California highlights burden on defendants seeking to apportion liability to co-defendants and non-parties

A California Court of Appeal has rejected a defense challenge that the defendant was assigned too high a percentage of liability (60%), because the defendant did not introduce enough evidence about other parties’ liability. The court also rejected a defense claim that the $25 million noneconomic damage award was excessive, even though it was “well beyond the normal range of awards in similar cases for similar injuries” per a survey of similar verdicts.

Phipps v. Copeland Corporation LLC was an asbestos personal injury case in which plaintiff alleged that his mesothelioma resulted from asbestos exposure during his three years in the U.S. Navy and during his subsequent career as an HVAC technician. Copeland Corporation was one of four compressor manufacturers plaintiff sued by plaintiff, along with many other defendants. Plaintiff proceeded to verdict against Copeland only.

Although plaintiff’s medical and causation experts acknowledged during trial at all of plaintiff’s asbestos exposures contributed to his overall dose, they specifically (and expectedly) amplified the exposures to the asbestos-containing gaskets contained within Copeland’s compressors in an effort to maximize Copeland’s share.

The jury found for plaintiff, and ultimately apportioned 60% liability to Copeland, of 15 parties and nonparties on the verdict form. Copeland argued that the evidence could not support “assigning twenty times more fault to Copeland than to any of the other compressor manufacturers, and more fault than all other entities combined.”

The court, however, disagreed. “[A]s the party with the burden to establish the percentage of comparative fault attributable to others [citations omitted], Copeland, to obtain a reversal, must show the evidence compelled a verdict in its favor on apportionment as a matter of law.” Copeland argued that the apportionment was “illogical” because it found Copeland more responsible than any other compressor companies. However, the court pointed out there was no evidence “to compel a finding that William replaced fewer Copeland gaskets than he did Carrier, Trane, or York gaskets.” In reaching this conclusion, the court found that there were sufficient, uncontroverted facts to establish that plaintiff would have worked with far fewer asbestos-containing components from the other equipment manufacturers than from Copeland. In the court’s view, Copeland failed to proffer sufficient evidence of the frequency, intensity and duration of plaintiff’s exposure to the products of other defendants, including the HVAC defendants, and so could not show that the jury’s 60% liability finding was improper.

“The second reason Copeland has failed to demonstrate the evidence compelled a verdict in its favor on apportionment as a matter of law is that ‘the jury was permitted to consider the relative culpability of the parties in assessing comparative fault.’” That culpability need not rise to the level of that required for punitive damages, as here the defense had won summary adjudication nixing punitive damages from the case.

Copeland also argued that the noneconomic damages award was excessive. In support, Copeland submitted to the trial court “a spreadsheet labeled “Plaintiff Verdict Amounts in Asbestos/Mesothelioma Cases.” An accompanying declaration explained that the spreadsheet was the result of “a process for obtaining comparative verdicts in cases that, similar to this one, involved allegations of asbestos exposure leading to mesothelioma,” based on “Lexis Advance® Verdict Analyzer.” Neither the trial court nor the Court of Appeal was moved by this use of technology.

“The trial court did not abuse its discretion in refusing to consider Copeland’s survey of awards in other cases because, if for no other reason, sections 657 and 658 prohibited the court from considering such material:” the statutes require motions to be made on “the minutes of the court.” Accordingly, and because the award was supported by substantial evidence, the judgment and denial of new trial was affirmed.

This case serves as a critical cautionary tale to defendants at trial of the importance of introducing evidence of the liability of others. While California’s Proposition 51 imposes several liability only for non-economic damages, the burden of proving these “alternate shares” lies exclusively with the defendant. The Phipps court made clear that, in its discretion, Copeland simply did not do enough to make a showing that the jury’s apportionment of responsibility was improper. In light of Phipps, a defendant should consider introducing evidence such as:

  • Quantitative assessments of the likely doses of asbestos from the products of others and any possible exposures from one’s own products, including dose reconstructions from experts when possible;
  • Medical causation evidence regarding the relative carcinogeneity of fiber type; and
  • Documentary, “hard” evidence of a co-defendant’s liabilities.

When there are multiple defendants at trial, the plaintiff will make some of this case. Where, as here, there is only a single defendant, this will be more onerous and time-consuming.

California Increases Potential Liability Exposure in Multi-Defendant Cases

The risks of litigating in California just got larger.

California’s Proposition 51 makes defendants jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault. The California Supreme Court yesterday unanimously ruled that intentional tortfeasors cannot use Proposition 51 to reduce their share of noneconomic damages. Resolving a split among intermediate appellate courts, the court ruled that “section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.”

This decision will further incentivize plaintiffs to include and pursue intentional tort claims in multi-defendant cases, even when they are really only “add-ons” to a claim grounded in another theory (e.g., fraud claims in strict product liability failure to warn cases). The potential damages against any defendant facing such a claim now include all, not just some, of the noneconomic damages. Noneconomic damages for such matters as pain, suffering, and loss of consortium are often a multiple of the economic award. Compounding the problem: whether such intentional tort claims will be precluded from insurance coverage as a “loss intentionally caused by the insured.” 

In B.B. v. County of Los Angeles, police used excessive force and caused the death of a man they caught assaulting a woman on the street while in a drug-induced haze. The jury found decedent 40% responsible, several deputies negligent and collectively 40% responsible, and Deputy Aviles liable for battery and 20% responsible. The trial court entered a judgment holding Aviles liable for 100% of both economic and non-economic damages. The Court of Appeal reversed, but the Supreme Court reversed the Court of Appeal, effectively reinstating the judgment.

In a typically thoughtful opinion from Justice Chin, the court ruled that the statute’s application to cases decided “under principles of comparative fault” included negligence (and strict product liability), but did not include intentional tortfeasors. The court rejected multiple arguments that this was unfair and inconsistent with other language in Proposition 51, including those made by defendants and in an amicus curiae brief supporting the defense to which yours truly contributed.

We previously reported on this case just after it was argued, see here.

California Court of Appeal: Intentional Tortfeasor Barred From Apportioning Liability for Noneconomic Damages Under Proposition 51

California’s Proposition 51 limits a defendant’s share of liability for non-economic damages (like pain and suffering) to the “defendant’s percentage of fault” for the injury, effectively allocating to other tortfeasors liability for the rest of the noneconomic damages. A recent decision, Burch v. CertainTeed, has ruled that Proposition 51 does not apply to intentional torts. The ruling magnifies a split in California appellate authority which is expected to be resolved in another case that is already before the California Supreme Court.

Plaintiffs sued defendant CertainTeed and others claiming that work with asbestos-containing underground pipes caused Mr. Burch’s mesothelioma. The jury returned a verdict for plaintiff on his claim for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation. The jury awarded $776,201 in economic damages and $9.25 million in noneconomic damages. The jury apportioned 62% of the fault to CertainTeed (the only remaining defendant), with the remaining 38% allocated to various manufacturers and employers. The trial court ruled that under Proposition 51 (codified in Civil Code § 1431.2), CertainTeed, while liable for 100% of the economic damages, was liable for only 62% of the noneconomic damages.

Plaintiffs appealed, arguing that Proposition 51 does not apply to an intentional tortfeasor such as CertainTeed, so that CertainTeed should have been liable for 100% of both the economic and noneconomic damages, even though it was only 62% responsible.

The Burch court acknowledged the split of authority on the question whether the several liability provision of Proposition 51 for noneconomic damages applies to an intentional tortfeasor. In B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, a different court of appeal concluded that Proposition 51 mandates several liability for noneconomic damages in direct proportion to even an intentional tortfeasor’s direct percentage of fault. That case is presently before the California Supreme Court.

The court in Burch, however, sided with another case, Thomas v. Duggins (2006) 139 Cal.App.4th 1105, which came to the opposite conclusion. The court in Burch offered a two-part analysis why Proposition 51 should not apply to an intentional tortfeasor. First, at the time Proposition 51 passed, the rules of equitable reimbursement (equitable indemnity, equitable contribution) and comparative fault did not allow an intentional tortfeasor to seek such reimbursement from a negligent third party (or seek a reduction in damages based on a plaintiff’s or third party’s comparative negligence), based on “policy considerations of deference and punishment for intentional torts.”

Second, the court in Burch turned to the statute itself: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several only and shall not be joint”,so for people having issues such as this, the use of a wrongful death lawyer could be of real help, and you can Check This Out for all the best options for this. Focusing on the italicized phrase, the court reasoned this language had to mean that Proposition 51 incorporated those laws or principles of comparative fault that existed at the time it was enacted — which included the law that prohibited an intentional tortfeasor from seeking equitable indemnity, contribution, and apportionment. (The court also drew a similar inference from Proposition 51’s ballot materials, though these materials make no mention of the rules of comparative fault as they applied to intentional tortfeasors.)

B.B v. County of Los Angeles relied on DaFonte v Up-Right, Inc. (1992) 2 Cal.4th 593, in which the California Supreme Court held that Proposition 51 applied to the fault of all joint tortfeasors, even one who was statutorily immune from suit (in that case, the plaintiff’s employer). The Burch court stated that DaFonte “had no occasion to consider” whether Proposition 51 allowed an intentional tortfeasor to apportion noneconomic damages according to its percentage of fault. Interestingly, though, the Court in DaFonte expressly rejected the argument, similar to the one advanced by the court in Burch, that preexisting law imposed various constraints on the application of Proposition 51. Thus, the reasoning in Burch – and in Thomas — that Proposition 51 “must have incorporated [prior] judicially-construed principles” of equitable reimbursement is flatly inconsistent with DaFonte.

In the wake of Burch, the Supreme Court in B.B v. County of Los Angeles will likely address, among other issues:

  • Does the concept of “fault” in Proposition 51 include all torts and theories of liability, or, for policy reasons, will an exception be made for intentional torts?
  • Which of Burch or B.B. is more consistent with prior decisions holding Proposition 51 applies not only to negligence claims, but also to strict liability, and holding that tortfeasors immune from suit should also be allocated a share of the fault?
  • Of what relevance are earlier rules for equitable reimbursement from solvent tortfeasors, to the issues of apportioning fault among all tortfeasors, and limiting a defendant’s liability for noneconomic damages to its proportionate share of the overall fault?
  • Does Proposition 51 only apply, as suggested by the court in Burch, to “situations in which defendants who bore only a small share of fault for an accident could be left with the obligation to pay all or a large share of the plaintiff’s damages if other more culpable tortfeasors were insolvent”?

Until B.B is decided by the Supreme Court, trial courts in California are free to follow either of the two contrary strands of appellate authority on this issue. In the meantime, plaintiffs have even more reason to allege an intentional tort claim and hope to make it stick.

Stay tuned.