Survivor (Survival Action): Doe and Gratuitous Care Edition

In the recent decision Williams v. The Pep Boys Manny Moe & Jack of Cal., a California court of appeal addressed four important topics that defendants frequently confront:

  1. How to defeat a plaintiff’s attempt to name defendants late as “Does.”
  2. A not-so-welcome restatement that economic damages include nursing services gratuitously provided by family members.
  3. A welcome ruling that recoverable damages in a survival action are limited to damages incurred before death.
  4. A reminder that a settlement offer to multiple plaintiffs will not qualify for cost-shifting, even if plaintiffs fail to “beat” the offer at trial, unless the offer is apportioned among plaintiffs and is not conditioned on acceptance by all.

1. “Doe” defendants, plaintiff’s knowledge and statute of limitations.

Like most jurisdictions, California allows plaintiffs to amend their complaint to designate a defendant unknown to plaintiff at the time of filing the complaint, usually designated as “Doe.” (Cal. Code Civ. Proc., § 474.) An amendment made pursuant to this section will “relate back,” i.e. be deemed to have been filed at the same time as the original complaint, if made within three years of the original complaint, even if the statute of limitations ran in the interim.

Williams stressed that the Doe defendant procedure is “‘available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe.’” In other words, “[i]gnorance of the facts giving rise to a cause of action is the ‘ignorance’ required by section 474, and the pivotal question is ‘did plaintiff know facts’ not ‘did plaintiff know or believe that he had a cause of action based on those facts?’”

In Williams, plaintiffs knew before they filed the original complaint that their father died of mesothelioma, that asbestos was the cause of the mesothelioma, and that the father purchased defendant’s asbestos-containing products. They “knew most of the story.” This was enough that the Court of Appeal affirmed the trial court’s decision to dismiss the wrongful death claims as outside the statute of limitations.

2. Nursing services provided by family members to decedent prior to death are recoverable damages.

Williams reaffirmed that California allows plaintiffs to recover the value of nursing services provided to the injured plaintiff by a family member, even in the absence of an agreement or an expectation of payment.

3. Future home care that would have been provided to a spouse is recoverable up until death, not after.

Under California’s survival law, decedents’ personal representative or successor in interest can recover the decedent’s other pecuniary losses incurred before death. (Cal. Code of Civ. Proc., § 377.34.) Here, plaintiffs sought to recover the value of around the clock nursing care that decedent would have provided to his wife but for his death.

Williams ruled that section 377.34 limited recoverable damages to those incurred prior to death. Plaintiffs relied on Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 171, where plaintiffs attempted to recover the value of household services as income post death, even though the dying husband was still alive. The Williams court found Overly inapplicable, because it did not deal with a survival action. Furthermore, the plain language of the statute only allowed for the recovery of penalty and punitive damages incurred after decedent’s death and thus intentionally excluded other categories of damages decedent would have been entitled to had he lived. The Williams court stated that survival action damages are narrowly limited to “the loss or damage that the decedent sustained or incurred before death,” which by definition excludes future damages.

4. Cautions for settlement offers to multiple plaintiffs.

Here, as in many asbestos defense cases, plaintiffs had both a wrongful death and a survival claim. Defendant offered a single unapportioned sum in exchange for dismissal, “contingent upon acceptance by all plaintiffs as it is the intention of defendant to obtain a full and final resolution of all claims asserted by plaintiffs in this matter.” This offer did not qualify for cost-shifting, even though plaintiffs’ recovery was less than the offer amount. (Cal. Code Civ. Proc. § 998; cf. Fed. R. Civ. Proc. 67.)

The offer fell afoul of “the general rule … that a section 998 offer to multiple plaintiffs is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.” An exception exists when one or more plaintiffs have a “unity of interest such that there is a single, indivisible injury.” A unity of interest exists for example when spouses suffer injury to community property. There is no such “unity” as between multiple survival and wrongful death claimants.

This does not mean a defendant cannot make such an offer, or that plaintiffs cannot accept one. It does however mean that such an offer will not shift costs to plaintiffs even if they fail to beat it at trial.


The Williams decision is a double-edged sword for defendants. On the one hand, it puts plaintiffs on notice to timely replace “Does” or face statute of limitation issues. On the other, it increases the scope of recoverable damages in survival actions to encompass fees gratuitously provided by family members. It also reminds parties (usually defendants) to carefully draft settlement agreements and appropriately apportion amounts to each cause of action and to each plaintiff without a condition for all to accept. It also shows the proper stance on the application of lost years’ damages, which hopefully shall limit the plaintiffs’ bar’s future attempts in claiming improper damages. So counsel, pay attention to the small facts and don’t cut corner with your settlements. In the famous words of Rodney Lavoie Jr. (survival Boston contestant), “this ain’t a campin’ trip. This is suhvivah!” (at least for your client’s pocket).

California Court Rewrites Opinion on Asbestos Bankruptcy Trust Payments

As a result of Gordon & Rees’ amicus efforts (through California defense counsel organizations), along with those of other amici, the Court of Appeal issued an order modifying its opinion in Hernandezcueva v. E.F. Brady Co., Inc. (B251933) to delete a holding that asbestos bankruptcy trusts were subject to the “collateral source rule.” This is an important win for asbestos defendants in California.

Johns-Manville_BuildingAs we recently reported, the original version of the opinion held that asbestos bankruptcy trusts were “collateral sources,” meaning that the often substantial recoveries plaintiffs obtain from such trusts could not offset judgments against defendants. The order modifying the opinion deletes the reference to the collateral source rule entirely. It also refers to asbestos bankruptcy trusts as “joint tortfeasors” for purposes of offsetting judgments, and cites several cases holding that recoveries from asbestos bankruptcy trusts are explicitly approved as offsetting a judgment. Equally importantly, the reference to the trusts as “joint tortfeasors” confirms and continues asbestos defendants’ ability to ask juries to assign shares of liability to bankrupt manufacturers.

The other problems we noted with the opinion remain, and California Supreme Court review is still possible.

Is Sky The Limit In New York City Asbestos Litigation?

In the New York County Asbestos Litigation (“NYCAL”), the value of remittitur is steadily decreasing because courts are willing to accept higher and higher awards.  Although awards in comparable cases are not binding, appellate courts recognize that they offer precedent as to whether an award deviates from reasonable compensation.

Remittitur allows a court to set aside a jury award as excessive if it deviates materially from what would be reasonable compensation. Because personal injury awards, especially for pain and suffering, are subjective opinions which are formulated by the jury without the availability of guidance or precise mathematical quantification, reviewing courts seek guidance from comparable cases in deciding if an award deviates from fair and reasonable compensation.

In Konstantin v. 630 Third Avenue Associates, an award for pain and suffering was reduced by the trial court to $4.5 million for 33 months of pain and suffering and $3.5 million for an estimated 18 months of future pain and suffering. Similarly, in Dummit, the court sustained an award of $5.5 million for 27 months of past pain and suffering and $2.5 million for an estimated 6 months of future pain and suffering. On appeal, the Appellate Division, First Department, (July 3, 2014), upheld both the Konstantin and Dummit post-remittitur awards, in a much anticipated decision. On a similar scale, in Estate of Peraica (March 2013), after a jury awarded damages to a 63 year-old deceased mesothelioma plaintiff, the trial court reduced a $35 million jury verdict to $18 million for two years of pain and suffering.

In NYCAL (Assenzio v. A.O. Smith), Index No. 190008/12 (Sup. Ct., NY Co. February 5, 2015), the Hon. Joan Madden continued the judicial policy of remittitur inflation by pushing upward the accepted “per month” value of a pain and suffering award on remittitur. Judge Madden urged the parties to stipulate to an award that included for multiple plaintiffs $5.5 million for 20 months of past pain and suffering and $3.2 million for 6 months of future pain and suffering; $4 million for 18 months of past pain and suffering and $3.5 million for an estimated 24 months of future pain and suffering; $4.5 million for 30 to 36 months of past pain and suffering and an estimated $3 million for 18 months of future pain and suffering; and $5 million for 18 months of pain and suffering. The facts of each plaintiff’s course of treatment and disease purportedly warranted the court applying varying pain and suffering calculations.

There remains some hope for defendants to win significant remittiturs.  The Matter of New York Asbestos Litig. v. John Crane, Inc., 28 A.D.3d 255 (N.Y. App. Div. 1st Dept. 2006) involved two plaintiffs: One was awarded $7 million for past pain and suffering and $7 million for future pain and suffering, while the other (a decedent’s estate) was awarded $8 million for past pain and suffering.  Defendant appealed the decision, and the trial judge, the Hon. Paula J. Omansky, vacated the awards, suggesting the plaintiffs stipulate a reduction of their awards to $3 million for past pain and suffering and $1.5 million for future pain and suffering for the living plaintiff.  This decision underscores the view that asbestos related verdicts can result in significant remittitur, although it is not clear from a review of the case law how or why a favorable result may be achieved in any particular case.

Nevertheless, seeking a verdict reduction in some NYCAL courts may seem like a futile exercise.  The Matter of New York City Asbestos Litig. Alfred D’Ulisse v. Amchen Products, Inc., 842 N.Y.S.2d 333 (Sup. Ct. N.Y. Cty. 2007) reminds us of how large post-verdict awards can be.  Plaintiff D’Ulisse was awarded $10,000,000 for past pain and suffering and $10 million for future pain and suffering.  As if those awards were insufficient, the Hon. Louis B. York further awarded D’Ulisse’s wife $5 million for loss of her husband’s services and society.  The judge held that the $25 million award did not “shock the conscience” of the court.  Although there is no disagreement that this plaintiff suffered a gruesome degree of suffering, an award this gargantuan is certainly subject to debate and undoubtedly shocks the conscience of many.

On the other hand, in a similar battlefield just outside the purview of NYCAL, the Second Department has at least on occasion considered inflated jury verdicts unreasonable.  In Aguirre v. Long Island Railroad Co., 847 N.Y.S.2d 895 (Sup. Ct. 2nd Dept. 2007), a Brooklyn jury awarded three plaintiffs $2 million, $3 million and $4 million, respectively, for past pain and suffering, and the same amounts for future pain and suffering.  Defendant LIRR moved for a new trial on damages, or at the very least the grant of a remittitur.  Although declining the latter option, the Hon. Lawrence S. Knipel granted a new trial for damages, deeming the awards to have “materially deviate[d] from what would be reasonable compensation.”  The judge did, however, give plaintiffs the option to reduce the award on their own accord by a total of $300,000 each.  Nevertheless, this evidences the understanding, at least by some members of the bench, that asbestos awards can at times be inexplicably exaggerated.

Although there can be no question that mesothelioma plaintiffs endure horrendous pain and suffering, it is nonetheless difficult to justify how reviewing courts can assign pain and suffering valuations on remittitur that so greatly exceed the valuations assigned to similar cases only a few short years ago. It may appear to corporate defendants, particularly those with marginal liability, that NYCAL penalizes defendants that go to trial rather than give in to extortionate settlement demands.  It is more or less impossible for corporate defendants to create a reliable matrix of potential exposure based upon “per month pain and suffering” because the post-trial valuation of pain and suffering continues to go up and up, seemingly without rhyme or reason.  It is therefore all the more challenging for an in-house counsel or an insurance claims examiner to provide management an accurate forecast of liability exposure.  The recent decision to permit punitive damages in NYCAL only further complicates the exposure calculus.

An Enticement to Double Recovery?


Evidence of claims by plaintiffs to asbestos bankruptcy trusts is critical to the defense of any asbestos case. In California, for example, Volkswagen of America Inc. v. Superior Court (Rusk) (2006) 139 Cal.App.4th 1481, highlighted the importance of the discovery of such claims for purposes of setoffs and establishing a defendant’s proportional share of damages.

Volkswagen held that “[s]ince each party who shares responsibility for any asbestos-related disease from which a claimant suffers is liable only for its proportionate share of noneconomic damages, each will understandably be concerned to determine whether the claimant has overstated its share of responsibility.  . . . The number of days and the conditions under which a claimant was exposed to the asbestos-containing materials of one responsible party bears directly upon the extent of the liability of the others. Each therefore will have very good reason to compare what a claimant has said in this regard in supporting a claim against another responsible party.”

Perhaps recognizing the uphill battle they face in protecting such claims from disclosure in discovery, plaintiffs in the litigation have modified their tactics. Instead of making claims to the asbestos bankruptcy trusts prior to or during litigation, many plaintiffs now wait until after their civil case has settled or gone to trial to make these claims. The purpose is deception and double recovery. If no claims have been made, there is nothing to discover, and therefore nothing to offset against a plaintiff’s verdict. So what is a defendant to do?

Paulus v. Crane Co., No. B246505 (2/21/14) considered an appeal that presented two issues, one of which was whether the trial court erred in not reducing the damages awarded against defendant Crane Co. to account for settlements plaintiffs could obtain from asbestos bankruptcy trusts, but had not at the time of trial. The trial court’s decision was affirmed.

Crane argued that California Code of Civil Procedure section 877 and the court’s broad equitable powers gave it the authority to offset potential claims. In just a single page of analysis in the 15-page decision, Paulus focused on the language of 877 restricting setoffs to settlements given “before verdict or judgment,” and further found that the court’s equitable powers did not give it the power to modify a judgment for a settlement that “may or may not be sought.”

Of particular concern was the court’s rejection of Crane’s argument that refusing a setoff in this case was tantamount to permitting a double recovery, finding that “[i]f a later settlement subsequently allows plaintiff a double recovery, that does not retroactively make the instant judgment improper.” (emphasis in original) Paulus also rejected Crane’s argument that plaintiff’s failure to obtain available settlements constituted failure to mitigate damages, holding that the duty to mitigate is a matter to be decided by the fact finder at trial, and “not something to be raised on new evidence after judgment.”

A step backward from Volkswagen?

The abbreviated discussion of the bankruptcy trust issue in Paulus masks the significance of its holding, which is effectively that so long as a plaintiff waits to make a bankruptcy trust claim, he may double recover at will.  Although Paulus may be technically correct that California Code of Civil Procedure 877 says “before judgment,” it gives short shrift to the court’s broad equitable powers, giving a ruling that is effectively form over substance and frustrates the Volkswagen court’s policy aims of ensuring that plaintiffs are not permitted double recovery.

Lessons from Paulus

After Paulus, a defendant would be well advised to look carefully at a plaintiff’s work history in a pending action, and proffer appropriate evidence to the trier of fact relating to claims that could be made but were not.

This is not the first time courts of appeal have failed to award offsets to defendants in asbestos cases, where defendants have not had evidence about future settlements in asbestos cases. See Garcia v. Duro-Dyne 156 Cal.App.4th 92 (2007). Recent efforts by defendants have shown that pursuit of discovery about exposure to bankrupt entities’ products during the case has led to inconsistent claiming patterns.

Defendants can and should make efforts to obtain their own affirmative evidence, rather than rely on the “goodwill” of the court on what might happen. This evidence can support affirmative defenses such as mitigation of damages, or affirmatively support claims for offset, and make it harder for trial courts and courts of appeal to turn a blind eye to these practices.

Was Buyer Of Real Estate “Ready, Willing & Able” To Perform?

Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.

In Pesa v. Yoma Development Group, Inc. et al., 18 N.Y.3d 527, … N.Y.S.2d … (Feb. 9, 2012), the New York State of Appeals examined the issue whether prospective buyers in a damages suit must show that they were “ready, willing and able” to close the transaction – that is, but for the seller’s repudiation, the transaction could and would have closed. In reversing the Appellate Division, Second Department, the Court held that the burden of proof was the “real question” in a case like this:

"Should the buyers be required to show they would and could have performed? Or should the seller have the burden of showing that they would not or could not? Since the buyers can more readily produce evidence of their own intentions and resources, it is reasonable to put the burden on them."

To New York’s high court, its conclusion was "supported by common sense" Thus, the Court of Appeals held that the buyers were not entitled to summary judgment and that issues of fact needed to be resolved, in favor of the buyers, before the buyers could be found to be actually “ready, willing and able.” In the instant case, for example, the buyers needed to demonstrate that they could secure a mortgage commitment within the required sixty day period.

The take-away from this decision is that buyers seeking redress for a seller’s repudiation of a real estate contract now have the same burden of proof whether they are seeking damages or specific performance.