Filed 7/25/14 Lovelace v. Pneumo Abex CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


MICHAEL LOVELACE,

                   Plaintiff and Respondent,                                                 C072371

         v.                                                                          (Super. Ct. No.
                                                                               34201100104560CUASGDS)
PNEUMO ABEX LLC,

                   Defendant and Appellant.


         A jury determined James A. Lovelace contracted pleural mesothelioma due to
asbestos exposure and awarded him $2,072,164 in economic and noneconomic damages.1
The jury apportioned 13 percent of the fault to Pneumo Abex LLC (Abex), a
manufacturer of automobile brake parts that contained asbestos. On appeal, Abex
contends: (1) The trial court’s mid-trial application of Campbell v. Ford Motor Co.
(2012) 206 Cal.App.4th 15 (Campbell), which had been published only recently,



1     After judgment was entered in his favor, James A. Lovelace died. Thereafter, his
son (Michael Lovelace) filed a motion to continue as his father’s successor in interest
pursuant to Code of Civil Procedure section 377.32. The motion to substitute Michael
Lovelace, successor in interest to James A. Lovelace, as respondent is granted.

         To distinguish plaintiff from his successor in interest, we refer to plaintiff as
James.

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constituted an unfair surprise that threw Abex’s defense “into disarray.” (2) Insufficient
evidence supported the jury’s finding Abex is responsible for 13 percent of the fault for
James’s injuries.
       We reject Abex’s claim the trial court erred by applying Campbell, supra, 206
Cal.App.4th 15 during trial. Abex has not addressed the second ground on which the trial
court based its decision, namely, that Abex failed to demonstrate due diligence in failing
to request a continuance of trial. That separate ground suffices to affirm the denial of the
motion for new trial. We conclude substantial evidence supported the jury’s finding
Abex was 13 percent at fault for James’s injuries. Accordingly, we affirm.
                                     BACKGROUND
        James’s In Limine Motion Based on Campbell v. Ford Motor Company
       Issued on May 21, 2012, Campbell, supra, 206 Cal.App.4th 15, held for the first
time in California that a property owner has no legal duty to protect family members of
workers on its premises from secondary exposure to asbestos brought home on
employees’ clothes. (Id. at p. 29.) On May 23, 2012, the trial court heard an in limine
motion by James to apply the holding of Campbell. James’s counsel argued Campbell
precluded placing Johns-Manville onto the special verdict form. The trial court took the
matter under submission.
                      James’s Evidence Regarding Abex Products
       At trial, Dr. Barry Horn testified as an expert on asbestos-related illnesses. He
explained James contracted pleural mesothelioma due to exposure to asbestos-containing
products. James testified that between 1950 and 1980 he was exposed to asbestos-
containing products made by manufacturers that included Abex, Raybestos, and Bendix.
Specifically as to Abex, James adjusted numerous brakes made by Abex. James breathed
the dust from Abex products because he compressed air to blow the asbestos dust off the
brake drums when adjusting the brakes. At other times, James ground and sanded new
Abex brake shoes to match the arc of the brake drum. He breathed this dust too. James


                                             2
did not use a dust mask or respirator because he did not see any cautionary labels on
Abex products or the boxes in which they came. James also believed he was exposed to
asbestos dust in his work as a plumber and his work on heating- and air-conditioning
systems.
       Allan Smith, a professor of epidemiology, testified 80 to 90 percent of pleural
mesothelioma cases in adult men are “due to asbestos dust.” Professor Smith explained
that “[w]orkplace associations became clear pretty quickly, but over the years it’s also
been demonstrated that the asbestos fibers going from a workplace to a surrounding
neighborhood or on the clothes of a worker, getting dust in the homes, can also cause
mesothelioma.” When a person has been exposed to multiple types of asbestos dust
throughout life, it is not possible to determine which particular fibers caused the disease.
Instead, “[a]ll asbestos dust inhaled adds to the risk of mesothelioma.” Professor Smith
rejected as “bad science” a study that concluded asbestos dust from brake shoes did not
cause mesothelioma.
                                  Defendant’s Evidence
       Abex called several witnesses who testified the dust from Abex’s products did not
contribute to James’s mesothelioma. Mary Finn, a certified industrial hygienist,
concluded that “any exposure [James] may have had to Abex products did not increase
his risk of pleural mesothelioma.” However, James’s exposure to crocidolite, a more
potent form of asbestos used by his father’s employer, Johns-Manville, would have
increased his risk of mesothelioma.
       Andrew Churg, an anatomic pathologist, agreed James suffers from pleural
mesothelioma. Dr. Churg testified James’s mesothelioma was likely caused by the
amphibole, crocidolite, and amosite forms of asbestos. However, the chrysotile form of
asbestos did not contribute to his disease. Chrysotile is an unstable form that breaks up
very rapidly in the lungs –- in as few as 11 days in rats. By contrast, lung biopsies of rats
exposed to amosite and crocidolite fibers showed bioperseverance (remaining in lung


                                              3
tissue) even after a year. Crocidolite is more potent than chrysotile “by a factor of five
hundred.” It “takes an enormous amount” of chrysotile to produce mesothelioma in
humans. The amount of exposure of a full-time brake mechanic to chrysotile asbestos
would be insufficient to cause mesothelioma. Secondary exposure to clothing brought
home from the Johns-Manville plant at which James’s father worked would have
contributed to the risk of mesothelioma due to the plant’s use of crocidolite.
       David Weill, a pulmonologist, testified the asbestos from working on brakes did
not elevate James’s risk of mesothelioma. However, the forms of asbestos at the Johns-
Manville plant at which his father worked and the asbestos from James’s work as a
plumber did contribute to his mesothelioma. Likewise David Garabrant, a physician and
professor of epidemiology, testified, “there is not evidence that low level exposures, such
as brake mechanics would experience changing an asbestos-containing brake are at an
increased risk for mesothelioma.”
                               Abex’s Motions for Mistrial
       During trial, the court ruled Abex could introduce evidence “to the effect” that
“not only was Abex’s product not a cause of the harm but that there [was] at least one
other product out there that was.” However, the trial court refused to allow Johns-
Manville to be placed on the special verdict form. Abex moved for a mistrial on grounds
it was unable to assign fault to Johns-Manville and it would leave the jury “wondering,
well, what happened to Johns-Manville?”
       During closing arguments, James’s counsel told the jury: “I have a surprise for
you.” Counsel argued the exhibits introduced at trial showed a secret agreement made in
Saranac, New York, among companies including Abex and Johns-Manville to conceal
the results of studies showing asbestos caused tumors and cancer. In addition to
castigating Abex and Raybestos for producing an unsafe product, James’s counsel urged
the jury to apportion 39 percent fault each to Abex and Raybestos because they were “in
on” studies showing the dangers of asbestos.


                                             4
       Abex again moved for mistrial on the basis of the argument it was liable for
damages based on the Saranac agreement. Pointing out James’s counsel acknowledged
Johns-Manville to have been a signatory to the agreement, Abex argued it was unfair to
keep Johns-Manville off the verdict form. The trial court found no basis for imposing
liability on Johns-Manville in the absence of any legal duty. Thus, the court denied the
motion for mistrial and excluded Johns-Manville from the verdict form.
       The special verdict allowed the jury to apportion fault to Abex, Raybestos,
numerous other named companies, “Other Vehicle Manufacturers,” and “Asbestos
Plumbing Products.” Johns-Manville was not included. Moreover, the jury was
instructed that in determining the “percentage of responsibility for [James’s] harm,” the
percentages on the special verdict form “[t]he total must equal 100%.” The jury
complied and apportioned 100 percent of the fault to the named companies, allocating
13 percent of the fault to Abex.
      Motions for New Trial and Judgment Notwithstanding the Verdict (JNOV)
       After entry of judgment, Abex moved for a new trial and JNOV. The motion for
new trial was premised on the trial court’s exclusion of Johns-Manville from the special
verdict form. And, the motion for JNOV asserted insufficient evidence established
Abex’s products caused or contributed to James’s mesothelioma. James’s counsel filed
opposition, and the trial court denied both motions.
       In denying the motion for new trial, the trial court recounted it had “ruled that
evidence regarding ‘take-home exposures’ at Johns-Manville could be introduced so the
jury could consider it for causation purposes but not for apportionment of fault
attribution.” The trial court noted Abex did not deny Campbell, supra, 206 Cal.App.4th
15 barred the imposition of any tort liability on Johns-Manville. Thus, the court
concluded, “Abex has failed to demonstrate any adverse material effect on its case as a
result of the elimination of Johns-Manville on the verdict form.”




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       In denying Abex’s motion for JNOV, the trial court explained: “Abex presents a
selective version of the evidence, mostly its own, and asserts its evidence, including that
solicited on [James’s] cross-examination should be given the most weight. However,
there was substantial evidence to support the jury’s finding that it was more likely than
not [James] was exposed to an asbestos-containing product attributable to Abex. There
was substantial evidence [James] was exposed to Abex brake dust from sanding,
grinding, and blowing out Abex drum brakes. For example, [James] testified to buying
Abex brakes over the years and grinding or sanding the brakes which produced dust that
he breathed.” He testified “Abex” was written on the brake linings. He also confirmed
an advertisement for Abex brakes that showed “Abex” printed on the brake lining
material was an accurate description of the linings he installed and removed over the
years. “Disregarding Abex’s evidence as it must on a JNOV, and indulging every
reasonable inference in [James’s] favor, there was substantial evidence to support a
finding that [James] was exposed to Abex products.”
       Abex has timely filed a notice of appeal challenging the trial court’s denial of its
motions for new trial and JNOV.
                                       DISCUSSION
                                              I
     Application of the Holding in Campbell v. Ford Motor Company During Trial
       Abex contends the judgment must be reversed “based on the [trial] court’s
prejudicial decision to apply Campbell mid-trial.” Abex characterizes “the publication of
Campbell” as “[a]n unexpected event beyond Abex’s control” with the effect that Abex
“is forced in mid-trial to reshape and dramatically truncate its defense presentation.”
Abex states it “does not attack the Campbell decision, nor dispute that the trial court
correctly applied that decision to the facts of this case. Abex’s appeal, rather, is focused
on the timing and procedural inequities stemming from the trial court’s application of




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Campbell coming, as it did, after opening statements and during the evidentiary phase of
the trial.” We reject this procedural argument for lack of prejudice.2
       In arguing the surprise publication of Campbell, supra, 206 Cal.App.4th 15
prejudiced its ability to present a proper defense, Abex does not address a separate basis
given by the trial court for denying the motion for new trial. The order denying the
motion for new trial states: “In addition, the Court finds that Abex failed to establish a
record of due diligence as required for a motion pursuant to [Code of Civil Procedure
section] 657(3). Specifically, although it was aware of Campbell prior to jury selection
and opening arguments, there is no record that Abex ever requested a trial continuance to
adjust its trial strategy. Instead, it requested a mistrial which this Court denied multiple
times.” (Italics added.)
       We begin by presuming the trial court’s decision to be correct. (In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133.) An appellant has the burden to demonstrate
error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) And, issues not raised in
an appellant’s opening brief are deemed abandoned. (Reyes v. Kosha (1998) 65
Cal.App.4th 451, 466.)



2       Although Abex’s opening brief may be construed to complain about the omission
of Johns-Manville from the special verdict form, Abex’s reply brief clearly disavows any
claim of error pertaining to the special verdict form by stating: “The trial court did not
abuse its discretion when it decided that Campbell required Johns-Manville to be
removed from consideration as one of the potential tortfeasors to whom fault could be
allocated by the jury, but it did abuse its discretion by making the ruling and forcing
Abex to remain in trial before a jury which had been already conditioned to perceive
Johns-Manville as the sole responsible party to whom 100% fault should be allocated.”
Later, the reply brief states, “Abex has not argued, as [James] suggests, that the trial
court’s decision to keep Johns-Manville off the jury verdict form as a potentially culpable
tortfeasor was error, such that its motions for mistrial and/or new trial should have been
granted. Rather, the timing of the decision -- in the middle of trial, after opening
statements have been made -- and the prejudicial impact it had on Abex’s defense were
reasons enough to justify a ‘restart’ of trial.” Thus, Abex narrows its argument regarding
the application of Campbell, supra, 206 Cal.App.4th 15 to encompass only the aspect of
having to formulate a “new defense” during trial.

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       Abex does not acknowledge or discuss this second ground for the trial court’s
denial of the motion for new trial –- i.e., failure to move for a continuance. Even if Abex
were correct that the application of Campbell, supra, 206 Cal.App.4th 15 during trial
came as a surprise, we would nonetheless be compelled to affirm because there is a
separate, presumptively correct basis for the trial court’s decision. (See Bradbury Estate
Co. v. Carroll (1929) 98 Cal.App. 145, 153 [“[T]he rule is well established that a motion
for a new trial on the ground of accident or surprise is properly denied where a
continuance is not asked”].) A single valid basis for the trial court’s decision suffices to
affirm the denial of a motion for new trial. (Salazar v. Southern Cal. Gas Co. (1997) 54
Cal.App.4th 1370, 1376; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)
       At oral argument, Abex asserted its motion for mistrial should have the same
effect as the requisite motion for continuance based on surprise. We reject the assertion.
A motion for mistrial should be granted only when a party is prejudiced by an error
occurring during trial that cannot be cured by instructing or admonishing the jury.
(People v. Lewis (2008) 43 Cal.4th 415, 501, overruled on other grounds in People v.
Black (2014) 58 Cal.4th 912, 919.) Abex asserted it properly moved for mistrial based on
the trial court’s surprise application of Campbell, supra, 206 Cal.App.4th 15. However,
Abex conceded at oral argument it does not challenge the applicability of Campbell to
this case.3 A trial court does not err by applying case law acknowledged by all parties to
be germane and valid. The essence of Abex’s argument is that it was unfairly surprised.
However, the remedy for surprise application of new and valid law is properly provided
by a continuance rather than mistrial. (See People v. Jenkins (2000) 22 Cal.4th 900, 946,
fn. 4 [noting a motion for mistrial does not preserve for review a procedural problem for



3       Based on the undisputed applicability and validity of Campbell to this case, we
need not resolve whether recent decisions in Kesner v. Superior Court (2014) 226
Cal.App.4th 251, 255 and Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104,
have changed secondary exposure tort duties as applied to Johns-Manville under the facts
of this case.

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which mistrial is not the remedy].) A motion for continuance would not have been futile.
We note Code of Civil Procedure section 36, subdivision (f), expressly provides for a 15-
day continuance upon a showing of good cause even in a case entitled to preference.
       Based on the trial court’s unchallenged, second ground for denial of Abex’s
motion for new trial, we reject Abex’s contention for lack of prejudice.
                                             II
                               Substantial Evidence Claim
       Abex contends the evidence is insufficient to sustain the jury’s allocation of
13 percent of fault to Abex. We reject the argument.
                                             A.
                                    Standard of Review
       In reviewing a challenge to the sufficiency of the evidence in support of the jury’s
allocation of fault among tortfeasors, we “resolve all conflicts in the evidence in favor of
respondent, and indulge all legitimate and reasonable inferences in support of the
judgment.” (Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 471.) Under this
standard, “[t]he power of the appellate court begins and ends with a determination as to
whether there is any substantial evidence, contradicted or uncontradicted, which will
support the conclusion reached by the jury. When two or more inferences can be
reasonably deduced from the facts, the reviewing court is without power to substitute its
deductions for those of the trial court. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d
427, 429; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Stevens v. Parke,
Davis & Co., supra, 9 Cal.3d 51, 63-64.) It is the province of the jury to resolve conflicts
in the evidence and to determine the credibility of witnesses. The jury may accept part of
the testimony of a witness and reject another part. (Stevens v. Parke, Davis & Co., supra
at p. 67.)” (Metzger v. Barnes (1977) 74 Cal.App.3d 6, 9.)




                                              9
                                             B.

     Sufficiency of the Evidence Regarding Abex’s 13 Percent Allocation of Fault
       James introduced sufficient evidence to support the jury’s allocation of 13 percent
fault to Abex. Professor Smith testified as an expert on epidemiology and explained the
overwhelming number of cases of pleural mesothelioma in adult men are caused by
exposure to asbestos dust. In Professor Smith’s opinion there was no doubt chrysotile –-
the form of asbestos contained in Abex’s brake products –- causes mesothelioma. Based
on the quantity and types of asbestos to which James was exposed as a plumber and truck
mechanic, James would have suffered an increase in his risk of mesothelioma from all
sources of asbestos. Although secondary exposure to his father’s asbestos from the
Johns-Manville plant would have contributed to James’s risk, such secondary exposure
would not have “somehow exclude[d] all other of the asbestos exposures as a cause of his
mesothelioma.” On the basis of studies, including a recent study of exposures to
chrysotile miners in Italy, Professor Smith rejected the hypothesis chrysotile did not
cause mesothelioma. As to the Italian study, Professor Smith explained: “That’s just one
example that certainly chrysotile asbestos dust does cause mesothelioma.” (Italics
added.) Any assertion chrysotile dust exposure does not contribute to mesothelioma “just
flies in the face of scientific evidence.”
       Professor Smith’s testimony was echoed by Dr. Horn, who also explained there
was no doubt James had mesothelioma and exposure to asbestos was the only known
cause of mesothelioma in the United States. Dr. Horn considered James’s exposures to
Johns-Manville asbestos fibers and Abex asbestos fibers. He concluded that “all of that
exposure contributes to the risk for the development of mesothelioma.” Given James’s
exposure to Abex brake dust blown into the air with a compressor and due to sanding the
brake shoes, Dr. Horn concluded the brakes James worked on substantially contributed to
the mesothelioma. James himself testified he worked on brakes for 30 years and could
not estimate how many vehicles he worked on because it was “a lot.” James recalled


                                             10
seeing Abex labels on parts and boxes during those years. The testimony amply
supported the apportionment of 13 percent of fault to Abex.
       Abex contends its own experts refuted the proposition the chrysotile exposure
from its products contributed in any way to James’s mesothelioma. We reject the
contention.
       We note Abex has presented a one-sided version of the statement of facts that
favors its evidence and barely acknowledges James’s evidence. However, in every
appeal “the appellant has the duty to fairly summarize all of the facts in the light most
favorable to the judgment.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875,
881.) We would be justified in deeming the insufficiency of the evidence argument
forfeited for failure to set forth a statement of the facts in support of the judgment. In any
event, Abex’s argument has no merit because it asks us to reweigh the expert testimony
to conclude Abex’s experts were more credible on the issue of whether chrysotile
asbestos exposure causes mesothelioma. We do not reweigh witness credibility on
appeal. (Metzger v. Barnes, supra, 74 Cal.App.3d at p. 9.)
       We also reject Abex’s contention that James’s case was premised only on 10 sets
of Abex brakes. In support, Abex cites to the cross-examination of James in which he
admitted he had difficulty remembering exactly how many Abex brake sets he worked on
because of how long ago the exposure took place. Abex also emphasizes the fact James
remembered other brake manufacturers as well. However, Abex ignores James’s
testimony he knew he was breathing Abex brake dust because “sometimes it said Abex
on the brake.” At other times, James saw the parts come in boxes marked “Abex.”
James worked on Abex brakes for cars and diesel trucks. James’s inability to quantify
the number of Abex brakes he worked on over the course of 30 years does not render the
evidence insufficient. To the contrary, the expert testimony linking chrysotile asbestos
combined with James’s testimony about working on “a lot” of brakes that included




                                             11
Abex’s provided substantial evidence in support of the jury’s allocation of 13 percent of
fault to Abex.4
                                        DISPOSITION
       The judgment is affirmed. Michael Lovelace shall recover his costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1) & (2).



                                                       HOCH        , J.



We concur:



     NICHOLSON         , Acting P. J.



        HULL           , J.




4      Our conclusion the testimony provided by James and his expert witnesses
constitutes sufficient evidence to support the judgment obviates the need to consider
James’s contention the evidence can also be found sufficient based on Abex’s
participation in the Saranac agreement.

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