Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Victor E. Chavez, Judge, Los Angeles County Super. Ct. No. BC340413
Kirkpatrick & Lockhart Preston Gates Ellis LLP, Raymond E. Gill and Robert E. Feyder for Defendant and Appellant.
Baron & Budd, P.C., John L. Langdoc, Renee M. Melancon; Kiesel, Boucher & Larson, LLP and Paul R. Kiesel for Plaintiffs and Respondents.
KRIEGLER, J.
Defendant and appellant Crane Company appeals from a judgment following a jury trial in favor of plaintiffs and respondents Peggy Irene Norris, individually and as successor in interest to the estate of her husband Joseph Henson Norris, and their daughters Karen Lee Norris Francis, Kathy Lynn Norris Riggs, and Patricia Robin Norris Matthews in this asbestos-related personal injury action. Crane contends: 1) there is no substantial evidence that Joseph was exposed to asbestos from Crane products, or that Crane products were a substantial factor in causing his illness; 2) the trial court should not have instructed the jury on the “consumer expectations” test to determine whether Crane valves were defective; 3) Crane owed no duty to Joseph, because Crane could not have appreciated a risk to bystanders from its use of asbestos; 4) Crane was prejudiced by the trial court’s denial of a continuance after Joseph’s death; 5) Crane was prejudiced by an amendment of the verdict form during deliberations; and 6) the judgment should account for post-verdict compensation that plaintiffs recover from other sources. We conclude that substantial evidence supports the jury’s findings, the consumer expectations test was appropriate in this case, Crane had a duty to Joseph, and the trial court did not abuse its discretion as to the procedural matters. Therefore, we affirm.
Because plaintiffs and the decedent share the same last name, they will be referred to individually by their first names.
FACTS AND PROCEDURAL BACKGROUND
“[I]n summarizing the facts on appeal we ‘must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment.’ [Citation.]” (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 642, fn. 3.)
General Knowledge of Asbestos Hazards
By 1930, it was well established in the medical and scientific communities that breathing asbestos fibers caused asbestosis, a scarring in the lung that results in a progressive, fatal lung disease. Experts recommended substituting other materials for asbestos. If no other material could be substituted, they recommended implementing measures to prevent workers from coming into contact with dust containing asbestos fibers such as: ventilation systems; wetting down the workplace to suppress dust; vacuuming dust instead of dry sweeping; educating workers to take measures to prevent breathing the dust; enclosing areas in which asbestos was being handled to minimize the number of people working directly with asbestos; automating where possible, posting warning signs to alert to the hazards; using personal protective equipment such as respirators; changing clothes; and showering. These are the same types of precautions in use for working with asbestos today.
Asbestos is a mineral that is mined and milled for commercial use. There are two forms of asbestos fibers: serpentine and amphibole. Chrysotile, a white, serpentine fiber, comprises 95 percent of all asbestos ever used throughout the world. The straighter amphibole fibers are not easily woven and used mainly for insulation. Four types of amphiboles are found in commercial products: a brown fiber called amosite; a blue fiber called crocidolite; anthrophyllite; and tremolite, which is a contaminate in some chrysolite.
The United States Navy was aware of the dangers of asbestos. In 1946, the Navy had strict regulations to prevent asbestos dust from escaping. A study conducted by the Navy showed that when operations were performed using the asbestos controls, there was no danger to workers.
By 1955, exposure to asbestos had also been shown to cause lung cancer. Lung cancer is a cancer that forms inside the lung, while mesothelioma is a cancer that forms in the mesothelial tissue surrounding the lung, the heart, and the abdominal organs. By 1964, mesothelioma was associated with exposure to asbestos.
Although all asbestos fiber types can cause mesothelioma, their toxicities vary. Chrysotile produces less mesothelioma than other types of asbestos.
Asbestos Products on the U.S.S. Bremerton
The U.S.S. Bremerton was a heavy cruiser ship commissioned in 1945. The Navy purchased several types of valves for the ship from Crane. Some of the Crane valves had asbestos gaskets, packing, or discs manufactured by other companies enclosed within the metal structures. For example, some valves had a metal piece called a “bonnet” bolted on to the body of the valve. Gaskets seal the coupling of two metal pieces. The metal pieces are bolted together, putting pressure on the gasket which compresses and prevents leakage. Between the bonnet and the main body of the valve was a bonnet gasket to keep liquid from leaking out. Crane was aware that certain parts of their valves would have to be replaced as a normal consequence of operation, including packing, gaskets, and valve stems.
There was no evidence that the Navy purchased gaskets or packing from Crane independent of the materials supplied within the valves. Crane sold gaskets, packing, and discs manufactured by other companies as replacement parts that customers could order for maintenance and repair work. However, the Navy purchased gaskets and packing material directly from the manufacturer, rather than from a middleman supplier. Crane was also the exclusive supplier of a sheet packing material called Cranite manufactured for Crane by another company. Cranite sheet packing was sold in sheet and precut gasket form, stamped with the brand name Cranite, and comprised of 75 to 85 percent chrysotile asbestos. The Navy would have purchased Cranite directly from Crane. However, there is no evidence that Cranite was used in this case.
Valves that are not welded or screwed in place generally have two “flanges” that connect into the piping system. A gasket is placed between the flange and the pipe to prevent leaks. Flange gaskets are sold separately.
The testimony of Navy personnel who worked on valves on the U.S.S. Bremerton established that the following maintenance and repair activities occurred during the time Joseph served on the ship. There were pipes from bow to stern on every level of the ship that carried hot oil, hot air, or steam and were covered with asbestos insulation. The insulation used on the ship came in sheets, rolls, and blocks. Navy employees who worked with the insulation stated that they used block insulation manufactured by various companies, including Kaylo, John-Mansfield, and John Crane, Inc. (JCI). Block insulation was ground into a powder and mixed with water in a bucket to form a “mud.” Cutting block insulation released a lot of dust into the air on the ship. The mud was shaped around equipment and wrapped with a covering. Particles from the block insulation stayed on the workers’ clothing.
To install new pipe insulation, the old pipe covers were cut off with saws, which created dust. Replacing a pipe also produced dust, because employees removed the insulation first by cutting the outer part with a knife and peeling the rest of the insulation off by hand. To take out a valve, employees often removed a manufactured insulating pad made to fit the valves.
When a pipe or a valve was removed, material from the flange gasket often stuck to the mating surfaces of the pipe and the flange. Both Flexitallic brand gaskets and Garlock gaskets stuck to the piping and the flanges. The old material had to be cleaned off before new materials could be installed, in order that the new gasket would hold. Employees scraped the old flange gasket material off with a putty knife, gasket scraper, or a wire brush. Scraping off old gasket material created dust that was released into the air on the ship.
Depending on the type of valve being serviced, the employee would select a new premade gasket or make a gasket from sheet gasket material. Flexitallic premade gaskets were used often. To make a gasket from sheet gasket material, the employee took the valve to the pipe shop and selected compressed gasket material. Sheet gasket material was either orange or brown, depending on the stock. The brands of sheet gasket material used on the ship included Garlock, Conseco, and JCI. Employees used a hammer to pound the gasket material around the flange and to punch holes matching the flange. Tapping sheet gasket materials with a hammer released asbestos fibers into the air.
Large valves were placed in a pile to be taken off the ship at the shipyard. Large valves were rebuilt offsite and sent back to the ship. Large valves that were removed were replaced with new or rebuilt valves.
Employees repaired small valves themselves, as well as the valves in the boiler and engine rooms. Maintenance and repair of these valves included replacing the rope packing material inside the valve. To replace the packing in a valve, the employees unscrewed a cap on the top of the valve and took out the old packing. Sometimes they could grab an end of the packing and pull it out with their fingers. Otherwise, they used a corkscrew-type tool that could be screwed into the packing to pull it out. They might also use pliers or a screwdriver to remove old packing. Pulling out old packing and cleaning the chamber that it had been in, usually with a wire brush, created a lot of dust.
Employees used utility knives to cut new packing to repack the valve. When the packing was cut, it released dust or fibers into the air that was breathed by those onboard the ship. Several brands of rope packing material were used, including Conseco, Garlock, and JCI. The new packing was put inside the valve and cap screwed back down.
There were pumps on the ship manufactured by Ingersoll-Rand, Worthington, and Buffalo. The pumps required asbestos rope packing and gaskets. They were also insulated with a piece of insulation and mud. Garlock sheet gasket material and packing was one brand of material that was used for the pumps. There were also valves manufactured by Vogt that required rope packing material. A.W. Chesterfield made square and round gaskets or packing material used on the ship. Work on the turbine engines included removing insulation materials, which released dust in the air.
Joseph’s Exposure to Asbestos
Joseph was born in August 1936 and joined the Navy in December 1954. He reported to the U.S.S. Bremerton in April 1955. The ship was midway through a complete overhaul in dry dock at the Mare Island Naval Shipyard in California. The Navy never recommended that Joseph take any measures to reduce his exposure to asbestos.
Joseph’s first job was to sweep and clean up on the decks. He stood watch on the bow of the ship and saw men scraping and wire brushing white, flaky, dusty material from the exterior of the valves on the bow, preparing them to be wrapped and painted. Joseph did not see anyone open or dismantle the valves on the bow. The ship was very dusty, and when Joseph swept the decks, he breathed in the dust. Joseph worked above deck the majority of the time.
He went below deck to get tools or paint, to use the restroom, to eat, and to sleep. While he was below deck, he saw employees putting what looked like mortar mix on the pipes, patting it down, and wrapping it with a covering. They stirred up dust by using hammers and chippers to chip off old materials to put on new materials. He saw them wire brushing the pipes, scraping and grinding gasket materials off equipment, and putting on new gaskets. Although employees sometimes used hand wire brushes, they primarily used electric wire brushes that slung the dust into the air. Joseph breathed the dust from the gasket materials. He passed within a few feet of men who were grinding down Crane valves, putting new gaskets on them, and covering them with asbestos. He inhaled the dust from the work they were doing on the Crane valves. He also walked within a few feet of men performing maintenance work on Buffalo pumps. The dust in their hair and elsewhere made their faces as white as sheets. Joseph breathed in the dust from the work on the pumps. Walking through areas where employees were doing this work was like walking through a smoky room or a dusty fog. He could not avoid breathing the dust as he walked through it. Joseph inhaled dust from the pipe insulation on many occasions.
Joseph visited a friend in the boiler room a few times for approximately 30 minutes per visit. Men were scraping and chipping white, flaky material off the valves and steam pipes. They mixed a mud that looked like cement, put it on the equipment, and wrapped it with long, white covering. He did not see anyone opening or dismantling any valves in the boiler room. Joseph breathed dust when he passed through the boiler room.
Joseph also had friends in the engine room of the ship and he visited them there twice for approximately 10 minutes each time. The ventilation in the engine room was poor. Joseph did not see any maintenance or repair work being performed in the engine room while the ship was in dry dock.
Joseph slept below deck, even while the ship was in dry dock. Steam lines running through the sleeping quarters were wrapped with asbestos insulation covering. There were large and small valves in the sleeping areas. The sleeping compartment was dusty where work had been performed during the day. He slept on a top bunk under an air vent wrapped in asbestos. He breathed in asbestos dust while he was sleeping under the air vent.
Before the ship left dry dock, Joseph transferred to the gun division and worked as a gunner’s mate. Boiler operator Richard Marshall trained Joseph to install asbestos insulation in the gun turret area of the ship. The overhaul of the ship was completed in approximately late May 1955. After a few weeks at sea performing trials, the ship sailed to various ports. Joseph was stationed in a gun turret and stood watch on the bridge. Every time the gun was fired, the vibration of the insulation produced dust in the gun turret area. In addition, vibrations from firing the guns caused dust to be released from the pipe insulation throughout the ship.
Sudden increases in speed also caused the ship to vibrate violently and dust from the insulation fell everywhere. Only routine maintenance and repairs were performed while the ship was at sea. Joseph sometimes returned to his bunk and found dust on his blanket and clothing because maintenance work had been performed.
At the end of June or the beginning of July 1957, the ship went into dry dock at the Bremerton Naval Shipyard for a complete overhaul. Joseph cleaned and prepared the guns in his turret. When Joseph walked through the ship, he saw other maintenance work being performed. He saw men cleaning pipes all over the ship, stripping the insulation, grinding or wire brushing the pipes, and installing new insulation. He saw men scraping or grinding off flange gaskets with a wire brush. He saw workers mixing mud. He was exposed to several asbestos-containing thermal insulation products, including Carey Canada insulating cement, Eagle Pitcher insulation and insulating cement, and Unibestos pipe insulation.
On occasion, a valve that had been taken down lay on the floor blocking the passageway. Joseph waited five to ten minutes as an employee prepared to put back the valve until he could get through. In total, Joseph saw approximately five Crane steam valves that had been removed from the lines in the passageways as he was passing through, all of which had been insulated. The men were stripping the coating and the insulation off the valves, grinding them and generating significant amounts of dust. He saw them mixing and applying a white mud to the exterior of the valves. On occasion, the men working on valves looked white as a sheet from the dust on their faces. The air was thick with white dust. Joseph had to pass by them and breathe the dust. He did not see them take down a valve and take the parts out of the inside. Once or twice he saw someone poke around with a screwdriver on the inside of one or two valves at the point at which the valve was attached back online to the pipes, but he did not know why. He did not see anyone remove old gaskets or packing from the interior of any of the valves in the passageways.
He saw two Crane steam valves removed from the line in his sleeping quarters. He saw men cleaning the valves with a wire brush, scraping off the old insulation, rewrapping, and reinsulating them. He did not remember removal or installation of gaskets or packing with respect to those valves.
There were valves lying on the floor in the kitchen and dining areas. Joseph did not see them removed from the line, and he did not see anyone dismantle them. He did not see anyone do any work with gaskets or packing with respect to the valves in the kitchen and dining areas.
Joseph saw one valve on the floor in the bathroom. He did not see anyone dismantle it or work with gaskets or packing materials or insulation with respect to that valve. The employees also took down the steam pipes in the toilets and it was foggy with dust when he entered to use the restroom. He saw steam pipes lying on the ground in the bathroom. Men were scraping the old insulation from the pipes, cleaning them, and getting them ready to put back up.
He also saw a pump that had been taken off the line lying on the floor. He did not see anyone dismantle the pump, or work with gaskets or packing materials or insulation on that pump.
On occasion, he returned to his bunk after employees had been working on equipment in the sleeping quarters, and he found white dust all over. Employees working on the pipes and valves cleaned up big chunks of material, but they left the dust behind. As a result, his bunk was very dusty. He swept the dust from the decks in his sleeping quarters, mopped the decks, dusted and wiped his bed off, changed mattress covers, and sent the old ones to the laundry. Joseph breathed in the dust when he swept off his bunk.
A few months later, midway through the overhaul, Joseph was honorably discharged from the Navy on September 10, 1957. Joseph married Peggy in December 1957. Their daughters are Karen, Kathy, and Patricia. In April 2005, Joseph was diagnosed with mesothelioma. He was 68 years old. Joseph’s medical bills totaled $60,822.
Expert Opinions on Asbestos Exposure
Epidemiologist and retired assistant surgeon general Richard Lemen testified that samples taken of the air on ships in port and at sea showed asbestos-containing products, such as pipe insulation and gaskets, released asbestos fibers into the air on the ship. The asbestos insulation on the ship is a “friable” material, meaning it readily releases asbestos fibers when brushed up against. By contrast, a lot of brushing and grinding is required to release asbestos fibers if the asbestos is compacted in the material. Gaskets and packings that contain asbestos are generally “nonfriable” products made from asbestos and binding materials. Under normal circumstances, they will not release fibers. For fibers to come off gaskets and packing, the material has to be abraded by scraping, drilling, or sawing. Sometimes the product deteriorates over a long period of use and simply prying it out of place will cause it to release fibers. In general, it is much harder to get fibers from a gasket or packing than from a friable material like pipe insulation.
There were techniques that a company could use to measure the release of asbestos fibers from their products. The United States Public Health Service issued general announcements asking manufacturers for information pertaining to asbestos exposure, but no manufacturer reported data from gasket testing. Lemen acknowledged that an employer is in the best position to create a safe work environment and the Navy had a responsibility to protect its workers. However, the Navy did not always follow its own recommendations to protect workers and it did not do all it could to protect Joseph.
Lemen explained that asbestos diseases are dose-response related in that the higher the dose of asbestos, the greater the risk of developing the disease. Health professionals have been unable to determine a concentration below which people can be exposed to asbestos without developing cancer. In 1998, the World Health Organization concluded there was no safe level that could be identified that would prevent all people from developing mesothelioma. Medical science does not know how the disease develops. At this time, science has to conclude that each exposure adds to the risk of developing disease and is a significant factor in the development of the disease. Mesothelioma is considered a cumulative-dose disease, meaning every exposure to asbestos fibers increases the total dose in the lung that leads to the development of the disease. Each dose adds more fibers that stay in the lung. Any exposure to asbestos increases the chances of developing mesothelioma. Pathology expert Dr. James Robb similarly testified that each time Joseph breathed asbestos into his lungs above the general background level in the air would have been a substantial contributing factor to the development of his mesothelioma.
Lemen stated that an ordinary worker, user, and purchaser of asbestos products, including Crane valves with asbestos-containing packing and gaskets, would not have expected that he would be exposed to something that would cause cancer in the future. In addition, Crane’s sale of valves without researching or testing them for asbestos hazards was unreasonable.
Industrial hygienist Richard Hatfield studied several asbestos-containing materials that were used on the ship to determine the level of asbestos exposure for a person working with the material, a helper person standing nearby, and a bystander standing six to eight feet away. Hatfield did not measure the exposure of a passerby who simply walked through the work area. However, he testified that a single, thin asbestos fiber could take several hours to settle out from 10 feet in the air.
Hatfield testified that if an employee was sawing Kaylo insulation in one part of the ship, it could not be said that someone on the other end of the ship was exposed to it. The material might spread some distance, but not from one end of the ship to the other. To assess exposure, Hatfield would want to know whether the person was in the vicinity of the product as it was being used, how long they were there, and where they were located in relationship to the work being done.
Hatfield studied the exposure caused by removing gasket material from the flange faces by hand and electric scraping. Wire scraping gasket material by hand exposed a bystander to .44 to 1.7 fibers per cubic centimeters. After an electric wire brush was used to scrape the gasket material, the bystander would have been exposed to 1.2 to 6.6 fibers per cubic centimeters. Removal of a spiral-wound Flexitallic gasket from a flange exposed a bystander in the area to .05 to .16 fibers per cubic centimeters. Hatfield opined that Joseph was exposed to asbestos fibers as a result of being around employees scraping off old gasket material.
Hatfield also studied the asbestos exposure from removal and replacement of rope packing material in a valve. He concluded the bystander would have been exposed to .07 to .11 fibers per cubic centimeters. In Hatfield’s opinion, when Joseph was around people replacing packing in Crane valves, he was exposed to asbestos above the ambient level.
Hatfield studied insulating cement similar to Eagle Pitcher cement. The exposures in areas at a distance from the worker were 1.56 and 1.57 fibers per cc.
The Instant Action
On September 26, 2005, Joseph and Peggy filed a complaint against Crane and 17 other defendants, alleging negligence, breach of warranty, strict liability, and loss of consortium, based on Joseph’s exposure to asbestos from defendants’ products while he served on the U.S.S. Bremerton. On March 1, 2006, Joseph and Peggy filed a motion requesting a preferential trial date, because Joseph was terminally ill and not expected to survive four months. The trial court granted the request. The parties videotaped Joseph’s testimony to use at trial. In July 2006, plaintiffs provided a list of witnesses that they intended to present at trial that included Peggy, Kathy, Karen, and Patricia.
On August 11, 2006, the trial court considered the parties’ motions in limine. Plaintiffs’ attorney stated that they would be proceeding under a consumer expectations test for their product liability claim and not pursuing the negligence cause of action for failure to warn. Crane had filed a motion in limine to confine the scope of the products liability case against Crane to its valves, but precluding liability for insulation the Navy attached to the valves which was not supplied or recommended by Crane. Plaintiffs’ attorney stated, “I’m not going to suggest that they have liability for the affixed parts to their products, which would be the thermal insulation. Rather, just the component gaskets, packing, and disks, which were component and replacement parts.” However, he expressed concern that Crane was attempting to limit its liability to the metal piece alone. The trial court granted the motion and limited the scope of Crane’s liability to Crane products “the way [they] looked when they left the factory” and any replacement parts that plaintiffs could show were supplied by Crane. If the Navy did something else to Crane’s products, it was not Crane’s responsibility. Plaintiffs’ attorney agreed.
Joseph died in North Carolina in the early morning on August 14, 2006. Unaware of Joseph’s death, the court began jury selection that morning. Plaintiffs’ attorney introduced himself and his associates to potential jurors as representatives of Joseph and Peggy. Four defendants remained at the time of trial: Crane, Thorpe Insulation Company, Buffalo Pumps, and a successor company to DeLaval Steam Turbine Company. Defendants’ attorneys introduced themselves to potential jury members. Afterward, plaintiffs’ attorney objected that Crane should be prevented from presenting “state of the art” evidence when plaintiffs’ sole theory of the case relied on the consumer expectations test. Crane argued that state of the art evidence was permissible in connection with Crane’s defenses. As a result, plaintiffs’ attorney stated that plaintiffs would continue to pursue their causes of action for negligence and failure to warn. On August 15, 2006, defendants DeLaval and Buffalo informed the trial court that they had reached settlement agreements with plaintiffs.
Plaintiffs’ attorney informed the trial court of Joseph’s death on August 17, 2006. The court granted his oral request for leave to amend the complaint to substitute Peggy as Joseph’s successor in interest and to add a cause of action for wrongful death. On August 18, 2006, the first amended complaint was filed by Peggy, individually and as successor in interest to the estate of Joseph, Karen, Kathy, and Patricia against Crane and Thorpe for negligence, breach of warranty, strict liability, and loss of consortium. The parties filed briefs on the issue of whether the trial should be continued based on Joseph’s death. After the completion of jury selection, the court considered Crane’s request to continue the trial. The court noted that jury selection had consumed five days of the court’s time, and if dismissed, the jurors’ service would be finished. Crane argued that no successor in interest had been appointed who could pursue the action on behalf of the estate. Crane also argued that it would need to depose the heirs and conduct discovery in connection with the wrongful death causes of action, and need new expert testimony concerning damages as to Peggy. The court denied Crane’s request, on the condition that plaintiffs resolve the probate issues within a few days.
At the conclusion of plaintiffs’ opening statement, Thorpe made an oral motion for nonsuit on the ground that the company had not even been mentioned. The trial court allowed plaintiffs to reopen their opening statement to preview evidence against Thorpe. Thorpe reserved its opening statement and renewed its motion for nonsuit. The court found plaintiffs’ statements were sufficient to deny the motion at that time, but allowed that Thorpe could renew the motion at the conclusion of the presentation of plaintiffs’ evidence.
Joseph and his coworkers’ videotaped deposition testimony was played for the jury. On August 22, 2006, Crane’s attorney asked the trial court to give a limiting instruction to inform the jury that Crane was not liable for insulation that Joseph had described on the valves. The court instructed Crane to prepare an instruction for further discussion. Plaintiffs’ attorney objected to a limiting instruction, “[b]ecause I think the loss supports their liability for insulation on the valves.”
On August 23, 2006, Crane’s attorney again objected to any argument that suggested Crane was liable for insulation placed on the outside of its products and noted that Crane’s motion in limine on the issue had been granted. Plaintiffs’ attorney stated, “[W]hen I made the statements about that, saying I’m not going to say they have liability for insulation, that was under consumer expectations test only. [¶] We are going forward on all causes of action. The jury is to determine . . . what the standard of care is. And whether or not Crane should have warned when they knew that their valves would be insulated. I’m not saying they sold the insulation, but that’s a question for the jury.” The trial court agreed with Crane as to the law, but declined to give a limiting instruction to the jury at that time in order to prevent any appearance of bias.
On August 28, 2006, plaintiffs finished the presentation of their evidence. Thorpe moved for nonsuit on the ground that there had been no proof that Thorpe products had caused any injury to Joseph. The trial court granted the motion.
As a defendant in the case, Thorpe prevented federal diversity jurisdiction. Crane anticipated Thorpe’s dismissal and filed paperwork in federal court to have the case removed on the grounds that plaintiffs’ manipulation of the parties, the evidence and the claims were effectively an abandonment of the claims against Thorpe. When the notice of removal was delivered to the trial court, the court excused the jury. Plaintiffs’ counsel stated that in two other cases, he had been able to get a remand order from the federal court within a day. In another case, he obtained a remand order within two days. The trial court excused the jury for two days to return on August 30, 2006. A remand order was issued and the trial proceedings continued on August 30, 2006.
At the end of the day on September 5, 2006, Crane requested a ruling preventing plaintiffs from implying in closing argument that Crane could have foreseen its valves would be insulated, and therefore, had a responsibility to warn about outside insulation. Plaintiffs’ attorney responded, “Your Honor, we brought this up during our motion in limine discussions. And there is case after case in California that says, especially in a negligence case, if the action is foreseeable such as the insulation -- the insulation of a component part or a part that is manufactured, the jury can consider that. . . . [¶] [The cases] say, regardless of their source, a manufacturer of a completed product cannot escape liability by tracing the defect to a component part supplied by another. [¶] And they also talk about replacement parts and affixed parts. Which is exactly what the insulation is.” Crane argued that a manufacturer was liable for the harm caused by its product and not for an external component. Plaintiffs’ attorney argued that it was foreseeable the valve would be insulated and therefore the jury could consider whether Crane was negligent in not putting a warning of some kind. The trial court sustained Crane’s objection.
On September 6, 2006, plaintiffs’ attorney informed the trial court that the only act remaining to be completed in order for the action to be continued by Peggy as Joseph’s successor in interest under Code of Civil Procedure section 377.32 was to attach Joseph’s death certificate, which he had in his hand, to the declaration Peggy had already filed with the trial court. Plaintiffs had begun an estate in North Carolina and letters testamentary had been issued. The court allowed Crane to prepare a response.
On September 6, 2006, the trial court granted Crane’s motion for nonsuit on plaintiffs’ claim for punitive damages. On September 7, 2006, Crane finished its presentation of evidence. The court granted plaintiffs’ motion for a directed verdict on the affirmative defense of government contractor, however denied the motion as to the sophisticated user defense. After extensive discussion concerning the language of a sophisticated user instruction, a compromise was reached.
On September 8, 2006, plaintiffs filed a written motion to allow the pending action to be continued by Peggy as Joseph’s successor in interest. The trial court granted the motion.
Jury Instructions, Closing Argument, and Verdict
The trial court instructed the jury to allocate fault as follows: “More than one person’s negligence or fault may have been a substantial factor in causing Joseph Norris’s harm. If so, you must decide how much responsibility each person has by determining on a percentage basis the extent to which his or her negligence or fault contributed to causing the harm.” The court limited the scope of Crane’s liability: “Crane Co. has no legal liability for any asbestos insulation products or materials affixed or attached to the exterior of its valves on pipes or on the U.S.S. Bremerton.”
The trial court instructed the jury on the consumer expectations test for design defect claims. The court also provided instructions on strict liability for failure to warn and negligence, including negligent manufacture and supply of a product, and negligent failure to warn.
“Plaintiffs claim the product’s design was defective because the product did not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, the plaintiffs must prove all of the following: [¶] [1.] That Crane Co. manufactured, distributed, or sold [the] product; [¶] [2.] That at the time of the use, the product was substantially the same as when it left Crane Co.’s possession; or [¶] That any changes made to the product after it left Crane Co.’s possession were reasonably foreseeable to Crane Co.; [¶] [3.] The product did not perform as safely as an ordinary consumer would have expected at the time of use; [¶] [4.] That the product was used in a way that was reasonably foreseeable to Crane Co.; [¶] [5] That Joseph Norris was harmed; and [¶] [6.] That the product’s failure to perform safely was a substantial factor in causing Joseph Norris’s harm.”
“Plaintiffs claim that Crane Co. was negligent by not using reasonable care to warn about the product’s dangerous condition, or about facts that make the product likely to be dangerous. To establish this claim, plaintiffs must prove all of the following: [¶] [1.] That Crane Co. manufactured, distributed, or sold the product; [¶] [2.] That Crane Co. knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner; [¶] [3.] That Crane Co. knew or reasonably should have known that users would not realize the danger; [¶] [4.] That Crane Co. failed to adequately warn of the danger; [¶] [5.] That a reasonable manufacturer, distributer, or seller under the same or similar circumstances, would have warned of the danger; [¶] [6.] That Joseph Norris was harmed; and [¶] [7.] That Crane Co.’s failure to warn was a substantial factor in causing Joseph Norris’s harm.”
During closing argument, plaintiffs’ attorney acknowledged Joseph had been exposed to other asbestos products on the ship and the Navy bore some responsibility for failing to protect workers from known hazards. Plaintiffs’ attorney suggested the jury apportion 50 percent of the responsibility for Joseph’s injury to Crane, 25 percent to the Navy, and 25 percent to the manufacturers of asbestos products used on the ship. He reasoned that Crane should be allocated more responsibility than the Navy, because Crane made a profit, could have told the Navy to wait while the company conducted further research, and could have placed warnings on their products. While acknowledging that the other companies listed on the verdict form should bear some responsibility, he argued Crane had not proven the other companies failed to conduct research and failed to place warnings on their products.
The jury began deliberations on September 11, 2006. In response to questions by the jury on September 12, 2006, the trial court allowed each party to present 20 minutes of further argument. On September 14, 2006, plaintiffs dismissed the strict liability claim for failure to warn. The court instructed the jury to disregard the related question on the verdict form. Failure to warn continued to be an issue as to the negligence cause of action.
On September 15, 2006, the jury asked for certain damages testimony to be read and also asked, “In question number 8 [asking the jury to allocate fault among 22 different entities], can you advise how the jury must come to a determination as to how to assign percentages, particularly in regard to more companies about which we have little or no information. May one of your procedures be to assign liability to Crane Company maybe and others or must the jury come to a nine-person majority upon each of the items?” The trial court instructed the jury that they must reach a nine-person majority on each of the items referred to in their questions. The parties and the court discussed that one of the jurors might be released at the end of the day for hardship reasons. Crane objected to a jury consisting of less than 12 people.
In the late afternoon on September 15, 2006, the jurors informed the trial court they were deadlocked with regard to the evaluation of percentages of fault, because they felt insufficient information had been provided to assign fault to the companies listed. Over Crane’s objection, the court modified the verdict form to allocate liability between Crane and “all others.” The court instructed the jury, “Substitute for question number 8 the following: Assuming that 100 percent represents the total fault that was the cause of plaintiff’s injury, what percentage of this 100 percent was due to the fault of the entities listed below. [¶] We’ll put ‘to Crane Co. gaskets and packing.’ And the next would be ‘all others.’”
The jury returned a verdict finding that there was a defect in the design of Crane’s products in that they failed to perform as safely as an ordinary user would have expected. The defect existed when the Crane products left Crane’s possession or were changes that were made to the products reasonably foreseeable to Crane. The defect was a substantial contributing factor in causing Joseph’s mesothelioma. In addition, Crane was negligent and their negligence was a substantial contributing factor in causing Joseph’s mesothelioma.
The jury found that Peggy sustained economic damages of $541,557, medical bills of $60,822, and noneconomic damages of $3 million as a result of Joseph’s mesothelioma. Karen, Kathy, and Patricia had each sustained noneconomic damages of $100,000 as a result of Joseph’s mesothelioma. Assuming 100 percent represents the total fault for the cause of the injury, 50 percent was due to the fault of Crane and 50 percent was due to the fault of all other entities.
The trial court entered judgment on October 10, 2006, finding that plaintiffs had settled with other joint tortfeasors for a total settlement of $640,330, and therefore, reducing the amount of economic damages by a total offset amount of $98,842.56. The court awarded Peggy $2,003,536.44 against Crane and awarded Karen, Kathy, and Patricia each $50,000 against Crane.
On October 25, 2006, Crane filed a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied both motions. Crane filed a timely notice of appeal from the October 10, 2006 judgment and the order denying the motions for new trial and judgment notwithstanding the verdict.
DISCUSSION
Standard of Review
When a judgment is attacked on the ground that there is no substantial evidence to sustain it, “[o]ur authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) The testimony of a single witness may constitute substantial evidence in support of the judgment. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) “Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment.” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.) We view all factual matters in the light most favorable to the prevailing party, resolving all conflicts and indulging all reasonable inferences from the evidence to support the judgment. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17.)
Causation
Crane contends there is no substantial evidence to support the jury’s finding that Joseph was exposed to asbestos from a Crane product or that any exposure from a Crane product caused Joseph’s illness. We disagree.
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford) sets forth the controlling two-part test for determining whether exposure to asbestos from a particular product was a legal cause of a plaintiff’s injury in an asbestos-induced personal injury case. “[T]he 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.” (Id. at p. 982, fn. omitted.) “[P]laintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.” (Id. at pp. 976-977, fn. omitted.) In other words, “a particular asbestos-containing product is deemed to be a substantial factor in bringing about the injury if its contribution to the plaintiff or decedent’s risk or probability of developing cancer was substantial.” (Id. at p. 977.)
“The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” (Rutherford, supra, 16 Cal.4th at p. 978.) Factors to be considered in determining whether “inhalation of fibers from the particular product should be deemed a ‘substantial factor’ in causing the cancer” include “the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, any other potential causes to which the disease could be attributed (e.g., other asbestos products, cigarette smoking), and perhaps other factors affecting the assessment of comparative risk.” (Id. at p. 975.)
The substantial factor test was applied to similar facts in Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 (Jones). Jones began his 27-year naval career in 1950 as a fireman’s apprentice and retired in 1977 as a lieutenant commander. During his career, he was exposed to the asbestos-containing products of many defendants. He was diagnosed with lung cancer in 2001. Most of the defendants settled before trial, and the case proceeded to jury trial against John Crane, Inc. (JCI). The jury found that JCI’s valve and pump packing materials were defective and JCI was negligent. The jury apportioned 1.95 percent of the fault for Jones’s injuries to JCI. (Id. at pp. 996-997.)
On appeal, JCI conceded the plaintiff had made a threshold showing of exposure to JCI’s asbestos-containing products. However, JCI argued there was no substantial evidence its products were a substantial factor in causing Jones’s cancer, because the fiber releases from its product were comparable to ambient levels of asbestos in the community at large and could not have increased Jones’s risk of cancer. (Jones, supra, 132 Cal.App.4th at p. 998.)
The Jones court relied on the substantial factor test set forth in Rutherford to find “[t]he mere fact that comparable levels could be found in ambient air does not render the exposure ‘negligible or theoretical.’” (Jones, supra, 132 Cal.App.4th at p. 1000.) “[I]f a person were exposed to six different products, each with a release level similar to the asbestos levels recorded in ambient air, the combined concentration in the total dose would contribute substantially to the increased risk of cancer.” (Ibid.) The court held that substantial evidence supported the jury’s verdict, indicating “[t]he testimony of the experts provided substantial evidence that Jones’s lung cancer was caused by cumulative exposure, with each of many separate exposures having constituted substantial factors contributing to his risk of injury.” (Id. at p. 999.)
In this case, there was substantial evidence from which the jury could conclude Joseph was exposed to asbestos from materials contained within Crane valves. At a minimum, the evidence showed there were small Crane valves in the sleeping quarters. Joseph saw employees working on two valves in his sleeping quarters. When employees overhauled small Crane valves, they replaced the packing inside the valve, which released asbestos fibers into the air. The employees did not clean up the dust that was generated. Instead, Joseph breathed the dust when he returned to his bunk and cleaned it up. In addition, Joseph waited in passageways while Crane valves were replaced on the line. The jury could reasonably infer from the evidence that packing material from the valves had been removed and replaced prior to putting the valves back on the line, releasing fibers that contributed to the dust in the air Joseph breathed as he waited. Although there was no dispute the gaskets and packing supplied by Crane with the original valves would have been replaced long before Joseph served on the ship, it was foreseeable that the replacement parts used in the valves would be asbestos-containing materials consistent with the design of the product.
Moreover, the Norrises’ expert testimony established every exposure to asbestos fibers, such as the exposure Joseph received cleaning dust from his bunk, increased the total dose in his lung that led to the development of his disease. Each dose added more fibers that stay in the lung. There was substantial evidence Joseph’s exposure to asbestos from materials in Crane valves increased his risk of developing mesothelioma and, therefore, was a substantial factor in causing his injury.
Consumer Expectations Test
Crane contends the trial court erred by instructing the jury on the consumer expectations test instead of a risk-benefit analysis. We hold the instruction was properly given.
A manufacturer may be held strictly liable for placing a defective product on the market so long as the claimed personal injury resulted from a reasonably foreseeable use of the product. (Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461, 472.) There are two theories for determining whether a product is defectively designed: (1) whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) whether the benefits of the challenged design outweigh the risk of danger inherent in the design. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995; Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.)
Under the consumer expectations test, “a plaintiff is required to produce evidence of the ‘objective conditions of the product’ as to which the jury is to employ its ‘own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.’ [Citation.]” (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 472.) The consumer expectations test is appropriate “for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567.)
However, the consumer expectations test is inappropriate “when the ultimate issue design defect calls for a careful assessment of feasibility, practicality, risk, and benefit,” since “‘in many instances it is simply impossible to eliminate the balancing or weighing of competing considerations in determining whether a product is defectively designed or not[.]’ [Citation.]” (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 562-563.) The Supreme Court stated, “The crucial question in each individual case is whether the circumstances of the product’s failure permit an inference that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.” (Id. at pp. 568-569, fn. omitted.)
In Soule v. General Motors Corp., supra, 8 Cal.4th at page 570 , the Supreme Court concluded the consumer expectation test was not appropriate because the design defect theory concerned technical and mechanical details about the wheel assembly and front floorboard “under the complex circumstances of a particular accident.” The Supreme Court explained “[a]n ordinary consumer of automobiles cannot reasonably expect that a car’s frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and understanding inform such a consumer how safely an automobile’s design should perform under the esoteric circumstances of the collision at issue here. Indeed, both parties assumed that quite complicated design considerations were at issue, and that expert testimony was necessary to illuminate these matters.” (Ibid.)
In Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at page 465, the appellate court held the consumer expectations test is applicable in asbestos litigation. The court reasoned that “[t]here were neither ‘complicated design considerations,’ nor ‘obscure components,’ nor ‘esoteric circumstances’ surrounding the ‘accident’ in the instant case. [The defendant’s product] was a common type of asbestos-containing block insulation. It was a simple, stationary product in its ordinary uses. Because it was made of friable material that had to be cut and shaped to perform its insulating function on irregularly shaped objects, it generated large amounts of asbestos-laden dust during normal installation, inspection, removal, and replacement processes. The design failure was in [the product’s] emission of highly toxic, respirable fibers in the normal course of its intended use and maintenance as a high-temperature thermal insulation. It is a reasonable inference from the evidence that this emission of respirable fibers, which were capable of causing a fatal lung disease after a long latency period, was a product failure beyond the ‘legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.’ [Citation.]” (Id. at pp. 474-475.)
In Jones, the court specifically found the consumer expectations test applicable to a design defect claim based on exposure to asbestos in valve and pump packing materials. (Jones, supra, 132 Cal.App.4th at pp. 1002-1003.)
As in the cases above, the use of asbestos-containing bonnet gaskets and packing in Crane valves did not involve complicated design considerations such that a consumer’s ordinary experience would not inform him or her as to how safely the material should perform under the circumstances of this case. During normal maintenance and repair, the asbestos components in the valve produced asbestos-laden dust fibers. The design defect lay in the emission of highly toxic, respirable fibers in the normal course of the valve’s intended use. The emission of respirable fibers capable of causing a fatal disease allows a jury to find the product’s defect violated the “‘legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.’ [Citation.]” (Sparks v. Owens-Illinois, Inc., supra, 32 Cal.App.4th at p. 475.)
Duty
Crane contends it had no duty to warn Joseph or otherwise prevent his injury, because it could not have appreciated the asbestos exposure risk from its valves to a passerby. Based on the record, we conclude it was foreseeable that breathing asbestos fibers caused injury.
By 1930, it was well established in the medical and scientific communities that asbestos causes asbestosis. In 1946, an association of governmental industrial hygienists published standards for airborne asbestos dust exposure. By 1955, it was also generally accepted that asbestos causes lung cancer. Crane could have tested its valves to determine whether asbestos fibers were released into the air during routine maintenance and repair work, but failed to do so.
Crane argues it could not have appreciated the minimal amount of asbestos released from its products posed a risk to passersby. However, it was also foreseeable that asbestos exposure from Crane valves could be compounded by exposures from other sources. We cannot say that Crane had no duty to people exposed to asbestos released from Crane products. The risks associated with asbestos in the valves’ bonnet gaskets and packing, if not actually known by Crane at the time of Joseph’s exposure, reasonably could have been ascertained. Crane had a duty to take reasonable precautions to avoid harm from that exposure. (See Jones, supra, 132 Cal.App.4th at pp. 1004-1005 [substantial evidence supported jury’s finding that risk from asbestos in valve and pump packing was discoverable at the time of the plaintiff’s exposure between 1950 to 1977].)
Continuance
Crane contends the trial court abused its discretion by denying Crane’s request for a continuance after the complaint was amended to add Joseph’s children as plaintiffs and a wrongful death cause of action. We disagree.
California Rules of Court, rule 3.1332 provides in pertinent part: “(a) To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. [¶] . . . [¶] (c) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: [¶] . . . [¶] (2) The unavailability of a party because of death, illness, or other excusable circumstances; [¶] . . . [¶] (5) The addition of a new party if: [¶] (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or [¶] (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; [¶] . . . or [¶] (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” “In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: [¶] (1) The proximity of the trial date; [¶] . . . [¶] (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; [¶] (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [¶] (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; [¶] (7) The court’s calendar and the impact of granting a continuance on other pending trials; [¶] . . . [¶] (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and [¶] (11) Any other fact or circumstance relevant to the fair determination of the motion or application.”
The decision whether to grant a motion for a continuance rests within the trial court’s sound discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) “‘An abuse of discretion occurs “where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.” [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899.)
In this case, Joseph’s death was not unexpected. The parties had prepared for the eventuality of his death by videotaping his testimony for trial. In fact, he outlived the four-month expectancy estimated in March 2006. Although the trial court permitted an amendment to the complaint to add Joseph’s children as plaintiffs and a wrongful death cause of action, the facts and the theories of the case did not change. The trial court had already expended substantial time in jury selection, and if the continuance were granted, all jurors would have been excused and jury selection would begin anew, substantially affecting the court’s calendar. The trial court provided Crane with an opportunity to depose the new plaintiffs and Crane declined. Although Joseph’s death was very emotional for the family members who testified, his impending death would have been fraught with emotion as well and engendered sympathy from the jury. We conclude the court did not abuse its discretion by denying the request for a continuance in this case.
Amendment of Verdict Form
Crane contends the trial court abused its discretion by amending the fault allocation question on the verdict form during jury deliberations. We disagree.
Although Joseph’s exposure to asbestos from Crane valves was limited, the jury allocated more of the fault for Joseph’s injury to Crane than any other company that supplied asbestos-containing products used on the ship. The evidence was that the asbestos components originally enclosed in the valves had been replaced long before Joseph worked on the ship with new components purchased directly from the manufacturers. Coworker testimony identified several brands of valve gaskets and packing used on the ship. Joseph’s oral and written statements acknowledged that he had received a high level of exposure to asbestos from several specific brands of asbestos insulation and other products. In addition, the evidence showed the Navy was aware of the measures necessary to protect employees from asbestos exposure, but did not implement them. However, on appeal, Crane has not raised the issue of whether substantial evidence supports the jury’s fault allocation. Therefore, we have no occasion to address whether the jury’s allocation of 50 percent fault can be upheld on this record.
“[C]ourts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.]” (Rutherford, supra, 16 Cal.4th at p. 967.) “‘That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation . . . in order to insure the orderly administration of justice. . . .’ [Citation.]” (Ibid.) A verdict form which directs the jury to allocate fault between a defendant and other tortfeasors who are not a party at trial is permissible. (Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 325-326.)
The verdict form originally provided to the jury in this case asked the jurors to allocate fault among 22 entities, including Crane. The jury informed the trial court they could not apportion fault to entities for which very little evidence had been presented. We cannot fault the decision of the court to amend the verdict form to allow for allocation of fault between Crane and the remaining potential tortfeasors, since the court could have used that form in the first instance. (Bly-Magee v. Budget Rent-A-Car Corp., supra, 24 Cal.App.4th at pp. 325-326.)
We reject Crane’s argument it was prejudiced by the amendment on the theory Crane would have argued the case differently had the amended verdict form been used from the outset. Crane had every reason to challenge the allocation in argument when the other potential tortfeasors were listed separately in the initial verdict form. We fail to see how the argument would have been materially different had the amended form been used from the outset.
Moreover, there is no reason to believe that Crane’s allocation of fault would not have been the same under either version of the verdict. Accordingly, Crane has not demonstrated it was prejudiced as a result of the amendment, and reversal is not required. (Cal. Const., art. VI, § 13.)
Future Compensation
Crane contends the judgment should have provided for plaintiffs to remit offsets to Crane in the event plaintiffs receive postjudgment funds from claims related to Joseph’s injury. As no authority supports this proposition, we reject it.
Civil Code section 1432 provides, “Except as provided in Section 877 of the Code of Civil Procedure, a party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him.”Under Code of Civil Procedure section 877, a tortfeasor who enters into a settlement with a plaintiff in good faith “before verdict or judgment” is relieved of liability for equitable contribution or indemnity to another joint tortfeasor. In return, the nonsettling tortfeasor’s ultimate liability to the plaintiff is reduced based on the amount of the settlement. (Reed v. Wilson (1999) 73 Cal.App.4th 439, 443.)
Code of Civil Procedure section 877 provides: “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: [¶] (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater. [¶] (b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties.”
“The purpose of this legislation is to provide for equitable sharing of damages among the parties at fault and to encourage settlement.” (Great Western Bank v. Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 613.) “In addition, the offset provided for in [Code of Civil Procedure] section 877 assures that a plaintiff will not be enriched unjustly by a double recovery, collecting part of his total claim from one joint tortfeasor and all of his claim from another.” (Reed v. Wilson, supra, 73 Cal.App.4th at p. 444.)
Code of Civil Procedure section 877 clearly states that it applies to settlements given “before verdict or judgment.” After judgment, Crane has the right to pursue equitable contribution from any joint tortfeasor who did not settle with plaintiffs before judgment. Crane has not explained why it should be relieved of securing equitable contribution through regular legal procedures. The trial court did not abuse its discretion by denying Crane’s request to provide for future offsets in the judgment.
DISPOSITION
The judgment is affirmed. Respondents Peggy Irene Norris, Karen Lee Norris Francis, Kathy Lynn Norris Riggs, and Patricia Robin Norris Matthews are awarded their costs on appeal.
We concur: TURNER, P. J., MOSK, J.