Filed 5/22/20 Kramer v. Amcord Inc. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

KENNETH KRAMER,

Plaintiff and Respondent,

v.

AMCORD INC.,

Defendant and Appellant.

A155821

(Alameda County

Super. Ct. No. RG16799603)

A jury found Amcord, Inc. (Amcord), a maker of asbestos-containing plastic cement, partially responsible for Kenneth Kramer’s mesothelioma. Amcord contends the court improperly limited its cross-examination of Kramer’s medical experts, and that the jury’s award of economic damages is not supported by substantial evidence. There is no merit in either assertion, so we affirm the judgment.

BACKGROUND

Kramer had a 45-year career as a stonemason, carving and repairing granite tombstones and building monuments. But for five or six years beginning when he was in high school in 1972, he also did stucco and drywall work about three weekends a month. Doing that work with Amcord’s asbestos-containing Riverside gun plastic cement exposed him to asbestos levels millions of times higher than ambient airborne asbestos.

In 2015 Kramer was diagnosed with mesothelioma, a cancer of the outer lining of the lungs caused by exposure to asbestos. In 2016 he filed a personal injury action against multiple defendants. Amcord was the only defendant left by the time the case went to trial in April 2018.

When the trial began, Kramer moved to prohibit Amcord from commenting on or attempting to introduce evidence regarding any speculative cause of Kramer’s mesothelioma, or “phantom” exposures to asbestos unsupported by the evidence. The court granted the motion and told counsel, “I don’t expect either argument or inference as to phantom asbestos exposures.” Amcord did not object.

As will be more fully explained in the Discussion section of this opinion, post, Amcord cross-examined Kramer’s medical causation expert using two publications that purportedly indicated granite dust to which Kramer was exposed as a stonemason may cause or contribute to mesothelioma. A forensic economist testified to Kramer’s lost future earnings, lost Social Security benefits, and the value of household services he would no longer be able to perform as his illness progressed.

The jury found Amcord 20 percent at fault for Kramer’s injuries and awarded economic damages of $1,811,189 and noneconomic damages of $5,000,000. The court entered judgment for $2,404,933.68, reflecting the jury’s allocation of fault and offsets for settlements with other defendants. This timely appeal followed after the trial court denied Amcord’s motion for new trial brought, in part, on the ground of insufficient evidence to support the economic damages awarded.

DISCUSSION

I. The Court Did Not Improperly Limit Cross-Examination
II.
A. Background
B.
Pulmonologist Dr. Barry Horn testified as Kramer’s expert on asbestos disease, pulmonology, the role of asbestos in causing Kramer’s mesothelioma, and how the disease will affect him.

Dr. Horn testified that exposure to asbestos is the only known cause of malignant mesothelioma in the United States. He had no doubt that Kramer’s mesothelioma was caused by construction-related exposure to asbestos from joint compounds and stucco in the 1970’s and, later, from replacing asbestos-containing brakes and clutches.

Dr. Horn was asked on cross-examination about the possible adverse health effects of working with granite. He responded that working with granite can cause a lung disease called silicosis. Defense counsel then asked if Dr. Horn was aware that granite contains uranium and thorium and has radioactive properties. When Dr. Horn replied that he knew nothing about that, defense counsel asked whether he “consider[ed] the EPA to be a reliable authority generally with regard to pollution in the United States.” Dr. Horn responded “Yes.” Counsel showed him an EPA publication and asked whether it indicated that granite may contain uranium, thorium, and other radioactive substances. Dr. Horn agreed that it may.

Amcord’s counsel proceeded to solicit Dr. Horn’s view that he would “probably” consider a study by the National Institute of Occupational Safety and Health (NIOSH) published in the American Journal of Industrial Medicine to be “a reliable authority in looking at the incidence of stone workers in the United States.” Kramer’s counsel objected that Dr. Horn had not relied on or reviewed the NIOSH study in anticipation of testifying, but the court permitted Amcord’s attorney to pursue the line of questioning “a little bit. We’ll see how far it goes.”

Dr. Horn then reviewed the document and testified that the NIOSH study was a 40-year epidemiological study to determine whether there is an increased risk of cancer among individuals who work around crushed stone, including granite. The study noted one or two deaths attributed to mesothelioma and two others coded as peritoneal cancer with mesothelioma designated on the death certificates. Dr. Horn agreed that this number of deaths from mesothelioma in a population of 3,000 crushed stone workers was above background levels. Amcord’s counsel then said, “Okay. I’m not going to cross-exam you more on that because I know you haven’t had a chance to look at it very much.”

On recross-examination, defense counsel asked Dr. Horn whether “inhaled particles over a 40-year work history of material that is contaminated with uranium” might cause mesothelioma. Dr. Horn responded, “I can’t say no. I can say that to my knowledge it hasn’t been reported such as like in uranium miners, I’m not aware of it being reported. Or in Europe, there’s a famous study of where there was a high incidence of lung cancer in a group of miners that were exposed to radon which is a breakdown product of—I can’t remember whether it’s uranium or plutonium, but one of the two. And they had a high incidence of lung cancer. They didn’t report mesothelioma, but I don’t know if those groups are big enough to even answer that question, So, can I say no? I can’t say no and I can’t say yes.”

After Dr. Horn was excused, Kramer’s counsel objected that “I’m a bit confused as to how [defense counsel] can bring forth this new theory of the case when I’ve already taken all of her expert depositions and nobody attributes mesothelioma to granite and now all of a sudden she’s crossing my expert on a document which he’s never seen before on this new theory of the case. Doesn’t seem proper to me.” Defense counsel responded, “Well, unfortunately, my experts didn’t think about it. I thought about it after expert discovery was closed. The only way I can introduce the evidence to the jury is through their expert.”

The court said it did not think Amcord’s questions about a link between working with crushed granite and mesothelioma affected the jury’s thinking, “but had I known the context you’re giving it now, I might have ruled differently. I treated it as a very basic cross-examination so I wasn’t going to let it go very long; however, I know less about this case than counsel. But I will be more vigilant and I want a more specific objection outside the presence of the jury on a matter like this the next time around. To me it was fairly simple cross-examination relative to the depth of his knowledge and nothing more than that, without at that time knowing or having sensed that it was changing any theory of the case because I haven’t read all these depositions. To me it was on cross. But you made your record.” The court emphasized that “I want a more specific direct objection next time if you’re going to change the theory of the case. And if that, in fact, is the case, I will cut off any improper objection, any questioning of the other experts to expand the theory of the case.”

Before Kramer’s counsel called additional expert witnesses, he asked that Amcord not be allowed to question them about its theory of radiation from granite causing mesothelioma. The court agreed. It reiterated that during Dr. Horn’s testimony it “allowed what was going to be a very small bit off cross-x effectively as to whether that expert should be knowledgeable about this article, rather than exploration and introduction of a new theory. And, of course, as I indicated at the time . . . I, of course, didn’t know the breadth of the theories the experts had propounded in deposition. But, yes.” Defense counsel did not attempt to cross-examine any other witnesses about radiation from stone causing mesothelioma or the NOISH and EPA documents.

After both sides rested, the trial court revisited Amcord’s attempt to question Dr. Horn about its new causation theory. It explained, “when I learned that the theory was not the product of any expert testimony that’s what I dealt with, and I don’t want the jury to be confused and return a verdict on a consideration of a theory that is not—that is by necessity [not] the product of expert opinion.” The court instructed the jury without objection that “Early in the trial, you heard mention of granite and radiation. There has been no evidence of a causal relationship between granite and radiation and mesothelioma. As such, you may not consider granite or radiation as a cause of Kenneth Kramer’s disease.”

C. Analysis
D.
Amcord contends the trial court abused its discretion under Evidence Code section 721, subdivision (b)(3) by limiting its ability to impeach Kramer’s expert testimony that asbestos exposure caused his disease by using the EPA pamphlet and NIOSH study to show the experts were unworthy of belief for their failure to consider information relevant to the cause of his mesothelioma. The contention is meritless.

First, as Kramer observes, the court did no such thing. Amcord questioned Dr. Horn about the EPA and NIOSH documents without objection or limitation. Only after defense counsel concluded her questioning did Kramer’s counsel object that Amcord was improperly attempting to raise a new theory of causation. Only then did the court caution that it would sustain further objections to improper expert cross-examination seeking to show that Kramer’s mesothelioma was caused by exposure to granite dust. At the same time, the court made it clear that Amcord was free to cross-examine Kramer’s experts to explore “the depth of [their] knowledge,” as it had with Dr. Horn. The record contradicts Amcord’s assertion that it was barred from using the EPA and NIOSH publications to suggest to the jury that plaintiff’s expert witnesses “arbitrarily ignored a clear alternative cause” of Kramer’s mesothelioma and “engaged in an unreliable rush to judgment,” as it now complains.

Amcord’s argument also fails because its claim that Dr. Horn’s testimony provided a foundation for impeachment with the EPA and NIOSH pamphlets is incorrect. As relevant here, section 721, subdivision (b) provides, “If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs: [¶] . . . [¶] (3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” Here, Dr. Horn acknowledged on cross-examination that he considered the EPA to be “a reliable authority generally with regard to pollution in the United States” and that the NIOSH study was “probably” “a reliable authority in looking at the incidence of stone workers in the United States.” But neither statement established that either publication was a reliable authority on (or even relevant to) the causation of mesothelioma. Thus, it would have been a sound exercise of the court’s discretion to preclude Amcord from using the documents to challenge Dr. Horn’s opinion that Kramer’s mesothelioma was caused by exposure to asbestos, even though the court did not do so.

III. Substantial Evidence Supports The Award of Future Economic Damages
IV.
Amcord contends no substantial evidence supports the award of future economic damages. The trial court correctly rejected this contention when it denied Amcord’s motion for a new trial.

A. Background
B.
Forensic economist Robert Johnson gave expert testimony about Kramer’s expected loss of earnings, social security, and the value of household chores he could no longer perform as his disease progressed.

Johnson estimated Kramer’s future losses from employment as a stonecutter at $641,968 if the jury found his earnings would have been around the median for the field (annual earnings of $60,588), $717,844 if his earnings would have been in the top 25 percent (annual earnings of $67,749), and $787,054 if in the top 10 percent (annual earnings of $74,281). Those estimates were derived from the Economic Research Institute’s (ERI) yearly salary data for the occupational category of “stonecutter,” a normal life expectancy of 82.1 years for Kramer’s demographic group, and projections that he would stop working at age 61 in July 2018, but if he was not ill, he would have worked until age 72.

The ERI’s stonecutter designation encompassed cutters of precious and synthetic gems, but, Johnson testified, it was also the correct designation for a stonemason such as Kramer. His pre-diagnosis earnings going back to 2011 were higher than the ERI figures for the median, top 25 and top 10 percent of earners within the stonecutter category, so “it’s within the province of the jury to adjust these numbers up or down . . . in a manner that they see fit”

Johnson calculated the present value of Kramer’s lost Social Security income as $330,885. He derived this amount from Kramer’s age and life expectancy based on information from the Center for Disease Control’s National Vital Statistics Report. Lastly, he valued the household services Kramer could have performed but for his illness at $43.41 cents per day, for a present value of $382,830 over his life expectancy minus two years “so we don’t have him vacuuming all the way up to the day he passes.” This valuation was derived from Department of Commerce data on the average value of household services in the United States. Johnson explained, “[t]he assumption we’re given to operate with is that we’re going to start counting a diminution in household services on July 1 of 2015. Between then and July 1 of 2018, I don’t know what the amount, but if you believe he still had some capabilities, you could make a proportional adjustment there. [¶] But, otherwise, what this is, is a statistical average, and it only includes those chores done around the house. Cooking, cleaning, household management, repair work on the house.” He agreed that “Based on the evidence, if you believe for the household services that he was doing more than average, you can increase that number. [¶] If you believe he was doing less than average, you can shrink that number. But that’s based on the evidence.”

Kramer’s attorney argued in closing that Kramer had responded well to chemotherapy and was doing fairly well, so the jury should identify dates later than July 2015 and July 2018 as the dates Kramer would, respectively, no longer be able to work or perform household chores. “[I]f you feel like he’s going to last longer, and continue to work, this 1.4 to 1.6 [million damages] number gets smaller.”

The jury awarded future economic damages of $1,631,559, past economic damages of $179,630, and noneconomic damages of $5,000,000. Amcord was found responsible for 20 percent of Kramer’s injury.

C. Analysis
D.
Appellate review of a factfinder’s award of damages is limited. [Citation.] In the absence of error in the admission of testimony supporting a claim of economic damages, . . . we will affirm the judgment if substantial evidence supports the damage award. [Citation.] ‘Damages, even economic damages, are difficult to measure in personal injury cases. There may be disputed facts regarding the amount of medical expenses or lost wages, or disputed inferences about the probable course of events such as the length of incapacitation or whether a continuing disability will worsen, plateau, or improve.’ [Citation.] ‘Technical arguments about the meaning and effect of expert testimony on the issue of damages are best directed to the [factfinder].’ ” (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1321-1322.)

When we review the appellate record for substantial evidence we “ ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn.’ ” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)

“ ‘A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.’ A trial court has broad discretion in ruling on a new trial motion, and the court’s exercise of discretion is accorded great deference on appeal. [Citation.] An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] Accordingly, we can reverse the denial of a new trial motion based on insufficiency of the evidence or excessive damages only if there is no substantial conflict in the evidence and the evidence compels the conclusion that the motion should have been granted.” (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 751-752.)

Amcord contends the evidence of lost earnings was insufficient because Johnson based his projections on “data for the wrong occupation.” Under our standard of review the contention fails. Amcord’s attorney argued that the ERI report indicated that the “stonecutter” category Johnson used was for workers who cut and polish gemstones, not stonemasons like Kramer, and suggested as much on cross-examination. But Johnson disagreed. He testified that gem and diamond cutter was an alternative title under the general “stonecutter” category and, further, that a vocational rehabilitation expert had confirmed that the general “stonecutter” category was in fact the correct one for Kramer’s line of work. The jury reasonably believed Johnson’s testimony

The record also compels us to reject Amcord’s suggestion that there was no substantial evidence to support Johnson’s estimate of Kramer’s future earnings. The record contains evidence that Kramer’s income ranged between $72,000 and $107,000 in the years preceding his illness. Those amounts are higher than the annual earnings figure for the top 10 percent of stone masons reflected in the ERI report. The drop in Kramer’s earnings around the time of his diagnosis does not, as Amcord seems to assert, negate the evidence that he had higher income in the preceding years.

Amcord’s claim that there was insufficient evidence to support Johnson’s assumption Kramer would stop working by July 2018 is just as lacking in merit. Kramer was diagnosed in 2015. His doctor initially gave him three to five years to live. By the time of trial in 2018, he had surpassed the 12 to 18-month life expectancy for mesothelioma sufferers. Although he responded remarkably well to chemotherapy and would probably respond to a second round when the tumor returned, the treatment took a severe toll. Kramer testified that his initial chemotherapy had caused permanent hearing loss and peripheral neuropathy that limited his ability to work. Walking left him short of breath and going up stairs “just kill[ed]” him. “Just the chemo just makes you weak, you know. And I lost 25 pounds or around there. You wouldn’t—you didn’t have any appetite, you know. . . . I’m not going to be where I was ever again physically or financially.” On this record, the jury could reasonably find that Kramer would stop working by July 2018.

Amcord also contends Johnson’s estimate of Kramer’s lost Social Security benefits was based on an unsupported assumption that Kramer would die before becoming eligible for full benefits in 2023. Therefore, it maintains, no substantial evidence supports Johnson’s calculation of the lost benefits “to include all sums payable from 2023 to the end of Kramer’s [statistical] life expectancy.” Again, it is mistaken. The medical testimony that Kramer had already surpassed the life expectancy for someone with his malignancy and that treatment on the average only improves life expectancy by four to five months provides an ample basis for Johnson’s projection that Kramer would not survive until 2023.

In sum, the jury’s assessment of Kramer’s future economic damages is supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

 

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Jackson, J.

Kramer v. Amcord, A155821