.2d 676 (1989). But we give great deference to the jury's

determination of damages. Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771

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P.2d 711 (1989). "'An appellate court will not disturb an award of damages made

by a jury unless it is outside the range of substantial evidence in the record, or

shocks the conscience of the court, or appears to have been arrived at as the

result of passion or prejudice.'" Bunch v. King Ctv. Dep't of Youth Servs.. 155

Wn.2d 165, 179, 116 P.3d 381 (2005) (guoting Bingaman v. Grays Harbor Cmtv

Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985). The "shocks the conscience"

test asks if the award is "flagrantly outrageous and extravagant." Bingaman, 103

Wn.2d at 836-37. Passion and prejudice must be "unmistakable" before they

affect the jury's award. RCW 4.76.030; Bingaman, 103 Wn.2d at 836.

       The trial court remitted Barbara's damages on several bases. First, "[t]he

jury was visibly and audibly shaken when told of the plaintiffs death." CP at

5429. Second, the jury instructions did not emphasize that damages included

only pre-death pain and suffering, id Third, plaintiff's closing argument contained

an inappropriate appeal for punitive and exemplary damages, id

       Barbara argues that Brand waived any assignment of error to the amount

of the award because it failed to object to the continuation of the trial after

Barbara's death and to alleged improper arguments at closing. She argues that

even if the assignment of error was not waived, her award should not have been

reduced because it was not unmistakably the result of passion or prejudice.

Brand argues that their failure to object is immaterial. It contend that the grant of

remittitur should be upheld because the jury verdict was influenced by passion

and unsupported by evidence.


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       We agree with Barbara. Brand did not object to notifying the jury of the

plaintiff's death or to continuing the trial as a survivorship action. When the jury

was so instructed and appeared shaken, Brand did not respond by requesting

clarifying instructions on the impact of Barbara's death on the case. Brand also

did not object to inappropriate closing remarks, and contends that this decision

was tactical. While these failures to object do not preclude our review, they do

indicate that Barbara's death was not so shocking that Brand felt compelled to

object, ask for a new trial, or request clarifying jury instructions. Given that we

overturn a jury's verdict only in the face of unmistakable passion and prejudice,

Brand's inaction shows that any passion or prejudice that may have motivated

the jury was not overpowering or unmistakable.

       In ordering remittitur, the trial court also reasoned that the jury may not

have followed instructions to consider only pre-death damages. A jury is

presumed to follow jury instructions and that presumption will prevail until it is

overcome by a showing otherwise. Tennant v. Roys, 44 Wn. App. 305, 315-16,

722 P.2d 848 (1986) (citing In re Municipality of Metro. Seattle v. Kenmore

Properties, Inc., 67 Wn.2d 923, 930-31, 410 P.2d 790 (1966)). Even ifthe trial

court could have given more elaborate instructions after Barbara's death, there is

no showing that the jury did not follow the instructions that were given.
       Finally, Barbara offered substantial evidence of her pain and suffering,

and that her condition was terminal. The jury knew that Barbara would die of her

disease, and so, the fact of her death does not necessarily undermine their

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verdict. We conclude that the jury's damages award was not unmistakably the

result of passion or prejudice, and that it was supported by substantial evidence.

Accordingly, we reverse the trial court's grant of remittitur and we remand to the

trial court to reinstate the jury's verdict and damages award.

      Affirmed in part and reversed in part.




WE CONCUR




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