Bakkie v. Union Carbide Corp.

Full title: TERRY BAKKIE Plaintiff and Respondent, v. UNION CARBIDE CORPORATION…

Court: California Court of Appeals, First District, Second Division

Date published: Nov 29, 2007

No. A116231 (Cal. Ct. App. Nov. 29, 2007)

Opinion

TERRY BAKKIE Plaintiff and Respondent, v. UNION CARBIDE CORPORATION, Defendant and Appellant. A116231, A116462 California Court of Appeal, First District, Second Division November 29, 2007

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

San Francisco City & County Super. Ct. No. CGC-05-445300

Lambden, J.

Following a diagnosis of mesothelioma, a form of lung cancer, David Bakkie sued Union Carbide Corporation (Union Carbide) and other companies, alleging they were liable for exposing him to asbestos. Only Union Carbide remained as a defendant at the close of trial and the jury found in favor of Bakkie on his claims of strict liability and negligence against Union Carbide. The jury also determined that Union Carbide was 20 percent responsible for his cancer. Following the jury’s verdict, Union Carbide filed motions for judgment notwithstanding the verdict (JNOV) and a new trial. Union Carbide filed notices of appeals from the judgment and the denial of the JNOV motion; the appeals were consolidated.

On appeal, Union Carbide contends that substantial evidence did not support the jury’s findings, including the award of noneconomic damages. It also maintains that the trial court committed prejudicial error when instructing the jury. We are unpersuaded by these arguments as to the question of causation, but agree that the award of noneconomic damages is too high.

BACKGROUND

In September 2005, when Bakkie was 49 years old, he was diagnosed with mesothelioma, a form of lung cancer typically caused by exposure to asbestos. Mesothelioma is an incurable cancer.

Also in September 2005, Bakkie filed a lawsuit against Union Carbide and others for negligence, product liability for failure to warn, and product liability based on design defect. As to Union Carbide, he alleged that he was exposed to Union Carbide’s “Calidria,” a type of asbestos, when he was employed at American Poly-Therm in 1974 and 1975.

Bakkie’s action proceeded to a jury trial. Before the end of the trial, Bakkie settled with all of the defendants except Union Carbide.

Evidence Presented at Trial Bakkie’s Employment at American Poly-Therm, Inc.

In 1974, Bakkie worked for two years at American Poly-Therm, Inc. (American Poly-Therm), a company that made parts for the aerospace industry and also manufactured sealants. Haldon Lee Weatherly started American Poly-Therm and was its president. At the time Bakkie was working there, American Poly-Therm had about 25 to 30 employees. American Poly-Therm’s facility consisted of three connected buildings. In the front building (building 1), American Poly-Therm did most of its manufacturing work, including the fabrication of components such as rocket nozzles. The middle building (building 2) was generally used as a storage facility. The third building (building 3) was where American Poly-Therm did its fiberglass and sealants work.

Bakkie worked as a plastics technician manufacturing rocket nozzles in building 1. For about three months, Bakkie worked in the fabrication of rocket nozzles and he was responsible for applying hundreds of rolls of asbestos tape. Bakkie had to cut excess tape, which caused asbestos to be released. He also had to remove excess materials from the surface of the nozzle by sanding, grinding, or filing such materials, which also released asbestos. Bakkie’s expert stated that this process would generate substantial exposure to asbestos. There was no evidence that any of Union Carbide’s asbestos was used in the nozzle or the asbestos tape.

Bakkie also made canal sealant; he made 20 to 30 batches of this sealant in building 3. Building 3 had 30-foot ceilings that were approximately 150 feet by 150 feet and open to each other through large rolled up doors. The doors went up to the ceiling and were open most of the time. Bakkie asserted that making one batch of canal sealant and cleaning up afterwards took his entire shift. He explained that he would mix different bags of powder and the mix was referred to as “OPM-200 canal sealant.” At that time, Bakkie did not know the ingredients of the bags he mixed.

American Poly-Therm made three different types of canal sealant. Two did not involve asbestos while the third, OPM-200, contained asbestos. American Poly-Therm’s written product formula for OPM-200 included 52 pounds of Union Carbide’s pure asbestos fiber, identified specifically by its brand-name, “Calidria.”

Calidria is a form of chrysotile asbestos. There are three principal types of asbestos: crocidolite, amosite, and chrysotile. Bakkie’s experts testified that each of these three types of asbestos causes cancer, while experts for Union Carbide testified that chrysotile does not cause mesothelioma unless it is contaminated with another mineral, tremolite. Experts for both sides agreed that crocidolite and amosite are substantially more potent than chrysotile.

Bakkie also presented evidence that as much as 90 to 95 percent of the asbestos used in the United States is chrysotile asbestos. Bakkie’s expert testified that chrysotile gets more easily into the lymphatic pathways and can get to the pleura. The expert stated that the more a person is exposed to fibers the more likely the person is to contract mesothelioma.

Union Carbide supplied 80 bags, equal to about 2,800 pounds, of Calidria to American Poly-Therm during the two years of Bakkie’s employment with American Poly-Therm. Union Carbide provided evidence that this asbestos was packaged in 35-pound bags. Ninety percent of Union Carbide’s asbestos was used to make the OPM-200 canal sealant. Witnesses testified that the company also purchased asbestos from Johns-Manville and Raybestos Manhattan beginning in the early 1960’s and through the late 1970’s. Weatherly, the president and general manager of American Poly-Therm, disavowed having absolute knowledge whether Johns-Manville supplied asbestos fiber used to make OPM-200, but he had “a very strong suspicion” that the company also used Johns-Manville’s asbestos.

All three types of the canal sealant made by American Poly-Therm resembled “black goo” when the batch was mixed. Another employee of American Poly-Therm, Warren Taggart,¹ was assigned to mixing canal sealant during the period when Bakkie was working at Union Carbide. He testified that they referred to one type of the canal sealant made as OPM-200, but at the time he did not know what the name meant.² He specified that this sealant contained Calidria asbestos. Taggart had discovered in his records the recipe for OPM-200 and, although he did not have the recipe for the other sealants, which he did not believe contained asbestos, he was certain OPM-200 contained asbestos. He recalled “dumping bags of Calidria asbestos into a mixer making OPM-200.” He believed that the asbestos bags were about 35 pounds and recalled that the bags of calcium carbonate were about 100 pounds.

1 Taggart testified that he did not know Bakkie or what work Bakkie did while working at American Poly-Therm.

2 He testified that the other two canal sealants were called E-4 and R600-P.

Taggart recalled pouring the OPM-200 into a 55-gallon drum and spraying it with nitrogen gas to purge the moisture in the drum. He clarified that nitrogen gas “capped [the process] off, just where you put the lid on.” The OPM-200, according to Taggart, was mixed together, sealed with the nitrogen gas, and then “ready to go.” In contrast, Taggart explained that the other two non-asbestos sealants were placed in either a 55-gallon drum or five-gallon can and were made in a two-part process. One batch of ingredients would be stored in a drum (part a) and another batch with other ingredients would be stored in a separate drum (part b). After the drums were shipped into the field, parts a and b would be mixed while in the field.

Bakkie testified that he scooped white powder out of heavy bags. Bakkie asserted that he would have been able to lift a 35-pound bag with no difficulty. Bakkie reported that at the end of the process for each of the 20 to 30 times that he mixed canal sealant, he sprayed gas on it to prevent it from hardening.

American Poly-Therm’s Actions

The Occupational Safety and Health Act (OSHA or Act) became effective in June 1972, and this Act required employers to warn employees of the need to take steps to prevent breathing dust from asbestos. Medical literature suggested that employers use exhaust ventilation and dust collection procedures and provide respirators to minimize employee exposure to asbestos dust.

By the time Bakkie was working at American Poly-Therm, Weatherly, the president of the company, was aware of the association between asbestos and higher incidences of cancer. He knew that asbestos was hazardous if proper precautions were not taken and was aware of state and federal regulations governing asbestos use. He tried to comply with OSHA regulations as he understood them, but he had no special training or certification in handling asbestos and testified that he was not an expert in asbestos.

Weatherly did not believe that Union Carbide ever offered to come to his company to take air samples in 1974 and 1975. He did not recall ever seeing any toxicology reports supplied by the company. He also did not recall ever seeing a caution on a bag of Calidria. He thought Calidria was “safe enough” and that he was not “at any personal risk” from his company’s use of it.

Employees at American Poly-Therm working with asbestos tape and grinding the excess materials off rocket nozzles were not required to wear respirators. Employees involved in mixing canal sealant were directed to use dust masks, not respirators. The asbestos was not wetted down prior to being poured from a catwalk located 10 feet above the mixing container. Union Carbide presented evidence that the foregoing procedures were contrary to OSHA requirements.

Bakkie testified that he dumped bags of the Calidria from a catwalk located above the mixing vats when he made the OPM-200 canal sealant. He stated that dust was visible in the air, despite the fan. Bakkie swept up debris at the end of his shift, and he carried the empty bags out to the trash bin. He testified that he neither knew what asbestos was or that it was hazardous to his health. No one informed him that he needed to use any protective devices. He wore a white particle mask when pouring the powder.

Bakkie’s experts testified that it was likely that asbestos used in making canal sealant was in the air and on the floor in building 3 and that Bakkie was exposed to it simply by being in the building. One expert testified that, if American Poly-Therm had done all of the things that counsel for Union Carbide asserted was required under OSHA, then “there would not have been an opportunity for [Bakkie] to be exposed to asbestos, except through the work he did on the nozzles.”

Union Carbide’s Actions and Product

From 1963 through 1985, Union Carbide mined and sold chrysotile asbestos and eventually used the trade name “Calidria.” It sold Calidria as raw asbestos in the form of either powder or pellets. It shipped about eighty 35-pound bags of raw asbestos to American Poly-Therm in 1974 and 1975, which was used in the canal sealant product made by American Poly-Therm.

Union Carbide’s witnesses asserted that the asbestos was shipped in bags with a warning. The warning, according to Union Carbide, included three lines under the bold and all caps heading of “CAUTION.” The first line under the heading stated: “Contains Asbestos Fibers[.]” The second line read: “Avoid Creating Dust[.]” The third statement warned: “Breathing Asbestos May Cause Serious Bodily Harm[.]”

As early as 1974, an internal Union Carbide report concluded that “there is some evidence that mesothelioma can occur after brief exposures to relatively high fiber levels.” Union Carbide’s sales ledgers first documented the transmission of health information to American Poly-Therm in October 1977.

Bakkie’s Other Exposure to Asbestos

During his childhood, Bakkie was exposed to his father’s clothes and his father worked on vehicles’ brakes and gaskets, which commonly contained asbestos. Bakkie testified that his father often came home from work covered with dust. Additionally, he testified that he visited his father’s workplace.

Bakkie also noted that his family used an artificial snow product called Snow Drift during the Christmas holidays to flock the Christmas tree and to spray the windows and other parts of the home. He told the jury that he believed this spray contained asbestos. During his teenage years, Bakkie noted that he worked on about 20 vehicles. Experts testified that this automobile repair work exposed him to asbestos.

Finally, from 1980 until 1986, Bakkie worked as a lineman for the Sacramento Municipal Utilities District (SMUD), and, beginning in 1986, he worked for 15 years as a lineman for the City of Roseville. During that time, he worked with asbestos insulated wiring cable and thermal insulation containing amphibole asbestos. Bakkie’s experts testified that he suffered asbestos exposure while working as a lineman.

Bakkie’s experts testified that all of the foregoing exposures, including the exposure to Union Carbide’s Calidria, collectively increased Bakkie’s risks for mesothelioma.

Damages

Without conceding liability or any issue of apportionment, Union Carbide stipulated that Bakkie’s economic damages were $3,223,450.

As to Bakkie’s noneconomic damages, the jury heard evidence that Bakkie was 49 years old when diagnosed with mesothelioma in September 2005. He was otherwise healthy and had a life expectancy of 28.2 more years. He had sole custody of his two teenaged sons. Bakkie’s expert testified that the average life expectancy after a mesothelioma diagnosis is between 12 and 18 months. Further, there was evidence that the disease would become increasingly painful as it progressed.

The Jury’s Verdict

The jury found that Union Carbide’s asbestos was defectively designed because it failed to meet the safety expectations of the ordinary consumer. It also found Union Carbide strictly liable for its failure to warn. Finally, the jury also found that Union Carbide’s negligence injured Bakkie.

The jury awarded medical and economic damages in the stipulated amount of $3,223,450. For the one-year period between Bakkie’s diagnosis and the verdict, the jury awarded noneconomic damages in the amount of $1,200,000. For the period of Bakkie’s remaining life expectancy after the trial, the jury awarded noneconomic damages of $14,100,000. The jury attributed to Union Carbide 20 percent of the responsibility for causing the harm to Bakkie.

Post-Trial Proceedings

Union Carbide filed motions for JNOV and a new trial. The trial court issued no ruling as to either motion and the motions were deemed denied as a matter of law 60 days after notice of entry of judgment. Union Carbide filed timely notices of appeal from the judgment and from the denial of the JNOV motion. These appeals were consolidated by stipulation. Union Carbide requested that we take notice of a case in Ohio involving the attorneys for Bakkie. We grant the request for judicial notice.

DISCUSSION

I. Causation and Apportionment

Union Carbide contends that the lower court should have granted its motion for JNOV because substantial evidence did not support the jury’s findings on causation and apportionment. Specifically, it maintains that the record does not contain substantial evidence that Bakkie was exposed to Union Carbide’s asbestos or that Union Carbide was 20 percent responsible for Bakkie’s condition.

In reviewing an order denying or granting a motion for JNOV, we view the evidence in the light most favorable to the jury’s verdict and consider whether any substantial evidence, contradicted or not, supports it. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.) “ ‘When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.’ [Citation.]” (Scott v. Common Council (1996) 44 Cal.App.4th 684, 689, quoting Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.) The testimony of a single credible witness may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

Preliminarily, we note that Bakkie objects to Union Carbide’s argument of insufficient evidence on the basis that Union Carbide failed to present the evidence in the record supporting causation. (See, e.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [appellant must set forth all material evidence to demonstrate no substantial evidence to support challenged findings].) Failure to cite evidence in support of a factual contention on appeal results in forfeiture of the contention. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [when appellant’s brief ignores evidence favorable to respondent, reviewing court may treat the substantial evidence issues as waived].)

Although we agree that Union Carbide failed to cite all of the evidence in support of the verdict, it did not completely fail to consider the contrary evidence. We therefore consider the merits of Union Carbide’s argument.

A. Evidence That Union Carbide’s Asbestos Caused Bakkie’s Mesothelioma

To establish causation, Bakkie had to provide evidence that Union Carbide’s asbestos was a “substantial factor” (see, e.g., Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968) in bringing about Bakkie’s development of mesothelioma. “In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant’s product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.” (Id. at pp. 982-983, fn. omitted.)

Union Carbide emphasizes that evidence presented at trial indicating that Bakkie was uncertain about ever personally using Union Carbide’s asbestos while mixing canal sealant for one month while working at American Poly-Therm. At most, according to Union Carbide, Bakkie may have suffered bystander exposure. In its reply brief, Union Carbide asserts that Taggart “affirmatively testified that Bakkie was not mixing asbestos canal sealant.”

The record does not support this latter assertion by Union Carbide. Taggart denied knowing Bakkie and stated that he did not know what Bakkie’s work involved. He did verify that the mixing of OPM-200 occurred during graveyard shifts, which is when Bakkie testified he was working. Taggart’s testimony did suggest Bakkie did not use Calidria asbestos in the respect that Bakkie claimed to have used heavy bags with white powder while Taggart stated that the bags of Calidria were about 30 pounds. Taggart noted that the sodium carbonate, which was used in all three of the sealants, were in the heavier bags.³ Thus, we agree with Union Carbide that there was evidence in the record tending to show that Bakkie did not personally use Union Carbide’s asbestos.

3 Union Carbide also argues that the heavy bags could have been asbestos supplied by Johns-Manville. Union Carbide points to the testimony that American Poly-Therm had purchased asbestos from Johns-Manville. American Poly-Therm did not produce any invoices from Johns-Manville for purchases made during the period of Bakkie’s employment. More significantly, no person testified that asbestos from Johns-Manville was used to make canal sealant from 1974 to 1976. Weatherly did not know whether Johns-Manville supplied asbestos fiber used to make OPM-200, although he had “a very strong suspicion” that the company also used Johns-Manville’s asbestos. Thus, it is unclear whether any asbestos manufactured by Johns-Manville was used in the OPM-200. The record, however, is replete with evidence that Union Carbide’s asbestos was used to make canal sealant.

We also agree the record contains additional evidence indicating that Bakkie did not use Calidria. Bakkie did not recall using a face shield while other witnesses testified that the canal sealant process using asbestos used a very potent solvent requiring the use of a face shield. Further, Bakkie testified that he recalled using only three ingredients in the canal sealant process, and others testified that the canal sealant containing asbestos was comprised of more than three ingredients.⁴

4 The record does not contain evidence that the other two non-asbestos sealants only contained three ingredients.

Although the record contains evidence indicating no causation, Bakkie maintains evidence in the record shows that he did personally use Calidria and that he was exposed to it when he opened these bags of asbestos. He asserts that the record shows that he added the asbestos to the vats, mixed the canal sealant, and then personally cleaned up the asbestos dust and residue afterwards. He maintains that he established that he used Calidria by his testimony that he sprayed the canal sealant with nitrogen gas. He argues that Taggart testified that nitrogen gas spray was used only for OPM-200.

Union Carbide responds that the record contains no evidence that nitrogen gas spray was used only for OPM-200. Indeed, we agree that the record establishes that Taggart was not specifically asked whether nitrogen gas was used exclusively for OPM-200. He testified that the ingredients for OPM-200 were mixed and stored in a drum and the mixture was sprayed with nitrogen gas to keep the sealant from hardening or “setting up”. The spray, according to Taggart, “purges the moisture in the drum.” Taggart explained that, since OPM-200 was a moisture cure system, the air would cause it to get hard. When testifying about the two-part process used for the other two types of canal sealant that did not contain asbestos, Taggart did not mention using nitrogen gas. He testified that the process for making these two sealants involved mixing one batch of ingredients and storing them in one drum and mixing a second batch of ingredients and storing them in a second drum. These separate batches were later mixed in the field.

Counsel never directly asked Taggart whether nitrogen spray was used during the process of mixing the two non-asbestos canal sealants. Weatherly testified that all three canal sealants were water-sensitive. However, Weatherly explained that the only sealant that “got its cure process started, activated by water, was the OPM-200.” The other two, according to Weatherly, had the process started when the two batches were mixed together in the field.

In light of this evidence, the jurors could have decided that nitrogen spray was not used for the non-asbestos canal sealants. As already noted, Taggart mentioned this spray as being an essential step only when describing the process of mixing OPM-200. Further, the jurors could have concluded that the moisture did not have to be removed from the non-asbestos sealants because all of their ingredients were not actually mixed until the sealants were ready to be used in the field, and the process of hardening did not start until all of the ingredients in the two separate containers were mixed together. Indeed, this is precisely what Bakkie’s counsel declared during closing argument, and Union Carbide did not object to this part of Bakkie’s argument. Counsel for Bakkie argued: “We did try and pin down what was he working on; and when Taggart was here, remember, we talked about it’s the OPM-200 that’s the only version that is water activated. The other two types are in barrels A and barrels B. You mix them together. That starts the curing. That starts the chemical reaction for it to solidify. And we know that Mr. Bakkie was around the nitrogen gas that topped off the barrels of OPM because it’s water activated.” We therefore conclude that the jury could have determined from the evidence in this record that nitrogen gas was only applied to OPM-200 and that Bakkie established his personal use of Calidria when he testified about using this gas when mixing the sealant.

Union Carbide contends that the facts of this case are similar to those in McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098. In McGonnell, Division Four of our court affirmed the lower court’s granting of summary judgment in favor of the defendant in an asbestos case. The plaintiff in McGonnell had no knowledge of any exposure to any of the defendant’s products. (Id. at pp. 1103-1104.) The evidence showed that the plaintiff cut into walls and disturbed building material, but there was no evidence that the plaintiff disturbed products of the defendant, and “virtually no evidence he had disturbed [the defendant’s] products containing asbestos.” (Id. at p. 1104.) The court concluded that the plaintiff “was one of the best persons, if not the best person, to identify the various products and substances to which he had been exposed during his employment. At his deposition he was able to identify the kinds of materials he worked with, and the brand names of some of the products he had used.” (Ibid.) Since the plaintiff had no difficulty recalling the products with which he had worked but was unable to recall the defendant’s product, the court concluded the evidence created an inference that he had not worked with the defendant’s product. The court elaborated, “All that exists in this case is speculation that at some time [the plaintiff] might have cut into a wall that might have contained [the defendant’s] joint compound that might have contained asbestos.” (Id. at p. 1105.)

Similarly, here, Union Carbide argues that the plaintiff merely presented evidence that Union Carbide was one of several asbestos suppliers. Union Carbide, however, somewhat mischaracterizes the evidence presented at trial. The record establishes that Union Carbide delivered asbestos to American Poly-Therm, which was used in OPM-200. Thus, unlike the situation in McGonnell v. Kaiser Gypsum Co., supra, 98 Cal.App.4th 1098, it is not speculative that Union Carbide’s asbestos was used to make OPM-200. Union Carbide’s asbestos was clearly placed at Bakkie’s worksite. Union Carbide may argue that the evidence linking Bakkie to the use of its asbestos was weak, but that argument concerns the weight of the evidence. It is axiomatic that, “ ‘[w]hen two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the [jury].’ ” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)

Union Carbide’s reliance on Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650 is similarly unavailing. In Dumin, the plaintiff could not establish that the defendant’s asbestos insulation was at the work site during the critical period. (Id. at pp. 655-656.) Additionally, even if the defendant’s asbestos had been at the shipyard, there were many other distributors and there was no evidence that the defendant was the dominant distributor. (Id. at p. 656.) In contrast, in the present case, the record contained ample evidence that Union Carbide’s asbestos was used in the canal sealant during the critical period and, if not the sole supplier, it was the dominant supplier.

Accordingly, we conclude that the record contains sufficient evidence to support the jury’s finding that Union Carbide’s asbestos was a legal cause of Bakkie’s development of mesothelioma.

B. Evidence of Apportionment

Union Carbide argues that the evidence did not support the jury’s determination that it was 20 percent responsible for Bakkie’s developing mesothelioma. Union Carbide contends that the record contains no evidence that Bakkie ever handled its asbestos while it includes evidence that throughout Bakkie’s life he was directly exposed to asbestos produced by other suppliers. Bakkie was exposed to asbestos produced by other suppliers while working at American Poly-Therm when he cut and ground asbestos-containing rocket nozzle tape and other products. Subsequently, he worked with asbestos components while at SMUD. He was also exposed to asbestos as a child when his father came home with his clothes covered with asbestos dust and when the family used flocking spray containing asbestos on the windows and Christmas tree. Additionally, as a teenager, Bakkie was exposed to asbestos-containing brakes while working on vehicles.

“[T]he jury’s power to apportion fault is as broad as its duty to resolve conflicts in the evidence and assess credibility.” (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1234.) We “ ‘may not substitute [our] judgment for that of the jury or set aside the jury’s finding if there is any evidence which under any reasonable view supports the jury's apportionment. ’ ” (Ibid.)

As discussed above, the record supported the jury’s finding of causation. It was Union Carbide’s burden, not Bakkie’s burden, to prove fault attributable to others. (Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 478-479.) Union Carbide did present such evidence and successfully convinced the jury that it was not the sole or the principal cause of Bakkie’s cancer. The jury found that 20 percent of the responsibility could be attributed to Union Carbide’s asbestos. The jury’s verdict establishes that it believed Bakkie was exposed to Union Carbide’s asbestos. Thus, we conclude that its finding that Union Carbide was 20 percent responsible was reasonable in light of the experts’ testimony that mesothelioma is a “total-dose-response disease” and that all of Bakkie’s exposures were “causative of a disease that was diagnosed in 2005.”

II. The “Sophisticated User” Doctrine

Union Carbide argues that the lower court should have granted its motion for JNOV because Bakkie’s claims were barred by the “sophisticated user” doctrine. It acknowledges that Bakkie was not a “sophisticated user,” but it maintains that American Poly-Therm was a sophisticated user and it had a duty under both OSHA and California labor regulations to warn its workers about asbestos hazards and to ensure that its employees were protected from inhaling asbestos fibers. As discussed above, we will uphold the denial of Union Carbide’s JNOV motion if substantial evidence supported the verdict.

Union Carbide contends that it had no duty to provide warnings beyond those mandated by OSHA because American Poly-Therm knew or should have known the dangers associated with using asbestos and the measures required by state and federal law to protect workers from those hazards. Moreover, it asserts that its product was not unreasonably dangerous under the consumer expectations test because American Poly-Therm, a sophisticated user, was aware of the risks associated with asbestos.⁵ Further, it claims that the “sophisticated user” doctrine provides a complete defense to Bakkie’s negligence claim.

5 Many of the cases cited by Union Carbide to support this argument are inapplicable to the facts of this case. Thus, for example, Union Carbide cites Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349 to support its argument of no duty to warn when the dangers are known. However, Plenger involved the manufacturer of an intrauterine device (IUD). The court explained that an IUD was like a prescription and therefore the manufacturer could not be liable if appropriate warnings were given and the doctor failed to transmit these warnings. (Id. at p. 358.) The court noted that liability for a defectively designed drug or IUD “ ‘should not be measured by the standards of strict liability[,] because of the public interest in the development, availability, and reasonable price of drugs[.]’ ” (Id. at p. 359, italics added.) “[T]he exemption from strict liability for design defect for prescription drugs is based primarily, if not exclusively, on public policy considerations.” (Ibid.) No such public policy considerations appear in the present case.

Under California law, “manufacturers are strictly liable for injuries caused by their failure to give warning of dangers that were known to the scientific community at the time they manufactured and distributed the product.” (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1108.) Under the “sophisticated user” doctrine, which has not been directly adopted by any California case, “there is ordinarily no duty to give warning to members of a profession against generally known risks. ‘There need be no warning to one in a particular trade or profession against a danger generally known to that trade or profession.’ ” (Littlehale v. E.I. du Pont de Nemours & Co. (S.D.N.Y. 1966) 268 F.Supp. 791, 798.) Further, a product cannot be “unreasonably dangerous” and therefore defectively designed when a sophisticated user is aware of the product’s risks.⁶

6 This issue is currently pending before our Supreme Court. The Supreme Court granted review of Johnson v. American Standard, Inc., which applied the sophisticated user doctrine to a products liability case based on consumer expectations. (Johnson v. American Standard, Inc. (2005) 133 Cal.App.4th 496, review granted January 4, 2006, S139184.)

In dictum, a California case indicated that the “sophisticated user” doctrine may be a defense in a strict liability case. In Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, the court noted that the manufacturer of a truck had no duty to warn the deceased plaintiff regarding the hazards of the truck’s fuel tank design where the truck’s features were known to or readily observable by the employer of the deceased. (Id. at p. 866.) The court explained that the employer was a “sophisticated organization” and it did not have to be “told that gasoline is volatile and that sparks from an electrical connection or friction can cause ignition.” (Ibid.) Subsequently, a federal court concluded that the dictum in Fierro v. International Harvester Co. suggested that the “sophisticated user” doctrine and the defense of superseding cause, which California does allow, makes it likely that California courts “would permit the defense, provided, once again, that the plaintiffs were permitted to negate the defense by showing that the sophisticated employer’s misuse of the product was foreseeable, and so did not absolve the defendants of liability for failure of the duty to warn.” (In re Related Asbestos Cases (N.D. Cal. 1982) 543 F.Supp. 1142, 1151.)

No California case has recommended that a manufacturer’s liability for a design defect based on the failure to warn and the consumer’s expectations test should be barred as a matter of law solely because an intermediary was a knowledgeable and sophisticated user of the product. Yet, this is the argument advanced by Union Carbide. Under California law, manufacturers and suppliers of all products have a duty to warn of known or reasonably knowable dangers. (Carlin v. Superior Court, supra, 13 Cal.4th at pp. 1108-1109; see also Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62 [“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being”].) Moreover, our courts have adopted in product liability cases the Restatement Second of Torts (Restatement Second) approach concerning a manufacturer’s or supplier’s duty to advise the ultimate user. (Rest.2d, Torts, § 388; see, e.g., Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64-65.) The focus of the Restatement Second approach is whether, in light of all the circumstances, a manufacturer or supplier acted reasonably in relying on an intermediary to pass its adequate warnings on to the ultimate user. (Rest.2d, Torts, § 388, com. n, p. 307; Rest.3d, Torts: Products Liability, § 2, com. j. p. 31.) This approach does not absolve manufacturers and suppliers of liability for failing to warn based solely on an intermediary’s knowledge or sophistication.

The Restatement Third of Torts: Products Liability, section 2, comment i, page 30 summarizes the liability of the manufacturer or distributor for failing to warn as follows: “There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user.” Under the Restatement’s rationale, the fact that an employer possesses knowledge of a product’s dangers does not extinguish a manufacturer’s or supplier’s duty to warn. (Selma Pressure Treating Co. v. Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 1623 [“The mere fact that [the employer] uses the chemicals in a business enterprise, as opposed to being a citizen consumer, does not relieve the chemical suppliers of the duty to warn” and “a user’s knowledge as to some dangers associated with a product does not relieve a supplier of the duty to warn of other dangers unknown to the user”].)

Even if we were to apply the “sophisticated user” doctrine to the present situation, Union Carbide could not prevail on its appeal from the denial of its JNOV motion.⁷ In the present case, the record contains ample evidence that American Poly-Therm was not a sophisticated user. Weatherly was asked whether he started buying “blue asbestos” in the early 1960’s and whether it was called the “bad stuff.” Weatherly responded: “I’ve heard about a thing called blue asbestos. I believe we used it. If you asked me when, how, why and where, I don’t know. Asbestos was very minor. My highest problem was trying to meet the payroll every week. My second problem was keeping lawyers away. I don’t know what the third and fourth was, but about 797 was dealing with asbestos.”

7 Union Carbide argues that we should apply the reasoning in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 to this case. Kinsman did not involve strict liability by a manufacturer or distributor for inadequate warnings. Rather, the Supreme Court in Kinsman was concerned with whether a carpenter employed by an independent contractor exposed to asbestos while working at an oil refinery could sue the refinery owners for injury when only the refinery owners knew the carpenter was being exposed to a hazardous substance. (Id. at p. 664.) The court held that “if the hazard is concealed from the contractor, but known to the landowner,” the landlord is liable. (Id. at p. 674.) The court emphasized that the holding “would not apply to a hazard created by the independent contractor itself, of which that contractor necessarily is or should be aware.” (Id. at p. 675, fn. 3.)

Similarly, at his deposition, Weatherly answered as follows when asked about the suppliers of asbestos used in canal sealant from 1969 and beyond: “You know, I didn’t—first place, before this suit, I didn’t even remember we used asbestos in the stuff. And then I talked to one of the guys that was there and he reminded me that we did and how much it was.” He explained that “asbestos was a very small part of my life at that time.”

Weatherly testified that he did “gradually” become aware of the hazards of asbestos. During his deposition he stated that he became aware in the middle of the 1960’s that “it looked like there were higher incidents of lung cancer, or problems with people who smoked and had asbestos—and were around asbestos.” He also knew by the early 1970’s that precautions had to be taken when working with asbestos. He admitted knowing that OSHA had issued regulations regarding the use of asbestos, and while he could not recall exactly when he learned this, he conceded that he knew this by at least 1974.

Weatherly started American Poly-Therm, a company that made parts for the aerospace industry and also manufactured sealants, in 1960. At the time Bakkie was working at American Poly-Therm, the company was not large; it had about 25 to 30 employees. American Poly-Therm did not have a medical director from 1974 to 1975, or during its earlier years. During the relevant time period, it had a personnel manager who took care of all personnel issues, including medical issues.

John Myers, an employee of Union Carbide who worked with Calidria asbestos from 1966 to 1993, testified that American Poly-Therm first purchased asbestos from Union Carbide in 1974. He believed that Union Carbide sold American Poly-Therm about 80 of the 35-pound bags between 1974 and 1975. As compared to Union Carbide’s other customers, the volume sold to American Poly-Therm “was very small.”

Finally, the record contains evidence that Union Carbide did not convey the knowledge it had about the dangers of asbestos to American Poly-Therm. Weatherly testified that he did not recall ever seeing any toxicology reports from Union Carbide. He stated that he did not know what “Union Carbide knew or didn’t know about anything.” Thus, the knowledge that Union Carbide had regarding asbestos could not be attributed to American Poly-Therm.

Union Carbide argues that OSHA’s regulations regarding asbestos became effective in 1972 and the fact that Weatherly admitted that he was aware “through the mid 1970’s” that OSHA imposed certain obligations regarding the use on asbestos on employers to protect their employees in the workplace, absolved it from any duty to warn about the defect. Under this argument, no manufacturer would ever be liable if the employee worked for an employer governed by OSHA’s regulations. No California case excuses a manufacturer from liability on the basis urged by Union Carbide, and we will not create such an exemption.

The record contains ample evidence that Weatherly, the owner and president of American Poly-Therm, had very little knowledge about the use of asbestos. Moreover, asbestos was not a major concern of the company because its use of the product was very limited. Accordingly, we conclude that the record contains sufficient evidence to support a finding that American Poly-Therm was not a sophisticated user of the product asbestos.

III. Court’s Denial of Six Proposed Instructions

Union Carbide maintains that the lower court should have provided six of its proposed instructions and that the court committed prejudicial error in rejecting these instructions. The rejected instructions related to the “sophisticated user” doctrine, American Poly-Therm’s duty to warn under state law, and the significance of the warnings provided by Union Carbide.

“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) In civil cases, we reverse on the basis of instructional error when “ ‘it seems probable’ that the error ‘prejudicially affected the verdict.’ ” (Id. at p. 580.) Reversal for instructional error is warranted only where the reviewing court concludes “ ‘the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Ibid.) When determining whether instructional error resulted in prejudice, “the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)

Union Carbide proposed two instructions regarding the “sophisticated user” doctrine.⁸ The first would have instructed the jury that Union Carbide could not be liable because OSHA had promulgated regulations regarding the dangers of asbestos, and American Poly-Therm knew or should have known about these regulations. The second proposed instruction would have told the jurors that Union Carbide could not be liable if its product contained a warning, since it could reasonably assume this warning would be heeded.

8 The first special jury instruction proposed by Union Carbide was the following: “Where the risk of using a hazardous product is known or should be known by the consumer of the product, the supplier has no duty to warn of the product’s potential hazards. For example, where a supplier sells its product to a business, who knows or is required by law to know of the dangers associated with the product, the supplier has no duty to warn. A business knows or should know of a product’s dangers where either the supplier has provided an adequate warning of such dangers or where information on the product’s dangers is available in the public domain. Specifically, in this case, if you find that Union Carbide sold its raw Calidria asbestos fiber to American Poly-Therm and American Poly-Therm was an entity that knew or had an independent legal duty to know of the harms associated with asbestos fibers, you must find that Union Carbide had no duty to warn David Bakkie.”

The lower court properly rejected the foregoing instructions because they do not accurately reflect California law. There is no California authority that would shield a manufacturer from liability simply because the user knew or should have known about the dangers of the product. California authority uniformly permits the plaintiff to establish that “misuse of the product was foreseeable[,]” resulting in the defendant manufacturer remaining liable for failing in its duty to warn. (See, e.g., In re Related Asbestos Cases, supra, 543 F.Supp. at p. 1151.)

Union Carbide also requested an instruction regarding the duties of American Poly-Therm and its violation of its duties as a superseding cause of Bakkie’s injury.⁹ Union Carbide has completely failed to explain how the failure to provide this instruction resulted in prejudicial error. Further, the court properly rejected this instruction because American Poly-Therm’s violation of its duty to Bakkie by failing to comply with the OSHA regulations did not automatically exempt Union Carbide from any liability as the manufacturer of asbestos. As already stressed, under California authority, Union Carbide would still be liable if “misuse of the product was foreseeable[.]” (See, e.g., In re Related Asbestos Cases, supra, 543 F.Supp. at p. 1151.)

9 The instruction proposed by Union Carbide was as follows: “Under then-existing California law, an employer owed a duty to his employee to furnish a safe place of employment, to use and inform his employee of safe practices and procedures, and to provide appropriate safety devices to protect his employee from hazards that may have existed in the workplace. An employer was obligated to alert his employees to those dangers and hazards of which the employer knew or should have known.

Union Carbide also proposed two instructions regarding the warnings on the bags of Calidria asbestos, which the court refused to give. The first proposed instruction stated that when deciding whether Union Carbide provided adequate warnings the jury should consider its compliance with OSHA regulations.¹⁰ The second proposed instruction advised that Union Carbide could reasonably assume that any warnings on its products would be “read and heeded” and that Union Carbide was not liable for injuries resulting from a failure to heed the warnings it gave.¹¹

10 One proposed instruction read as follows: “To determine whether Union Carbide adequately warned of the potential hazards associated with use of its Calidria asbestos, you may consider Union Carbide’s compliance with government laws that regulated the labels of products containing asbestos fibers. For example, you may consider, the federal government’s 1972 Occupational Safety Health Act (OSHA) regulations provided as follows: [¶] Warning labels shall be affixed to all raw materials, mixtures, scrap, waste, debris, and other products containing asbestos fibers, or to their containers. [¶] The labels shall comply with the requirements of 37 Fed. Reg. 11321 (June 7, 1972) of OSHA’s Standard for Exposure to Asbestos Dust, and shall include the following information: [¶] CAUTION [¶] CONTAINS ASBESTOS FIBERS [¶] AVOID CREATING DUST [¶] BREATHING ASBESTOS DUST MAY [¶] CAUSE SERIOUS BODILY HARM[.]”

11 The instruction proposed by Union Carbide provided the following: “When a warning is given by Union Carbide regarding the hazards of raw asbestos fibers, Union Carbide may reasonably assume that its warning will be read and heeded. A product bearing such a warning, which is safe for use if followed, is not defective or unreasonably dangerous. If Union Carbide has warned of the hazards of raw asbestos fibers through labels and other materials and its warnings are not considered and followed, then Union Carbide is not liable for any injury that may result from failure to read and heed its warnings.”

Union Carbide’s entire discussion regarding the prejudicial effect of the lower court’s failure to provide these instructions is that “without this kind of explanation, the jury might well have been misled into believing that Union Carbide’s warnings should be deemed per se inadequate if they did not succeed in preventing Bakkie from being exposed to Calidria fibers.” There is no discussion of the argument presented to the jurors or the effect of the given instructions on the jury.

Further, “Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition.” (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718.) The instructions at issue here unduly emphasized the theories of the defense.

Finally, as even Union Carbide concedes, compliance with federal regulations does not automatically relieve manufacturers from product liability based on a failure to warn. (See, e.g., Carlin v. Superior Court, supra, 13 Cal.4th at p. 1115, fn. 4.) The trial court properly told the jurors to consider the adequacy of the warning when it instructed that “[a] manufacturer or supplier has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution.” This instruction properly required the jury to consider Union Carbide’s argument and evidence that it complied with OSHA and that this compliance constituted sufficient warning.

We conclude that the trial court properly refused to give the proposed instructions in question here, as they unduly emphasized Union Carbide’s defense. Moreover, some of the proposed instructions would have exempted Union Carbide from any liability simply because American Poly-Therm did not comply with the OSHA regulations. As already stressed, the proposed instructions do not accurately reflect California law. Finally, we note that Union Carbide has failed to meet its burden of establishing prejudice. Other than provide conclusory argument, it has completely failed to grapple with the evidence, argument, and effect of the other instructions given when arguing prejudicial error. Accordingly, we hold the court did not commit prejudicial error in refusing to give Union Carbide’s proposed instructions.

IV. The Consumer’s Expectations Test

Union Carbide claims that the lower court should have granted its motion for a JNOV on the basis that no substantial evidence supported the consumer expectation theory of liability. Additionally, it maintains that the lower court committed prejudicial error when it instructed the jury regarding the consumer expectations test.

A. JNOV

As discussed above, we will affirm the denial of the JNOV motion if substantial evidence supports the verdict. Thus, we look to see if the record contains substantial evidence that Union Carbide was liable on the basis of the consumer expectation theory of product liability for design defect.

“[A] product is defective in design . . . if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418.) An “ordinary consumer” does not necessarily refer to the average person but rather to “the ordinary users or consumers of [that particular] product.” (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 566-567.) Where the product is one of “common experience,” encountered generally in everyday life, the jury can rely on its own expectations of safety in applying the test. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126.) When a product is in such “specialized use” that the general public is not familiar with its safety characteristics, a manufacturer may still be liable if “the safe performance of the product fell below the reasonable, widely shared minimum expectations of those who do use it.” (Soule, supra, at pp. 567-568, fn. 4.)

Courts have applied this consumer expectations test to asbestos-containing products and to raw asbestos. The court in Jenkins v. T&N PLC (1996) 45 Cal.App.4th 1224 (Jenkins) held: “As a matter of law, a bulk supplier of raw asbestos fiber incorporated into a finished product can be subject to strict products liability to an individual suffering from a disease caused by exposure to the supplier’s asbestos.” (Id. at p. 1231.)

Subsequently, a decision by Division One of our court approved the reasoning of Jenkins and upheld liability for a supplier of raw asbestos on a consumer-expectations theory of product defect. (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178 (Arena)). The court in Arena rejected an argument that raw asbestos fibers are not designed in a product liability sense. (Id. at pp. 1184-1191.) Such a view, the Arena court reasoned, was “too literal” because the term design defect “relates more to a legal conclusion that a product has deviated in some manner from what is reasonably expected, than it does to a description of a specific mechanical shortcoming or flaw. [Citations.] To the extent that the term ‘design’ merely means a preconceived plan, even raw asbestos has a design, in that the miner’s subjective plan of blasting it out of the ground, pounding and separating the fibers, and marketing them for various uses, constitutes a design.” (Id. at pp. 1186-1187, fn. omitted.) “ ‘Asbestos fiber which is extracted by crushing an asbestos rock and compacting the fiber into bags is a product within the meaning of the Restatement; it is no different than a poisonous mushroom extracted from the ground, which regardless of the changes it undergoes, remains poisonous to the user or consumer. [¶] The fact that an item is processed before it is sold is not determinative of its status as a product . . . .’ ” (Id. at p. 1187, fn. 5.) The Arena court concluded, “[R]aw asbestos is a product that may have a design defect when it fails to meet the ‘ “ ‘commonly accepted minimum safety assumptions of its ordinary consumers.’ ” ’ ” (Id. at p. 1191.)

Union Carbide argues that the record contains no evidence that an “ordinary consumer” of Calidria asbestos would have reasonably believed in 1974 that it was safe to use that product without taking any precautions to avoid inhaling asbestos fibers. Union Carbide maintains that the evidence that the Calidria bags had explicit warnings stamped on them that “breathing asbestos may cause serious bodily harm” and that the user should “avoid creating dust” as well as the evidence that OSHA regulations expressly recognized the dangers associated with asbestos when not handled properly established that an ordinary consumer knew the hazards. Union Carbide argues that Bakkie failed to provide any evidence of the expectations of the consumer in 1975 and “a lay jury sitting in 2006 could not be expected to know, from its own experience, what (if any) minimum safety expectations an ordinary user of industrial asbestos products possessed in the mid-1970’s.”

As to Union Carbide’s contention that the bags of Calidria asbestos had warnings on them, this was a disputed fact. Union Carbide argued and presented some evidence in support of this assertion. Myers, an employee of Union Carbide, testified that the bag specification sheet for Calidria dated January 1974, which was sent to the manufacturer, provided that the label caution and OSHA warning were to be printed on the bag. However, Bakkie argued that neither a bag nor a picture of a bag for the relevant years was produced at trial. Contradicting Union Carbide’s evidence was Taggart’s testimony that he did not remember ever seeing any warning on the Calidria asbestos bags. Similarly, Bakkie testified that he did not see any warning or caution about asbestos on any of the containers or bags that he handled while working at American Poly-Therm. Weatherly stated that he did not recall “ever seeing a caution on a bag of Calidria that came from Union Carbide.” Union Carbide argues that the witnesses’ inability to recall seeing the warning 30 years later is not evidence. Union Carbide is mistaken. This is evidence that the jury could properly consider and determine the weight to give it. Accordingly, the record contained substantial evidence to support a finding that no such warning was provided on the asbestos bags.

Further, the jury could have concluded the warning was inadequate. The warning did not include the word cancer. The warning did not inform handlers how to identify dangerous levels of asbestos and it did not tell the handler what equipment was necessary to handle the asbestos.

We also reject Union Carbide’s argument that the fact that OSHA had regulations concerning asbestos established that the ordinary consumer understood the hazards associated with handling asbestos. Union Carbide points to no evidence in the record establishing that the average person working with asbestos in 1974 understood the OSHA regulations that became effective in 1972. Moreover, the record in this case contains ample evidence to support a finding that the average consumer of asbestos in 1975 did not recognize the dangers associated with breathing the dust. Bakkie testified that he did not know what asbestos was or that it was hazardous to his health. He testified that no person told him that he needed to wear any protective device. Taggart testified that he did not even think about the hazards of asbestos in 1974 and 1975. He explained: “I didn’t even think about it back then. Today’s world, they’d beat it in your head to the point where, you know, you don’t do anything without adequate safety precautions or protective equipment, protective gear or whatever.”

Accordingly, we conclude substantial evidence supported the jury’s finding on liability based on the consumer expectations test.

B. Instructions

Union Carbide summarily argues that the jury was not properly instructed on the consumer expectations test. It claims that the court should have provided Union Carbide’s special instruction.

The court provided the jury with the following instruction: “A product is defective in design if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” The court refused to give the following instruction proposed by Union Carbide: “In determining whether a product satisfies the consumer expectations test, you must evaluate the expectations of the hypothetical reasonable consumer of Union Carbide’s raw Calidria asbestos rather than those of the particular plaintiff in this case. The relevant expectations of the consumer are measured at the time the product was used.”

Union Carbide complains that the jury was given no guidance as to how the jury should decide what an ordinary consumer knew or who the relevant consumer was. However, the asbestos used in this case, as in Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th 461, was a common type of asbestos. Accordingly, no special knowledge was needed and the jury was properly instructed on the consumer expectations test.

Further, Union Carbide cannot establish prejudice. As discussed above, both Bakkie and Taggart testified that they were unaware of the problems associated with handling asbestos. Accordingly, even if the jury had been provided with the instruction proposed by Union Carbide, it is not reasonably probable that the verdict would have been any different.

V. Evidentiary Rulings

Union Carbide contends that the trial court prejudicially abused its discretion when making various evidentiary rulings. It contends that individual rulings resulted in prejudicial error and the cumulative effect of the rulings was prejudicial.

We review the trial court’s decisions to admit or exclude evidence for abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) In order for the erroneous admission or exclusion of evidence to warrant reversal, it must have resulted in a miscarriage of justice. (Evid. Code, §§ 353, 354.)

A. Bakkie’s Claim of Exposure to Johns-Manville Asbestos

On January 6, 2006, Bakkie submitted a claim to the Claims Resolution Management Corporation, a subsidiary of the Manville Personal Injury Settlement Trust (the Trust), for asbestos-related injury from January 1987 until December 2005 and, as a bystander, from January 1960 until December 1973 (Bakkie’s Manville claim). Union Carbide subpoenaed the Trust to obtain the information about Bakkie’s claim and, at about the same time of the subpoena, Bakkie withdrew this claim.

Union Carbide contends that Bakkie’s Manville claim constitutes an admission of prior asbestos exposure and would have “carried special evidentiary weight with the jury.” Further, it claims that such evidence was admissible under Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481. In that case, Division Three of our court held that a claim form submitted by an asbestos plaintiff could be obtained in discovery. (Id. at p. 1492.) Division Three stated that the lower court erred when it denied this discovery request because it found that the document would not be admissible at trial. (Id. at pp. 1490-1491.) Division Three explained: “A ‘claim that discovery is not warranted because the evidence disclosed would not itself be admissible is untenable. It is settled that admissibility is not prerequisite to discovery.’ ” (Ibid.) Our court elaborated that the claim may be more analogous to a complaint than to a settlement demand, but it did not have to decide whether the claim would be admissible at trial. (Id. at p. 1494.) Rather, it only had to determine whether the claim could be discoverable; it held the claim was discoverable because it could lead to an “admissible admission against interest.” (Ibid.)

Even if we were to presume that the lower court erred in refusing to admit Bakkie’s withdrawnclaim into evidence, we conclude the error was harmless. Bakkie’s Manville claim contained allegations, not evidence, and therefore its evidentiary weight was not particularly strong. More significantly, counsel for Union Carbide had the opportunity to question Bakkie about his prior asbestos exposure. Indeed, the record was replete with evidence that Bakkie had extensive exposure to asbestos during his youth, which would have covered the time period from January 1960 until December 1973. While living at home as a teenager, the evidence showed that Bakkie was exposed to asbestos dust while working on cars and being around white flocking spray used at Christmas time in his home. Additionally, there was evidence that his father came home from work with his clothes covered with asbestos dust. The jurors also heard evidence that Bakkie was exposed to asbestos from January 1987 until December 2005. In 1986, Bakkie began working as a lineman for the City of Roseville, and he held that position for 15 years. An expert witness for Bakkie testified that, while at this job, Bakkie was exposed to asbestos-insulated wiring cable and asbestos from the thermal insulation.

In light of the weak evidentiary value of the allegations in Bakkie’s Manville claim and the extensive evidence that Bakkie was exposed to asbestos during the time periods set forth in this claim, we conclude that the lower court’s refusal to admit this claim into evidence would be harmless error.

B. Admissions Regarding Exposure to Amphibole Asbestos

Union Carbide challenges the lower court’s refusal to have two of Bakkie’s responses for admission admitted into evidence. In these responses to the requests for admission, Bakkie stated that he was exposed to amphibole asbestos while employed at American Poly-Therm and while working at SMUD. Since the evidence at trial was that the asbestos supplied by Union Carbide was chrysotile, which is less toxic than amphibole, Union Carbide argues that Bakkie’s admissions were directly relevant to causation and apportionment.

After providing Union Carbide with the responses to the admission requests, counsel for Bakkie told the court that these responses regarding amphibole asbestos were a result of counsel’s mistake. Thereafter, the court denied Union Carbide’s motion in limine to have the requests for admission deemed conclusively established.

Even if the court should have allowed these admissions into evidence, this evidentiary ruling was clearly not prejudicial. The evidence was undisputed that Union Carbide’s asbestos was chrysotile. The jury also heard evidence that Bakkie was exposed to amphibole asbestos when Bakkie’s expert testified that Bakkie’s work with thermal insulation provided “him [with] an opportunity to potentially be exposed to the amphibole form of asbestos[.]” Further, counsel for Union Carbide had the opportunity to ask Bakkie about his exposure to amphibole asbestos. Accordingly, the jury was informed that Bakkie was exposed to amphibole asbestos and the court’s refusal to admit evidence that he admitted being exposed to this type of asbestos was not prejudicial.

C. Label for Flocking Material

Union Carbide complains that the lower court committed prejudicial error when it denied its request to admit an empty box labeled “Snow Drift,” which had the words “Fireproof Asbestos” written on it. Union Carbide asserts that the court’s ruling “severely prejudiced” it. Union Carbide claims the court prevented it from presenting to the jury a piece of direct evidence proving the existence of other exposure.

Union Carbide dismisses the significance of Bakkie’s testimony where he stated that his mother used the flocking material for five Christmases and that he believed the material contained asbestos. It claims that, because Bakkie testified that he really did not know the contents of the flocking material, his belief was weak evidence of exposure to asbestos. Furthermore, his counsel argued that “we can’t prove that stuff had asbestos in it. Mr. Bakkie thinks he’s got––it’s got asbestos in it. He may be right. He may be wrong. He’s certainly no expert.”

As already emphasized, the record clearly established that Bakkie was exposed to asbestos in his youth. Not only did Bakkie testify that he believed the flocking material had asbestos, but he testified that he was exposed to asbestos when he worked on cars and when his father returned home from work with clothing covered in asbestos. Given this evidence of prior asbestos exposure, the court’s refusal to admit a box with a label indicating that the flocking material contained asbestos had no prejudicial effect.

D. Allegations in Worker’s Compensation Claim

In 2006, Bakkie filed an application to the California Worker’s Compensation Appeals Board, accusing American Poly-Therm and other employers of creating a dangerous condition by knowingly exposing him to asbestos and in failing to warn employees of the dangers. Union Carbide sought to have the allegations or admissions made in the worker’s compensation claim admitted into evidence. Union Carbide asserts that the lower court’s ruling, which sustained Bakkie’s objection to this evidence, was “erroneous and deeply prejudicial to Union Carbide.”

Other than make some conclusory statements that the ruling was prejudicial, Union Carbide has completely failed to establish any prejudicial effect from this ruling. The evidence at trial made it clear that American Poly-Therm did not warn Bakkie of the dangers associated with asbestos and that it did not comply with OSHA’s regulations. Moreover, Union Carbide had the opportunity to question Bakkie about any warnings provided or not provided by American Poly-Therm. Thus, we conclude that any error in refusing to permit Union Carbide to introduce evidence of the worker’s compensation claim was not prejudicial.

E. Cumulative Error

Other than assert that cumulative error occurred, Union Carbide provides no argument to support this contention. We therefore reject this argument since Union Carbide failed to establish prejudice.

Even if we address the merits of Union Carbide’s claim of cumulative error, we conclude the record establishes the lower court’s rulings were not prejudicial. Much of the evidence not allowed was merely cumulative and Bakkie and his experts were available to testify on all of these issues. The jury heard evidence of Bakkie’s prior exposure to asbestos while living with his parents as a child and while at his various workplaces as an adult. It also heard undisputed evidence that the asbestos produced by Union Carbide was chrysotile and that American Poly-Therm did not warn Bakkie about asbestos exposure and did not comply with OSHA’s regulations. Accordingly, it is not reasonably probable that the jury would have returned with a different verdict had it heard this excluded evidence.

VI. Future Noneconomic Damages

As noted, the jury verdict awarded damages in three categories: (1) $3,223,450 in economic damages, the amount stipulated to by Union Carbide; (2) $1,200,000 in past noneconomic damages for the 12-month period between diagnosis and the time of verdict; and (3) $14,100,000 for future noneconomic damages for Bakkie’s remaining life expectancy after trial which, according to Bakkie’s own expert, was to be no more than six months.¹²

12 Samuel Hammar, M.D., an expert witness for Bakkie, testified that the average life expectancy after a diagnosis of epithelial mesothelioma is 12-to-18 months. Bakkie was diagnosed in early September 2005, and the jury verdict was rendered on September 1, 2006, almost 12 months later. Thus, according to his own expert, Bakkie would be expected to live no more than six months after the trial. As Bakkie’s counsel put it in closing argument, Bakkie’s “coming right into the bad period. He’s lived this long. It’s not going to get any better.” Bakkie in fact lived some ten months, and died on July 17, 2007. His son Terry has been substituted in his place.

Union Carbide moved for a new trial based on, among other things, excessive damages. The lower court never heard the motion, and it was deemed denied by operation of law. (Code Civ. Proc., § 660.) On appeal, Union Carbide challenges the verdict for future noneconomic damages, contending it is excessive and reflects prejudicial and improper arguments by Bakkie’s counsel. We agree, and conclude that the award of $14,100,000 for future noneconomic damages was clearly excessive, especially when compared to the award of $1,200,000 in noneconomic damages for the one-year period between diagnosis and trial. The short period of Bakkie’s expected future life—one to six months—cannot support an award almost 12 times that amount.

The tragic circumstances that befell Bakkie cannot be overstated: a 49-year-old man with two teenage sons diagnosed with mesothelioma in the prime of his life, and told he could expect to live 12 to 18 months after his diagnosis. Bakkie testified at some length about the grief and agony he underwent, and his experienced counsel described the effect of the disease to the jury in various ways, illustrated by this description in closing argument of Bakkie’s predicament when he asks the doctor “what he can do to help?”: “[T]he candid reality is, all the doctor’s bedside manner notwithstanding is, ‘We can’t do anything to help you. You’re going to die a painful death of suffocation; and I can try to improve your quality of life with chemotherapy,’ which is no picnic either. [¶] . . . [¶] [Bakkie]’s got a good attitude; but the fact of the matter is, a black rain cloud follows him around wherever he goes. And whenever he has a pain that’s a little different or a little additional, who knows? That’s the beginning of it for you, Mr. Bakkie, and he lives with that circumstance.”

The evidence was that Bakkie’s condition would get progressively worse. He faced the risk of kidney failure and cardiac impairment. An expert explained that Bakkie’s tumor would grow and invade his lung, which would get smaller and less functional; he would eventually need oxygen at all times and would slowly suffocate. The expert surmised that Bakkie would need increasing amounts of narcotics to combat the pain caused by the growing tumor, and the use of the narcotics would create their own problems. Bakkie would lose weight and become increasingly weaker. And although Bakkie was working throughout the trial, the testimony was that he would have to stop working and would have “no quality of life.”

Bakkie’s reply brief sums up his plight in vivid terms: “David Bakkie was an otherwise healthy, strong, productive, physically active 50-year-old father. In a very short period of time he has to prepare mentally, physically, emotionally, and spiritually to lose almost three decades of life—to lose everything—and to face an excruciating death. He has to face the enormous heartbreak and anxiety of leaving his beloved teenaged children to face life without a father. He has to endure a death akin to the worst torture, his body, his spirit, his independence, his dignity, his strength, his hope all decimated. . . . [¶] Over what remains of his life, he must face the nightmare that is mesothelioma with its relentless, respiratory pain striking with each breath. He must face slow suffocation, morphine addiction, disfigurement, and humiliating loss of physical, financial, emotional, and mental control over his life . . . . Plainly put, it does not get worse than this.”

As noted, Bakkie’s counsel explained to the jury what Bakkie went through once he heard the diagnosis and what it meant for him, telling them what Bakkie had thought and felt, and would miss. And based on what it heard, the jury awarded Bakkie $1,200,000 for past noneconomic loss, a verdict Union Carbide does not challenge.¹³ And what Bakkie had to look forward to for the next few months was dreadful. But the issue before us is whether those few remaining months, estimated at one to six, support a verdict of $14,100,000 for future noneconomic damages—a verdict that, based on the evidence before the jury, computes to between $14,100,000 (for one month of life) to $2,350,000 (six months) per month in noneconomic damages. Such verdict, we conclude, is excessive.

13 While we must not speculate as to the basis of this award, it is noteworthy that it works out to the round sum of $100,000 per month for the 12 months from diagnosis to verdict.

The standard of review governing a claim of excessive damages is well established: “The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507; accord, Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078; see also Neumann v. Bishop (1976) 59 Cal.App.3d 451, 491 [“ ‘To say that a verdict has been influenced by passion and prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence ’ ”].) “In assessing a claim that the jury’s award of damages is excessive, we do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor.” (Westphal v. Wal-Mart Stores, Inc., supra, at p. 1078.) “There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible.” (Seffert v. Los Angeles Transit Lines, supra, at p. 508.)

But there is a significant qualification to these rules, illustrated by Cunningham v. Simpson (1969) 1 Cal.3d 301, 308-309, where Justice Tobriner held that the “familiar rule” providing for deferential review of jury awards does not apply “ ‘[w]hen the award as a matter of law appears excessive or where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act.’ ” Or, as one Court of Appeal recently put it, deference to the jury’s discretion applies “in the absence of some other factor in the record, such as inflammatory evidence, misleading instructions or improper argument by counsel, that would suggest the jury relied upon improper considerations.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 615.) This, we conclude, is the situation here. The verdict here was excessive. It also was returned in a setting where there was misleading argument, premised on an instruction that was no longer necessary or relevant.

With regard to noneconomic damages, the trial court instructed as follows: “The following are the specific items of noneconomic damages suffered by David Bakkie: [¶] Past and future physical pain, mental suffering, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and emotional distress. [¶] To recover for future damages, plaintiff must prove that he is reasonably certain to suffer that future damage or harm. [¶] No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. Plaintiff’s past and future noneconomic damages should be measured from the date of first symptoms to the date of death.”

Subsequently, the court instructed: “According to a table of mortality, the life expectancy of a male person aged 50 years is 28.2 additional years. This figure is not conclusive. It is an average life expectancy of persons who have reached that age. This figure may be considered by you in connection with other evidence relating to the probable life expectancy of plaintiff, including evidence of occupation, health, habits and other activities, bearing in mind that many persons live longer and many die sooner than the average.”¹⁴

14 Union Carbide agreed to the mortality table instruction as it was clearly relevant to the award of economic damages. Union Carbide argues on appeal that this instruction should have been withdrawn once the parties had stipulated to the economic damages. However, Union Carbide never requested that the trial court omit the instruction, even though the court heard arguments regarding the instructions after the conclusion of the parties’ closing arguments. In any event, Union Carbide has not demonstrated that the instruction was improper.

Union Carbide primarily maintains that counsel for Bakkie improperly told the jury during his rebuttal closing argument that the jury should base its award of future noneconomic damages on the life expectancy Bakkie would have enjoyed had he not been afflicted with mesothelioma. Counsel for Bakkie argued: “What I was talking about was specific to Mr. Bakkie and Mr. Bakkie’s circumstances only, and his circumstances are we know that’s his economic loss. I don’t know about somebody else, but that’s his economic loss; and, ladies and gentlemen, we know that his loss that’s noneconomic just dwarfs whatever that number would be, if that number was $3 instead of $3 million, because that’s the way it is. It’s backwards to not be that way. [¶] And it’s for you folks to assess with your own algorithm, with your own methodology what does it mean to a 50-year-old man to have his life cut short and he doesn’t get to live the additional time period. [¶] And I did remember that I had not shown to you that’s in the jury instructions that 28.2 additional years. That’s an amount that has been stipulated forward a mortality table recognizing—this is at page 45 of the instructions—that many people would live longer and many wouldn’t live that long, but that’s where the number 28 additional years comes forward as an average. [¶] You may determine that someone who is denied that life, which is everything to them, is at least millions a year times 28.”

At this point, counsel for Union Carbide objected, on the basis that the mortality table number set forth by Bakkie’s attorney was “for economic damages” and did “not relate to the noneconomic damage portion.” The court stated it “understood,” but did not rule on the objection, and told counsel that it would instruct the jury at the appropriate time. Bakkie’s attorney continued his argument and told the jury that he was trying to make it clear that the parties had agreed to the number regarding Bakkie’s life expectancy.

Union Carbide argues that this exchange resulted in the jury believing that noneconomic damages could be calculated by multiplying some amount of damages by the stipulated 28-year normal life expectancy. Union Carbide asserts that, if one were to divide the $14,100,000 award by Bakkie’s 28.2-year normal life expectancy, the result is precisely $500,000 per year for each year of Bakkie’s life, and surmises that this is what the jury must have done—surmise, we note, that is perhaps circumstantially supported by the verdict of $14,100,000, an amount that is precisely divisible into 28.2. Union Carbide further contends that the award of $14,100,000 to a person who was expected to die within months was unsupportedly high when compared to the $1,200,000 award for the one-year pre-verdict period. So, Union Carbide argues, it is clear that the jury accepted the improper argument by counsel for Bakkie to consider Bakkie’s normal life expectancy.

This improper argument by Bakkie’s counsel was exacerbated, according to Union Carbide, when Bakkie’s attorney told the jury in his closing argument that “you’ll speak as the conscience of this community and you’ll speak as to what we are.” Bakkie’s counsel also told the jurors that they were “the voice of the people who don’t otherwise have one” and “[i]t’s only in this courtroom that” Bakkie “can deal with these issues.”¹⁵

15 The record reflects no contemporaneous objection to the first statement, but an objection to the second one, counsel saying, “Again, I’m going to object.” Rather than rule, the trial court said, “So noted,” and Bakkie’s counsel concluded his closing argument.

A leading practical treatise discusses arguments that appeal to “ ‘send a message to the community,’ ” and states that while such argument “may be appropriate in punitive damages cases [citation] . . . many judges feel it is improper in other cases, particularly when made in the context of the amount of damages to be awarded [citation].” (Wegner et al., Cal. Prac. Guide: Civil Trials & Evidence (The Rutter Group 2006) § 13:197, p. 13-46.) Here, as noted, Bakkie’s counsel argued that the jury was the “voice of the community” and “you’ll speak as to what we are.”

As to counsel’s argument that it was “for you folks to assess with your own algorithm, with your own methodology” what it means for a “50-year-old man to have his life cut short,” we find apt the observation by Division One of this court in Neumann v. Bishop, supra, 59 Cal.App.3d 451, 484-485: “The appeal to a juror to exercise his subjective judgment rather than an impartial judgment predicated on the evidence cannot be condoned. It tends to denigrate the jurors’ oath to well and truly try the issue and render a true verdict according to the evidence. (Code Civ. Proc., § 604.) Moreover, it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence. Finally, it may tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing.” (Accord, Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319-320; Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764-765 [“The only person whose pain and suffering is relevant in calculating a general damage award is the plaintiff. How others would feel if placed in the plaintiff’s position is irrelevant.”].)

In his brief and at oral argument Bakkie essentially took the position that the essence of the argument was that the jury should be told how many years of life Bakkie would lose and, so the argument apparently runs, that the damages should include Bakkie’s grief or distress for how much life he had lost. While such an argument is perhaps plausible in the abstract, we do not read Bakkie’s argument below as taking that tack, especially as the argument ended with, “you may determine that someone who is denied that life . . . is at least millions a year times 28.”

That the thrust of Bakkie’s argument was about the value of life is manifest by numerous statements in counsel’s closing argument, where he offered the jury a “couple of ideas” about noneconomic damages. The first was to mention the stipulated $3.2 million in economic damages, and then urge that, while a jury could value a $20 million racehorse or a valuable piece of art, “we can’t do that appropriately with humans at all.” Counsel then argued that whatever the economic loss, “I think we all agree that the human loss dwarfs the economic loss. That’s the way it is and that’s the way it should be, and there are many examples of that in our society.” Then came the examples: saving the “homeless guy” in the museum rather than the work of art; the pilot who ejects from the $50 million airplane; the Oklahoma City bombing, and how the stories focused on the loss of life, not the destruction of the “multimillion dollar federal building”; and finally “9/11,” and the fact that the value of the buildings was not the point of the stories.

The argument concluded, “I think these are guidelines that you need to keep in mind when you’re assessing the noneconomic damages in this case. [¶] The past is what Mr. Bakkie has been through up to today and it starts from the early part of 2005, when he had his symptomology, and it deals with all aspects of how his life is different. [¶]. . . [¶] [W]hat’s the total of a 50-year-old man’s life who’s going to die a painful death, probably addicted to morphine, and in a narcotic coma? And he knows it’s coming and there’s not a doggone thing he can do about it. He can’t go anywhere. He can’t change it. All the money in the world won’t change his outcome. That’s his plight, and you folks are asked to evaluate that. [¶] In today’s society I worry sometimes. We know the cost of everything and the value of nothing. This isn’t about cost on these lines. The cost has already been figured out. It’s huge but it’s nothing compared to the value of a human life that’s dying from an entirely preventable disease caused by asbestos. [¶] . . . [¶] I would submit to you in your guidance in thinking about this . . . . What do you value his life as it’s been since September of ’05 and as it’s going to be going forward until he dies, whenever that may be?” (Italics added.)

In sum, counsel’s argument was not about Bakkie’s grief for his life being shortened. It was to award “at least millions a year times 28.” Moreover, Bakkie had testified about what he had felt throughout the year before the trial, and for this the jury awarded him $1,200,000 for past noneconomic damage. Again, the brief future could not support a verdict 12 times that amount.

We offer one additional observation. While we are not to speculate as to what went on in the jury room, we are constrained to note that the total of the jury deliberations was slightly over one day. This followed a 27-day trial, with complex issues, and a verdict form which required the jury to answer 13 specific questions, many of them scientific in nature. These included questions about exposure, medical causation, design defect, failure to warn, negligence, forseeability, causation, and three specific questions of damages (one stipulated to), not to mention punitive damages. While such an expedient verdict may manifest an overwhelming case against Union Carbide, and easy determination on all issues, no objective view of the evidence could lead to that conclusion. For this additional reason, and especially in light of the round numbers in the verdicts for the general damages—$100,000 per month for the 12 months of past noneconomic damages and $500,000 per year times 28.2 years for future noneconomic damages—the verdict could be said to be the result of passion or prejudice. At the very least, it was affected by the improper argument about 28.2 years of life expectancy. Such a verdict cannot be allowed to stand.

In those very infrequent instances where a reviewing court concludes that the jury returned a verdict influenced by passion or prejudice, the reviewing court may determine that a complete retrial can and should be avoided if possible. (See Slaughter v. Van Winkle (1931) 213 Cal. 573, 574-575; Livesey v. Stock (1929) 208 Cal. 315, 322-323; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 754, pp. 780-781.) Union Carbide submits that this is one of those rare instances. So do we.

We have done a search of appellate decisions of plaintiff verdicts out of San Francisco for mesothelioma since 2000. We found five reported decisions where the verdict included an award for total noneconomic damages, in opinions that do not differentiate between past and future noneconomic damages. Those cases and the amount of noneconomic damages awarded are:

(1) Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92: $750,000.

(2) Cadlo v. Metalclad Insulation Corp. (2007) 151 Cal.App.4th 1311: $4,000,000.

(3) Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063: $1,790,000.

(4) Hackett v. John Crane, Inc. (2002) 98 Cal.App.4th 1233: $2,000,000.

(5) Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847: $3,000,000.

Analysis of those decisions indicates that the average award is $2,308,000 ($11,540,000 divided by five). Here, as described, the total noneconomic damage is $15,300,000 ($1,200,000 plus $14,100,000).

We recognize that each case is sui generis. We also recognize that time and inflation are two of the many variables that might be taken into account. Nevertheless, verdicts in similar situations can be used for comparative purposes. (See, for example, Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d 498, 508.) Using the other cases in that fashion, we note that the amount of noneconomic damages awarded in this case is over three times higher than the next highest amount—and over six and one-half times higher than the average. This, too, demonstrates that the verdict is excessive.

CONCLUSION AND DISPOSITION

As the Supreme Court has held, “ ‘[w]hen the award as a matter of law appears excessive or where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act.’ ” (Cunningham v. Simpson, supra, 1 Cal.3d at pp. 308-309.) This, we conclude, is one of those very rare awards. Accordingly, the judgment is reversed and the cause remanded for a new trial solely on the issue of future noneconomic damages unless, within 30 days from the filing of our remittitur in the trial court, plaintiff shall remit from the judgment all future noneconomic damages except the sum of $3,100,000. In all other respects the judgment is affirmed. If plaintiff elects to accept such remission, the judgment shall stand affirmed in full. The order denying Union Carbide’s motion for judgment notwithstanding the verdict is also affirmed. The parties will bear their respective costs on appeal.

We concur: Haerle, Acting P.J., Richman, J.

The court in Plenger v. Alza Corp., supra, 11 Cal.App.4th 349 did conclude that the manufacturer of the IUD was not negligent for failing to warn that an infection could lead to death because a manufacturer had no duty to warn of a risk readily known and apparent to the physician. (Id. at p. 362.) As we discuss below, the record in the present case does not establish that American Poly-Therm knew about the specific risks associated with asbestos or the precautions that needed to be taken to guard against these risks.

Union Carbide maintains that the same analysis in Kinsman v. Unocal Corp. should apply to the manufacturer of a product. The policy concerns underlying strict liability for a manufacturer of a hazardous product are not the same as those underlying a landowner’s liability to employees of independent contractors. If we were to adopt Union Carbide’s analysis, we would essentially eliminate the manufacturer’s duty to warn whenever it is reasonable that an employer possesses some knowledge of a product’s dangers without considering whether the misuse was foreseeable. That is not the law in California. (See, e.g., Selma Pressure Treating Co. v. Osmose Wood Preserving Co., supra, 221 Cal.App.3d at p. 1623.) Moreover, it contravenes the purpose of strict liability, which is to make the manufacturer bear the costs, “in terms of preventable injury or death, of its own failure to provide adequate warnings of known or reasonably scientifically knowable risks.” (Carlin v. Superior Court, supra, 13 Cal.4th at p. 1117.)

The second special jury instruction proposed by Union Carbide read as follows: “When a warning is given by Union Carbide regarding the hazards of raw asbestos fibers, Union Carbide may reasonably assume that its warning will be read and heeded. A product bearing such a warning, which is safe for use if followed, is not defective or unreasonably dangerous. If Union Carbide has warned of the hazards of raw asbestos fibers through labels and other materials and its warnings are not considered and followed, then Union Carbide is not liable for any injury that may result from failure to read and heed its warnings.”

“If in this case, if you find that Mr. Bakkie was exposed to levels of asbestos that exceeded then-permissible safety levels and you also find Mr. Bakkie’s employer—American Poly-Therm—failed to: [¶] warn Mr. Bakkie of dangers at American Poly-Therm that were not known or obvious to him; [¶] post signs that informed Mr. Bakkie that asbestos fibers, in use at American Poly-Therm, could exceed prescribed applicable governmental standards; [¶] post occupational safety and health laws at Mr. Bakkie’s place of employment; [¶] ensure raw asbestos was wet before Mr. Bakkie removed it from the bags it was packaged in; [¶] continually operate an exhaust ventilation system that conformed with standards adopted by the American Standards Institute; [¶] provide Mr. Bakkie with a respirator that complied with standards approved of by the American National Standards Institute; [¶] train Mr. Bakkie on the proper use of all protective equipment, including, training him on all the limitations and precautions prescribed by the equipment’s manufacturer; [¶] ensure Mr. Bakkie had a comprehensive medical examination 90 days, and each year, after he began working with or was exposed to asbestos at American Poly-Therm; [¶] provide Mr. Bakkie with special clothes or change rooms; [¶] sample the breathing zone of Mr. Bakkie; or [¶] adopt all practical methods and procedures necessary to protect Mr. Bakkie from the potential hazards associated with his use or work around asbestos [¶] you must find that American Poly-Therm is responsible, in whole or in part, for Mr. Bakkie’s injuries if you further conclude that: [¶] (1) American Poly-Therm’s conduct occurred after the conduct of Union Carbide; (2) a reasonable person would consider American Poly-Therm’s conduct as not foreseeable, or a highly unusual or an extraordinary response to the situation; [¶] (3) Union Carbide did not know and had no reasonable [sic] to expect that American Poly-Therm would act in a wrongful manner; and (4) the kind of harm resulting from American Poly-Therm’s conduct was different from the kind of harm that could have been reasonable [sic] expected from Union Carbide’s conduct.”

After the jurors left the courtroom, the court referred to a few items of past business, including in somewhat quizzical fashion to a “motion for mistrial.” Specifically, the court stated that “nobody was here to perfect your motion for mistrial, [to] put . . . grounds on the record, which my clerk shared with Mr. Vejnoska [counsel for Union Carbide] an e-mail to clarify it for me. [¶] And it was a very quick sidebar yesterday and Mr. Purcell [counsel for Bakkie] was—I don’t know if he was in the midst of his arguments or something, but I do know that that argument as to the impropriety of arguing what is essentially damages was raised at the sidebar.”

This led to pages of colloquy about a mistrial motion, including the grounds asserted in it, which, according to Union Carbide’s counsel, “. . . had to do with several comments made by Mr. Purcell [¶]. . . [¶] . . . in his closing . . . [¶] He made a reference to . . . he advocated to the jury that they should speak as the conscience of the community. [¶] Second, he made references that requested the jury to try to put themselves into plaintiff’s shoes, specifically saying, you know, something like, ‘Would you want to know,’ or something like that. ”

Bakkie’s counsel responded, “The mistrial motion should be denied. None of these statements are outside the bounds of advocacy or California law. [¶] And perhaps the most succinct way to deal with them is, none of these objections were voiced at the time of the argument. They were first raised in sidebar. I believe the law is clear that if you don’t object, you waive your ability to object.” The court tersely responded, “You waived that, Mr. Purcell, at sidebar.”

This led to further colloquy as to what in fact was “waived,” counsel for Bakkie stating that what in effect he waived was the timeliness of the mistrial motion, not the objection. The court responded, “Okay.” Following further argument, the matter was submitted. The court then made the following observations and ruling:

“My observations for the record, to restate what happened at sidebar, Mr. Vejnoska and Mr. Dubin and Mr. Purcell came to sidebar. Mr. Vejnoska and Mr. Dubin were both at the same time interrupting each other stating the grounds for the motion for mistrial. [¶] Mr. Purcell said that he would not object—he would waive any problems with the timeliness of the motion for mistrial. And it was very quick, so quick that I did not have time to take note of all the objections, and have sent an e-mail to my clerk to ask the defense to restate them for me so I could revisit the issue when the time came up. [¶] And this Court is not clear what was intended by Mr. Purcell when he made that statement. The Court is not clear that Mr. Purcell heard the objections that Mr. Dubin and Mr. Vejnoska were stating to the Court at the sidebar. Those are my observations. ¶ . . . ¶ The motion for mistrial on the grounds as argued by Mr. Vejnoska is denied at this time.”