Opinion
Case No. C 02-3771 PVT.
October 22, 2004
FINDINGS OF FACT AND CONCLUSIONS OF LAW
INTRODUCTION
This case began in state court as a personal injury action brought by Felipe ("Felipe") and Sara ("Sara") Andrade (collectively, the "Andrades") against Pangborn Corporation ("Pangborn"), stemming from an industrial machine injury Felipe incurred while employed at Hyatt Die Cast Engineering Corporation ("Hyatt"). The injury occurred while Felipe was operating a Rotoblaster machine designed, manufactured, and sold by Pangborn. The matter was removed to this court on August 5, 2002. On December 2, 2002, Republic Indemnity Company of America ("Republic"), Hyatt's worker's compensation insurer, filed a Worker's Compensation Subrogation Complaint in Intervention. The parties stipulated to allow the filing of the Complaint in Intervention and the court so ordered.
Before trial in this matter, the Andrades settled with Pangborn. The trial went forward on the worker's compensation subrogation complaint and was tried to the court without a jury on July 26, 27, 28, and 30, 2004 and August 2, 4, 5, and 6, 2004, with closing arguments on September 20, 2004. Republic seeks damages for payments made to and on behalf of Felipe for medical expenses, temporary and permanent disability, vocational rehabilitation expenses, and lost earnings. These payments total $249,570.
During the trial, the court heard live testimony from numerous witnesses, including experts from both sides, reviewed deposition excerpts as designated by the parties, and examined exhibits as entered into evidence during the proceedings. For the reasons provided below, and as set forth in the following findings of fact and conclusions of law, the court concludes that, although Pangborn's Rotoblaster machine was defectively designed, Hyatt's own negligence was a substantial factor in Felipe's injury and, thus, Republic takes nothing on its Complaint in Intervention.
FINDINGS OF FACT
1. Pangborn designs, manufactures, and sells Rotoblast machines. Since 1977, Pangborn has manufactured and sold over 30 machines to various customers. Pangborn manufactures the machine after it receives a purchase order and deposit from a specific customer, as was the case with the machine sold to Hyatt.
2. Hyatt purchased its latest Rotoblaster from Pangborn in 2000 and it was delivered to Hyatt on about October 26, 2000.
3. The machine (commonly known as a shotblaster) is used by customers to clean and finish metal parts. An operator loads the parts in the machine, where the parts are blasted with a high-speed stream of steel shot. The shot sands, cleans and finishes the parts.
4. The machine is turned on and off, and otherwise controlled, at a control box. The box is attached to the left side of the machine's cabinet (the "cabinet"), next to the large opening used by the operator to load and unload the parts. There is an emergency stop button on the box.
5. The machine has a main turntable and 5 auxiliary tables. The main turntable is driven by a motor and rotates in the counterclockwise direction. The main turntable's speed is adjustable.
6. The machine has 5 compartments for holding the parts to be cleaned. The compartments are formed by 5 interior partition solid walls that are attached to the main turntable. The auxiliary tables rest on the top of the main turntable and are allowed to free spin. There is 1 auxiliary table in each of the 5 compartments.
7. The machine's main turntable can be set to rotate in the continuous or single cycle mode. In the single cycle mode, the turntable incrementally rotates 1 position at a time, as controlled by the operator. The turntable rotates at a slow speed; at the time of the accident, it was rotating at about 0.85 to 0.94 revolutions per minute.
8. A pinch-point hazard exists at the right edge of the cabinet opening. The pinch-point is not continuously present, but rather is periodically created each time 1 of the machine's 5 interior partition walls rotates to the right edge of the cabinet. Once the partition wall rotates past the edge, the pinch-point disappears until the next partition wall rotates to the same edge. The pinch-point can be seen with the naked eye and is not a hidden hazard.
9. At the right edge of the cabinet opening, where the pinch-point is located, a vertical personnel safety bar is attached to the cabinet. This bar is a vertical spring bar wrapped in manoplex rubber and is prominently located on the machine. When pushed by a sufficient amount of force, the personnel safety bar hits a limit switch that cuts the electrical power to the machine's main turntable. When the power is cut, the turntable quickly stops rotating. At least three Hyatt employees — Quinn Smith (through testimony by Republic's expert, Paul Youngdahl), Early Brewer, and Raul Carranza — testified that they believed the personnel safety bar would prevent someone from becoming trapped in the pinch-point.
10. On June 26, 2000, Pangborn and Hyatt entered into a written contract, whereby Hyatt purchased the machine for $109,500. The contract states the terms and conditions between Pangborn and Hyatt.
11. The contract does not contain any statements or promises that the machine will perform in a certain way. The contract identifies the machine's application; specifies the price, certain options, and the method of payment and shipment; and gives a general system description and specifications.
12. When Hyatt and Pangborn entered into the contract, Pangborn understood that Hyatt would use the machine for the "general cleaning" of "aluminum die castings." This application is a typical and ordinary purpose for which the machine can be used. The contract does not reflect that Hyatt intended to put the machine to a specific use which was peculiar to the nature of its business. At that time, Hyatt and Pangborn did not have prior dealings. Hyatt did, however, possess an older Pangborn rotoblaster which it acquired from Hewlett Packard when Hyatt took over the plant.
13. Hyatt had the option to contract with Pangborn for the installation (or "erection") of the machine, for an additional charge. However, Hyatt elected not to purchase this option. The contract states that Hyatt will install the machine. On June 27, 2000, Porter-Warner Industries, Inc., Pangborn's local representative, confirmed this arrangement in a letter to Hyatt.
14. Hyatt also had the option to contract with Pangborn for the training of Hyatt's employees on how to operate the machine, for an additional charge. However, Hyatt also elected not to purchase this option.
15. The contract states that Hyatt and not Pangborn is responsible for furnishing "All warning lights, horns, and any other personnel safety equipment deemed necessary by customer that is not specified in our proposal." The contract also states that Pangborn is required to provide or install only such devices for the protection of safety and health as are specified in the contract; Hyatt is responsible for providing and installing any and all safety devices not required of Pangborn; and Hyatt will indemnify and hold harmless Pangborn against any expense, loss or damages that Pangborn may incur or sustain as the result of Hyatt's failure to do so.
16. The contract states that Hyatt is solely responsible for compliance with local, state and federal laws, codes, and regulations relating to the machine and its operation, and that Pangborn does not make any warranty or representation in that regard.
17. The contract states that Pangborn's standard "Terms and Conditions of Sale" are part of and attached to the contract. Section 11 of the attachment states that Pangborn warrants that the machine will be free of defects in materials and workmanship, and that "THIS WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE."
18. Quinn Smith, Hyatt's plant manager, never read this portion of the contract, and he does not know if anyone else did.
19. Pangborn had the machine fabricated by Baylynx Manufacturing ("Baylynx"), a separate company in Ancaster, Ontario, Canada.
20. Shortly after September 12, 2000, before the machine was delivered, Hyatt received "Erection Instructions" from Pangborn. The instructions gave Hyatt directions on how to install the machine.
21. On or about October 23, 2000, Baylynx had the machine delivered to Hyatt's plant in Sunnyvale, California. The machine arrived by truck, in 2 sections (the base and the tower), on pallets. Multiple copies of Pangborn's "Operation, Maintenance and Repair Parts Manual" (the "manual") accompanied the machine.
22. The manual states "KEEP THIS MANUAL WITH THE PERSONS RESPONSIBLE FOR THE OPERATION AND MAINTENANCE OF THIS MACHINE, AND FOR THE ORDERING OF REPAIR PARTS"
23. The manual states that the user must ensure that the equipment, its location, and its operation comply with the applicable codes.
24. The manual states that a personnel safety bar is located on the front of the machine and designed to stop the main table and rotoblaster drives if the operator becomes trapped between the interior (turnstall) partition wall and the cabinet.
25. The manual states that before operating the machine, the user should carefully inspect the personnel safety bar to ensure that is in proper operating condition.
26. At the time of the accident, there were several warning and informational signs on the machine that had been provided by Pangborn. None of the signs were placed next to the pinch-point. None of the signs gave any information regarding the pinch-point. All of the signs were in English.
27. During October and November of 2000, Hyatt installed the machine at its plant using its own employees and one or more third parties.
28. On or about October 26, 2000, Rick Damrel ("Damrel"), Pangborn's west coast regional sales manager, visited Hyatt to perform start-up of the machine, which is different than installation. However, on this visit, Damrel could not perform start-up because certain parts were missing, and there were assembly problems.
29. From November 13, 2000 to November 15, 2000, Tony Smith, a Pangborn employee, spent 3 days at Hyatt, making warranty repairs to the machine so that its installation could be completed by Hyatt.
30. On or about November 21, 2000, Damrel again visited Hyatt to finish the start-up of the machine. Damrel turned the machine on, loaded the parts in the machine, ran the parts through the machine, and checked the cleaning of the parts. Damrel also showed one or more of Hyatt's employees how to turn the machine on and off. Damrel did not operate the personnel safety bar, either while the machine was off or on. The employees did not operate the personnel safety bar in Damrel's presence.
31. When Hyatt installed the machine, and during the time that the machine was used in production before the accident, Hyatt did not install railings or caution signs about the machine's pinch-point on or around the machine.
32. Felipe and Early Brewer worked in the finishing department. Felipe was a machine operator. Brewer was a finisher, or the employee who hand filed and sanded the parts before they were loaded in the machine. Felipe and Brewer worked a 4-day week (Monday through Thursday), 10 hours per day, with an additional 1/2 hour for lunch. They worked on the swing shift, starting at 2:00 p.m. and stopping at 12:30 a.m. Their lunch was from 7:00 to 7:30 p.m., and they had two 15 minute breaks, with the second one starting at 10:00 p.m. During the swing shift, Felipe was the primary operator of the machine. Brewer was available as a back-up operator.
33. Flores was the only manager of the finishing department. He was Felipe's and Brewer's supervisor. Flores worked a 5-day week (Monday through Friday), 8 hours per day, with an additional 1/2 hour for lunch. He worked on the day shift, starting at 5:30 a.m. and stopping at 2:00 p.m. Flores typically left Hyatt at about 2:15 p.m. During the day shift, Flores and several other employees operated the machine.
34. At the time of the accident, the machine's clock indicated that the machine had been in operation for a total of about 200 hours, which included start-up. If the machine had been used in production during the entire 3 months (at 4 days a week), at 10 hours a day per shift, then the machine would have had many more hours than the 200 hour machine time.
35. Before the accident, Hyatt had designed and manufactured multiple fixtures (consisting of several 6 inch metal rods attached to a plate) to be placed on each auxiliary table, to hold the parts in a fixed position while they were cleaned. The machine operators used different fixtures to hold different parts. The parts that Felipe was cleaning at the time of the accident are known as portables.
36. Each portable has a small hole. When Felipe loaded the portables in the machine, he placed two parts on each auxiliary table. He loaded the first part with 1 hand, and then the second part with the other hand. With respect to each part, he had to fit 1 of the fixture's rods through the hole, and then lower the part down the rod until the part fit between the other rods. After the parts were cleaned, Felipe unloaded the parts from the machine in the same manner, by lifting them up and away from the rods, 1 part in each hand.
37. There were 2 tables located in front of panel no. 1 on the left side of the cabinet opening. The tables were placed at a right angle to each other. The finisher sat at table no. 2, which was furthest away from the machine. When the finisher completed preparing a few parts, he walked over and placed them on table no. 1, which was closest to the machine. The operator picked-up parts on table no. 1 for loading in the machine.
38. The operator placed a pallet on top of a handlift in front of panel no. 3 on the right side of the cabinet opening. The operator placed the cleaned parts on the pallet after they were unloaded from the machine. Once the pallet was full, the operator moved it away from the machine, so that the parts could be unloaded and taken out of the finishing department. The operator's work space was defined by table no. 1 on the left and the pallet on the right; the operator worked between these 2 objects, moving along the length of panel no. 2 (in the middle of the cabinet opening) as he loaded and unloaded the parts.
39. There was no prescribed method to load and unload the parts. Flores unloaded all of the parts from the auxiliary tables and placed them on the pallet, without loading any new parts, and allowed the auxiliary tables to go through 1 revolution empty. Brewer unloaded the parts from an auxiliary table, placed them on the pallet, and immediately loaded new parts on the auxiliary table (so the tables were never empty). Felipe unloaded the parts from an auxiliary table, he placed them back on table no. 1 (which held the parts that had not yet run through the machine), and then immediately loaded new parts on the auxiliary table (so the tables were never empty).
40. On the occasions when Flores and Brewer operated the machine, they placed the pallet right up against the cabinet, so that the pallet was very close to where they stood while working. The placement of the pallet was a matter of convenience. In this way, Flores and Brewer could unload the parts from the machine and place them on the pallet without taking too many steps. In addition, the pallet acted as a barrier, preventing Flores and Brewer from approaching too close to the pinch-point.
41. In contrast to Flores and Brewer, when Felipe operated the machine, he did not place the pallet right up against the cabinet. Rather, he placed the pallet about 2 feet away from the machine. This placement gave him room to walk to his right as far as he wanted while unloading the parts, even to the point of working right next to the pinch-point.
42. At the time of the accident, Hyatt did not have any policy, rule or procedure that required, or even suggested, that the machine operator place the pallet right up against the cabinet, so that it acted as a barrier, preventing him from approaching too close to the pinch-point.
43. As the worker's compensation insurance carrier for Hyatt, Republic sent Rodney Lomas ("Lomas"), Senior Loss Control Consultant, to Hyatt's plant on November 30, 2000 and December 6, 2000 to conduct an air quality survey. The visits were after the machine was placed in production and before the accident. During these visits, though Lomas had the opportunity to observe the rotoblaster loading and unloading procedures, he did not inspect the machine or observe the loading procedure. Hyatt did not ask Lomas to do so.
44. The accident occurred on February 28, 2001, at about 10:30 p.m. Using his left hand, Felipe had already lifted 1 of the 2 portables up and away from the fixture on one of the auxiliary tables. He was still holding that portable in his left hand. Using his right hand, he was attempting to lift the second portable up and away from the same fixture. However, he could not do so, because the portable was stuck on 1 or more of the fixture's rods. He continued to walk to the right, toward the pinch-point, while attempting to lift the second portable. At the last minute, he attempted to pull his hand out of the machine. He was too slow, and his hand became trapped between 1 of the 5 interior partition walls and the cabinet, and then his arm was pulled in as the main turntable continued to rotate.
45. The rods on the fixtures wear down over time, because of their exposure to the steel shot in the machine. As the rods become thinner, they are permanently bent by the loading and unloading of parts. As the rods become bent, they made it more difficult for the operator both to load the portables and to unload the portables. During the 3 months that the machine was in production before the accident, Felipe and Brewer were aware of bent rods on the fixtures, and both of them experienced additional difficulty in unloading the parts.
46. Though he tried to do everything you could to hit the personnel safety bar, Felipe did not hit the bar with either his left or right hand. His right hand was trapped. He was chopping the air with his left hand. He cannot say that he hit the personnel safety bar with his left hand. It is not known whether any part of his body hit the personnel safety bar.
47. Brewer was sitting at table no. 2, at least 10 feet behind Felipe. Brewer first realized that Felipe was having a problem when he heard Felipe yell. Brewer then looked up and saw that Felipe was bent over panel no. 3 into the machine and shuffling his feet. Felipe's back was facing Brewer, so Brewer could not see what the problem was. Brewer did not actually see Felipe become trapped.
48. Brewer stopped the machine by walking to the control box and hitting the emergency stop button. As soon as he hit the stop button, he heard the turntable's sound instantly decrease. After he hit the stop button, he saw Felipe standing next to the personnel safety bar. Brewer could not tell if any part of Felipe's body was pressed against the personnel safety bar.
49. Felipe was trapped for about 2 hours while the rescue personnel attempted to release him. He was finally released when the fire department cut the drive chain connecting the motor to the main turntable, and then manually reversed the turntable by using a hydraulic jack.
50. After the accident, Cal-OSHA conducted an investigation of the accident. Among other things, Cal-OSHA required Hyatt to install a metal railing, bolted to the concrete floor and against the cabinet, to keep the operator away from the pinch-point while operating the machine.
51. Paul Youngdahl, a mechanical engineer and Republic's expert witness, testified that the machine had a design defect but the mere existence of a pinch-point does not alone constitute a design defect. He was more concerned about having other possibly more effective stop mechanisms to prevent someone from getting caught in the pinch-point.
52. Roman Beyer ("Beyer"), one of Pangborn's experts, testified that the location of the personnel safety bar was not a substantial factor in causing the accident. The personnel safety bar allows the operator to stop the machine so that he can reach inside the machine without running the risk of getting trapped by the pinch-point. This function is performed regardless of where the personnel safety bar is located in relation to the pinch-point. If the operator decides to keep his hands inside the machine for too long, for whatever reason, without stopping the machine, simply moving the personnel safety bar will not keep the operator from getting trapped. However, Donald Horst ("Horst"), Pangborn's warnings expert, testified that the personnel safety bar, in itself, may have been a warning device and may have caused a perception that it will prevent injury. Horst noted that if the personnel safety bar is nothing more than a stop, it is misleading to call it a "safety bar."
53. The experts disagreed on where the personnel safety bar should be located and whether repositioning it would make it safer. Youngdahl proposed several other ways to stop the tables, none of which were perfect solutions. The light curtain and pull chord are other ways to stop the table, but they do not prevent getting caught if any part of the body goes into the pinch-point. They work only to stop the machine before someone is caught or to stop the machine after the person is caught to facilitate extraction.
54. Beyer testified that adding a light curtain or a pull chord or a power reverse switch on the machine either is not mechanically feasible, or will have significant adverse consequences to the machine and its operator. He also found that a lack of any of these items was not a substantial factor in causing the accident.
55. After the accident, Cal-OSHA did not require Hyatt to add a light curtain or a pull chord or a power reverse switch. As of trial, 3 years after the accident, Hyatt had not done so.
56. As Youngdahl testified, the machine had at least one manufacturing defect. The force required to push the personnel safety bar to stop the machine is about 57 pounds, the required force should be less than one pound, and Pangborn's specifications state that the required force should be less than 1 pound.
57. The additional required force (56 pounds) was not a substantial factor in causing the accident. Brewer testified that he stopped the machine by hitting the emergency stop on the control panel, and Felipe testified that, though he tried, he cannot say that he hit the personnel safety bar.
58. The pinch-point is an open and obvious hazard that did not require a warning on the machine or instructions in the manual. Objectively speaking, the pinch-point is (a) slowly and repeatedly created at the right edge of the cabinet opening, each time 1 of the machine's 5 interior partition walls rotated to the right edge of the cabinet, (b) created every time the machine was operated, (c) created every time in the same location on the machine, (d) obvious in the sense that it is a simple-to-understand hazard which is created as the gap between the 2 walls narrow to less than 2 inches, and (e) open in the sense that it is visible to the naked eye and not hidden behind some object.
59. Flores, Felipe, and Brewer admitted that the pinch-point is an open and obvious hazard. From the very first day of the machine's operation, all of them saw that the pinch-point was slowly created at the right edge of the cabinet opening, each time 1 of the machine's 5 interior partition walls rotated to the right edge of the cabinet. They all were aware that a hand, arm, or other body part could become trapped in the pinch-point and that they could be seriously injured if a body part became trapped in the pinch-point. They were aware of these facts without having to read the manual or any warnings, even if placed on the machine.
60. After the accident, Cal-OSHA did not require Hyatt either to install any written warnings on the machine next to the personnel safety bar about the pinch-point, or to develop and provide any additional written instructions regarding the pinch-point. As of trial, 3 years after the accident, Hyatt had not installed any written warnings on the machine.
61. After the accident, Cal-OSHA required Hyatt to install a metal railing, bolted to the concrete floor and against the cabinet, to keep the operator away from the pinch-point while operating the machine. The railing is not attached to and part of the machine. Hyatt fabricated and installed the railing in less than 1 day. There was nothing about the installation and operating of the machine that prevented Hyatt from fabricating and installing the railing before the accident. In contrast, after the accident, Cal-OSHA, did not require Hyatt to make any changes to the machine itself.
62. Under the contract with Pangborn, Hyatt expressly agreed to install the machine, train its employees, and furnish all additional safety equipment and warnings deemed necessary by Hyatt to ensure the safe operation of the machine. Pangborn was not providing a turn-key installation, where Hyatt could reasonably expect Pangborn to identify and install all aftermarket, peripheral, external, auxiliary, or stand-alone safety devices. Under the circumstances, Pangborn's expectation that Hyatt would identify and install these items was reasonable.
63. Hyatt's failure to install the railing before the accident was a substantial factor in causing the accident. If Hyatt had done so, it is highly probable that the accident would not have occurred. The railing would have prevented Felipe from approaching too close to the pinch-point under any and all circumstances.
64. Under the contract with Hyatt, Pangborn was not obligated to provide, and did not provide, any training to Hyatt's employees on how to operate the machine. Damrel did perform start-up of the machine. However, start-up is nothing more than the one-time operation of the machine by Pangborn, performed immediately before the machine is placed in production, to ensure that the machine is operating correctly. However, Pangborn employees did show Brewer and Raul Carranza how to start and stop the machine and how to use the personnel safety bar.
65. Hyatt never requested any information or instructions from Pangborn about the operation of the machine or training of employees. Before purchasing and installing the machine, Hyatt had other heavy or industrial machines in operation at the plant, including die-cast machines, trim presses, furnaces, a saw machine, and a milling machine. Hyatt also had a separate machine shop at the plant. Before purchasing and installing the machine, Hyatt had used other shotblasters at the plant, including an older model of the machine, a Pangborn LG Rotoblast Table. Hyatt was very familiar with the use of heavy or industrial machines, including shotblasters. For this reason, Hyatt elected not to purchase installation and training services from Pangborn.
66. Between 1995 (when Hyatt purchased from Hewlett-Packard almost all of the machines in the finishing department and opened the plant in Sunnyvale) and the accident, Hyatt never trained Flores to train employees how to operate the machines in the finishing department.
67. During 1998 through 2000, Hyatt conducted a annual "right to know training" and "emergency response training" class for employees to learn how to handle hazardous materials and 3 annual courses that employees were required to take to become certified in either "bond and ground resistance measurement," "fuel component sealing," or "forklift operation." The materials relating to these classes and courses are contained in a white notebook kept by Flores in the finishing department.
68. In contrast, between 1995 and the accident, Hyatt did not conduct any classes or courses for its employees, including Flores and Felipe, to learn how to operate the machines in the finishing department. Similarly, between October 2000 (when the machine was delivered) and the accident, Hyatt did not conduct any classes or courses for employees, including Flores and Felipe, to learn how to operate the machine.
69. Moreover, Hyatt failed to hold periodic meetings under management's direction, that Flores would have attended, for the discussion of safety problems and accidents that occurred.
70. Further, Flores failed to conduct "toolbox" safety meetings with employees of the finishing department at least every 10 working days to emphasize safety. While Felipe testified that he attended periodic meetings with employees of the department, Flores testified that he did not conduct any meetings. Flores is the more credible witness.
71. Between October 2000 and the accident, Hyatt did not train employees, including Flores and Felipe, on how to operate the machine by requiring that they read the manual. Flores had not read the manual in its entirety. Felipe had never seen the manual. Felipe could not have read the manual, because he does not read English or even Spanish. Neither Flores nor anyone else read any portion of the manual to Felipe or explained anything to him.
72. Flores also kept 2 blue notebooks in the finishing department, which contain "standard operating procedures" ("SOP") for the machines in the department. Typically, there is an SOP for each machine, describing the operation of that machine. One notebook also has a section containing signed forms entitled "Reviewed and Signed Standard Operating Procedures Deburr/Secondary Die Cast Operations." An employee signs and dates this form, thereby indicating which SOP's he has reviewed.
73. One of the 2 blue notebooks contains SOPs for machines, including 2 shotblasters. The 2 shotblasters are a "Wheelabrator" and a "Pangborne," which are covered together in 1 SOP. There are separate "Reviewed and Signed Standard Operating Procedures Deburr/Secondary Die Cast Operations" forms signed by Flores (in 1996), Brewer (in 1996), and Felipe (in 1999), indicating that they have read and understand the SOP for the "Wheelabrator" and "Pangborne." The "Wheelabrator" was a shotblaster that Hyatt purchased from Hewlett-Packard in 1995, but which Hyatt had never installed in the plant. The "Pangborne" was the old Pangborn LG Rotoblast Table, which was replaced by the new machine. The SOP for the 2 shotblasters does not identify any dangers associated with the 2 machines, the steps to take to avoid the dangers, and the consequences of failing to take those steps.
74. Between October 2000 and the accident, Hyatt did not take any steps to update the existing SOP for shotblasters. That SOP and the corresponding "Reviewed and Signed Standard Operating Procedures Deburr/Secondary Die Cast Operations" form are dated February 2, 1996 and do not mention the new machine. Hyatt also did not take any steps to create a new SOP for the new machine. Hyatt failed to do so even though the old machine, in contrast to the new machine, did not have rotating interior partition walls and a pinch-point.
75. After the accident, Hyatt created a new SOP for the new machine, entitled "Standard Operating Procedures — Pangborn 6LT5." The new SOP is contained in another white notebook kept by Flores in the finishing department. Each employee is supposed to sign the bottom of the new SOP, indicating that he has read and understands the form. There is a new SOP signed by Brewer on March 12, 2001 (about 2 weeks after the accident). As of the trial, there is no new SOP signed by Flores. The new SOP states that all "guards must be in place" (section 1c), that the operator should "never work passed [sic] ASSIGNED WORK AREA" (section 1e), and that the operator should see the manager if there are any problems (section 1f).
76. Flores and Felipe operated the old Pangborn LG Rotoblast Table at Hyatt before that machine was replaced by the new machine. The old machine did not have a pinch-point. Their operation of the old machine did not constitute on-the-job training on how to operate the new machine.
77. The only training that Flores received on how to operate the machine, whether on-the-job or otherwise, was when Brewer and Carranza explained to Flores how to use the buttons on the control box to turn the machine on and off. Regarding Felipe's on-the-job training, he testified that "Ruben," an employee who worked as the manager of Hyatt's die-cast department, spent a few minutes each day for about 2 weeks showing him how to operate the machine, and warned him to stay away from the pinch-point. However, Ruben Moreno ("Moreno"), the manager of the die-cast department, testified that he has never operated the machine, does not know how to operate the machine, and never trained Felipe on how to operate the machine. Felipe did not have any on-the-job training by Flores. Brewer did work with Felipe to help him learn the new machine, but he was not responsible for training Felipe and Brewer himself was not properly trained.
78. The fact that Flores, Brewer and Felipe were not adequately trained on how to operate the machine is dramatically demonstrated by their inconsistent methods of operating the machine. Flores loaded and unloaded the parts one way. Brewer loaded and unloaded the parts a second way. Felipe loaded and unloaded the parts a third way.
79. Hyatt's failure to train Flores and Felipe was a substantial factor in causing the accident. Regarding Flores, if he had received proper training on how to train employees on how to operate the machines in the finishing department, including the machine, if he had attended a class or course on how to operate the machine, if he had read the manual, and if he had received proper on-the-job training, it is highly probable that the accident would not have occurred. Flores would have made sure that Felipe clearly understood that he was to stay away from the pinch-point at all times, under any and all circumstances. Regarding Felipe, if he had received the same missing training, it is highly probable the accident would not have occurred, for the same reasons.
80. At the time of the accident, there was no supervisor on-site in the finishing department to ensure that Felipe was operating the machine properly, such as loading and unloading the parts in a safe manner, using the correct fixtures, working in a safe workspace, using the pallet as a barrier to the pinch-point, etc.
81. At the time of the accident, Flores was not supervising Felipe. At that time (about 10:30 p.m.) Flores was at home, having left Hyatt at about 2:15 p.m., after the day shift ended.
82. Brewer was not a supervisor and was not responsible for supervising Felipe. They both worked for Flores. Brewer had not been designated as a supervisor by Hyatt.
83. Brewer was not acting as a supervisor. As the supervisor of the finishing department, Flores was responsible for ensuring, among other things, that (a) the proper auxiliary equipment (e.g., fixtures, tables, and handlifts) and safety equipment (e.g., glasses) was available and used, (b) the machines were repaired and maintained so that they properly worked, (c) all work was done on time and up to quality, (d) all safety rules and regulations were followed, (e) unauthorized persons did not enter the department, (f) the working environment was properly illuminated and ventilated, free of obstacles and otherwise safe, (g) the employees were not injured and the machines were not damaged by their operation, (h) the machines and employees were working efficiently and productively, and (I) operational hazards were identified and preventive safety measures instituted. In addition, Flores was responsible for scheduling employees, resolving personnel problems, answering employee questions, and handling other personnel matters and issues. In contrast, Brewer did not have any of these responsibilities. Before leaving work each day, Flores spent about 15 minutes (from 2:00 p.m. to 2:15 p.m.) telling Brewer what parts had to be cleaned during the day's swing shift. Flores expected Brewer to convey these instructions to the other employees, including Felipe. Brewer was neither a supervisor nor the supervisor.
84. Ralph Guerero ("Guerero"), a machinist in the machine shop, was supervising Felipe at the time of the accident. After Flores left for the day, Guerero was the acting supervisor for the finishing department. However, the machine shop and the finishing department are in separate locations. The departments are separated by a wall, so that an employee has to walk down a hallway for about 80 to 100 feet and make several turns to go from one department to the other. An employee in the finishing department cannot see or hear what is happening in the machine shop and vice versa. It was common for Guerero not to be seen in the finishing department during the entire swing shift. Morever, even when he did appear in the finishing department, he was only looking for parts for the machine shop. He made no effort to watch the employees in the finishing department to see if they were properly operating the machines. In fact, Guerero did not know how to operate the machine and had never operated the machine. On the day of the accident, Felipe and Brewer do not remember seeing Guerero in the finishing department before the accident.
85. Hyatt's failure to supervise Felipe was a substantial factor in causing the accident. If a properly trained and vigilant supervisor had been in the finishing department to monitor Felipe while he was operating the machine during the swing shift, it is highly probable that the accident would not have occurred. The supervisor would have noticed that Felipe was having difficulty unloading the parts and was approaching too close to the pinch-point. The supervisor could have taken several steps to fix the problem, so that Felipe would not run the risk of injury. The supervisor could have (a) advised Felipe about replacing bent rods in order to eliminate any difficulty in unloading parts, (b) instructed on how to unload the parts more easily, (c) instructed to leave a stuck part in the machine and let it go around again, or stop the machine by using the control box so as to unload the part before it approached the pinch-point, (d) instructed the operator to stay away from the pinch-point under any and all circumstances, (e) slowed the speed of the main turntable to have more time to unload the parts, and/or (f) instructed the operator to use a pallet as a barrier to prevent approaching too close to the pinch-point.
FINDINGS OF FACT — DAMAGES
86. Republic paid a total of $249,570 in worker's compensation benefits to or on behalf of Felipe, which it sought to recover as damages at the trial. These damages consist of $138,642 for past medical expenses; $42,160 for future medical benefits; $11,146 for temporary disability; $42,840 for permanent disability; and $14,782 for vocational rehabilitation.
87. At the trial, Felipe would have sought to recover non-economic damages for his physical pain and mental suffering at the time of the accident, permanent physical impairment and disfigurement, and physical pain and mental suffering (including embarrassment, depression, anxiety, loss of enjoyment of life, and inconvenience) after the accident.
88. Felipe was trapped in the machine for about 2 hours while the rescue personnel attempted to release him. He was in shock and non-responsive; his eyes were watery and glazed. He did not want to accept morphine to ease his pain. While Felipe was trapped, a surgeon on-site explained to him that if the rescue personnel could not release him, then the surgeon would have to amputate his arm. Felipe thought that he was going to die.
89. Once Felipe was released from the machine, he was immediately airlifted to Stanford University Medical Center for medical treatment, where he was treated by Dr. James Chang. Felipe had four surgeries on his right forearm and hand on March 1, 2, 6, and 22, 2001. During all four surgeries, a significant amount of dead muscle tissue was removed from his forearm. During the fourth surgery, he had a skin graft to his forearm. In addition, he received continuous outpatient physical therapy until November 6, 2001, when he was determined to be permanent and stationary by Dr. Chang.
90. On April 8, 2002, Dr. Jeffrey Holmes, an orthopaedic surgeon retained in connection with the worker's compensation proceeding, examined Felipe. On March 8, 2004 (about 3 years after the accident, about 2 years after Dr. Holmes' examination, and about 5 months before the trial), Dr. Edward Damore, an orthopaedic surgeon and one of Pangborn's expert witnesses, examined Felipe. Dr. Holmes and Dr. Damore reached the same conclusions regarding Felipe's physical condition. Both physicians concluded that Felipe was permanent and stationary, as had Dr. Chang on November 6, 2001. Dr. Holmes and Dr. Damore concluded that as a result of the accident, Felipe has sustained (a) sever muscle loss in his right forearm, so that it has an abnormal contour, (b) severe laceration, surgical, and skin graft scarring in the same area, with a loss of all hair, (c) a permanently slightly swollen right hand, (d) diffuse tenderness around the right thumb and fingers, (e) a loss of range of motion of the forearm, wrist and thumb, (f) a loss of muscle strength in the forearm, wrist and hand, (g) a loss of grip strength in the hand, (h) a loss of pinch strength in the hand, (I) a complete loss of pulses in the radial and ulnar locations, and (j) markedly decreased sensation in the hand.
91. Dr. Holmes concluded that Felipe "has a 75% loss of pre-injury capacity for lifting, pushing, pulling, gripping, grasping, pinching, holding, torquing, fine dexterity motions or other activities of comparable physical effort [such that] even the use of such simple things as the telephone, pencil, pen or feeding utensils is significantly impaired." These findings are consistent with Dr. Damore's subsequent conclusion that Felipe has the ability to perform light activities with his right hand; that he should be restricted to lifting no more than 10 pounds, and only occasional lifting of 5 to 10 pounds, with that hand; and that he should not perform any fine motor activities with that hand.
92. As a result of the accident, Felipe's right forearm and hand are permanently and noticeably disfigured. As of the time of trial, his forearm and hand are severely scarred, from the accident itself, the surgeries, and the skin grafting. The skin looks pale, smooth, stretched, and tough. He does not have any hair on his forearm. Because of the muscle loss, his forearm is extremely lumpy.
93. As a result of the accident, Felipe has suffered from continuous physical pain in his right forearm and hand. For example, when he was hospitalized at Stanford University Medical Center, he would not speak to Sara (who visited him every day) because he was knocked out by pain medication. When he was released from the medical center and went home, he continued to take pain medication. In addition, he had to wear a sling to support his forearm, in part to lessen the pain. Further, he was always in pain during the time he received outpatient physical therapy. He used to sleep in bed on his side, but he had to change to sleeping on his back to avoid having pain in his forearm. Similarly, he used to sleep with his right side next to Sara, but they had to exchange positions because he was pained if she accidently touched his forearm. Not surprisingly, once he fell asleep, he had trouble staying asleep because of the pain in his forearm and hand.
94. Moreover, on March 8, 2004, when Felipe was examined by Dr. Damore, Felipe complained that when using his right hand in daily activities, he still experiences muscle pain, cramping, discomfort, fatigue, numbness and tingling. However, this situation is an improvement over his condition when he was examined 2 years earlier by Dr. Holmes on April 8, 2002. At that time, one year after the accident, he complained that he still experienced pain in his hand every day, with the severity of the pain ranging from 5 to 10 on a scale of 1 to 10.
95. As a result of the accident, Felipe has suffered from embarrassment because of the physical appearance of his right forearm and hand. He now wears long-sleeved shirts to hide his forearm. He is hesitant about showing his hand, to the extent that he keeps it down by his side, where its appearance is less noticeable.
96. As a result of the accident, Felipe has suffered from depression and anxiety because of his inability to work and to perform other daily activities like he once did. Since the accident, he has had nightmares and trouble sleeping.
97. As a result of the accident, Felipe has suffered from a loss of enjoyment of life. The physical impairment of his right forearm and hand has had a dramatic impact on his daily activities. He cannot hold his grandchildren in his arms. He cannot lift, or has trouble lifting, many everyday objects such as certain foods (a gallon of milk, a six-pack of Coke, a cantaloupe or watermelon, or a bag of sugar, rice or flour). He cannot move a piece of furniture (e.g., a chair). In addition, he cannot perform fine motor activities with his hand. For example, he cannot write, turn the pages of a magazine, hold a fork (other than to use it to push), and pickup a coin. Because of these physical limitations, he cannot do things around the house he used to do like assisting Sara with the housework, perform repairs on the house, and work in the garden.
98. As a result of the accident, for all the reasons already described, Felipe has suffered from severe and continuous inconvenience, which still continues to some extent as of today.
99. At the trial, Felipe would have sought to recover economic damages for his medical expenses, vocational rehabilitation expenses, and lost earnings. At a minimum, these damages total $333,726, consisting of $180,802 for past and future medical expenses, $14, 782 for past vocational rehabilitation expenses, and $138,142 for past and future lost earnings.
100. The parties stipulated to the amount Republic paid for Felipe's past and future medical expenses. The past medical expenses are $138,642. The future medical expenses are $42,160. The medical expenses total $180,802.
101. The parties stipulated to the amount that Republic paid for Felipe's vocational rehabilitation expenses. The amount is $14,782.
102. Felipe was born on February 5, 1942. At the time of the accident, he was 59.06 years old. He has not worked since the accident. At the time of the accident, Felipe earned $10.30 per hour as a full time employee at Hyatt, or $21,424 per year.
103. James Christopoulos ("Christopoulos"), an economist and one of Pangborn's expert witnesses, calculated Felipe's past and future lost earnings. Christopoulos' original calculations were dated March 1, 2004 (an earlier trial date); they assumed that Felipe would work until July 13, 2006 (when he would be 64.43 years old); they did not include any amount for benefits; and they included deductions for federal and state income taxes. Assuming that Felipe had continued to work at Hyatt if he had not been injured, Christopoulos considered it reasonable to assume that Felipe's earnings would have increased by 3.0% per year (per the "Consumer Price Index" and "Total Private Sector, Wages" for 2000-2004). In addition, Christopoulos considered it reasonable to use a 3.0% average net discount rate (per the "Economic Report of the President" dated February 2003) to calculate Felipe's future lost earnings.
104. Felipe intended to work until he was 65 years old (or until February 5, 2007). He also received medical and dental benefits from Hyatt. At the trial, Christopoulos updated his calculations to be effective as of July 26, 2004 (the first day of trial), to assume that Felipe would work until February 5, 2007 (when he would be 65 years old), to include an amount for benefits, and to not include deductions for federal and state income taxes.
105. Christopoulos calculated that as of July 26, 2004, Felipe's past lost earnings are $75,652. From February 28, 2001 to February 28, 2002, his earnings would have been $21,424. From February 28, 2002 to February 28, 2003, they would have been $22,067. From February 28, 2003 to February 28, 2004, they would have been $22,729. From February 28, 2004 to July 26, 2004, they would have been $9,432.
106. Christopoulos calculated that as of July 26, 2004, Felipe's future lost earnings are $56,226. From July 26, 2004 to July 26, 2005, his earnings would have been $23,405, with a present cash value of $22,680. From July 26, 2005 to July 26, 2006, they would have been $24,224, with a present cash value of $22,041. From July 26, 2006 to February 5, 2007 (or 0.53 year), they would have been $24,670 per year, with a present cash value of $11,506.
107. Christopoulos calculated that before taxes, Felipe's total past and future lost earnings are $131,878 ($75,652 + $56,226). In addition, Felipe is entitled to $6,264 for future lost medical and dental benefits (per the United States Chamber of Commerce), thereby increasing the total to $138,142.
108. Felipe was born in Michoan, Mexico on February 5, 1942. He completed second grade in Mexico. He has not had any formal education since then. He arrived in the United States in 1963. At the time of the accident, he was 59 years old.
109. From 1974 to 1980, Felipe worked as a nursery helper. From 1980 to 1993, he worked as a janitor/housekeeper. From 1994 to 1998, his work history is unknown. From 1998 to February 28, 2001, he worked as a machine operator at Hyatt.
110. Felipe has very limited language skills. He can speak a little English, but he can neither read nor write English at all. In addition, while he can speak Spanish, he has trouble reading it, and he cannot write Spanish.
111. Felipe can perform routine arithmetic calculations. However, he finds it difficult to make change.
112. Between February 28, 2001 and November 6, 2001, Felipe could not go back to work. First, he was hospitalized at Stanford University Medical center, where he underwent four surgeries on his right forearm and hand on March 1, 2, 6, and 22, 2001. Second, he received continuous outpatient physical therapy until November 6, 2001, when he was determined to be permanent and stationary by Dr. Chang.
113. On November 6, 2001, Dr. Chang issued a return-to-work letter, indicating that Felipe could immediately return to modified light duty work. Before the accident, Felipe was right-hand dominant. However, Dr. Chang stated that Felipe's work could not involve heavy lifting and fine motor activity with his right hand, and that he was not to operate the machine.
114. In November 2001, after receiving the return-to-work letter from Dr. Chang, Felipe attempted to return to work at Hyatt. He could not return to work as a machine operator and there is no evidence that Hyatt offered any other work to Felipe, which would have been compatible with his restricted work abilities.
115. Between February 11, 2002 and July 26, 2002, Felipe participated in a 23 week vocational rehabilitation course at Opportunities Industrialization Center West in Menlo Park, as recommended by John Bracken, a vocational rehabilitation counselor. The objective was for Felipe to become employable as an electronics assembler. Felipe received training in English and math. Upon completion of the course, he was scheduled to learn things such as the stuffing of printed circuit boards, the soldering of terminals, and other assembly techniques. However, by October 2002, he had decided that he was physically not capable of performing the work.
116. Since completing the vocational rehabilitation course in October 2002, Felipe has not made any effort to find work. He believes that there is no work that anyone will hire him to do, because of his physical disability combined with his age (60+ years old at that time), very limited Spanish and English skills, third grade education, and limited manual labor work experience for the last 30 years.
117. On January 13, 2004 Scott Simon ("Simon"), a vocational rehabilitation counselor retained by Felipe, concluded that because of the above factors, Felipe was unemployable. Typically, Simon would try to place a person with Felipe's limited skills in an assembly or janitorial job. However, these jobs require above average use of the upper extremities and average to superior bi-manual dexterity, which Felipe no longer has. Simon stated that his conclusion is consistent with the fact that the Social Security Administration deemed Felipe to be unemployable.
118. On March 1, 2004, Mary Ciddio ("Ciddio"), a vocational rehabilitation counselor and one of Pangborn's expert witnesses, concluded that for the same reasons already discussed, Felipe's employment options were severely curtailed. Ciddio concluded that he had very limited light work employment options, and suggested that he could explore the following jobs as possibilities: courtesy driver, child care giver, sorter or inspector, cashier, restaurant host, light office janitor, and nursery helper. In light of the evaluations by Dr. Chang, Dr. Holmes and Dr. Damore, as well as that by Simon, none of these possibilities are real for Felipe. He was 60 years old when he finished his physical and vocational rehabilitation. He has a third grade education. From 1994 to 2001, he can point to one job, where he was a machine operator at Hyatt (which he can no longer do). While he can speak Spanish and a little English, he cannot read or write either language. He cannot make change. He cannot do heavy lifting and fine motor activity with his right hand.
119. As already stated, because of Felipe's permanent physical impairment, he cannot do things around the house that he used to do. For example, he cannot assist Sara with the housework, perform repairs on the house, and work in the garden.
CONCLUSIONS OF LAW
A. California Law Is Applicable
1. In a diversity action, the federal court applies the substantive law of the state in which the court is located, except on matters governed by the U.S. Constitution or federal statutes. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). California law applies to this action.
B. Republic's Claims Are Subrogated to Hyatt's Claims
2. Republic's claims are subrogated to Hyatt's claims. Republic stands in Hyatt's shoes. Republic has no greater rights than those of Hyatt. Herrick Corp. v. Canadian Ins. Co., 29 Cal. App. 4th 753, 765 (1994).
C. Strict Products Liability
3. To prove a strict products liability claim, the plaintiff must prove that the product was defectively designed, contained a manufacturing defect, or did not include sufficient instructions or warnings of potential safety hazards. CACI No. 1200; Carlin v. Superior Court, 13 Cal. 4th 1104, 1110 (1996).
4. Strict liability does not eliminate the requirement of proof of causation. A manufacturer is liable only when a defect in its product is a legal cause of injury. CACI Nos. 1201 and 1203-1205; Soule v. General Motors Corp., 8 Cal. 4th 548, 572 (1994).
5. Concurrent causation is where there is more than one legal cause of injury. CACI No. 431; Doupnik v. General Motors Corp., 225 Cal. App. 3d 849, 866 (1990). Strict liability does not eliminate the doctrine of concurrent causation. CACI Nos. 406 and 1207; Torres v. Xomox Corp., 49 Cal. App. 4th 1, 16-19 (1996). Whether the third-party conduct was a concurrent cause of injury to the plaintiff is a question of fact. Springmeyer v. Ford Motor Co., 60 Cal. App. 4th 1541, 1555-1563 (1998). In the event of concurrent causation, the issue becomes one of determining, on a percentage basis, the extent or degree to which each party's fault contributed to causing the harm. CACI Nos. 406 and 1207; Torres, 49 Cal. App. 4th at 6-7, 16-20.
6. California Civil Code Section 1431.2 provides that in an action for wrongful death, personal injury, or property damage, each defendant's liability for the plaintiff's non-economic damages shall be several only, not joint, and that each defendant shall be liable only for the percentage of non-economic damages which corresponds to that defendant's proportionate share of fault. Section 1431.2 applies to strict products liability claims as well as negligence claims. Wilson v. John Crane, Inc., 81 Cal. App. 4th 847, 851-859 (2000). Section 1431.2 applies to a non-joined third party, such as Hyatt, who can be added to the special verdict form upon a showing (by evidence at trial) that the third party was at fault. Roslan v. Permea, Inc., 17 Cal. App. 4th 110, 110-113 (1993), and Wilson v. Ritto, 105 Cal. App. 4th 361, 367 (2003).
7. The California workers' compensation statutes governing employer and employee actions against third parties do not define the substantive law which determines whether an employer or an employee will in fact recover. Instead, the substantive law which governs employer and employee actions is general tort law. Further, employer and employee actions are interchangeable; regardless of who brings the action, it is essentially the same action. County of San Diego v. Sanfax Corp., 19 Cal. 3d 862, 873-874 (1977).
8. Section 1431.2 does not contain an exception for cases involving injured employees who have received workers' compensation benefits, and the percentage of fault attributed to the non-joined employer will reduce the amount of non-economic damages recoverable from the other defendants. Hernandez v. Badger Construction Equipment Co., 28 Cal. App. 4th 1791, 1808-1809 (1994); DaFonte v. Up-Right, Inc., 2 Cal.4th 593, 601-604 (1992); Kramer v. Cedu Foundation, Inc., 93 Cal. App. 3d 1, 6-9 (1979).
9. The amount of workers' compensation benefits paid by an employer and sought by the employers (or carriers) complaint in intervention must be reduced by the amount awarded against the employer based on its percentage of fault. When the amount awarded against the employer is greater than the amount of workers' compensation benefits, then the employer will not recover anything under its complaint. Kramer, 93 Cal. App. 3d at 6-9. Thus, in order for Republic to recover any portion of its workers' compensation lien, Republic's proportionate share of Felipe's total damages, non-economic and economic, must be less than the lien. If Republic's percentage of fault as applied to Felipe's total damages is equal to or greater than the lien, then the lien is wiped out and Republic recovers nothing.
(i) Design Defect
10. Design defect strict liability may be established under either one of two alternative tests, commonly known as the risk-benefit and consumer expectation tests. CACI Nos. 1203-1204; Soule, 8 Cal. 4th at 563-564.
11. The trier of fact is not free to find a violation of ordinary consumer expectation whenever it chooses. Unless the facts actually permit an inference that the product's performance did not meet the minimum safety expectation of its ordinary users, the trier of fact must use the risk-benefit test to evaluate the product. Soule, 8 Cal. 4th at 568. The consumer expectation test is reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions. It follows that where the minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. Use of expert testimony for that purpose will invade the trier of fact's function, and will invite circumvention of the rule that the risks and benefits of a challenged design must be carefully balanced whenever the issue of design defect goes beyond the common experience of the product's users. Soule, 8 Cal. 4th at 567. In determining whether a product's safety satisfies the consumer expectation test, the trier of fact considers the expectation of a hypothetical reasonable consumer rather than that of the particular plaintiff in the case. Campbell v. General Motors Corp., 32 Cal. 3d 112, 126 fn. 6 (1982). State-of-the-art evidence is not relevant when the product is evaluated under the consumer expectation test. Morton v. Owens-Corning Fiberglass Corp., 33 Cal. App. 4th 1529, 1536 (1995).
12. The court concludes that the consumer expectation test is the test most appropriately applied here, where the facts do permit an inference that the machine's performance did not meet the minimum safety expectation of its ordinary users.
13. To prove strict liability for a design defect under the consumer expectation test, the plaintiff must prove that (a) at the time of the use, the product was substantially the same as when it left the defendant's control, (b) the product did not perform as safely as an ordinary consumer would have expected at the time of use, (c) the product was used in a way that was reasonably foreseeable to the defendant, (d) the plaintiff was harmed, and (e) the product's design was a substantial factor in causing the plaintiff's harm. CACI No. 1203; Soule, 8 Cal. 4th at 560.
14. Here, the court concludes that under the consumer expectation test, considering the expectation of a hypothetical reasonable consumer of the machine, the machine was defective in design, because the personnel safety bar violated minimum safety assumptions. Specifically, the court concludes that, by calling the bar a " personnel safety bar" (emphasis added) and by designing it to look the way it did — encased in rubber, prominently displayed, long, wide, and completely different than the button-type stop — Pangborn created assumptions regarding the safety of the machine that, in actuality, could not be met by the machine's design. The personnel safety bar, primarily because of its location, was highly unlikely to prevent anyone from becoming trapped in the pinch-point and, thus, to call the bar a personnel safety bar and to configure it as such, Pangborn failed to meet the minimum safety expectations of an ordinary hypothetical user. At least three Hyatt employees — Quinn Smith (through Youngdahl), Early Brewer, and Raul Carranza — believed that the personnel safety bar would prevent someone from being injured or becoming trapped in the pinch-point. Pangborn's expert, Horst, testified that the bar may have created a perception that it would prevent injury and specifically stated that if it was nothing more than a stop, it was misleading to call it a "safety bar."
While the personnel safety bar may function as a method to stop the machine once a user becomes trapped (much like the stop button on the control panel), the court finds that, based upon the bar's location, it is highly improbable, if not impossible, for it to prevent a user initially from becoming trapped. This is inconsistent with the expectations of a hypothetical user of the machine.
15. The court thus concludes that the machine was defectively designed and Pangborn is strictly liable for its portion of Felipe's injury, because (a) at the time Felipe was using the machine, the machine was substantially the same as when it left Pangborn's control, (b) the machine did not perform as safely as an ordinary consumer would have expected at the time of use, because the personnel safety bar was not located in such a way that it actually could prevent personnel using the machine from becoming trapped in the machine; (c) at the time of Felipe's accident, he was using the machine in a way that was reasonably foreseeable to the defendant, (d) Felipe was harmed when he became trapped in the machine and injured his arm, and (e) the design of the machine — the location, configuration, and general description of the personnel safety bar — was a substantial factor in causing Felipe's harm.
(ii) Manufacturing Defect
16. To prove strict liability for a manufacturing defect, the plaintiff must prove that (a) the product contained a manufacturing defect when it left the defendant's control, (b) the product was used in a way that was reasonably foreseeable to the defendant, (c) the plaintiff was harmed, and (d) the defect was a substantial factor in causing the plaintiff's harm. CACI No. 1201; Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996). A product contains a manufacturing defect if it differs from the manufacturer's design or specifications or from other typical units of the same product line. CACI No. 1202; Brown v. Superior Court, 44 Cal. 3d 1049, 1057 (1988).
17. Republic proved by a preponderance of the evidence that the machine indeed had a manufacturing defect. Youngdahl testified that the machine had a manufacturing defect because the force required to push the personnel safety bar to stop the machine is about 57 pounds; the required force should be less than 1 pound, and Pangborn's specifications state that the required force should be less than 1 pound. However, because Republic did not prove by a preponderance of the evidence that Felipe hit the personnel safety bar, with his hand or any other part of his body, the defect in the force required to push the bar was not a substantial factor in causing the accident.
18. The court thus concludes that Pangborn is not strictly liable under a manufacturing defect theory, because though (a) the machine contained a manufacturing defect when it left Pangborn's control — the amount of force required to push the personnel safety bar was grossly more than that provided in the specification, (b) Felipe was using the machine in a way that was reasonably foreseeable to Pangborn, (c) Felipe was harmed, but (d) because Republic did not prove that Felipe hit the bar, the defect was not a substantial factor in causing the plaintiff's harm. (iii) Failure to Warn
19. A product not otherwise defective in manufacture or design may nonetheless be defective if a suitable warning about its dangerous propensities is not provided (e.g., of the potential risks that may follow foreseeable use of the product), or if appropriate safe use instructions are not provided. The first type of warning enables consumers to eliminate or reduce the risk of harm, while the second type of warning provides consumers with the opportunity to make an informed choice. Anderson v. Owens-Corning Fiberglass Corp., 53 Cal. 3d 987, 995-1004 (1991).
20. To prove strict liability for a warning defect, the plaintiff must prove that (a) the product had potential risks that were known or knowable by the use of scientific knowledge available at the time of manufacture, (b) the potential risks presented a substantial danger to users of the product, (c) ordinary consumers would not have recognized the potential risks, (d) the defendant failed to adequately warn or instruct of the potential risks, (e) the product was used in a way that was reasonably foreseeable to the defendant, (f) the plaintiff was harmed, and (g) the defect was a substantial factor in causing the plaintiff's harm. CACI No. 1205.
21. Even when there are foreseeable dangers associated with the use of a product, and a warning about the dangers is feasible, a manufacturer does not have a duty to warn when the danger is either obvious or known to the injured person at the time he uses the product. Arias v. Food Processing Machinery Division, FMC Corporation, 1991 U.S. Dist. LEXIS 8287, 14 (N.D.Cal. 1991); Burke v. Almaden Vineyards, Inc., 86 Cal. App. 3d 768, 772 (1978); Gonzalez v. Carmenita Ford Truck Sales, Inc., 192 Cal. App. 3d 1143, 1151-1152 (1987); Maneely v. General Motors Corp., 108 F.3d 1176, 1179 (9th Cir. 1997); Bojorquez v. House of Toys, Inc., 62 Cal. App. 3d 930, 933 (1976); Holmes v. J.C. Penny Co., 133 Cal. App. 3d 216, 220 (1982). Moreover, when the user is a professional who should be aware of certain dangerous characteristics of a product, the manufacturer has even less of a duty to warn. Arias, 1991 U.S. Dist. LEXIS 8287 at 15; Strong v. E.I. DuPont de Nemours Co., Inc., 667 F.2d 682, 686-687 (8th Cir. 1981); Lloyd v. John Deere Co., 922 F.2d 1192, 1196 (5th Cir. 1991). Although the question of whether a duty to warn exists is a question of law, the question of whether a risk is generally known is a question of fact and should be decided by the trier of fact when reasonable minds may differ. Maneely, 108 F.3d at 1179.
22. Republic did not prove by a preponderance of the evidence that a warning defect was a substantial factor in causing the accident. The pinch-point was an open and obvious hazard to the machine operators, and additional warnings and instructions would not have changed their behavior. Flores, Felipe and Brewer admitted that the pinch-point is an open and obvious hazard. They saw that the pinch-point was slowly created at the right edge of the cabinet opening. They were aware that a hand, arm or other body part could become trapped in the pinch-point, and that they could be seriously injured if that event occurred. They were aware of these facts without having to read the manual or any warnings on the machine. Further, Felipe would not have had access to additional instructions in the manual. Hyatt never provided the manual to him, Felipe did not read English, and Flores did not read the manual to Felipe.
D. Negligence
23. To prove negligence, the plaintiff must prove that (a) the defendant was negligent in designing or manufacturing the product, (b) the plaintiff was harmed, and (c) the negligence was a substantial factor in causing the plaintiff's harm. CACI No. 1220; Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996). To prove causation, the plaintiff must show that the defendant's conduct was a substantial factor in causing the plaintiff's harm. CACI No. 430; Wilson v. Blue Cross of Southern California, 222 Cal. App. 3d 660, 673 (1990). In the alternative, the plaintiff can prove that there was a warning defect. CACI No. 1222.
24. Because the court has concluded that Pangborn is strictly liable based upon its defective design of the machine, it is not necessary to make any conclusions based upon negligence as a separate theory of liability.
E. Breach of Warranty
25. To prove breach of an express warranty, the plaintiff must prove that (a) at the time of purchase, the defendant made a statement of fact or promise that the product would perform in a certain way, (b) the product did not perform as stated or promised, (c) the plaintiff took reasonable steps to notify the defendant within a reasonable time that the product was not as represented, (d) the plaintiff was harmed, and (e) the failure of the product to be as represented was a substantial factor in causing the plaintiff's harm. CACI No. 1230; California Commercial Code § 2313; Hauter v. Zogarts, 14 Cal. 3d 104, 115-116 (1975); Pisano v. American Leasing, 146 Cal. App. 3d 194, 198 (1983).
26. To avoid possible liability, a defendant can exclude express warranties. To do so, the defendant must prove that it clearly negated or limited, either by word or conduct, the warranties regarding the product. CACI No. 1241; California Commercial Code § 2316(1).
27. Republic did not prove by a preponderance of the evidence that a breach of express warranty by Pangborn was a substantial factor in causing the accident. Hyatt purchased the machine on June 26, 2000, when Pangborn and Hyatt entered into the contract. The contract is the only document that states the terms and conditions between Pangborn and Hyatt. The contract does not contain, and Republic has not identified, any statements or promises that the machine will perform in a certain way. The contract identifies the machine's application, specifies the price, certain options, and the method of payment and shipment, and gives a general system description and specifications.
28. In addition, the contract states that Pangborn's standard "Terms And Conditions Of Sale" are part of and attached to the contract. Section 11 of the attachment states that Pangborn only warrants that the machine will be free of defects in materials and workmanship. Section 11 also expressly states that "THIS WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE." The contract placed Hyatt on notice that Pangborn was selling the machine without any express warranties.
29. Republic proved that the machine had a manufacturing defect in the force required to use the personnel safety bar. This defect creates a breach of the warranty provision stating that the machine will be free of defects in materials and workmanship. As noted above, however, this defect was not a substantial factor in Felipe's accident. Republic did not meet its burden of proving that Felipe actually hit the bar and, thus, the court thus concludes that Pangborn is not liable on this basis.
30. Unlike an express warranty, which is contractual in nature, the warranties of merchantability and of fitness for a particular purpose are implied by law in a contract for the sale of goods. Hauter, 14 Cal. 3d at 117.
31. To prove breach of the implied warranty of merchantability, the plaintiff must prove that (a) at the time of the purchase, the defendant was in the business of selling the product, (b) the product was not of the same quality as those generally acceptable in the trade, or was not fit for the ordinary purposes for which the product is used, or did not conform to the quality established by the parties' prior dealings or by usage of trade, (c) the plaintiff took reasonable steps to notify the defendant within a reasonable time that the product did not have the expected quality, (d) the plaintiff was harmed, and (e) the failure of the product to have the expected quality was a substantial factor in causing the plaintiff's harm. CACI No. 1231; California Commercial Code § 2314. The implied warranty of merchantability does not impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality. American Suzuki Motor Corp. v. Superior Court, 37 Cal. App.4th 1291, 1296 (1995).
32. To exclude any implied warranties, the defendant must prove that the sale of the product included notice using language that would have made the plaintiff aware that the product was being sold without any guarantees. CACI No. 1242; California Commercial Code § 2316(2)-(3)
33. Republic did not prove by a preponderance of the evidence that a breach of the implied warranty of merchantability by Pangborn was a substantial factor in causing the accident. Republic did not offer any evidence that at the time of purchase, the machine was not of the same quality as those generally acceptable in the trade, or was not fit for the ordinary purposes for which the machine is used, or did not conform to the quality established by Hyatt's and Pangborn's prior dealings or by usage of trade.
34. When Pangborn and Hyatt entered into the contract, Pangborn understood that Hyatt would use the machine for the general cleaning of aluminum die castings. This application is a typical and ordinary purpose for which the machine can be used. Moreover, Hyatt and Pangborn did not have any prior dealings.
35. In addition, Section 11 of Pangborn's standard "Terms And Conditions Of Sale" expressly states that all warranties (other than that relating to defects in materials and workmanship), including the implied warranty of merchantability, are excluded.
36. To prove breach of the implied warranty of fitness for a particular purpose, the plaintiff must prove that (a) at the time of purchase, the defendant knew or had reason to know that the plaintiff intended to use the product for a particular purpose, (b) at the time of purchase, the defendant knew or had reason to know that the plaintiff was relying on the defendant's skill or judgment to select or furnish a product that was suitable for the particular purpose, (c) the plaintiff justifiably relied on the defendant's skill and judgment, (d) the product was not suitable for the particular purpose, (e) the plaintiff took reasonable steps to notify the defendant within a reasonable time that the product was not suitable, (f) the plaintiff was harmed, and (g) the failure of the product to be suitable was a substantial factor in causing the plaintiff's harm. CACI No. 1232; California Commercial Code § 2315; Keith v. Buchanan, 173 Cal. App. 3d 13, 25 (1985); Hauter, 14 Cal.3d at 117-118. "A 'particular purpose' differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question." American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291, 1295 fn. 2 (1995). A claim for breach of the implied warranty of fitness is based on the nature and impacts of the product, not on injuries attributable to the marketing efforts by the seller. Martinez v. Metabolife Int'l, Inc., 113 Cal. App. 4th 181, 189 (2004).
37. Republic did not prove by a preponderance of the evidence that a breach of the implied warranty of fitness for a particular purpose by Pangborn was a substantial factor in causing the accident. Republic did not offer any evidence that at the time of purchase, Hyatt intended to put the machine to a specific use which was peculiar to the nature of its business (as compared to the ordinary purposes for which the machine is used — e.g., uses which are customarily made of the machine), that Hyatt so informed Pangborn, and that the machine's failure to be suitable was a substantial factor in causing the accident. American Suzuki Motor Corp., 37 Cal. App.4th at 1295 fn. 2.
38. When Pangborn and Hyatt entered into the contract, Pangborn understood that Hyatt would use the machine for the general cleaning of aluminum die castings. This application is a typical and ordinary purpose for which the machine can be used. The contract does not reflect, and Republic did not offer any evidence, that Hyatt intended to put the machine to a specific use which was peculiar to the nature of its business (as compared to the ordinary purposes for which the machine is used — e.g., uses which are customarily made of the machine).
39. In addition, Section 11 of Pangborn's standard "Terms And Conditions Of Sale" expressly states that all warranties (other than that relating to defects in materials and workmanship), including the implied warranty of fitness for a particular purpose, are excluded.
F. Hyatt's Negligence as a Substantial Factor in Causing the Accident
40. Hyatt is an employer under California Labor Code ("Labor Code") §§ 3300(c) and 6304.
41. Employers are under a nondelegable duty to provide employees with a safe place to work and to comply with the applicable safety provisions of the Labor Code. Specifically, § 6400 provides that "Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein."
42. Labor Code § 6401 provides as follows: "Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees."
43. Labor Code § 6402 provides that "No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful."
44. Labor Code § 6403 provides as follows: "No employer shall fail or neglect to do any of the following: (a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe. (b) To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe. (c) To do every other thing reasonably necessary to protect the life, safety, and health of employees."
45. Labor Code § 6404 provides that "No employer shall occupy or maintain any place of employment that is not safe and healthful."
46. 8 CCR § 4184 provides as follows: "(a) Machines as specifically covered hereinafter in Group 8, having a grinding, shearing, punching, pressing, squeezing, drawing, cutting, rolling, mixing or similar action, in which an employee comes within the danger zone shall be guarded at the point of operation in one or a combination of the ways specified in the following orders, or by other means or methods which will provide equivalent protection for the employee. (b) All machines or parts of machines, used in any industry or type of work not specifically covered in Group 8, which present similar hazards as the machines covered under these point of operation orders, shall be guarded at their point of operation as required by the regulations contained in Group 8."
47. Pangborn proved by a preponderance of the evidence that Hyatt was negligent, and that its negligence was a substantial factor in causing Felipe's accident: Hyatt's failure to install the railing before the accident was a violation of Labor Code §§ 6400-6404 ( 6400: failure to furnish employment and place of employment that is safe and healthful for employees) ( 6401: failure to furnish and use safety devices and safeguards, and adopt and use practices, means, methods, operations, and processes, which are reasonably adequate to render employment and place of employment safe and healthful, and to do every other thing reasonably necessary to protect life, safety, and health of employees) ( 6402: required or permitted employee to go or be in employment or place of employment which is not safe and healthful) ( 6403: failure to provide and use safety devices and safeguards reasonably adequate to render employment and place of employment safe, to adopt and use methods and processes reasonably adequate to render employment and place of employment safe, and to do every other thing reasonably necessary to protect life, safety, and health of employees) ( 6404: failure to maintain place of employment that is safe and healthful), and 8 CCR §§ 1511 and 4184 ( 1511: required and knowingly permitted employee to work in unsafe place, and failed to make thorough survey of conditions of site to determine predictable hazards to employees and kind and extent of safeguards necessary to prosecute work in safe manner) ( 4184: all machines which present similar hazards as machines covered under point of operation orders shall be guarded at point of operation). Levels v. Growers Ammonia Supply Company, et al., 48 Cal. App. 3d 443 (1975).
48. Hyatt's violation of these statutes and regulations gives rise to a rebuttable presumption that Hyatt was negligent. Hyatt did not rebut this presumption by proof that Hyatt did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the statute or regulation. California Evidence Code § 669; F.R.E., Rule 302; Lawrence R. Short, 52 Cal. App. 3d at 110.
49. Hyatt's failure to install the railing before the accident was a substantial factor in causing Felipe's accident. If Hyatt had done so, it is highly probable that the accident would not have occurred. The railing would have prevented Felipe from approaching too close to the pinch-point under any and all circumstances.
50. Hyatt's failure to train Flores and Andrade was a violation of Labor Code §§ 6400-6404 (see above), 8 CCR § 1511 (see above), and 8 CCR § 1509-1510 ( 1509: failure to hold periodic meetings of supervisory employees under direction of management for discussion of safety problems and accidents that have occurred) ( 1510: failure of supervisory employees to conduct toolbox or tailgate safety meetings with crews at least every 10 working days to emphasize safety). Levels, 48 Cal. App. 3d at 443.
51. Hyatt's violation of these statutes and regulations gives rise to a rebuttable presumption that Hyatt was negligent. Hyatt did not rebut this presumption by proof that Hyatt did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the statute or regulation. California Evidence Code § 669; F.R.E., Rule 302; Lawrence R. Short, 52 Cal. App.3d at 110.
52. Hyatt's failure to train Flores and Felipe was a substantial factor in causing the accident. Regarding Flores, if he had received proper training on how to train employees on how to operate the machines in the finishing department, including the machine, if he had attended a class or course on how to operate the machine, if he had read the manual, and if he had received proper on-the-job training, it is highly probable that the accident would not have occurred. Flores would have made sure that Andrade clearly understood that he was to stay away from the pinch-point at all times, under any and all circumstances. Regarding Andrade, if he had received the same missing training, it is highly probable that the accident would not have occurred, for the same reasons.
53. Hyatt's failure to supervise Andrade was a violation of Labor Code §§ 6400-6404 (see above), and 8 CCR §§ 1509-1511 (see above). Levels, 48 Cal. App. 3d at 443.
54. Hyatt's violation of these statutes and regulations gives rise to a rebuttable presumption that Hyatt was negligent. Hyatt did not rebut this presumption by proof that Hyatt did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the statute or regulation. California Evidence Code § 669; F.R.E., Rule 302; Lawrence R. Short, 52 Cal. App. 3d at 110.
55. Hyatt's failure to supervise Andrade was a substantial factor in causing the accident. If a properly trained and vigilant supervisor had been in the finishing department to monitor Andrade while he was operating the machine during the swing shift, it is highly probable that the accident would not have occurred. The supervisor would have noticed that Andrade was having difficulty unloading the parts and was approaching too close to the pinch-point. The supervisor could have taken several steps to fix the problem, so that Andrade would not run the risk of injury. For example, the supervisor could have (a) examined the fixtures to determine if the rods were bent and the fixtures needed to be replaced, thereby eliminating any difficulty that Andrade was having in unloading the parts, (b) instructed Andrade on how to unload the parts more easily, (c) instructed Andrade that if a part became stuck on a fixture, then he should either leave the part in the machine and let it go around again, or stop the machine by using the control box so that he could unload the part before it approached the pinch-point, (d) instructed Andrade to stay away from the pinch-point under any and all circumstances, or (e) instructed Andrade to use the pallet as a barrier to prevent him from approaching too close to the pinch-point.
56. The court thus concludes that Hyatt was negligent in its failure to adhere to the California Labor Code, failure to train Felipe and his supervisor, and failure properly to supervise Felipe. This negligence clearly was a substantial factor in Felipe's injury and, as noted above, the amount of workers' compensation benefits sought by Republic in its complaint in intervention must be reduced by the amount awarded against Hyatt based on Hyatt's percentage of fault. Kramer, 93 Cal. App. 3d at 6-9.
G. Non-Economic Damages
57. The plaintiff may recover damages for past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and emotional distress. To recover for future harm, the plaintiff must prove that he is reasonably certain to suffer the harm. CACI No. 3905A; Capelouto v. Kaiser Foundation Hospitals, 7 Cal. 3d 889, 892-893 (1972).
58. No fixed standard exists for deciding the amount of these damages. The trier of fact should use its judgment to decide a reasonable amount based on the evidence and common sense. CACI No. 3905A; Duarte v. Zachariah, 22 Cal. App. 4th 1652, 1664-1665 (1994).
59. An award of non-economic damages should not be reduced to present cash value. The trier of fact must assume that the award is a present value sum, so that the award is the current dollars paid at the time of judgment that will compensate the plaintiff for future pain and suffering. CACI No. 3905A; Salgado v. County of Los Angeles, 19 Cal. App. 4th 629, 646-647 (1998).
60. There is overwhelming evidence that Andrade suffered significant physical pain and mental suffering at the time of the accident, permanent physical impairment and disfigurement, and physical pain and mental suffering (including embarrassment, depression, anxiety, loss of enjoyment of life, and inconvenience) after the accident. To summarize the facts already set forth above:
(a) Andrade was trapped in the machine for about 2 two hours. It is obvious that he suffered physical pain while trapped. In addition, a surgeon on-site explained to Andrade that if the rescue personnel could not release him, then the surgeon would have to amputate his arm. Andrade thought that he was going to die.
(b) Andrade had 4 surgeries on 3/1/01, 3/2/01, 3/6/01, and 3/22/01, and received continuous outpatient physical therapy until 11/6/01. He was in pain the entire time.
(c) Andrade has sustained severe muscle loss in his right forearm, so that it has an abnormal contour; severe laceration, surgical, and skin graft scarring in the same area, with a loss of all hair; a permanently slightly swollen right hand; diffuse tenderness around the right thumb and fingers; a loss of range of motion of the forearm, wrist and thumb; a loss of muscle strength in the forearm, wrist and hand; a loss of grip strength in the hand; a loss of pinch strength in the hand; a complete loss of pulses in the radial and ulnar locations; and markedly decreased sensation in the hand. He has sustained at least a 75% "loss of pre-injury capacity for lifting, pushing, pulling, gripping, grasping, pinching, holding, torquing, fine dexterity motions or other activities of comparable physical effort [such that] even the use of such simple things as the telephone, pencil, pen or feeding utensils is significantly impaired."
(d) Felipe's right forearm and hand are permanently and noticeably disfigured.
(e) Since completing physical therapy, Andrade has suffered from continuous physical pain in his right forearm and hand. When using his hand in daily activities, he still experiences muscle pain, cramping, discomfort, fatigue, numbness and tingling.
(f) Andrade has suffered from embarrassment because of the physical appearance of his right forearm and hand.
(g) Andrade has suffered from depression and anxiety because of his inability to work and to perform other daily activities like he once did. He has had nightmares and trouble sleeping.
(h) Andrade has suffered from a loss of enjoyment of life. The physical impairment of his right forearm and hand has had a dramatic impact on his daily activities.
(I) Andrade has suffered from severe and continuous inconvenience, which still continues to some extent as of today.
61. Based upon the evidence and the findings of fact set forth above, in this court's judgment, a reasonable amount for Felipe's non-economic damages is $600,000.
H. Economic Damages
62. The plaintiff is not entitled to recover damages for harm that he/she could have avoided with reasonable efforts or expenditures. The reasonableness of the plaintiff's efforts should be considered in light of the circumstances facing him/her at the time, including his/her ability to make the efforts or expenditures without undue risk or hardship. CACI No. 3930; Green v. Smith, 261 Cal. App. 2d 392, 396-397 (1968). The defendant bears the burden of proof regarding mitigation of damages, so that the defendant (e.g., Republic) must prove the facts showing that the plaintiff failed to avoid or minimize his/her losses. Hunter v. Croysdill, 169 Cal. App. 2d 307, 318 (1959).
63. Republic did not prove by a preponderance of the evidence that Felipe failed to mitigate his past and future lost earnings and the amount of economic damages the court determines to be appropriate, and as set forth below, will not be reduced on this basis. Specifically, between February 28, 2001 and November 6, 2001, Felipe could not work because of his hospitalization and surgeries at Stanford University Medical Center, and subsequent outpatient physical therapy. After he received a return-to-work letter on November 6, 2001, he specifically could not return to Hyatt as a machine operator, and Republic did not offer any evidence that Hyatt offered any other work to him in response to his inquiry for a job. Between February and July of 2002, he completed a 23 week vocational rehabilitation course to learn electronics assembly, but he decided that he was physically not capable of performing the work. The Social Security Administration deemed him to be unemployable as of February 28, 2001. His physical disability, when combined with his background, present him with very limited employment options. He was 60 years old when he finished his physical and vocational rehabilitation. He has a second grade education. From 1994 to 2001, he can point to one job, where he was a machine operator at Hyatt. Before then, he was engaged in some type of manual labor. While he can speak Spanish and a little English, he cannot read or write either language. He cannot make change. He cannot do heavy lifting and fine motor activity with his right hand.
64. If the plaintiff is entitled to recover future economic damages (e.g., future lost earnings), the amount must be reduced to its present cash value. This is necessary because money received now will, through investment, grow to a larger amount in the future. To find present cash value, the trier of fact must determine the amount of money that, if reasonably invested today, will provide the plaintiff with the amount of his/her future damages. The parties may stipulate to the appropriate discount rate, and the trier of fact may consider expert testimony in determining the present cash value. CACI No. 3904; Holt v. Regents of the University of California, 73 Cal. App. 4th 871, 878 (1999); Schiernbeck v. Haight, 7 Cal. App. 4th 869, 877 (1992).
65. Based upon the evidence, and as set forth in the findings of fact above, Felipe's total past and future lost earnings are $131,878 ($75,652 + $56,226). In addition, Felipe is entitled to $6,264 for future lost benefits, thereby increasing the total to $138,142. The $138,142 will not be reduced by expected federal and state income taxes.
I. Comparative Fault by Pangborn for Design Defect and by Hyatt for Negligence
66. As discussed in detail above, Republic proved by a preponderance of the evidence that the machine had a design defect and, thus, Pangborn is strictly liable for some portion of Felipe's injuries. Pangborn, however, proved by a preponderance of the evidence that Hyatt was negligent, and that its negligence was a substantial factor in causing Felipe's accident. Under these circumstances, in order for Republic to recover against Pangborn, the amount of damages for which Hyatt would be responsible based upon its percentage of fault must be less than the amount of worker's compensation benefits Republic paid to and on behalf of Felipe.
67. The court concluded, as set forth above, that Felipe sustained non-economic damages in the amount of $600,000.
68. The court concluded, as set forth above, that Felipe sustained an amount of $138,142 in economic damages.
69. The court thus concludes that Felipe's total damages are equal to $738,142.
70. Finally, the court concludes that Republic's claim for reimbursement of the amount paid to and on behalf of Felipe in workers' compensation benefits is wiped out due to Hyatt's comparative fault. In order for the lien to be wiped out, Hyatt's share of Felipe's total damages must be more than $249,570. Felipe's damages total $738,142, consisting of $600,000 for noneconomic damages and $138,142 for economic damages. $249,570, the amount paid by Republic in worker's compensation benefits, represents 33.8% of the total damages. Given Hyatt's negligence in its complete failure to adhere to the California Labor Code and provide the necessary training and supervision to Felipe, the court concludes that, regardless of the exact percentage of Hyatt's comparative fault, Hyatt's percentage is at least equal to 33.8%. This percentage results in damages attributable to Hyatt in an amount equal to or exceeding the $249,570 paid in benefits by Republic. Republic's claim for reimbursement is therefore wiped out.
CONCLUSION
In sum, the court concludes that (a) Pangborn is strictly liable for some portion of Felipe's injuries, because the Rotoblast machine was defectively designed; (b) Hyatt was negligent in its failure to adhere to the California Labor Code and, in particular, for failing properly to train and supervise Felipe; (c) Hyatt's comparative fault is equal at least to a percentage of 33.8% and, thus, Republic's subrogation claim against Pangborn is wiped out. The amount of worker's compensation benefits paid by Republic totaled only $249,570, which is less than Hyatt's share of damages based upon its own negligence.
Accordingly, Republic takes nothing on its Complaint in Intervention against Pangborn.
IT IS SO ORDERED.