Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BC386030, Paul Gutman, Judge.
Bryan Cave, Brian J. Recor and John M. Thomas for Defendant and Appellant.
Simon, Eddins & Greenstone, David C. Greenstone and Brian P. Barrow for Plaintiffs and Respondents.
BIGELOW, P. J.
Ford Motor Company appeals from a judgment awarding John Russell and his wife, Esther Russell, $1,493,330 for personal injuries resulting from asbestos exposure. We affirm the jury’s liability and damages findings, but reverse in part and remand with directions to allow Ford to review the terms of out of court settlement agreements reached with other defendants in the case.
For convenience, we will refer to John Russell as “Russell”.
FACTS AND PROCEDURAL BACKGROUND
In 2007, Russell was diagnosed with malignant pleural mesothelioma, a form of cancer originating in the thin lining surrounding the lungs. Russell and his wife filed suit against Ford, Maremont Corporation and a number of other defendants who sold, manufactured or supplied asbestos-containing products. His February 22, 2008 complaint alleged claims for negligence, strict liability and loss of consortium.
I. Russell’s Exposure to Asbestos from Ford Products
Ford sold and distributed brake products containing asbestos from 1910 to 2001. All new Ford vehicles that were sold from 1910 to 1982 included asbestos containing brakes. Ford also sold replacement brakes under its FOMOCO brand name that contained asbestos. During that time, Ford brakes contained between 40 to 60 percent chrysotile asbestos by weight. In 1980, Ford put a caution label on its asbestos-containing products which read:
“Caution, contains asbestos fibers, avoid creating dust, breathing asbestos dust may cause serious bodily harm. [¶] When servicing this brake lining or any components related to it or located near it, prevent asbestos dust from being airborne by vacuuming this assembly with an industrial type vacuum cleaner equipped with a high efficiency filter system and by washing the assembly with an appropriate brake parts washer if necessary. Never remove dust or dirt from this assembly by blowing with compressed air.”
In 1987, Ford revised its caution label to read:
“Danger, contains asbestos fibers, avoid creating dust, cancer and lung disease hazard. [¶] Do not inhale dust from brakes, clutches, or associated components. Inhalation of asbestos fibers may cause cancer or asbestosis. Compressed air or brushes must not be used to clean brakes, brake drums, clutches, or associated components. A high-efficiency vacuum cleaner should be used to carefully remove dust. Adherent dust should be removed with a damp rag, wear high-efficiency cartridge or airline respirator if preceding work practices cannot be used. Dust and any rag used to remove it should be enclosed for disposal within a sealed impermeable bag bearing this label, ‘Use asbestos free replacement parts when available.’ ”
At trial, Russell testified that he was exposed to Ford brake products in the 1950’s. During the summer of 1953 and 1954, Russell changed tires for West Coast Stores in North Hollywood. Most, if not all, of the cars he worked on were made by Ford, General Motors or Chrysler. As part of his duties, he used an air compressor to blow the dirt off the outside of the drum and inside of the wheel. From 1954 to 1956, Russell was a delivery person for HM Parker & Son, an automotive wholesaler to garages and repair shops. HM Parker & Son also had a machine shop where they did engine work and “a lot of brake work” for their clients, including arc-grinding brake shoes and lathing of brake drums to fit inside the circumference of an existing brake drum. Russell picked up old brake parts from various repair shops as well as FOMOCO brake parts from Ford to be arc-ground and fitted at HM Parker & Son. Russell testified that he frequently stood next to the two machinists when they ground FOMOCO brakes and the “air [became] full of dust, all the way to the ceiling.”
Russell also changed the brakes on various Fords he owned over the years, including models from 1941, 1957, 1963 and 1966. He used compressed air and brushes to clean the surfaces of the brake parts. Russell testified he never saw any warnings on any brakes or packaging indicating that asbestos could be a health hazard or that he needed to do anything to keep dust levels low.
II. Trial
In his complaint, Russell alleged that Ford’s brakes were defective in design and that Ford failed to warn that the asbestos in its brakes was hazardous. Due to Russell’s poor health and advanced age, the trial court set a preferential trial date for August 4, 2008, approximately six months after he filed the initial complaint. (Code Civ. Proc., § 36(d).)
Russell testified about his exposure at trial as described above. The parties also presented expert testimony that by the time Russell joined HM Parker in 1954, well over 100 articles had been published discussing the risks associated with asbestos exposure. By the 1950s, the scientific community recommended a threshold limit of five million particles per cubic foot for exposure to asbestos in the workplace. Russell also presented expert testimony that linked asbestos exposure from brake grinding to disease.
III. Verdict
The matter was submitted to the jury on August 26, 2008. In a special verdict, the jury found as follows: 1. There was no defect in the design of Ford’s brakes; 2. Ford failed to warn of potential risks which were generally known or knowable at the time of the manufacture, distribution or sale of its brakes; 3. Ford was negligent; 4. Ford’s failure to warn and its negligence were substantial factors in causing Russell’s mesothelioma. The jury further found Russell incurred $994,633 in economic damages and $6 million in non-economic damages and awarded $100,000 to Russell’s wife for loss of consortium. The jury allocated 10 percent of the total fault to Ford.
Russell requested the trial court enter judgment in the amount of $1,493,333, which included an offset of $111,300 for his out of court settlements with the other defendants. Asserting the settlement agreements were confidential and “[s]ome of the documentation has not been completed, ” Russell offered to produce all confidential settlement agreements for the court’s in camera review. The trial court entered Russell’s proposed judgment on October 22, 2008.
Subsequent to the entry of judgment, Ford filed a number of post-trial motions. First, it moved to vacate the judgment, arguing that the amount of the judgment was unsupported by the special verdict or by the evidence and that the special verdict was inconsistent. Ford also moved for judgment notwithstanding the verdict (JNOV) on the ground that there was no evidence that Ford’s failure to warn caused Russell’s mesothelioma. Finally, Ford sought a new trial, contending the trial court committed various evidentiary errors as well as arguing that insufficient evidence supported the verdict and the special verdict was inconsistent. Those motions were denied on December 19, 2008. Ford timely appealed.
DISCUSSION
I. The JNOV Was Properly Denied as Russell Met His Burden to Prove Causation
On appeal, Ford repeats its JNOV argument made below, asserting “the record is devoid of any evidence that any warning that would have been appropriate in the mid-1950’s would have altered the behavior of either HM Parker or Mr. Russell himself.” In particular, Ford argues that HM Parker had equal access to information about the known dangers of asbestos in the 1950’s as Ford did. Therefore, HM Parker was on notice of the same dangers from asbestos exposure as Ford was. Ford also suggests that HM Parker knew about and complied with the California and federal standards for limiting exposure to asbestos dust to five million particles per cubic foot because there is no evidence showing otherwise. As to Russell, Ford contends that he did not testify to what he would have done if he had read a warning on the Ford brakes. Ford asserts the only logical inference is that Russell would not have changed his behavior. We disagree.
In California, strict liability is imposed where a product is defective “because of the absence of an adequate warning of the dangers inherent in its use. [Citation.] Whether the absence of a warning makes a product defective depends on several factors, among them the normal expectations of the consumer as to how a product will perform, degrees of simplicity or complication in its operation or use, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including a warning.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320.) The failure to warn must be a substantial cause of the injury. (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 16.)
Accordingly, the jury was instructed that Russell was required to prove “that Ford’s failure to warn was a substantial factor in causing John Russell’s harm.” In its special verdict, the jury answered “yes” to the question: “Was any defect [including a failure to warn] a substantial factor in causing John Russell’s malignant mesothelioma?” Ford’s motion for JNOV on the grounds that Russell failed to prove causation was denied.
In reviewing the denial of a motion for JNOV, we apply the substantial evidence test to the jury’s verdict. (Pusateri v. E.F. Hutton & Co. (1986) 180 Cal.App.3d 247, 250.) “When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]” (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.)
Here, the jury could have reasonably inferred that the lack of warning was a substantial cause of Russell’s illness. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) “The plaintiff in a strict liability action is not required to disprove every possible alternative explanation of the injury in order to have the case submitted to the jury. ‘It is not incumbent upon a plaintiff to show that an inference in his favor is the only one that may be reasonably drawn from the evidence; he need only show that the material fact to be proved may logically and reasonably be inferred....’ ” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 121.)
The record shows that Ford never included any warnings with its brakes until 1980. Russell testified he never saw any warnings on any brakes or packaging indicating that asbestos could be a health hazard or that he needed to do anything to keep dust levels low. He frequently sat next to the machinists at HM Parker when they ground FOMOCO brakes. During these times, the air at HM Parker filled with dust “all the way to the ceiling.” He also testified that he was exposed to dust from changing tires on Ford, GM and Chrysler cars during the summer of 1953 and 1954 as well as when he changed the brakes on his own Ford cars. Further, plaintiff’s expert, Dr. Edwin Holstein, testified that one of the leading publications on asbestosis, written and updated in the 1930s, recommended, among other things, that employees who did not need to work with asbestos materials be kept in an area separate from where they might encounter asbestos dust. He testified that workers would not take precautions unless they knew why safety precautions were needed. Dr. Holsten further explained that threshold limit values were not useful unless people were advised that the products contained asbestos. Russell presented other expert testimony that the more asbestos a person is exposed to, the more rapidly he will develop mesothelioma.
The jury could have reasonably inferred from Russell’s testimony that had Ford provided a warning about the dangers of asbestos in its brakes, he may not have so regularly and needlessly exposed himself to asbestos dust. For example, it was unnecessary for Russell to sit with the machinists at HM Parker while they arc-ground the FOMOCO brakes and allowed the dust to fill to the ceiling. It is also reasonable to infer that Russell would have been more cognizant of the dust levels when he changed the brakes on his own cars.
As to HM Parker, it was indisputably a much smaller, less sophisticated entity than Ford and not a defendant in this case. It is reasonable to infer that it did not have access to the same information on asbestos that Ford did. The California Supreme Court has explained that strict liability holds a defendant to a high standard—“the knowledge and skill of an expert in the field; it is obliged to keep abreast of any scientific discoveries and is presumed to know the results of all such advances.” (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1113, fn. 3.) Contrary to Ford’s contention, it is unreasonable to apply that same high standard to HM Parker and infer that it had the same access to information as Ford did simply because it “was large enough that it could buy the expensive grinding machines that most small repair shops could not afford[;]” “had at least five locations in the Los Angeles area alone[;]” and was engaged in the business of brake grinding. For the reasons described above, we find substantial evidence supports the jury’s finding that Ford’s failure to warn was a substantial cause of Russell’s injuries, and the JNOV was thus properly denied.
II. The Exclusion of Witness Testimony Was Not Prejudicial
Ford next contends the trial court erred by excluding the testimony of Wilbern “Bud” Oliver. Although we find the trial court erred in excluding the testimony, we find no prejudice ensued.
In a May 5, 2008 trial setting order, the trial court ordered all percipient or fact discovery to be completed by July 21 with all related motions heard by the final status conference on July 28. During his deposition, Russell identified Oliver as his supervisor at HM Parker & Son. Ford’s counsel located Oliver on or about July 9, and received a declaration from him on July 15. Ford’s lead counsel spoke with Oliver sometime between July 15 and July 22, and learned that Oliver would testify that HM Parker did not arc grind any brakes at any of its locations.
On June 12, Russell served a set of special interrogatories on Ford asking, among other things, about “all individuals known to you to have knowledge of facts concerning plaintiff’s alleged exposure to asbestos containing products designed, manufactured, marketed, sold, or distributed by you.” Ford answered on July 15, 2008, that, “At this time, Ford is not aware of any individuals who have knowledge of the facts concerning John Russell’s alleged exposure to asbestos containing-products designed, manufactured, marketed, sold, or distributed by Ford. Discovery and investigation are continuing, however, and Ford reserves the right to supplement or amend this response.” On July 16, Russell mail served a supplemental interrogatory, asking for any later acquired information bearing on its previous responses. Ford stated it had no newly acquired information.
However, on July 24, Ford moved ex parte to reopen discovery to allow trial preservation deposition of Oliver because he was 82-years old and unable to travel to Los Angeles to testify due to pre-arranged appointments. The trial court denied the motion, finding no good cause to allow the late deposition or relieve Oliver of the burden of travelling to Los Angeles for the trial. Trial began on August 8, 2008.
While Ford’s witness list filed on July 25 did not include Oliver as a trial witness, Ford’s counsel informed the trial court during trial that he intended to call Oliver to testify. Russell’s counsel objected. Ten days after trial began, Ford renewed its motion to take Oliver’s videotaped trial preservation deposition and in the alternative, bring Oliver in to testify at trial. Ford submitted a declaration from Oliver which clarified why he was unavailable to testify at trial. Oliver stated that he was undergoing chemotherapy for multiple myeloma and his wife suffered from Parkinson’s disease. The trial court ruled that Ford would not be permitted to offer Oliver’s testimony at trial or take Oliver’s deposition to offer in lieu of trial testimony due to its failure to disclose its knowledge of Oliver in response to the interrogatories.
On August 21, Maremont, the only other remaining defendant, submitted its own request to call Oliver as a trial witness. The trial court agreed to permit it to call Oliver to testify at trial because Maremont was unaware of Oliver’s existence at the time it submitted its interrogatory responses and was innocent in any discovery abuse. However, Maremont settled with Russell prior to the end of trial and Oliver did not testify. Ford moved for a new trial on the ground that the trial court erred when it excluded Oliver’s testimony for a “minor” discovery failure and renews this argument on appeal.
“ ‘Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.’ ” (People Ex Rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639.) Even where there was an abuse of discretion, however, the error does not require reversal of the judgment unless it resulted in prejudice. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) Here, Ford has the burden to show it is reasonably probable a more favorable result would have been reached absent the error. (Ibid.) We find that it was error to exclude Oliver’s testimony, but that Ford has failed to demonstrate prejudice.
“One of the principal purposes of civil discovery is to do away with ‘the sporting theory of litigation--namely, surprise at the trial.’ ” (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.) Therefore, a trial court may preclude a witness from testifying at trial where a party willfully and falsely withholds or conceals a witness’s name in response to an interrogatory. (Saxena v. Goffney, supra, 159 Cal.App.4th at p. 332.) Under these circumstances, “an order barring the testimony of the witness must be sustained as a sanction....” (Thoren v. Johnston & Washer, supra, 29 Cal.App.3d at p. 274.)
Here, the trial court expressly ruled that it was “not charging... Ford with willfulness” but that “given the chronology here, Ford is charged with knowledge of Mr. Oliver’s identity, his whereabouts and information that he had.” Absent a finding that the failure to disclose Oliver in its initial response and supplemental responses was willful, there was no basis to exclude Oliver’s testimony at trial, particularly when the trial court concluded it would not be too disruptive to allow Maremont to call Oliver to testify.
Ford further asserts that it suffered tremendous prejudice because Oliver’s testimony reaches to the heart of Russell’s case. According to Ford, Oliver would have directly refuted Russell’s recollection that he was exposed to asbestos dust from the arc grinding of Ford brakes at HM Parker. Ford’s trial counsel told the trial court that Oliver would have testified that no brakes were ground at any HM Parker location.
Beyond its trial counsel’s representations as to what he hoped Oliver would testify to on the stand, however, Ford has failed to demonstrate that it is reasonably probable a more favorable result would have been reached. The only supported proof of what Oliver would have testified to is a signed declaration from Oliver obtained by Russell’s counsel that states: “During the late 1940s and 1950s, many small service stations and other automobile repair shops did not have the equipment necessary to turn brake drums or to properly fit new replacement brake shoes on turned drums. Part of the retail sales business of H.M. Parker & Son was to perform these services for these customers. During this time frame, the machine shop at the Magnolia Street location for H.M. Parker & Son had a drum lathe for turning brake drums.” The only other indication we have of what Oliver would have testified to is an unsigned declaration submitted by Russell in his Respondent’s Appendix. Neither its trial counsel’s oral offers of proof nor an unsigned declaration are sufficient to meet Ford’s burden to show a more favorable result would have been reached absent the trial court’s error.
III. The Verdict Was Not Inconsistent
In the special verdict, the jury found as follows:
Q: Was there a defect in the design of defendant’s products in that they failed to perform as safely [as] an ordinary user would have expected?
A: No.
Q: Was there a defect in the defendant’s products in that there was a failure to warn of the potential risks which were generally known or knowable by the use of scientific knowledge available at the time of manufacture, distribution, and/or sale?
A. Yes.
Ford contends that these two findings are inconsistent. According to Ford, the jury’s finding on the design defect question “necessarily” meant that “any risk of injury from exposure to asbestos did not make Ford brakes more dangerous than the ordinary consumer would expect.” However, Ford continues, the jury reached the opposite conclusion on the failure to warn claim, “necessarily finding that the ‘ordinary consumer’ would not ‘recognize’ a risk of being injured from exposure to asbestos in brakes.” As a result, Ford claims it is entitled to a new trial because “the jury inconsistently found both that the hazards were not hidden from the ordinary consumer (by finding no design defect in response to Question 1) and that the hazards were hidden from the ordinary consumer (by finding a warning defect in response to Question 2). We disagree.
As to the failure to warn claim, the trial court instructed the jury that Russell had to prove “that ordinary consumers would not recognize the potential risks.”
The consumer expectation test focuses on the average consumer’s state of mind. On the other hand, a claim based on the failure to warn rests on what was known or knowable at the time of manufacture or sale, regardless of what the manufacturer or seller actually knew. (Compare Soule, supra, 8 Cal.4th at p. 562 with Carlin v. Superior Court, supra, 13 Cal.4th at p. 1113, fn. 3.) Thus, courts have noted, “Even though the product is flawlessly designed and manufactured, it may be found defective within the general strict liability rule and its manufacturer or supplier held strictly liable because of the failure to provide an adequate warning.” (Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 174.)
In any event, we see no contradictions in the jury’s finding. Even if the jury did conclude that an ordinary user expected the brakes to be safe, it is not contradictory to also conclude that the ordinary user did not recognize all the risks associated with Ford brakes that were known or knowable by the use of scientific knowledge.
IV. There is No Evidence to Support the Damages Calculation in the Judgment
Ford next takes issue with the settlement credit by which the jury’s damages calculation was offset. While it does not appear that Ford disputes how to calculate the offset, Ford contends the trial court erred when it conducted an in camera review of the out of court settlements without also allowing Ford’s counsel an opportunity to view them. It contends the judgment must be vacated and the case remanded for entry of a new judgment as a result. We agree.
On September 12, 2008, Russell requested the trial court enter judgment in the amount of $1,493,333, which included an offset of $111,300 for his settlements with the other defendants. In his motion, Russell stated that he had settled with the other defendants for a total of $1,590,000 and that “in almost every instance, ” the parties allocated 50 percent of the proceeds to the personal injury claims and 50 percent to potential wrongful death claims. As a result, Russell argued that the total amount of the settlements should be multiplied by 50 percent (the percentage of the settlement proceeds allocated to the personal injury claim) and that total multiplied by 14 percent (the ratio of economic damages to total damages as found by the jury). Russell offered to produce all confidential settlement agreements for the court’s in camera review. Ford opposed the proposed judgment and offered to limit its review of Russell’s settlements to its counsel. Russell subsequently filed a notice that he had lodged the confidential settlement agreements for in camera review. The trial court entered Russell’s proposed judgment on October 22, 2008, without allowing Ford to review the settlement agreements.
We hold that the trial court erred when it entered judgment based on a damages calculation that was not supported by sufficient evidence. We are persuaded by the court’s analysis in Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 (Jones). There, a jury returned a substantial verdict against John Crane, Inc. in a multiparty asbestos case. (Id. at p. 996.) John Crane was entitled to an offset for amounts previously paid to the plaintiffs in settlement of their claims for economic damages. As Russell did here, the plaintiffs made a post-trial motion to calculate the credit for economic damages due to John Crane from the out of court settlements. (Id. at p. 1006.) The plaintiffs argued that the trial court was bound by the allocations for economic damages specified in the settlement agreements. The appellate court held otherwise. (Id. at p. 1010.)
In reaching its decision, the Jones court explained that:
“The party seeking to rely on the allocation ‘must explain to the court and to all other parties, by declaration or other written form, the evidentiary basis for any allocations and valuations made, and must demonstrate that the allocation was reached in a sufficiently adversarial manner to justify the presumption that a reasonable valuation was reached.’ [Citation.] The settling parties are not required ‘to make a complete explanation of their rationale for the allocation of settlement consideration or to set forth a factual matrix showing the allocation by trade or by defendant.’ [Citation.] But the settling parties are required to ‘furnish to the court and to all parties an evidentiary showing of a rational basis for the allocations made and the credits proposed. They must also show that they reached these allocations and credit proposals in an atmosphere of appropriate adverseness so that the presumption may be applied that a reasonable valuation was reached.’ [Citation.]” (Jones, supra, 132 Cal.App.4th at p. 1010.)
Two additional cases, Mediplex of California, Inc. v. Superior Court (1995) 34 Cal.App.4th 748, 749 (Mediplex) and J. Allen Radford Co. v. Superior Court (1989) 216 Cal.App.3d 1418 (Radford), present sufficiently analogous facts to further support our conclusion. In Mediplex, a non-settling defendant in a construction defect action opposed a good faith settlement motion on the ground that it never saw the confidential settlement agreement and questioned the valuation assignment. (Mediplex, supra, at p. 750.) After the trial court found the parties had divulged the necessary terms of the settlement and approved the settlement, the non-settling defendant sought a writ of mandate. The Court of Appeal held the non-settling defendant had the right to review the confidential settlement agreement to determine independently whether the undisclosed terms had any effect on reducing an offset. (Id. at p. 749.)
Similarly, in Radford, supra, 216 Cal.App.3d at page 1423, three of the parties agreed to a sliding scale settlement. The terms of the settlement were generally described in the good faith settlement motion papers. The settlement agreement itself, which the trial court reviewed in camera, was not produced to the non-settling party. The non-settling defendant filed a petition for a writ of mandate, which was denied by the Court of Appeal. The California Supreme Court granted its petition for review and directed the Court of Appeal to issue an alternative writ. (Id. at p. 1423.) On remand, the Court of Appeal concluded that the non-settling party should have been permitted to see the settlement agreement. (Ibid.)
We view this matter as an extension of the holdings in Mediplex and Jones.Mediplex established that a non-settling defendant has a right to see the settlement agreement in a pretrial good faith settlement hearing. Jones established that the court and non-settling parties must be provided evidence to support a plaintiff’s proposed allocation of economic and noneconomic damages. We decide here that the evidence supporting a contested post-trial calculation of an offset may not be reviewed in camera, and the non-settling defendant is entitled to review evidence sufficient to support the calculation to confront plaintiff’s evidence and oppose it.
In this case, Ford was asked to accept opposing counsel’s representation as to the terms of the settlements on faith since Russell failed to submit even a sworn declaration about these settlements. This is particularly troublesome when the only information about how the settlement proceeds are allocated is an unsubstantiated statement that “in almost every instance” half of the proceeds are allocated to the personal injury claim. This directly impacts the amount of the offset. While we have no doubt that the trial court confirmed the numbers presented in Russell’s request for entry of judgment, it remains to be seen whether any other provisions of the settlement would affect the offset. It is certainly not the trial court’s burden to ensure Ford’s interests are protected. Accordingly, we find the damages amount contained in the judgment is not supported by the evidence.
DISPOSITION
The jury’s liability and damages findings are affirmed. The judgment is vacated and the cause remanded to the trial court with directions to allow Ford’s counsel to review the relevant terms of the settlement agreement and upon further argument by the parties and due consideration, a new judgment shall be entered. Each party to bear their own costs on appeal.
We concur: FLIER, J., GRIMES, J.