VOLUME 7, ISSUE 3 / SEPTEMBER 2013 ™
California Practice Guide
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CIVIL TRIALS & EVIDENCE NEWS IN THIS ISSUE Appellate Review Union Carbide asks California high court to reverse award in asbestos case (Cal.)............... 5 Bifurcation Judge rejects bid for bifurcation in insurance suit (N.D. Cal.)................................... 6 Expert Witnesses Evidence of Camry software bug is solid, estate in bellwether injury case says (C.D. Cal.)................................... 7 Evidence/Damages California appeals court rejects sailor’s bid for higher award in asbestos case (Cal. Ct. App.)............................. 8
COMMENTARY
Managing the risks and costs of eDiscovery in products liability matters Attorneys Anthony J. Diana, Therese Craparo and Andrew J. Calica of Mayer Brown LLP offer a basic checklist on how manufacturers can best manage product development communications to prepare for the possibility of burdensome and costly product liability suits. (See page 3)
APPELLATE REVIEW
Power grinder maker not liable for injuries from improper use A California appeals court panel has upheld the dismissal of a product liability suit against power tool maker Hitachi by a man who injured himself when using an electric grinder with the wrong cutting attachment. Sanchez v. Hitachi Koki Co. et al., No. B245050, 2013 WL 3423091 (Cal. Ct. App., 2d Dist., Div. 4 July 9, 2013). (California prohibits courts and parties from citing or relying on unpublished opinions in any action or proceeding, except in limited circumstances specified by California Rules of Court 8.1115a & b.) The 2nd District Court of Appeal said the instruction manual provided with plaintiff Andres Sanchez’s Hitachi power tool “expressly warned that saw blades should never be used with the grinder.”
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The three-judge panel upheld a Los Angeles County Superior Court judge’s September 2012 grant of summary judgment to Hitachi. The judge had said Sanchez’s product liability and general negligence claims are barred by a California (Continued on page 2)
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The Rutter Group’s “California Practice Guide: Civil Trials & Evidence News” Published since July 2007 Publisher: Mary Ellen Fox Executive Editor: Donna Higgins Editor: Melissa Sachs, Esq.
[email protected] The Rutter Group’s “California Practice Guide: Civil Trials & Evidence News” is published monthly by Thomson Reuters. 175 Strafford Avenue, Suite 140 Wayne, PA 19087 877-595-0449 in Pennsylvania; Fax: 800-220-1640; www.westlaw.com Customer service: 800-328-4880 For more information, or to subscribe, please call 800-727-3161, ext. 2, or visit west.thomson.com. Copyright © 2013 by The Rutter Group, A Division of Thomson Reuters. Permission is hereby granted for the copying of pages or portions of pages of this periodical by photocopy, Xerox or other similar process, or by manual transcription, by or under the direction of licensed attorneys for use in the practice of law. Otherwise, all rights reserved; no copying for in-house training distribution or other use is permitted which will infringe the copyright without express written consent of The Rutter Group, A Division of Thomson Reuters. (To contact us write to: The Rutter Group at 15760 Ventura Blvd., Suite 630, Encino, CA 91436; or phone (800) 747-3161; or fax (818) 986-2180; or visit our Web site, www.RutterGroup.com) Please Note: Programs and publications by The Rutter Group (TRG), A Division of Thomson Reuters, are intended to provide attorneys with current and accurate information about the subjects covered. However, such information may not be sufficient in dealing with a client’s particular legal problem, and TRG does not warrant or represent its suitability for such purpose. Attorneys attending programs presented by TRG or using its publications do so with the understanding that TRG is not engaged in the practice of law and does not render legal, accounting or other professional services; and that the information published by TRG should not be relied upon as a substitute for independent research to original sources of authority.
California Practice Guide: Civil Trials & Evidence News
Supreme Court ruling shielding product makers from such allegations over harm caused by another company’s product, O’Neil v. Crane Co., 53 Cal. 4th 335 (2012). In 2010 Sanchez sued a local hardware store in the Superior Court, claiming he was severely injured when the Razor Back tooth saw blade he mounted on his Hitachi grinder “kicked back,” slicing his hand as he tried to cut a tire. The initial complaint alleged that because the store sold the grinder and blade in combination, it had essentially recommended that they be used together, according to the appellate panel. Sanchez added Hitachi as a defendant in 2011 and amended his suit to assert that the grinder was unreasonably dangerous because it lacked a kickback prevention feature. Judge Frank J. Johnson granted the defendant’s summary judgment motion based on Hitachi’s argument that it was not liable because it did not make the Razor Back saw blade. The company added that the grinder did not require the use of the blade and that an expert witness testifying for Sanchez had conceded that the grinder was not intended to be used with a saw blade, the appellate court said. Sanchez appealed. He argued that the trial court erred in granting summary judgment based on O’Neil, a ruling that freed the makers of naval warship valves and pumps from liability for injuries caused by asbestos-containing materials the U.S. Navy specified to be used with them. Sanchez said O’Neil is inapplicable because, unlike the plaintiff there, he has alleged that the primary product — the grinder — was defective because it lacked a “kickback” prevention feature. “We disagree that this case falls outside the analysis set forth in O’Neil,” the appellate panel said. “Like the plaintiff in O’Neil, Sanchez sued one manufacturer for the harm caused by another manufacturer’s product.” The panel noted that, “as in O’Neil, Sanchez’s injuries arose when the product used with the defendant-manufacturer’s product caused him harm.” In O’Neil, the court said, it was the asbestos used to insulate the valves, while here, it was the saw blade Sanchez attached to the Hitachi grinder. While Sanchez argued that Hitachi should have put warnings on the body of the grinder or provided more specific warnings about its use with saw blades, the appeals court said O’Neil relieved Hitachi from any duty to warn “about the risks associated with another manufacturer’s product ‘unless the intended use of the product inevitably creates a hazardous situation.’” See Wegner, Fairbank, Epstein & Chernow, CAL. PRAC. GUIDE: CIVIL TRIALS AND EVIDENCE (The Rutter Group 2012): •
Appellate review - 18:465
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Aguilar v. Atlantic Richfield Co. - 8:3629; 18:118
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COMMENTARY
Managing the risks and costs of eDiscovery in products liability matters By Anthony J. Diana, Esq., Therese Craparo, Esq., and Andrew J. Calica, Esq. Mayer Brown LLP Scenario: An individual files a complaint against a medical device company alleging that one of the company’s products is defective and caused harm to the plaintiff. This is the first formal complaint filed against the company related to this device; the company had no prior indication that there were any issues with the device. The lawsuit receives press coverage and the medical device is featured in attorney television advertising. The company now anticipates an avalanche of new lawsuits related to this particular device. The company is bracing itself for a potential onslaught of discovery — and the associated discovery costs — and is assessing what it can do to best contain those costs.
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Organizations receive both verbal and written complaints about particular products, sometimes on a daily basis. There are often hotlines devoted to taking, recording and responding to questions from medical professionals and patients and to reports of adverse events. Determining when any one particular adverse event gives rise to “reasonable anticipation of litigation” is not a simple or straightforward process, particularly if the product is well into its life cycle and the adverse event is unlabeled or unanticipated.
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Product development is often long, complex and multi-staged. It may include research and development, designing, testing, regulatory approvals, manufacturing, labeling and marketing of the product. The amount of information generated during that process is significant. As a result, discovery in product liability litigation can be voluminous and implicates many departments within an organization regardless of whether there is one plaintiff or 1,000 plaintiffs.
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Legal counsel is often heavily involved in the product development and regulatory approval process. This means that privilege issues require close scrutiny during the course of any document review and production.
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Product liability cases have a propensity to multiply. Regulatory action, attorney advertising and coordinated multistate or multidistrict federal litigation can all be contributing factors. This proliferation of successive lawsuits addressing the same defect or alleged injury type increases the likelihood of multiple productions, particularly if cases are brought in several jurisdictions, of the same information and the risk of inconsistencies that could raise questions about the defendant’s productions.
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eDiscovery in product liability litigation is often onesided. As in class-action litigation, the defendants are frequently large organizations with significant volumes of electronic data, while the plaintiffs are generally individuals with a limited volume of
UNIQUE EDISCOVERY ISSUES IN PRODUCT LIABILITY LITIGATION eDiscovery is costly and challenging for most large organizations. And many of those costs and challenges are equally applicable across different types of legal matters. There are, however, unique aspects of product liability litigation that raise distinct challenges. Being mindful of those distinctions is essential to evaluating strategies for managing the eDiscovery risks and costs.
Anthony J. Diana is a partner in Mayer Brown’s litigation and dispute resolution practice and a co-leader of the electronic discovery and records management group based in New York. He has counseled large financial institutions, pharmaceutical companies and manufacturers on all aspects of the discovery and management of electronic information. Therese Craparo is counsel in Mayer Brown’s litigation and dispute resolution practice and a member of the New York-based electronic discovery and records management group. There, she advises clients on all aspects of electronic information discovery and management. Andrew J. Calica is an associate in Mayer Brown’s litigation and dispute resolution practice and a member of the electronic discovery and records management group in New York. This commentary was originally published in the July 31 edition of the Mayer Brown Newsletter. Reprinted with permission.
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responsive documents. The resulting exorbitant discovery costs fall disproportionately on the defendant, and may place undue pressure on defendants to settle even meritless claims to avoid the discovery costs.
manage this process may also help to ensure that responses to document requests in related litigation are consistent, while minimizing the burden on in-house counsel.
Information about a particular product or device, or relevant to a particular product liability lawsuit, is not confined to email or typical word processing documents. Instead, it may include the physical product itself, as well as the equipment used to design, test and develop that product, clinical trial data, the regulatory file and promotional and educational materials. It is also likely to include structured data, as most organizations monitor and track product development, sales, customer complaints and the like in database form.
Current eDiscovery technology can make tracking and managing similar document productions in different matters a more efficient and cost-effective proposition. For example, to minimize hosting and production costs, an organization may consider using one eDiscovery vendor to host a data repository of potentially relevant documents. The eDiscovery vendor may then grant separate, secure access to the organization’s different law firms as needed for review and production in specific actions.
STRATEGIES FOR MANAGING EDISCOVERY ISSUES Despite these challenges, there are steps that organizations that face product liability litigation can take to contain and manage the eDiscovery process. As with any business process, it begins with establishing and implementing a standard, structured process that can be applied across legal matters.
Standard operating procedures Establishing standard operating procedures helps in-house counsel by providing an efficient course of action that is consistent with the organization’s business process and is easily communicated to outside counsel. It also minimizes the possibility that certain issues or data sources may be overlooked. An ad hoc litigation process subject to the disparate approach of individual in-house or outside counsel can lead to confusion and inconsistencies that may be used against the organization in subsequent litigation.
Consistency of approach While the particular facts of each plaintiff’s use of, and alleged injury by, a product will be unique, the underlying research and development, regulatory approvals or marketing history of the product may be identical. Organizations need to be concerned not only with identifying potentially responsive documents, but also with achieving consistency in searching for and responding to similar requests in successive lawsuits. An organization may want to consider utilizing computerized record keeping that allows for easy tracking of discovery responses across similar matters and creating a formal document repository under the control of the organization’s legal department. Use of coordinating outside counsel to
Document review and production efficiencies
This can also facilitate the development of a coordinated, consolidated review process that will minimize the need for multiple reviews of the same documents and allow for quick identification of already reviewed documents that may be relevant to a newly filed matter or have already been designated as privileged. Again, coordinating outside counsel may be helpful in managing the review and production process across related litigations.
Effective data management The consistency of data types that may be relevant in product liability litigation — as well as the potential complexity of those data sources — means that organizations can benefit from creating standard preservation, collection and production processes. Assessing and documenting information about standard data sources, and the organization’s approach to collection or production, can not only minimize the need for outside (and in-house) counsel to conduct a similar evaluation in every new legal matter, it can also help to facilitate consistency across document collections. It is neither necessary nor cost effective to attempt to catalog every single data source across the organization, but this effort may be useful for data sources that come up frequently in litigation.
Level the playing field When the burdens of eDiscovery fall almost exclusively on one party, it is easy to assume that negotiation and cooperation are not feasible. However, it is a disservice to the organization to assume that discovery issues cannot be negotiated. A defendant armed and prepared with knowledge of its systems and concrete approaches to collection or production is best positioned to defend that approach. It is easy for a plaintiff to opine on the best way to collect or produce data in the abstract, but much harder to challenge
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a well thought out process that is specific to the defendant’s information systems and processes. Further, plaintiffs are not immune from eDiscovery risks and may be less likely to appreciate the preservation imperative or the myriad of ways that relevant information may be inadvertently lost. And, while perhaps not the great equalizer, the prolific use of social media and mobile devices has opened up a whole new world of discovery for individual plaintiffs. Aggressive insistence on plaintiffs’ preservation and production of relevant data — including all relevant data (past, present and future) maintained on social media, personal email or websites, or mobile devices — can be used not only to ensure that important data is available to defend the litigation, but also to help encourage reasonable discovery negotiations. See Wegner, Fairbank, Epstein & Chernow, CAL. PRAC. GUIDE: CIVIL TRIALS AND EVIDENCE (The Rutter Group 2012): •
Interrogatory answers - 1:40-44
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Admissibility - 1:41; 4:134; 8:825
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Extracts - 4:133; 4:137; 8:827
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Requests for admissions; admissibility of answers 1:45; 4:138; 8:828
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Attorney-client privilege; “confidential communications”; electronic communications - 8:1871.1-1871.2; 8:2028.12028.2
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exposure to multiple companies’ asbestos-containing products set forth by the state Supreme Court in Rutherford v. Owens-Illinois Inc., 16 Cal. 4th 953 (1997). Under Rutherford, a plaintiff must show exposure and “prove with medical evidence and to a reasonable medical probability that the exposure was a ‘substantial factor’ contributing to the worker’s risk of developing his asbestosrelated disease,” Union Carbide argues. In this case, the company says, the lower courts have interpreted the Rutherford test so laxly as to find that the plaintiff’s exposure to its product was the primary cause of his fatal lung cancer without the required medical evidence.
THE LOWER COURT RULINGS A Los Angeles County Superior Court jury found Union Carbide 46 percent at fault for exposing Glen Strickland to asbestos in Calidria, a joint compound the company sold. Strickland’s wife, Lind, and their adult children said he used the product in the 1960s while working as a drywall installer, which included applying and sanding the joint compound. He later developed the lung cancer mesothelioma, the family said. The Superior Court entered final judgment against the company for $598,000. Union Carbide appealed the ruling to the 2nd District Court of Appeal, arguing that the family overstated Strickland’s exposure to chrysotile, the form of asbestos in Calidria.
APPELLATE REVIEW
Union Carbide asks California high court to reverse award in asbestos case The California Supreme Court should overturn a $600,000 judgment against Union Carbide in an asbestos exposure suit because a lower court applied too loose a causation standard in affirming the judgment, the company says in a petition for review. Strickland et al. v. Union Carbide Corp., No. S 212424, petition for review filed (Cal. July 29, 2013). “This case presents a recurring problem concerning the sufficiency of a plaintiff’s proof of causation in worker asbestos-injury cases,” Union Carbide says. The company says the 2nd District Court of Appeal wrongly interpreted the causation standard in cases of alleged
The company said Strickland had also been exposed to amphibole asbestos, which it said was found in high concentrations in a stick-on spray he used when working on a movie theater construction job. Union Carbide had argued in a filing with the appeals court that the plaintiffs’ own expert, Dr. Samuel Hammar, never offered an opinion as to “whether Strickland’s exposure to Calidria in particular made a contribution to his risk of disease that was substantial in light of all his other exposures.” In affirming the judgment, the appeals court said “there was substantial evidence from which the jury could conclude Strickland’s exposure to Calidria played more than a negligible or theoretical part in his risk of developing peritoneal mesothelioma.” Strickland v. Union Carbide Corp., 2013 WL 2996570 (Cal. Ct. App., 2d Dist. June 18, 2013). The 2nd District turned town Union Carbide’s request for a rehearing July 11.
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THE RUTHERFORD TEST Now Union Carbide is telling the state Supreme Court the appeals court’s causation standard is too relaxed. “The Court of Appeal has accepted a standard of proof for causation that amounts to almost automatic liability for the supplier of any of any asbestos-containing product to which the worker was exposed,” the petition says. The appeals court’s ruling was a “dumbing down” of Rutherford’s causation test, because the panel could not explain how the jury could reach its decision in the absence of medical evidence to guide it, Union Carbide says. The company wants the state high court to grant review to clarify how courts should apply Rutherford’s test for causation in asbestos litigation. See Wegner, Fairbank, Epstein & Chernow, CAL. PRAC. GUIDE: CIVIL TRIALS AND EVIDENCE (The Rutter Group 2012): •
Appellate review - 18:465
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Evidentiary rulings - 8:3354
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Expert witnesses; admissibility of expert opinion evidence - 8:725
American Steel was insured under policies issued by Steadfast Insurance Co., Lexington Insurance Co. and Insurance Company of the State of Pennsylvania. American Steel said that while the construction defect suit was being litigated in 2008, a $1.5 million settlement offer was on the table but fell flat when Lexington and ICSOP refused to contribute, the opinion says. Ultimately, the case settled for $1.75 million with Steadfast paying its $1 million policy limit, plus an additional $500,000. Lexington and ICSOP refused to contribute the remaining $250,000 unless Steadfast agreed to waive its rights of contribution against them. When Steadfast refused, American Steel paid the remaining $250,000, the opinion says. American Steel subsequently sued Lexington and ICSOP for breach of contract and bad faith. The defendants claimed that there was no coverage under the Lexington policy because the underlying lawsuit alleged property damage that occurred in October 2002 after the construction project had been completed. They maintained that the Lexington policy provided coverage for property damage from April 27, 2001, to April 27, 2002, the suit says. Here, Lexington and ICSOP moved to bifurcate the breachof-contract and bad-faith claims. They contended that trying the two claims together could cause jury confusion because the jurors would have to differentiate between the two claims.
BIFURCATION
Judge rejects bid for bifurcation in insurance defect suit A federal judge in California has rejected a motion for bifurcation filed by two insurers, finding that they will not be “unduly prejudiced” if breach-of-contract and bad-faith claims against them are tried together. American Steel & Stairways Inc. et al. v. Lexington Insurance Co. et al., No. 12-cv-03103-JST, 2013 WL 4425704 (N.D. Cal. Aug. 14, 2013).
The insurers also argued that they would be hindered in presenting evidence of their conditional offer to pay $250,000 toward a settlement. While the offer shows that they did not act in bad faith, jurors could interpret it as an admission of coverage, the opinion says. “Obviously, any trial involving more than one related claim presents at least some risk of jury confusion,” Judge Tigar said. However, he determined that any risk of jury confusion can be minimized by jury instructions and a special jury form.
U.S. District Judge Jon S. Tigar of the Northern District of California said any risk of juror confusion can be corrected by specific jury instructions and a special verdict form.
“Clear limiting instructions will allow the jury to differentiate evidence related to coverage liability and evidence related to damages for bad faith,” the judge said.
In an underlying lawsuit, a group of plaintiffs alleged water intrusion and other damage as a result of construction defects. The general contractor in that case sued various subcontractors, including American Steel & Stairways Inc.
“This court is not persuaded that potential prejudice to the defendants cannot be cured in this way, and the court will not bifurcate the claims because of a mere possibility of prejudice,” he added.
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Judge Tigar also ruled that trying the two claims separately would not significantly promote judicial efficiency and convenience.
St. John claimed in her complaint that her 2005 Toyota Camry accelerated out of control from a complete stop and struck a tree, a fence and a school building.
If the claims were tried separately and American Steel were to prevail on the contract claim, the court and the jurors would be substantially inconvenienced because they would then have to hear the bad-faith case, he explained. He also noted that witnesses would most likely have to testify twice.
Toyota blames pedal misapplication. The suit is part of the federal multidistrict litigation on sudden acceleration in Toyota vehicles and is the second personal injury bellwether case set for trial, scheduled for November. The first such case was settled in January.
As “the two claims are not wholly distinct from each other,” bifurcation would probably result in “unnecessary repetition in evidence and arguments,” he concluded.
Grasty says U.S. District Judge James V. Selna of the Central District of California should deny Toyota’s motion to strike the supplemental report of his expert witness, Michael Barr.
See Wegner, Fairbank, Epstein & Chernow, CAL. PRAC. GUIDE: CIVIL TRIALS AND EVIDENCE (The Rutter Group 2012):
The report does not present a new defect theory, Grasty says, but “merely provides a more thorough explanation on an error in Toyota’s source code” that he discussed in his initial report several months ago.
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Severance and bifurcation - 4:326
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Jury trial - 2:36.1
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Same vs. different jury - 4:388-391.2; 4:421-422.1
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Multiparty cases - 4:392-394
EXPERT WITNESSES
Grasty adds that Toyota’s motion covers the same arguments already made in numerous pending Daubert motions to exclude other expert testimony and in a sealed motion for summary judgment.
TOYOTA: EARLIER EXPERT REPORTS ‘VAGUE’
Evidence of Camry software bug is solid, estate in bellwether injury case says The estate of a woman injured when a 2005 Toyota Camry allegedly accelerated out of control has opposed Toyota’s efforts to strike the testimony of an expert witness on an alleged “full throttle bug” software problem. In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices and Products Liability Litigation, No. 8:10-ML-2151; St. John v. Toyota Motor Corp. et al., No. 8:10-CV-1460, plaintiff’s opposition to motion to strike filed (C.D. Cal. Aug. 14, 2013). Plaintiff William Grasty Jr. says the bug in the electronic throttle control system source code caused the 2009 accident in Georgia, in which Ida Starr St. John was injured. Grasty is the executor of the St. John estate. She was 84 when the accident occurred and is now deceased.
In moving to dismiss Barr’s supplemental report, Toyota says previous expert reports contained only “vague references” to a software bug. The plaintiff’s theory “remained a mystery” until Barr filed his supplemental report Aug. 2, the automaker asserts. It contains a hypothesis on how the Camry throttle could unintentionally open and a “new theory” that tries to circumvent deficiencies in earlier filings, Toyota says. Both were only “imprecisely and equivocally hinted at” during depositions, the defendant says. See Wegner, Fairbank, Epstein & Chernow, CAL. PRAC. GUIDE: CIVIL TRIALS AND EVIDENCE (The Rutter Group 2012): •
Expert witnesses; admissibility of expert opinion evidence - 8:725
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Due process limitations - 8:744.2
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Federal courts compared - 8:725.1
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Challenging expert testimony - 11:69-70
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Discovery requirements not met, effect of - 11:6
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Motions to strike - 11:91-93
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EVIDENCE/DAMAGES
California appeals court rejects sailor’s bid for higher award in asbestos case A former U.S. Navy sailor diagnosed with lung cancer did not present sufficient evidence to change a jury verdict on a defendant’s share of liability for his disease-causing asbestos exposure, a California appeals court has ruled. Keeney et al. v. A.W. Chesterton Co. et al., No. B240313, 2013 WL 3833989 (Cal. Ct. App., 2d Dist. July 24, 2013). (California prohibits courts and parties from citing or relying on unpublished opinions in any action or proceeding, except in limited circumstances specified by California Rules of Court 8.1115a & b.)
The court then ordered John Crane, after offsets for prior settlements, to pay $554,500 in economic damages, $541,000 in noneconomic damages and $38,600 in loss-of-consortium damages. After John Crane filed an appeal, met by a cross-appeal from Keeney and Garcia, the manufacturer paid the award plus costs and interest and dropped its appeal when the plaintiffs cashed the $1.3 million check. Keeney and Garcia continued with their cross-appeal, claiming John Crane should pay an award based on 100 percent liability because the defendant failed to present sufficient evidence for the jury to apportion liability to other parties. John Crane sought to dismiss the cross-appeal, arguing the plaintiffs waived any further right to appeal by cashing the award check. The appeals court disagreed, holding that the plaintiffs were entitled to their jury award and were appealing to seek a disputed portion of the damages award.
Former seaman Richard Keeney and a co-plaintiff failed to present all the relevant evidence to change the jury’s allocation of liability and therefore forfeited their appeal, the 2nd District Court of Appeal said in an unpublished opinion.
In reviewing the cross-appeal, the court found Keeney and Garcia had not met the higher standard of evidence they faced as appellants to present all the essential facts in the case.
Further, the panel concluded “there is substantial evidence to support the jury’s allocation of fault.”
“We note that appellants’ opening brief fails to summarize all the relevant evidence and instead discusses only the evidence favorable to their contention,” the court said. “They have therefore forfeited their challenge.”
Keeney filed suit against numerous defendants, including John Crane Inc., for alleged negligence that led to his exposure to asbestos fiber. Howard Garcia joined as a co-plaintiff, claiming loss of consortium. Keeney alleged he was exposed to asbestos dust as a seaman and safety superintendent during 20 years of service with the Navy and to John Crane’s asbestos-containing gaskets during his job as a pump mechanic at C&H Sugar Co., where he worked for 16 years. After the other liability cases were settled or dismissed, a trial against John Crane was held. The jury found John Crane was negligent for failing to warn Keeney of the dangers of asbestos and allocated liability for his asbestos exposure of 5 percent to Keeney, 12 percent to John Crane, 13 percent to C&H and 70 percent to the Navy.
The appeals court also said the trial evidence could reasonably allow the jury to determine the percentages of liability for asbestos exposure by each defendant. Further, the court said, “It was not incumbent on John Crane to produce evidence … quantifying the precise percentages of liability.” See Wegner, Fairbank, Epstein & Chernow, CAL. PRAC. GUIDE: CIVIL TRIALS AND EVIDENCE (The Rutter Group 2012): •
“Evidence” defined - 8:1-5
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Circumstantial - 8:10; 8:13-16; 8:117-118.2; 8:433
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Direct - 8:10-12; 8:432
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“Offered to prove” - 8:2
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Appellate review - 18:465
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