Heather Isringhausen Gvillo Oct. 27, 2014, 9:27am

LOS ANGELES (Legal Newsline) – A California appeals court has affirmed a jury verdict in favor of an asbestos claimant, supporting the trial court’s refusal to disturb the $18 million punitive damages award even though it reduced the compensatory damages award by 80 percent.  

Judge Joan D. Klein delivered the Oct. 22 opinion in the Court of Appeal for California’s Second Appellate District affirming the lower court’s $6 million compensatory damages judgment. Judge Richard D. Aldrich concurred.

However, Judge Patti S. Kitching dissented, arguing that the punitive damages award should have been readdressed after the compensatory damages were reduced from the original award by $24 million.

Plaintiffs Bobbie and Helen Izell claim Bobbie developed mesothelioma from asbestos exposure to defendant Union Carbide’s products, resulting in his death.

Union Carbide supplied asbestos to companies that manufactured and marketed products for the construction industry until 1985.

During that time, the decedent owned a construction business that built roughly 200 homes in California from 1964 until 1994. While he did not work as a laborer or supervisor, the plaintiff alleges he often visited the jobsites.

By the time the case went to trial in the Superior Court of Los Angeles County, five defendants remained, including Union Carbide.

After the four-week trial, the jury entered a verdict in favor of Izell, awarding the plaintiffs $30 million in compensatory damages and $18 million in punitive damages. The award consisted of $5 million in past and $10 million in future non-economic damages and $5 million in past and $10 million in future loss of consortium damages.

The jury assigned 65 percent liability to Union Carbide.

By remittitur, the trial court reduced the compensatory damage award to $6 million. However, the court refused to disturb the punitive damages award. The court concluded that the defendant has a $4.2 billion net worth and the evidence concerning the reprehensibility of its conduct supported the award.

Union Carbide appealed, arguing that the assigned liability was insufficient and that the punitive damages award was excessive. The appeals court disagreed.

Klein first addressed the evidence, holding that it supported the jury’s verdict.

Union Carbide argued the jury speculated that Izell was exposed to its asbestos, contributing to his mesothelioma.

The court, however, cited evidence that the evidence permits a “reasonable inference” that Izell was exposed to Union Carbide asbestos.

Union Carbide was one of many asbestos suppliers for Kelly-Moore and the primary supplier for Georgia Pacific for joint compound products. While it was reasonable to assume the decedent would have purchased these asbestos-containing products, it was speculation to assume he was present during the dusty mixing and sanding processes, it was argued.

Furthermore, the appeals court concluded that the evidence was also speculative with respect to Kaiser Gypsum and Riverside products.

However, evidence showed that Union Carbide was the exclusive asbestos supplier for Hamilton at the time Izell alleges he was exposed to Hamilton Red Dot joint compound, president Willis Hamilton testified.

 Izell testified that “he not only saw his workers apply Hamilton Red Dot in its wet form, but also watched them sand the dried product and inhaled the resulting dust when it became airborne."

The appeals court also affirmed the jury’s apportionment of fault, holding that because Union Carbide failed to prove that additional or alternative exposures caused Izell’s injury, the allocation of fault cannot be disturbed.

Similarly, the appeals court affirmed the lower court’s compensatory damages amount after remittitur, concluding that the plaintiffs have suffered “significant physical and emotional anguish since learning of Mr. Izell’s cancer.”

“In its briefs,” Klein wrote, “Union Carbide largely ignores our presumption of correctness by downplaying the evidence that supports the trial court’s findings, while highlighting the ‘countervailing’ evidence the court thoughtfully considered in significantly reducing the jury’s award.”

“Though we recognize the remitted amount remains on the high-end of noneconomic damage awards discussed in reported mesothelioma decisions—particularly for plaintiffs of the Izells’ advanced age—this alone is not sufficient to second guess the trial judge, who presided over the four-week trial and personally observed ‘the injury and the impairment that has resulted,’” she added.

As for punitive damages, the appeals court determined that the reduced compensatory award did not mandate a retrial for punitive damages, holding that the amount was proper to “serve the state’s legitimate interest in punishment and deterrence.”

The court further held that the award is constitutional according to the reprehensibility of the defendant’s misconduct and the relationship between the punitive damage award and the harm suffered by the plaintiff.

“[W]e agree with the apparent findings of the jury and trial court that Union Carbide’s culpability was so reprehensible as to warrant punitive damages to achieve the state’s legitimate interest in deterring such conduct,” Klein wrote.

In Kitching’s dissent, she argued that the “significant reduction” of the jury’s compensatory damage award requires a new trial on punitive damages.

Kitching stated that the court used the incorrect compensatory damage figure in determining reasonable punitive damages, and that the court should have compared the punitive damages award to the defendant’s liability.

She added that the trial court was “exclusively concerned” with whether its reduction of the compensatory damages required it to make a corresponding reduction in punitive damages to preserve the jury’s original, incorrect figure.

“[B]y narrowly focusing on this issue, the trial court failed to consider whether its decision to reduce the jury’s compensatory damage award by $24 million made the same jury’s $18 million punitive damage award ‘suspect,’ and thereby subject to a new trial,” she wrote.  

Kitching argues that because the trial court reduced compensatory damages by 80 percent, the jury could have either acted with passion or prejudice or followed the court’s instruction and awarded an amount relating to the harm the jury believed the plaintiffs suffered.

“If the first scenario is the case, Union Carbide was plainly entitled to a new trial,” she wrote. “However, even if the second scenario is accurate, this still makes the punitive damage award ‘suspect,’ because, as the trial court found here, the ‘jury was misled about the amount of compensatory damages it could award.’”

“In either event, given the trial court’s significant reduction of the compensatory damage award, and the jury’s crucial role in determining, without passion or prejudice, the ‘proper proportion punitive damages should bear to the injury suffered.’ I conclude punitive damages should be retried,” she concluded.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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