Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 2002-049017
Reardon, Acting P.J.
In this wrongful death action, the trial court granted nonsuit to respondent Regents of the University of California (Regents) on a negligence cause of action. The jury found for the Regents and against appellants Debora Rosen and others on the remaining claims. Motions for new trial and for judgment notwithstanding the verdict were both denied. The Rosens appeal from the judgment, contending that (1) the trial court erred in granting nonsuit on negligence; (2) its jury instructions and special verdict form were erroneous; (3) its failure to take judicial notice and its limitations on the Rosens’ cross-examination of defense experts denied them a fair trial; and (4) the cumulative effect of these errors deprived them of a fair trial. We affirm the judgment.
The appellants are Debora Rosen—the surviving spouse—individually and as personal representative of the Estate of Sherwin Rosen; and his surviving children Sharon Leib, Dina L. Rosen, and Frederick Rosen. For convenience, we refer to them collectively as “the Rosens.” At oral argument, the Rosens’ counsel advised this court that, recently, Debora Rosen died. As her surviving children are also parties to this appeal and an executor or administrator can be substituted for her, this appeal continues despite her death. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 194, 648, pp. 248-249, 676-677.)
The Rosens filed a timely notice of appeal on February 14, 2006, from the November 18, 2005 judgment as well as the January 13, 2006 orders denying their motion for new trial and their motion for judgment notwithstanding the verdict. (See Code Civ. Proc., § 659, subd. 2; Cal. Rules of Court, former rules 2(a) [now rule 8.104(a)], 3(a) [now rule 8.108(a)].) To the extent that the later February 22, 2006 judgment supersedes the judgments cited in the notice of appeal, we deem the February 14, 2006 notice of appeal to state an appeal from that judgment, as well. (See Cal. Rules of Court, former rules 1(a)(2) [now rule 8.100(a)(2)], 2(e) [now rule 8.104(e)].) The order denying the motion for judgment notwithstanding the verdict is an appealable order. (See Code Civ. Proc., § 904.1, subd. (a)(4).) However, it does not appear that the Rosens seek judgment notwithstanding the verdict in their appeal. The order denying the motion for new trial is not independently appealable, but the Rosens may challenge the denial of this motion on appeal from the judgment. (Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1187, fn. 2, disapproved on other grounds in Trope v. Katz (1995) 11 Cal.4th 274, 292; see Code Civ. Proc., § 904.1, subd. (a)(4) [order granting new trial is appealable].)
In February 2006, the Rosens appealed from the judgment in favor of both the Regents and respondent Kerr Corporation. Since then, the Rosens settled their action against Kerr Corporation. In August 2006, the Rosens and Kerr Corporation requested and obtained a dismissal of the part of the appeal pertaining to Kerr Corporation. Accordingly, we deem the Regents to be the sole respondent in the appeal and include facts about Kerr only to the extent that they are relevant to the Regents’ aspect of this appeal.
I. FACTS
A. Asbestos Exposure
Sherwin “Sandy” Rosen (Dr. Rosen) was born in 1938. When he was five or six years old in 1943 and 1944, his father worked with asbestos as an upholsterer at a naval shipyard. The father wore his often dirty work clothes home at the end of the work day and sometimes hugged his son when he arrived at home. The child’s mother would wash these clothes, sometimes in her son’s presence. In this manner, Dr. Rosen experienced bystander exposure to asbestos as a child. Asbestos exposure by a young child can be more significant than that suffered later in life, because a child’s cells double much more rapidly, creating a heightened potential for DNA changes.
From 1958 through July 1962, Dr. Rosen was a dental student at the University of California, San Francisco, in premises maintained by respondent Regents. While at dental school, over the course of four years, he used asbestos dental tape supplied by the school bookstore for use in dental casting. During the first two years of dental school, students handled asbestos tape for about five minutes once every two or three weeks. During the last two years of school when students were working with patients, the asbestos tape was used more frequently. In this manner, Dr. Rosen was also exposed to asbestos.
In August 1960, Dr. Rosen married Debora Ann Semenov, now appellant Debora Rosen. He practiced dentistry from 1962 until 2001. In July 2001, Dr. Rosen was diagnosed with mesothelioma, an incurable lung disease caused by asbestos exposure that occurred many years earlier. He died three months later of complications from mesothelioma, survived by his wife Debora and his three adult children—Sharon Leib, Dina L. Rosen and Frederick Rosen.
Dr. Rosen developed tumors on the mesothelial cells lining the outer surface of the visceral pleura of his left lung. Mesothelioma affects the cells in the lining of the lung. It is not lung cancer, which affects the lung cells themselves. The more asbestos that the patient inhales and retains in the lungs, the more likely that he or she will develop mesothelioma.
B. Lawsuit
In April 2002, the Rosens filed a wrongful death complaint and survival action against the Regents and others, alleging causes of action against the Regents for negligence, products liability, and premises liability. They sought both general and punitive damages. A first amended complaint was filed in May 2002, adding causes of action against the Regents for making false representations and for loss of consortium. The Regents answered this complaint in July 2002. In July 2003, the Rosens filed a second amended complaint. By the time the case against the Regents went to trial in October 2005, the only causes of action remaining to be determined by the jury were negligence and products liability claims.
The Rosens also named various asbestos manufacturers as defendants. They settled with the Rosens before the case went to the jury. None of these manufacturers are parties to this appeal.
Later, the trial court struck the request for punitive damages.
C. Trial
1. Use of Dental Tape
At trial, the jury heard evidence about the use of dental tape in the casting process during Dr. Rosen’s dental school years. Dental tape released asbestos when it was cut with scissors or torn for use. Typically, each dental casting required the dental tape to be cut once. The tape was dry when cut, but was wetted for use. Occasionally, the asbestos tape liner was cut again when the cast was removed from its casting ring. This removal process caused the asbestos tape to fragment. When the casting process was completed, the asbestos tape was thrown away.
A class full of dental students usually worked in the classroom or the school laboratory at the same time, doing the same type of work. The casting was often done in a smaller plaster room that held four to six students at a time. Once released into the air, the asbestos debris could settle on surfaces and could be reintroduced into the air if disturbed. The students were responsible for cleaning up after themselves and a janitor cleaned up every evening. There was no evidence that the dental students in Dr. Rosen’s class were warned to wear a mask or gloves or to use soapy water when handling the dental tape.
2. Causation—Different Types of Asbestos
The jury heard evidence about two different types of asbestos. The materials used in the work that Dr. Rosen’s father did at the naval shipyard during World War II involved substantial amounts of amosite asbestos. By contrast, the dental tape was composed of approximately 55 percent chrysotile asbestos and another 25 percent of minerals associated with chrysotile, but no amosite asbestos.
A pathologist found that Dr. Rosen’s lung tissue showed more than 135,000 amosite fibers per gram. He told the jury that the level of amosite fibers found in Dr. Rosen’s lungs at the time that he died was associated with mesothelioma. There was no evidence of chrysotile asbestos in his lungs. However, as chrysotile asbestos clears from the lungs more quickly than other forms of asbestos, the presence of amosite fibers and the absence of chrysotile fibers does not establish that mesothelioma was caused by amosite asbestos but not by chrysotile asbestos. Instead, if a patient was exposed to both amosite and chrysotile, both forms of asbestos could contribute to the later development of mesothelioma. A defense pathologist and a medical doctor testifying on behalf of the Rosens opined that Dr. Rosen’s exposure to asbestos—from his use of dental tape during dental school and as a bystander to his father’s work with asbestos products—were each contributing causes of his mesothelioma.
The Regents also put on evidence that amosite asbestos was significantly more toxic and likely to produce disease than chrysotile asbestos. Amosite asbestos was 10 to 100 times more dangerous, a defense toxicologist opined. A defense expert who was a professor of occupational and environmental medicine opined that Dr. Rosen’s childhood exposure to amosite asbestos and not his dental school exposure to chrysotile asbestos was the cause of his mesothelioma. He drew this conclusion “to a medical certainty.”
3. Causation—Level of Exposure
The jury heard conflicting evidence from the parties about the level of asbestos exposure required to cause disease. The Rosens’ experts suggested that any level of asbestos exposure carries with it the risk of later developing mesothelioma. A pathologist and a medical doctor both opined that Dr. Rosen’s exposure to asbestos—from his use of dental tape during dental school and as a bystander to his father’s work with asbestos products—were contributing causes of his mesothelioma.
However, a defense toxicologist opined that there was a level of exposure to asbestos that was too low to be harmful. The toxicologist concluded that the level of asbestos to which Dr. Rosen was likely to have been exposed from his use of asbestos dental tape did not approach a harmful level. Another defense witness—an industrial hygienist—told the jury that Dr. Rosen’s exposure to asbestos from his school use of dental tape was most likely to have been at a level that would be undetectable—one that was certainly well below modern occupational health standards. Both the industrial hygienist and a defense toxicologist concluded that his level of exposure was too low to have warranted a warning about the risks of using asbestos dental tape. Even if the dental tape had been torn instead of cut, if multiple tears were made during a very short time frame, and if the tape was dried from age and thus more likely to disintegrate, the level of asbestos would not have risen to an unsafe level.
4. Foreseeability
The parties also offered testimony about the growing appreciation of the risks associated with asbestos over time, focusing on what was known of these risks at those times when Dr. Rosen was exposed to asbestos. This testimony took two forms—medical evidence and evidence of industrial hygiene standards.
By the fall of 1958, doctors understood that breathing asbestos dust caused asbestosis and lung cancer, but it was only suspected that asbestos caused mesothelioma. At that time, a link between exposure to asbestos and mesothelioma was just beginning to be discussed. In 1952, the first article mentioned a link between chrysotile asbestos and mesothelioma. In 1960, the link between asbestos exposure and mesothelioma was first clearly shown. Even after that date, this was not necessarily the consensus view among doctors. There were no articles published in the dental literature about health hazards from asbestos products until after 1962.
Medical practitioners did not differentiate between mesothelioma and lung cancer as they do now until the late 1950’s or perhaps even after 1960.
Industrial hygiene standards needed to eradicate asbestos from a contaminated workspace have been known since the 1930’s and are still used today. Unless these standards are used, an attempt to clean up a contaminated area may not eliminate the asbestos exposure. Instead, the asbestos fibers may be dislodged and reenter the air, where they may again raise the risk of a repeated asbestos exposure.
It was not until 1970 that federal regulations first incorporated these standards. In 1969, the federal government acknowledged that asbestos was a health hazard. By the mid-1970’s, the Navy began removing high-amosite asbestos products from its inventory. In 1976, Kerr Corporation stopped selling asbestos dental tape. It did not recall dental tape that had already been sold. From 1976 to 1978, relying on an article from the American Dental Association cautioning dentists about the proper use of this tape, the manufacturer did not include a warning with its asbestos dental tape.
Repeatedly, the Regents focused the jury’s attention on the appreciation of asbestos risks at the times of Dr. Rosen’s exposure to asbestos, challenging the admissibility of modern evidence of asbestos risks. The trial court agreed that this modern evidence was inadmissible. The Rosens put on evidence that, before 1962, industrial hygiene controls included using products that did not contain asbestos and warning users of asbestos products about the risks associated with that use. Warning people about the risks of asbestos would be critical to helping them realize the importance of accurately and carefully following cleanup procedures. However, an industrial hygienist testifying for the defense opined that, even today, occupational health concerns would not require an asbestos cleanup protocol in the circumstances that arose in dental school.
5. Nonsuit and Verdict
In October 2005, the Regents moved for nonsuit on all remaining causes of action, arguing that the Rosens had not established sufficient evidence of causation to permit the issues to be presented to the jury. They reasoned that the evidence did not show that Dr. Rosen was exposed to sufficient chrysotile asbestos to allow a jury to conclude that his mesothelioma could have been caused by his asbestos exposure from his use of dental tape. The Regents also moved for a nonsuit on the negligence cause of action. The trial court denied the motion for nonsuit on causation, but granted a nonsuit to the Regents on the negligence causes of action.
The products liability causes of action went to the jury. In a special verdict, the jury found that Dr. Rosen used dental tape supplied by the University of California while he was in dental school, but that there was no design defect in that tape. It also rejected the failure to warn claim, concluding that the dental tape did not pose known risks at the time of the Regents’ distribution of it. In November 2005, judgment entered for the Regents and against the Rosens, consistent with this strict liability verdict and its order granting nonsuit on negligence. In January 2006, the trial court denied the Rosens’ motions for new trial and for judgment notwithstanding the verdict. Orders denying these motions were filed in February 2006.
II. NONSUIT
A. Standard of Review
First, the Rosens contend that the trial court erred by granting the Regents’ motion for nonsuit on the negligence causes of action. They argue that the record provided substantial evidence supporting their claim that the Regents were negligent. The Rosens also assert that when the trial court ruled on the motion for nonsuit, it relied on erroneous legal standards. On appeal, they urge us to find that the trial court’s errors were prejudicial, requiring reversal for trial on the negligence causes of action.
In the trial court, the Regents were granted a nonsuit on the negligence causes of action. When granting the motion for nonsuit, the trial court reasoned that at the time that Dr. Rosen used the asbestos dental tape, a reasonable person would not have been put on notice of the risks associated with its use. As the Regents did not know that using the dental tape might be hazardous, they had no duty to warn. Without such a duty, as a matter of law, they could not be found to have been negligent for failing to issue a warning about the hazards of using asbestos dental tape. The order granting nonsuit was cited by the Rosens as grounds for a new trial, but the trial court denied this motion.
A motion for nonsuit allows a defendant to test the sufficiency of the plaintiffs’ evidence before presenting its own case to the jury. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson).) It constitutes a demurrer to the evidence and thus presents a question of law—whether the evidence offered by the plaintiffs could support a judgment for them. (See Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272.) A nonsuit may only be granted if no evidence supports a jury verdict in the plaintiffs’ favor. (Elmore v. American Motors Corp. (1969)70 Cal.2d 578, 583.) If there is any doubt, the trial court must let the case go to the jury. (Golceff v. Sugarman (1950) 36 Cal.2d 152, 153.) Thus, we sustain a grant of a nonsuit only if judgment for the defendant was required as a matter of law. (Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 520 (Markowitz); Freeman v. Lind (1986) 181 Cal.App.3d 791, 799.) When reviewing such a pure question of law, we conduct a de novo review. (See Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 445 (Santa Barbara Pistachio).)
On review of a nonsuit, we may not weigh evidence or assess credibility. (Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520; Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.) Instead, we give all the plaintiffs’ evidence the value to which it is legally entitled. We must accept the plaintiffs’ evidence and all evidence reasonably related to it as true, and must draw all inferences that may legitimately be drawn in the plaintiffs’ favor, disregarding any contradictory evidence. (Carson, supra, 36 Cal.3d at pp. 838-839; Markowitz, supra, 142 Cal.App.4th at p. 520; Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 444; Freeman v. Lind, supra, 181 Cal.App.3d at pp. 798-799.)
The Rosens assert that the trial court improperly weighed the evidence instead of accepting their evidence as true and disregarding any contrary evidence, as it was bound to do when determining a motion for nonsuit. As we determine the propriety of a grant of nonsuit anew on appeal, the trial court’s method analysis is a moot question. (See Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.)
However, the rules governing a nonsuit do not relieve the plaintiffs of the burden of establishing the elements of their case. The plaintiffs must produce evidence supporting a logical inference in their favor, based on more than speculation or conjecture. If the plaintiffs produce no substantial evidence of liability or proximate cause, then nonsuit is proper. (Markowitz, supra, 142 Cal.App.4th at p. 520; Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1209; see Carson, supra, 36 Cal.3d at p. 839.) Reversal of a grant of nonsuit is warranted only if there is some substance to the plaintiffs’ evidence about which reasonable minds could differ. (Carson, supra, 36 Cal.3d at p. 839.)
B. Duty and Foreseeability
In order to establish a cause of action for negligence, the Rosens must first show that the Regents owed Dr. Rosen a duty. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, cert. den. (2000) 530 U.S. 1243, disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 fn. 19; Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414.) The issue of the existence of a duty and the issue of foreseeability—when analyzed to determine the existence or scope of a duty—present questions of law for the court to determine. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 (Delgado); Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at p. 1188.) If there was no duty—if the injury to Dr. Rosen was not foreseeable—then the Regents are entitled to judgment. (See, e.g., Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at pp. 1188-1199.)
The California Supreme Court has identified a number of factors to consider when assessing whether a legal duty exists: the foreseeability of the harm to the injured party; the degree of certainty of harm to that party; the closeness of the connection between the defendant’s conduct and the injury suffered; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of the burden to the defendant; the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and the availability, cost and prevalence of insurance for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113; see Delgado, supra, 36 Cal.4th at p. 237 fn. 15.) Clearly, the most important of these factors in establishing duty is foreseeability. (Delgado, supra, 36 Cal.4th at p. 237 & fn. 15; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.) To preclude otherwise limited liability for negligence acts, a defendant is liable only for injuries to others which were reasonably foreseeable to the defendant at the time of injury. (Dillon v. Legg (1968) 68 Cal.2d 728, 739.)
The trial court concluded that the Rosens did not produce substantial evidence that the Regents knew or a reasonable person should have known in 1958-1962 that Dr. Rosen’s use of dental tape exposed him to asbestos such that he might develop mesothelioma. Without any evidence of the foreseeability of the harm posed to the decedent from use of the dental tape, the trial court concluded that the Regents had no duty to warn him about those risks. Based on these findings, the trial court concluded as a matter of law that the Regents could not have been negligent because of their failure to warn him of dangers about which they had no notice and of which they could not reasonably have foreseen.
Having conducted a de novo review of the propriety of the grant of nonsuit, we find that the trial court’s reasoning mirrors our own. (See Santa Barbara Pistachio, supra, 88 Cal.App.4th at p. 445.) In this matter, the Rosens brought action against the Regents for distributing asbestos dental tape to their decedent Dr. Rosen while failing to warn him of the risks associated with its use. A negligent failure to warn case requires the plaintiff to prove that the distributor did not warn of a particular risk for reasons that fell below the acceptable standard of care. In such a case, liability turns on what a reasonably prudent distributor would have known and warned about. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003 (Anderson); Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1484 (Valentine).) In a negligence case, the reasonableness of the defendant’s failure to warn is a material issue. (Valentine, supra, 68 Cal.App.4th at p. 1484.) If the defendant did not know of the risk or could not reasonably have known it, then the danger was not foreseeable. Without foreseeability, there can be no duty to warn and thus, no negligence.
As the Rosens put on no evidence that any particular person associated with the University of California had actual knowledge of the risks posed by the use of the tape during the relevant time period, the only issue is whether the Regents should have known of these risks. (See Anderson, supra, 53 Cal.3d at pp. 1002-1003; Valentine, supra, 68 Cal.App.4th at p. 1484.) The Rosens’ claims to the contrary notwithstanding, the evidence presented at trial demonstrated that the risks of using asbestos dental tape were not yet known at the time that Dr. Rosen was at the Regents’ dental school. Their expert testified that some health risks—primarily asbestosis and lung cancer—associated with the use of asbestos had been identified in the scientific and medical literature by the time Dr. Rosen entered dental school and his exposure to asbestos dental tape began. However, their own expert admitted that by 1958, people were only beginning to suspect that asbestos might cause mesothelioma. As he put it, “that topic was just beginning to be discussed.”
The first clear statement about mesothelioma did not appear in the medical literature until 1960 and, as the Rosens’ expert conceded, the first time such a statement is made, it is typically not yet the consensus view. According to the Rosens’ expert, it was not until 1959 or the early 1960’s that the medical community appears to have agreed that there was a link between asbestos and lung cancer—a different disease from mesothelioma about which more was known at an earlier time. (See, e.g., Delgado, supra, 36 Cal.4th at pp. 244-245 [when determining foreseeability, we look to prior similar injuries and indications of reasonably foreseeable risk of injury].) When the issue of foreseeability is narrowed to the risks of asbestos known in the dental community at that time, their expert admitted that he had been unable to locate any articles in the dental literature before 1962 about any dangers associated with any asbestos products.
Simply put, the Rosens put on no scientific or medical evidence—from the medical community, the dental community or other dental schools—that could support an inference that the Regents should have been aware during the relevant time period that using asbestos dental tape exposed its dental students to any risk of mesothelioma. The standard for determining a motion for nonsuit on negligence does not relieve them of the burden of establishing that the Regents owed Dr. Rosen a duty. They were required to produce evidence supporting a logical inference in their favor, based on more than speculation or conjecture. As they offered no evidence of foreseeability about which reasonable minds could differ and that could support a finding of duty, the Regents were entitled to a nonsuit. (See Markowitz, supra, 142 Cal.App.4th at p. 520; Alvarez v. Jacmar Pacific Pizza Corp., supra, 100 Cal.App.4th at p. 1209; see Carson, supra, 36 Cal.3d at p. 839.)
The Rosens urge us to find that the Regents had a heightened duty to Dr. Rosen because of a special relationship with him. Because of this special relationship, they reason that the jury could have found that the Regents were negligent for failing to warn Dr. Rosen about the dangers inherent in using the dental tape, even if the product was not defective. We need not determine whether any of these special relationships existed in this case. Even if we assumed arguendo the existence of a special relationship between Dr. Rosen and the Regents, that relationship would only trigger a duty to prevent injury if that injury was foreseeable. (Delgado, supra, 36 Cal.4th at p. 244; Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 152.) As such, we would still have to determine the issue of the existence and scope of the duty owed—issues that turn on the foreseeability of the risk or harm, the question of primary importance in establishing a duty of care. (Dillon v. Legg, supra, 68 Cal.2d at p. 739.) As we have already concluded, there was no foreseeability and thus, no duty. Even if a special relationship existed, the Rosens could not establish a negligence cause of action.
C. Prejudice
Even if we assume arguendo that the trial court should have allowed the jury to decide the negligence causes of action, we would find any error in granting the Regents’ motion for nonsuit to be harmless error. The jury—considering the failure to warn claim on a strict liability theory—found that the dental tape did not have potential risks that were known or that should have been known by the Regents at the time of distribution.
The plaintiffs’ burden of proof of a negligence cause of action is more onerous than that for a strict liability cause of action. In fact, the strict liability doctrine evolved to relieve tort plaintiffs of the problems of proof inherent in negligence cases. (Anderson, supra, 53 Cal.3d at p. 1000; Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431; Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133.) As the jury necessarily rejected the Rosens’ claim that the risks of asbestos dental tape were known or should have been known to the Regents during the years that Dr. Rosen was in dental school in a strict liability context, a fortiori, it is not reasonably probable that the jury would have concluded that these risks were foreseeable during that time period. As there is no reasonable chance that the jury would have found for the Rosens on negligence, any error in granting nonsuit on the negligence causes of action could not constitute a miscarriage of justice and thus, would not be reversible error. (See People v. Watson (1956) 46 Cal.2d 818, 836, cert. den. sub nom. Watson v. Teets (1957) 355 U.S. 846; see also Cal. Const., art. VI, § 13; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) Thus, we would find that the trial court did not commit any prejudicial error when it granted nonsuit to the Regents on the Rosens’ negligence causes of action.
In light of this conclusion, we need not consider the Regents’ alternative argument—that the trial court should have granted its motion for nonsuit based on a lack of causation.
III. JURY INSTRUCTIONS AND SPECIAL VERDICT FORM
A. Jury Instruction
In their part of the appeal from the judgment against them on their strict liability causes of action, the Rosens contend that the trial court misstated the applicable law in its jury instructions and special verdict form. First, they argue that the trial court misinstructed the jury by adding language to the standard jury instruction on asbestos causation as set out in BAJI No. 3.78. As the Rosens had requested, the trial court instructed the jury that “an exposure to a Defendant’s product was a substantial factor in producing decedent’s mesothelioma if Plaintiff establishes by a preponderance of the evidence that in reasonable medical probability, this exposure was a substantial factor contributing to the decedent’s risk of developing mesothelioma.”
The trial court also gave this instruction at the opening of trial.
Then, the trial court added this language on asbestos causation, over the Rosens’ objection: “In an asbestos-related cancer, the Plaintiff need not prove that fibers from Defendant’s product were the ones or among the ones that actually began the process of malignant cellular growth. Instead, the Plaintiffs may meet the burden of proving that exposure to the product was a substantial factor causing the illness by showing that in reasonable medical probability it contributed to the decedent’s risk of developing cancer. [¶] In this regard, many factors are relevant in assessing the medical probability that an exposure contributed to Plaintiff’s asbestos disease. Frequency of exposure, regularity of exposure, and proximity of the asbestos product to the decedent are certainly relevant, although these considerations should not be determinative in every case. [¶] Additional factors may also be significant in individual cases such as the type of asbestos product to which the decedent was exposed, the type of injuries suffered by him and other possible sources of the injury.”
After the jury rendered its verdict for the Regents, the Rosens moved for a new trial, arguing inter alia that they were prejudiced by this additional instruction on asbestos causation. The trial court—noting that the added language was taken from key asbestos causation cases—denied their motion for new trial. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982; Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th at pp. 1416-1417.) On appeal, the Rosens contend that the trial court committed instructional error by the language that it added to the standard jury instruction on asbestos causation, reasoning that this additional language made it impossible for the jury to properly evaluate their claims.
On request, a party is entitled to correct nonargumentative jury instructions on every theory of the case advanced by that party which is also supported by substantial evidence. The trial court may not force the litigants to rely on abstract generalities, but must instruct on the specific terms relating to their theory of the particular case. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) The trial court is not required to use any particular instructional wording. If it correctly instructs on the issues, it may modify instructions or give ones of its own in lieu of those that were requested. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 939.) When determining whether an instruction was erroneous, we view the evidence in favor of the appellants, assuming that the jury might have believed their evidence and, if properly instructed, might have decided the pertinent issues in their favor. (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1087.)
We reject the Rosens’ challenges to specific phrases in the language that the trial court added. They claim that use of the phrase “other possible sources of injury” was irrelevant in this case, because there was no evidence that Dr. Rosen smoked. This claim of error suggests that smoking was the only other possible source of injury, but that is not the case. In this matter, the issue of whether Dr. Rosen’s mesothelioma was caused by his childhood exposure to asbestos rather than by the asbestos contained in the Regents’ dental tape was hotly contested at trial. (See pt. I.C.2., ante.) The phrase “other possible sources of injury” could reasonably be construed as referring to that childhood exposure to asbestos. (See Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 975 [citing both smoking and other asbestos products as other potential causes of asbestos-related disease].)
We also find no merit in the Rosens’ challenge to the language advising the jury that exposure must be a “substantial factor in causing the illness.” They assert that this language placed undue influence on the term “substantial” against the admonitions of the California Supreme Court. (See Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 969.) They contend that the instruction should have required the asbestos exposure to be a “substantial factor contributing to the risk” instead, as they reason that this language would have taken into account the cumulative nature of asbestos-related diseases. (See id. at p. 979.) The challenged language was taken from an appellate decision which has been endorsed by our Supreme Court. (See id. at pp. 976-977 fn. 11; Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th at pp. 1416-1417.) Thus, it reflects a correct statement of the law.
Having rejected these specific challenges, we find that the trial court acted within its authority when it gave the entire jury instruction that it did. The added language of the jury instruction correctly reflected legal principles on which the California Supreme Court has concluded that the jury should be instructed. (See Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pp. 975, 976-977 fn. 11, 982-983; see also Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th at pp. 1416-1417 [cited with approval in Rutherford, supra, at pp. 975, 976-977 fn. 11].) A fair reading of the language added by the trial court cannot reasonably be interpreted as skewing the case in the Regents’ favor. In fact, some of the added language favored the Rosens by advising the jury that they were not required to show that fibers from the Regents’ dental tape actually began the process of Dr. Rosen’s mesothelioma. The challenged language properly instructed the jury on “specific terms that relate the party’s theory to the particular case.” (See, e.g., Soule v. General Motors Corp., supra, 8 Cal.4th at p. 572.) As the instruction given correctly stated the law, the trial court properly gave it.
B. Special Verdict Form
1. Legal Standard
The Rosens also challenge the special verdict form, contending that it set out the standard to be applied for negligent failure to warn, not strict liability failure to warn. They assert that the legal standard for strict liability was whether the risks of using asbestos dental tape were known or knowable, but that the special verdict form asked—consistent with the negligence standard—if those risks were known or should have been known.
Failure to warn theories of liability require some evidence of actual or constructive knowledge of risk. (See Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1110-1111; Anderson, supra, 53 Cal.3d at pp. 990, 1000; Brown v. Superior Court (1988) 44 Cal.3d 1049, 1065-1066.) In a strict liability case in which the reasonableness of the defendant’s failure to warn is irrelevant, the standard is whether the risk was actually known or reasonably scientifically knowable. (Carlin v. Superior Court, supra, 13 Cal.4th at pp. 1108, 1110-1113, 1116-1117; Anderson, supra, 53 Cal.3d at pp. 1002-1003; Valentine, supra, 68 Cal.App.4th at p. 1484; see Brown v. Superior Court, supra, 44 Cal.3d at pp. 1059-1061, 1065.) In a negligence case in which the reasonableness of the defendant’s failure to warn is a material issue, the standard is whether the defendant knew or should have known of the risk. (Anderson, supra, 53 Cal.3d at pp. 1002-1003; Valentine, supra, 68 Cal.App.4th at p. 1484.) In the case before us, the trial court properly instructed the jury on the standard to be applied in a strict liability failure to warn case, but the special verdict form cited the language that would apply to a negligent failure to warn cause of action.
2. Lack of Specific Objection
Preliminarily, we question whether the Rosens raised this issue in the trial court such that they may pursue it on appeal. In the absence of a timely objection raised before the special verdict form is submitted to the jury, we presume that a party agreed to the form of the questions presented. A party may not complain of defects in a special verdict form for the first time on appeal, but has waived them by failing to raise them in the trial court. (See, e.g., Cembrook v. Sterling Drug Inc. (1964) 231 Cal.App.2d 52, 62-63; Napa Val. Pkg. Co. v. S.F. etc. Funds (1911) 16 Cal.App. 461, 469-470.)
In the trial court, the Rosens objected to the special verdict form on grounds other than the challenge they raise on appeal. Although they preferred their own proposed special verdict form to that actually used by the jury, nothing in this proposed form or their oral objections to the form eventually used by the jury would have alerted the trial court that the form to be used applied the known or should have known negligence standard rather than the known or knowable strict liability test. They also raised a similar general challenge to the special verdict form when they moved for a new trial, without success. Again, the motion for new trial did not challenge the specific language now cited as the basis of a claim of error. Thus, it does not appear that the Rosens have preserved this issue for appeal.
Part of the discussion of the special verdict form appears to have taken place off the record, at the suggestion of the Rosens’ counsel. To the extent that the language cited in this appeal was part of that discussion, the Rosens—at trial and on appeal—have not provided us with a record sufficient to allow us to determine that this issue was preserved for appeal. As the appellants, the Rosens had the obligation to affirmatively demonstrate that error occurred in the trial court. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Shepherd v. Greene (1986) 185 Cal.App.3d 989, 994.)
3. Not Misleading
Even if we found that the Rosens could overcome this procedural hurdle, they cannot prevail on the merits of their claim. In order to do so, they must establish that the special verdict form used probably misled the jury and that it was reasonably likely that they were prejudiced by it. (See, e.g., Byrum v. Brand, supra, 219 Cal.App.3d at pp. 938-939.) A verdict may be construed with reference to the instructions pursuant to which it was rendered. (Fennessey v. Pacific Gas & Elec. Co. (1938) 10 Cal.2d 538, 541; see Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456.) The trial court correctly instructed the jury on the strict liability failure to warn claim that the Rosens had to prove that the asbestos dental tape had potential risks that were “known or knowable” by the use of scientific knowledge available at the time that it was distributed. (See BAJI No. 9.00.7.) The jury was not given an instruction for a negligent failure to warn claim using the “known or should have known” standard, because the Regents obtained a nonsuit on all negligence claims before the jury began to deliberate on the strict liability claims. (See BAJI No. 9.20.) Thus, it is not reasonably probable that the jury was confused when it filled out the special verdict form because of differing tests applying to negligence and strict liability claims about which it was instructed.
The jury was also told to consult the trial court’s instructions for definitions of the terms that were used in the special verdict form. It was instructed that if it saw any ambiguities or had any questions about the special verdict form, it should ask the trial court. The record shows that the jury did not ask the trial court any questions about the use of this form. The trial court properly instructed the jury on the “known or knowable” legal standard. Considering the special verdict form and the jury instructions together in the context of the jury’s deliberations on strict liability claims, we find that the distinction between the correct standard set out in the jury instructions and the different wording used in the special verdict form could not have misled the jury. As the Rosens have not established that the language used in the special verdict form probably misled the jury or that it was reasonably likely that they were prejudiced by that language, they cannot prevail on the merits of this claim of error. (See Byrum v. Brand, supra, 219 Cal.App.3d at pp. 938-939.)
IV. EVIDENCE
A. Judicial Notice
1. Foreseeability
The Rosens also contend that the trial court improperly limited the evidence that went to the jury in several ways, thus denying them a fair trial. First, they criticize the trial court for failing to take judicial notice of two statutes setting out congressional and legislative findings on asbestos exposure. (See 20 U.S.C. § 3601; Health & Saf. Code, § 25926, subd. (a).) In the trial court, they requested that the court take judicial notice of these statutes. The trial court denied this request, first viewing the evidence as irrelevant. After appearing to concede that the evidence had some relevance, the court excluded the evidence as more prejudicial than probative. The Rosens cited this trial court refusal to take mandatory judicial notice as error in their motion for new trial, without success.
A trial court must take judicial notice of the public statutory law of California and the United States. (Evid. Code, § 451, subd. (a).) However, only relevant evidence may be judicially noticed, despite the mandatory language of the judicial notice provisions. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, cert. den. sub nom. R. J. Reynolds Tobacco Co. v. Mangini (1994) 513 U.S. 1016, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276; see §§ 210, 350.) On appeal, a trial court’s ruling on the admissibility of evidence is typically reviewed for an abuse of discretion. We test whether or not the proffered evidence was relevant. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900; see People v. Alvarez (1996) 14 Cal.4th 155, 201, cert. den. sub nom. Alvarez v. California (1997) 522 U.S. 829.) Thus, our first inquiry is to determine whether the proffered evidence was relevant.
All subsequent statutory references are to the Evidence Code unless otherwise indicated.
The evidence was not relevant on the issue of foreseeability of the risk. The federal statute proffered into evidence by the Rosens was enacted by Congress in 1980. (See 20 U.S.C. § 3601 [Pub. L. No. 96-270 (June 14, 1980) 94 Stat. 487].) The state provision that they sought to admit into evidence before the jury was added by our Legislature in 1986. (See Health & Saf. Code, § 25926, subd. (a) [Stats. 1986, ch. 116, §§ 1, 3, pp. 262-264 (eff. May 28, 1986)].) Neither of these statutes was in effect during the 1958-1962 time period when Dr. Rosen was in dental school and was using the dental tape supplied by the Regents. Thus, neither of them was relevant on the issue of what risks were reasonably scientifically knowable at the earlier time when the Regents supplied Dr. Rosen with asbestos dental tape. (See Carlin v. Superior Court, supra, 13 Cal.4th at pp. 1116-1117.)
2. Causation
The Rosens argue that this proffered evidence was relevant on the issue of causation—on whether there is such a thing as a safe minimum level of airborne asbestos. This issue was in dispute in the trial court. Evidence is relevant if it has a tendency to prove any fact in dispute that is of consequence in the action. (§ 210.) Although the state statute says nothing on this issue, the federal statute on asbestos in schools recites that medical science has not yet established a minimum level of exposure to asbestos fibers that was considered safe. Thus, the federal statute appears to be relevant to the issue of causation. (See, e.g., City of Ripon v. Sweetin, supra, 100 Cal.App.4th at p. 900.)
This conclusion does not end our inquiry on appeal. The trial court found the proffered evidence was more prejudicial than probative. (See § 352.) The Rosens also challenge this aspect of the trial court’s ruling. We consider whether the trial court properly excluded the federal statute as more prejudicial than probative, having already determined that the state provision was not relevant.
A trial court may properly exclude relevant evidence of which state law requires it to take judicial notice if that evidence is more prejudicial than probative. (Mangini v. R. J. Reynolds Tobacco Co., supra, 7 Cal.4that p. 1063; see § 352.) It has discretion to determine whether proffered evidence is more prejudicial than probative. On appeal, we test this ruling for an abuse of discretion. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1685, cert. den. sub nom. Boeken v. Philip Morris USA Inc. (2006) 547 U.S. 1018 [prior conviction]; Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147 [gruesome photographs].) We will not overturn this exercise of discretion unless the trial court acted in an arbitrary, capricious or patently absurd manner resulting in a miscarriage of justice. (Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at p. 1685.)
The Rosens assert that this evidence—as the only disinterested evidence of whether there was a safe minimum level of airborne asbestos exposure—had great probative value and dispute that the probative value of the evidence was outweighed by its potential for prejudice. The trial court expressed the concern that the recitation in the statutes enacted many years after Dr. Rosen was exposed to asbestos in dental school would be used as a substitute for expert testimony on the subject of causation. It appears that the trial court feared that the jury would not weigh and consider the expert testimony that both sides offered on the underlying issue, but would find this proffered evidence to be conclusive on it.
Evidence may be excluded as more prejudicial than probative if the evidence would create a substantial danger of misleading the jury. (§ 352.) The trial court will not be found to have abused its discretion unless—when all circumstances before it have been considered—it exceeded the bounds of reason. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) Applying this standard, we agree that the federal statute could have misled the jury into believing that the underlying causation issue was not really a matter in dispute because of the force of that law. Thus, we find that the trial court acted within its discretion when it excluded the federal statute as more prejudicial than probative.
In light of this ruling, we need not determine the effect of the jury’s failure to reach the issue of causation, as it found no design defect and no duty to warn in the case against the Regents.
B. Cross-examination
Next, the Rosens contend that the trial court twice denied them their right to cross-examination. First, they argue that the trial court erred when it refused to permit cross-examination of defense experts about these statutes. As we find that the trial court did not abuse its discretion in excluding evidence of the underlying statutes, we necessarily conclude that it also acted within its authority by precluding cross-examination about that excluded evidence. (See §§ 210, 350, 352, 761, 773, subd. (a).)
The Rosens also contend that the trial court deprived them of their right to impeach defense experts by cross-examining them about scientific and technical publications that the Rosens assert are authoritative. An expert witness may be cross-examined about the subject to which his or her testimony relates. (§ 721, subd. (a)(2).) However, the witness may not be cross-examined about any scientific or technical publication unless that publication has been established as a reliable authority by the testimony or admission of that witness or by other expert testimony or judicial notice. (§ 721, subd. (b)(3).)
At trial, the Rosens sought to cross-examine defense experts using specific literature which one of their own experts had found reliable but on which the defense experts had not relied. The trial court denied this request, concluding that the Rosens did not establish that the authorities about whom they sought to question the defense experts were reliable. It expressed skepticism about whether an expert could establish his or her own writings as authoritative. (See § 721, subd. (b)(3).) The Rosens cited this refusal as an error warranting a new trial, but the trial court denied their motion for new trial.
On appeal, the Rosens argue that they were entitled to cross-examine two experts about such publications. First, they assert that they should have been permitted to question Dr. Francis Weir about Dr. Samuel Hammar’s text on asbestos, another text on the pathology of tumors, and a James LaDeau text on occupational and environmental medicine.
When the Rosens asserted their right to cross-examine experts on a publication that had been found to be authoritative and reliable, they did so in a general manner. The trial court—at first, having no specific information about what publication would be offered into evidence—ruled in the abstract that the issue of whether a specific publication was authoritative and reliable was one for it to make in the first instance, outside the presence of the jury. Then, the Regents asserted four specific exhibits as having been established as reliable and authoritative by industrial hygienist Kenneth Cohen or by Dr. Hammar. The trial court responded that these witnesses could not by themselves establish the publications as reliable authorities within the meaning of section 721—that this was a ruling for the trial court to make, based on the evidence offered by those witnesses. The Rosens disagreed with this interpretation of section 721, reasoning that their witnesses had already met this requirement by their testimony. The trial court also reasoned that the publications had to be generally accepted as authoritative treatises, not merely endorsed by any expert.
Although the Rosens cite us to that part of the record at which their counsel argued that their witness testified that all four of these publications were reliable authorities, this is not evidence to prove their claim of error on appeal—only the underlying testimony can suffice for this purpose. (See Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378-1379.) They cite us to the underlying evidence of Cohen’s testimony about two of those four publications. However, when we examine Cohen’s testimony, we find that it does not actually support the assertion that he testified that the cited publications were reliable authorities.
As we read the record on appeal, the trial court did not preclude the Rosens from questioning defense experts about these publications, but required them to first prove at a foundational hearing that these publications had been established as reliable authorities before using them for impeachment purposes. The Rosens could have offered specific evidence on this subject at a foundational hearing, but they did not do so. We find that the trial court acted within its authority by requiring such a foundational hearing as a prerequisite to admitting the evidence for impeachment use. (See §§ 402, subd. (b) [in camera hearing permitted], 721, subd. (b)(3).)
The Rosens also contend that the trial court erred by requiring them to show that the proffered publications were generally accepted as reliable authorities. Again, we disagree. When the admissibility of proffered evidence turns a disputed preliminary fact—in this matter, whether a publication has been established as a reliable authority such that it is admissible to impeach an expert witness—the trial court must determine the existence or nonexistence of that preliminary fact. (See §§ 400, 401, 402, subds. (a), (b).) While the Rosens’ evidence that each authority was reliable was relevant to the determination of the admissibility of evidence of each publication, that evidence alone was not determinative of it.
Finally, the Rosens contend that the trial court erred by not permitting them to impeach Dr. Weir by reference to a Department of Health and Human Services’ Eleventh Report on Human Carcinogens, published in 2004. They assert that their industrial hygienist, Kenneth Cohen, established that this publication was a reliable authority in his own testimony. However, while Cohen was asked whether this report was reliable and authoritative, he never actually responded to the question. (See fn. 15, ante.) As the Rosens did not offer evidence that the publication was a reliable authority, the trial court did not err in precluding them from cross-examining any defense witness about it. (See § 721, subd. (b)(3).)
Dr. Weir told the jury that the report, published by the National Toxicology Program of the National Institutes of Health, listed information without regard to the worthiness of it.
V. CUMMULATIVE ERRORS
The Rosens assert that if these individual errors do not warrant a new trial, the cumulative effect of them does require reversal of the judgment and remand for a new trial. Even if a trial court’s actions, taken separately, would not justify reversal of a judgment, reversal is appropriate when, considering the entire record, it cannot reasonably be said that their cumulative effect did not prejudice the appellants’ case. (See Delzell v. Day (1950) 36 Cal.2d 349, 351.) Any errors committed in this case, even if considered together, do not rise to the level of prejudice. Thus, the judgment for the Regents was proper.
The judgment is affirmed.
We concur: Sepulveda, J. Rivera, J.
As we find insufficient evidence to support the claims that the Rosens make with regard to the publications about which Cohen testified, we are particularly concerned that they offer no citation to the testimony of Dr. Hammar which we could evaluate to determine their claims with regard to the other two publications. The appellants have a duty to support their arguments by appropriate references to the record, including exact page citations. We have no duty to search the record for evidence of error. Instead, we may disregard any factual assertion that is unsupported by a citation to the record. (Grant-Burton v. Covenant Care, Inc., supra, 99 Cal.App.4th at p. 1379; see Denham v. Superior Court, supra, 2 Cal.3d at p. 564 [appellants’ affirmative duty to show error].)