Opinion
[Copyrighted Material Omitted] [Copyrighted Material Omitted] Reprinted without change for tracking pending review and disposition by the Supreme Court.
Superior Court of Orange County, No. 638030, William F. Rylaarsdam, Judge.
COUNSEL
Brayton, Gisvold & Harley, Brayton, Harley & Curtis, Philip A. Harley, James L. Oberman and Bryce C. Anderson for Plaintiffs and Appellants. Ropers, Majeski, Kohn & Bentley, Michael J. Brady, R.Q. Shupe and Leslie R. Roseman for Defendant and Appellant.
OPINION
CROSBY, J.
A jury found defendant Kyocera International, Inc., partially responsible for plaintiff Donald Polensky's injuries resulting from exposure to beryllium. Defendant argues the court misinstructed the jury on the statute of limitations, abused its discretion in admitting testimony of an expert witness who had an allegedly confidential relationship with defendant, and the award of economic damages is disproportionate to its fault. Plaintiff also appeals, claiming the court improperly reduced noneconomic damages under Proposition 51. We agree with plaintiff and affirm the judgment as modified.
Polensky's wife, Flavia, prevailed on her claim for loss of consortium. "Plaintiff" and "Polensky," as used in this opinion, refer to her husband.
I
Polensky worked at Ceradyne from 1982 to 1984. Kyocera, Ceradyne's corporate parent, negligently administered Ceradyne's worker safety program, causing plaintiff's exposure to beryllium, which ultimately resulted in a diagnosis of berylliosis. Kyocera was found 10 percent at fault.
The court entered summary judgment for employer Ceradyne, and we affirmed. (Polensky v. Ceradyne, Inc. (Aug. 24, 1993) G012450 [nonpub. opn.] [rejecting plaintiffs' claims that the dual capacity doctrine and Ceradyne's fraudulent concealment of abnormal lung test results entitled them to seek a remedy other than that provided under the workers compensation scheme].)
II
Defendant first complains the court misinstructed the jury on the statute of limitations. Both sides agree the one-year limitations period of Code of Civil Procedure section 340, subdivision (3) applies, as modified by the "discovery rule." The defense was bifurcated and tried to the jury first on the following facts:
The section provides plaintiff must file "[w]ithin one year ... [¶] ... [¶] (3) An action ... for injury to or for the death of one caused by the wrongful act or neglect of another ...."
Plaintiff began working for Ceradyne in September 1982 as a sales engineer. Based on previous work and schooling, he knew beryllium and its compounds were toxic and inhaling them could result in an emphysema-like disease called berylliosis. Berylliosis is a very rare and incurable condition that results from the inhalation of minute particles of beryllium dust. A few people who inhale the dust have an allergic reaction, usually within a year, which causes their bodies to form cells around the particles in the lungs. Scar tissue develops that causes shortness of breath, coughing and fatigue, and can also result in damage to the liver and spleen. The disease has a latency period of anywhere from months to decades, where there are no clinical symptoms other than a gradual onset of fatigue or a nagging cough. Plaintiff's work at Ceradyne occasionally brought him into contact with beryllium dust. Polensky left Ceradyne in 1984 and had no further contact with beryllium.
Polensky had an episode of fatigue while hiking in the mountains in late 1984 or 1985. In August 1987 he was referred to internist/rheumatologist Dr. Thomas Abel for psoriatic arthritis. Dr. Abel prescribed methotrexate, whose side effects included lung inflammation and shortness of breath. After taking the drug for a little over a year, plaintiff complained of increased fatigue, shortness of breath, psoriasis, and subnormal lung function. Lung X-rays were abnormal, but consistent with methotrexate reaction. Use of the drug was discontinued.
This is a type of arthritis of unknown cause that may develop when the patient has had psoriasis. (Taber's Cyclopedic Medical Dict. (15th ed. 1985) p. 135.)
Plaintiff learned in December 1988 that a coworker at Ceradyne had been diagnosed with chronic beryllium disease. On December 20, after more abnormal X-rays, he wrote Dr. Abel with his suspicions that he might have the same thing. Ten days later he was examined by pulmonologist Daniel Persyn. Persyn did not believe beryllium was the cause of plaintiff's problems, although berylliosis was a "remote" possibility. Plaintiff underwent more tests during January and February 1989. He tested positive for beryllium sensitivity on February 24. In April, plaintiff underwent a complete examination at the National Jewish Hospital in Denver, after which Persyn made the diagnosis. Polensky filed his complaint on January 24, 1990.
The court instructed that Kyocera had the burden of proving the following: "[Plaintiff] knew, prior to January 24, 1989, that he was suffering from beryllium-related disease; or [¶] that there were facts known to [plaintiff] prior to January 24, 1989, which gave him reason to know that he was suffering from beryllium-related disease." Defendant claims the "reason to know" language was erroneous and that the statute of limitations began to run when plaintiff suspected, or should have suspected, he was suffering from the disease. We disagree. The court's instruction was drawn from Anderson v. Southern Pac. Co. (1964) 231 Cal.App.2d 233 [41 Cal.Rptr. 743]. There, plaintiff allegedly contracted pulmonary emphysema resulting from exposure to dust and fumes he inhaled while working as a painter over a period of approximately 20 years. Anderson concluded the statute of limitations issue was improperly submitted to the jury: "We are satisfied that the record contains nothing from which the jury could find as a fact that prior to June 16, 1958, plaintiff either knew, or in the exercise of ordinary care should have known, that he was suffering from pulmonary emphysema, or any disease occupationally contracted and either disabling or probably disabling." (Id. at p. 244.)
The court cited several federal cases to the effect that a worker should not be expected to make a self-diagnosis of a progressive disease: " 'On the other hand, other types of injuries are not immediately detectable. Since the effects are usually long delayed, the victim does not know that he has been injured till he observes definite symptoms referable to the injury. Moreover, when the injury becomes apparent it may be totally impossible to determine precisely when it was inflicted....' [¶] ... [¶] '... [W]hen the nature of the injury is such that it does not manifest itself immediately, the determination of when the cause of action accrues does not depend on when the injury was inflicted. To the contrary the cause of action accrues only when the plaintiff has reason to know he has been injured. Generally this will be when his condition is diagnosed, unless it is shown that the plaintiff "should have known" at an earlier date that he was injured....' " (231 Cal.App.2d at pp. 245-246, italics added, quoting Young v. Clinchfield Railroad Company (4th Cir. 1961) 288 F.2d 499, 502-503.)
Defendant relies on Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 [245 Cal.Rptr. 658, 751 P.2d 923]. There, plaintiff sued for personal injury caused by an allegedly defective drug (DES) taken by her mother while plaintiff was in the womb. In 1972, she was diagnosed with a precancerous condition and "was aware, or at least suspected, that her condition was a result of her mother's ingestion of DES during pregnancy." (Id. at p. 1107.) She thereafter attempted to discover who manufactured the DES her mother took. Her condition became more acute in 1976. As of 1978, she knew of the pendency of DES lawsuits, felt that someone had done something wrong to her concerning DES and that it was a defective drug, and she thought she should be compensated. In 1980, the Supreme Court decided Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [163 Cal.Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061], which required DES manufacturers to disprove their involvement. She filed suit within a year of Sindell. Jolly concluded the one-year statute began to run no later than 1978: "Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. As we said in Sanchez [v. South Hoover Hospital (1976) 18 Cal.3d 93, 99 (132 Cal.Rptr. 657, 553 P.2d 1129)] ... the limitations period begins once the plaintiff ' " 'has notice or information of circumstances to put a reasonable person on inquiry ....' " ' [Citations.] A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at pp. 1110-1111, italics added, fn. omitted.) According to the court, "The foregoing is fully consistent with the policy of deciding cases on the merits as well as the policies underlying the statute of limitations.... [T]he fundamental purpose of the statute is to give defendants reasonable repose, that is, to protect parties from defending stale claims. A second policy underlying the statute is to require plaintiffs to diligently pursue their claims. Because a plaintiff is under a duty to reasonably investigate and because a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period, suits are not likely to be unreasonably delayed, and those failing to act with reasonable dispatch will be barred. At the same time, plaintiffs who file suit as soon as they have reason to believe that they are entitled to recourse will not be precluded." (Id. at pp. 1111-1112, italics added.)
As plaintiff notes, and as the above italicized language of Jolly demonstrates, the statute begins to run when plaintiff knows "the harm and its cause" and suspects wrongdoing. The first two prongs were addressed by the court's instruction. Until he knew (or should have known) he had berylliosis, plaintiff could not have reasonably believed he was entitled to legal recourse. Lawsuits should not be initiated where the plaintiff does not reasonably believe he has suffered injury. Put another way, until he knew (or should have known) he had the disease, Polensky could not possibly have suspected he had been wronged. On the other hand, once he had been diagnosed, he had a strong suspicion something was amiss at Ceradyne. There was no instructional error. III
Defendant has not cited, and we have not found, a case (in a discovery rule jurisdiction) that has concluded a limitations period began to run before plaintiff's latent or progressive condition was diagnosed. (See Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1435 [266 Cal.Rptr. 695]; Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 888-889 [159 Cal.Rptr. 113] [cause of action accrues when plaintiff given "informed diagnosis" that he has a progressive and serious disorder (asbestosis) that would cause him future pain and disability]; see also Anderson v. Brush-Wellman, Inc. (1991) 77 Ohio App.3d 657, 660 [603 N.E.2d 284, 286] [statute of limitations in berylliosis case "begins to run ... when the employee is aware, or reasonably should be aware, of his injury;" statute ran two years after plaintiff "was first informed of the berylliosis diagnosis"]; Brush Beryllium Company v. Meckley (6th Cir. 1960) 284 F.2d 797, 798 ["... the insidious development of berylliosis in plaintiff ... did not manifest itself, was not diagnosed as such, nor did it become known to [plaintiff]"].)
Kyocera next claims the court abused its discretion when it allowed Polensky to call as a witness safety engineer/industrial hygienist Dr. Kenneth Cohen, who opined Ceradyne's safety procedures were deficient. Cohen had consulted with defendant in the 1970's and 1980's and considered his relationship with defendant confidential, as he did all of his clients. Defendant argued below that "Dr. Cohen has not waived his or his client's rights to confidentiality, and yet is now willing to do just that by testifying against [defendant]." Kyocera asserted Cohen "was made privy to certain confidential and proprietary information." However, the nature of the confidential information was not revealed. It is also unclear on what basis the court denied the motion (the parties have not pointed to any record of the court's reasons).
In any event, defendant's argument is without merit and its authority is distinguishable. Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272 [245 Cal.Rptr. 873] was an accounting malpractice action. There, defendant accounting firm merged with the firm plaintiff had hired as an expert while the litigation was pending. The expert firm "actively assisted [plaintiff's] attorneys in formulating litigation strategy ...." (Id. at p. 278.) The appellate court affirmed a trial court order precluding defendant from introducing evidence on certain issues the expert had worked on, concluding the trial court had inherent power to preclude evidence concerning confidential information to prevent an abuse or an unfair advantage by a party to litigation.
Peat, Marwick involved a palpable threat to the attorney/client privilege in the very litigation the expert had been retained to assess. Cohen was not a litigation expert and had not been hired by defendant to assist it in any litigation at any time. Indeed, there was nothing, apart from Cohen's personal views of the matter, suggesting his relationship with his former employer/contractor was a confidential one, i.e., that any information he obtained while in defendant's employ was confidential, entitling either Cohen or defendant to assert an evidentiary privilege.
The latter distinction sets this case apart from those cited in Peat, Marwick and also relied on by defendant. In Conforti & Eisele v. Division of Bldg., etc. (1979) 170 N.J. Super. 64 [405 A.2d 487], the court prohibited plaintiff's use of defendant's engineering expert: "[The expert] was privy to confidential documents regarding the legal aspects of [the defendant's] claims, as well as the mental impressions,s and legal theories of [defendant's] counsel. Even if this information was not disclosed to [the plaintiff] per se, [the plaintiff] would still obtain the benefit of this confidential information because it would shape or affect, either consciously or unconsciously, the report [the expert] would render to [the plaintiff]. The very nature of the services which [the expert] provides makes it impossible to conceive of a situation in which [the expert] could conscientiously discharge its duty to [the plaintiff] as an expert while simultaneously discharging its duty to [defendant] not to divulge confidences and secrets which [defendant] has conveyed to [the expert]." (405 A.2d at p. 492.) A subsequent case confirmed Conforti & Eisele's holding was based on a threatened breach of confidence. (Overlook Terrace Corp. v. Excel Properties (1986) 210 N.J. Super. 420 [510 A.2d 68, 72].)
In Marvin Lumber & Cedar Co. v. Norton Co. (D.Minn. 1986) 113 F.R.D. 588, 590, a federal magistrate disqualified defendant's consulting expert, a scientific testing laboratory. The laboratory had an ongoing relationship (including testing and product development) with plaintiff, and had served as plaintiff's litigation expert in a case involving similar issues. The court concluded, "... the record support[ed] a long-standing series of interactions, which have more likely than not coalesced to create a basic understanding of plaintiff's modus operandi, patterns of operation, decision-making process and the like. The rules governing disqualification are designed to protect against the potential breach of such confidences, even without any predicate showing of actual breach. That is the case with respect to expert witnesses ... just as it is the well-accepted rule with respect to attorney disqualification. The threat or potential threat that confidences may be disclosed is enough." (Id. at p. 591.)
Again, defendant has not identified a legally cognizable confidence to which Cohen was privy. Cohen was not a lawyer, doctor or priest. He was not asked to divulge classified military secrets. There was no evidence anything observed by him while working as a consultant was legally privileged from discovery in litigation contesting defendant's safety practices (indeed, a contrary determination could have a profound and negative impact on workplace safety). The court properly denied defendant's motions to disqualify Cohen from testifying. (See also In re Ambassador Group, Inc., Litigation (E.D.N.Y. 1994) 879 F.Supp. 237, 244 ["disqualification standards for experts [should not be the same] as for attorneys, [and there should, at a minimum, be] a predicate showing that confidential information has been divulged"].)
IV
Defendant's last argument, unsupported by any legal authority, is specious. Kyocera argues the $1,250,000 economic damage award, for which it is jointly and severally responsible, is fundamentally unfair because the jury found it only 10 percent at fault for plaintiff's injuries. But under long-established common law rules, "... a tortfeasor is liable for any injury of which his negligence is a proximate cause" regardless of "other independent tortfeasors who may also have caused the injury ...." (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 587 [146 Cal.Rptr. 182, 578 P.2d 899].) Although the jury may "assign some percentage figure to the relative culpability of one negligent defendant as compared to another [it] does not in any way suggest that each defendant's negligence is not a proximate cause of the entire indivisible injury." (Id. at p. 589.) Because the law deems that defendant's negligent conduct caused plaintiff's indivisible injury, it is not unfair that Kyocera should have to pay all economic damages occasioned by its wrongful act. There was no error.
V
Cross-appeal
The trial court determined Proposition 51 (Civ. Code, section 1431.2) applied to reduce the noneconomic damages. Proposition 51, enacted and effective in June 1986, operates prospectively, which is to say it does not apply retroactively. (Evangelatos v. Superior Court (1988) [6] 44 Cal.3d 1188 [246 Cal.Rptr. 629, 753 P.2d 585].) According to Evangelatos, a " ' "retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute." ' " (Id. at p. 1206.) The Polenskys argue Proposition 51 does not apply because their causes of action arose before the statute's effective date: "The basic rule in California ... is that a cause of action accrues when the injury-producing wrongful act is committed. [Citations.] [T]he cause of action consists of the tortious act and a resulting injury, and ... exists from the moment that these two elements come together whether or not the plaintiff is aware of either act or injury." Plaintiffs assert Polensky was injured when he was exposed to beryllium, sometime between 1982 and 1984, because "[a]fter that date, the injury to [him] was irreparable; the progress of the disease was beyond all outside control, depending entirely on his body's involuntary reaction to the beryllium dust exposure." Kyocera counters Proposition 51 applies because Polensky discovered his injury after June 1986.
, italics added.) Defendant also suggests Proposition 51 applies because plaintiff filed his action after June 1986. However, a date-of-filing trigger would be a retroactive application of Proposition 51 and would violate Evangelatos: "The crucial point is simply that because Proposition 51 did not address the retroactivity question, we have no reliable basis for determining how the electorate would have chosen to resolve either the broad threshold issue of whether the measure should be applied prospectively or retroactively, or the further policy question of how retroactively the proposition should apply if it was to apply retroactively: i.e., whether the new rule should apply to cases in which a complaint had not yet been filed, to cases which had not yet come to trial, to cases in which a trial court judgment had not yet been entered, or to cases which were not yet final on appeal." (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1217
The most recent case to consider the issue is Peterson v. Owens-Corning Fiberglas Corp. (1996) 43 Cal.App.4th 1028 [50 Cal.Rptr.2d 902]. Peterson was exposed to asbestos before June 1986, but diagnosed with mesothelioma afterwards. The Court of Appeal determined resolution of the question turned on the date of "injury," which it equated with physical harm. It used the following test to determine the date of injury in a latent disease case: "An individual sustains an 'injury,' for purposes of Proposition 51, when he has undergone a physiological change that will, to a reasonable degree of medical certainty, result in the condition giving rise to the cause of action. At that point, the tortfeasor's actions have harmed the plaintiff by causing a detrimental physical condition. Whether the plaintiff is aware of it or not, he is no less injured. Under this test, a cause of action does not 'accrue' at the point of mere exposure to or inhalation of asbestos fibers, because many who are exposed will never suffer a compensable injury. [Citation.] Neither would a nondetrimental physiological reaction to asbestos exposure constitute accrual. [Citation.] On the other hand, under this definition a cause of action may, under specific circumstances, accrue for purposes of Proposition 51 application before the plaintiff is diagnosed or diagnosable." (Id. at pp. 1036-1037, fn. omitted.)
The Supreme Court is apparently reviewing the issue. (Buttram v. Owens-Corning Fiberglas Corp. (1995) 42 Cal.App.4th 1439 [39 cal.Rptr.2d 703], review granted June 15, 1995 (S046375); Coughlin v. Owens-Illinois, Inc. (1993) 40 Cal.App.4th 1776 [27 Cal.Rptr.2d 214], review granted Apr. 21, 1994 (S037837).)
We agree with Peterson on the point in dispute here. The discovery rule tolls the statute of limitations but does not control when plaintiff's cause of action arises: " 'Logic dictates that a plaintiff cannot bring a cause of action until he knows or reasonably should know of his injury, and also knows or reasonably should know that the injury was caused by the wrongful acts of another. However, that does not mean that the plaintiff does not have an existing cause of action of which he is unaware ....' " (Fetzer v. Wood (1991) 212 Ill.App.3d 70 [155 Ill.Dec.626, 569 N.E.2d 1237, 1243].)
We need go no further with Peterson. The evidence in this case is undisputed that Polensky was exposed to beryllium no later than 1984. With the benefit of hindsight, we know he was, in fact, harmed by the exposure. It is unnecessary to determine the precise date of detrimental physiological change, assuming this is the touchstone. The disease process was set into motion at least two years before Proposition 51 became law. Proposition 51, if applied to plaintiff, would affect a right or condition that existed prior to its adoption. It therefore can have no application here. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1206.)
Sister states have held tort reform acts, which applied prospectively, inapplicable where substantial asbestos exposure occurred before enactment. (See, e.g., Cole v. Celotex Corp. (La. 1992) 599 So.2d 1058 [599 So.2d 1058]; Koker v. Armstrong Cork, Inc. (1991) 60 Wn.App. 466 [804 P.2d 659].) Cole noted that "[p]inpointing the accrual date of [a] cause[] of action if dependent upon the date of ... contraction of the disease ... would require a hearing and the presentation of extensive medical evidence, and would work administrative havoc on our already burdened court system." (Cole, supra, 599 So.2d at p. 1064, fn. 17.) Peterson apparently rejected this concern: "[Defendant] objects that a test hinging on the inception of an undetected disease will unnecessarily interject confusing and questionable medical testimony into asbestos trials, making outcomes uncertain and inviting speculation, manipulation of facts, and 'statistical guessing.' Of this parade of horribles, we agree that the test we set forth here will in most, if not all, cases require the testimony of medical experts." (Peterson v. Owens-Corning Fiberglas Corp., supra, 43 Cal.App.4th at p. 1039.)
Although arising in the context of an insurance coverage dispute, Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co. (1996) 45 Cal.App.4th 1 [___ Cal.Rptr.2d ___]) seems apt. Armstrong approved the trial court's use of an "injury-in-fact" trigger, and affirmed a ruling that insurance coverage was triggered (i.e., injury to a third party occurred) when the plaintiff was exposed to asbestos fiber, where evidence established " 'in retrospect that undiscovered injury existed during the asbestos exposure period ....' " (Id. at p. 45.)
The judgment is modified to reflect an award of noneconomic damages to plaintiff Donald Polensky in the amount of $500,000 and to plaintiff Flavia Polensky in the amount of $150,000. In all other respects, the judgment is affirmed. Plaintiff is entitled to costs. Sills, P. J., and Wallin, J., concurred.
Defendant cites Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611 [2 Cal.Rptr.2d 796], but the case is distinguishable. Plaintiff there had been told by a doctor that her injuries were attributable to mold, negligently caused by the defendant, two years before she filed her complaint. She later attempted to split her cause of action, claiming a postcomplaint diagnosis of "immune dysregulation" was a separate injury. The court rebuffed her attempts. We see no similarity between Miller and this case.