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ROBERT M. CHANNEL, STATE BAR NO. 109273
IAN P. DILLON, STATE BAR NO, 203612
|] WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP
1601 Montgomery Street, Ninth Floor ELECTRONICALLY
San Francisco, California 94111-2612 FILED
Telephone: (415) 781-7072 Superior Court of California,
Facsimile: (415) 391-6258 County of San Francisco
APR 01 2010
Attorneys for Defendant Clerk of the Court
HAMILTON MATERIALS, INC. BY: CHRISTLE ARRIOLA
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and NORMAN JUELCH, SR., | Case No. CGC-09-275212
Plaintiffs, DEFENDANT HAMILTON
MATERIALS, INC.'S MEMORANDUM
v. OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION IN LIMINE #8
ASBESTOS DEFENDANTS, et al., REGARDING APPORTIONMENT OF
DAMAGES BETWEEN CIGARETTE
Defendants. SMOKING AND ASBESTOS EXPOSURE
MEMORANDUM OF POINTS AND AUTHORITIES
The above jury instruction which instructs the jury to reduce the award of damages
decedent's condition by the percentage due to cigarette smoking was affirmed in Martin v.
Johns-Manville Corporation (502 A.2d 1264, 54 U.S.C.W. 2368 (Pa. Sup. 1985)). Both the
reasoning of Martin and existing California law mandate the application of this jury instruction in
this case.
1. THE MARTIN CHARGE
In two Pennsylvania cases, the court gave the jury the instruction on apportionment between,
cigarette smoking and asbestos exposure requested in this motion.
Martin v. Johns-Manville Corporation, 502 A.2d 1264, 54 U.S.C.W. 2368 (Pa. Sup. 1985)
affirmed on appeal the trial court's instruction to the jury that it could reduce any award of damages
DEFENDANT HAMILTON MATERIALS, INC'S VEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
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for appellant's disability by the percentage of his disability due to cigarette smoking.
The Martin plaintiff had been an asbestos worker for 39 years and had begun smoking in
1941. The Martin court cited the Restatement (Second) of Torts, Section 433A as authority to give
the jury instruction requested in this motion. The court noted that it is for the trial court as an
initial matter to determine whether the evidence permits apportionment, “[i]t is the function of the
court to determine . .. whether the harm to the plaintiff is capable of apportionment among two or
more causes. (Martin, 502 A.2d at 1267, citing Restatement (Second) of Torts, § 434.)
Martin held that "upon determining that the evidence did permit apportionment, the trial
court was bound to instruct the jury on apportionment.” Jd. at 1267 (emphasis added).
Importantly, the court noted that it was irrelevant that no expert testimony at trial assigned a
specific percentage of causation to cigarette smoking or fo asbestos exposure. The court stated:
"In our view, the evidence that was produced was insufficient to enable the jury to reach a
reasonable approximation of harm due to each cause." (id.) The court noted that the issue is not
whether respective percentage contributions were proved, but "whether there was a reasonable
basis for the jury to apportion appellant's disability among those causes." (See also Prosser and
Keeton, Torts 345 (Sth ed. 1984) ("Where a factual basis can be found for some rough practical
apportionment, which limits a defendant's liability to that part of the harm which that defendant's
conduct has been a cause in fact, it is likely that the apportionment will be made.").
The court further noted that:
the testimony did not establish the exact proportion that each disease
contributed to appellant's disability suggests, not that the damages
should not have been apportioned, but only that medical science has
not yet been able to calculate the proportions as exact percentages.
(Ud, at 1271.)
In applying Section 433A, Martin noted that harm may be apportioned either when the
plaintiff has suffered distinct harms, or when there are separate causes of a single disability. The
court decided that there was a single harm, plaintiff's disability, and that the separate causes,
smoking and asbestos, were fairly capable of apportionment. Martin also noted that damages may
be apportioned even if plaintiff's conduct, which contributed to the harm, was innocent. That is,
“the question whether appellant was negligent in smoking cigarettes is irrelevant to deciding
DEFENDANT HAMILTON MATERIALS, INC'S TEMORANDUN OF POINTS AND AUTHORITIES IN SUPPORT OF
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whether his damages may be reduced because of the part that smoking played in his disability.”
In another Pennsylvania asbestos case, the trial court gave a jury instruction on
apportionment similar to that given in Martin. (Karpiak v. Johns-Manville Corporation, No. 5771
(159), Court of Common Pleas, First Judicial District of Pennsylvania, Trial Division, transcript of
proceeding dated February 4, 1986, cited in Mealey's Litigation Reports, Asbestos, p. 3675
(1986).") In Karpiak, the judge gave the following jury instruction:
The first question is whether asbestos exposure was a significant
contributing factor to Mr. Karpiak's medical condition. Another way
of phrasing it is a substantial contributing factor. It doesn't have to be
the only factor contributing to the condition here, but it has to be real,
actual, not a factor that has no connection with or only an
insignificant connection with.
As you have heard, there is no question that at least a part of Mr.
Karpiak's breathing problems are caused by his smoking history.
The next question you will be asked to decide, if you find that
asbestos is, at least, a substantial contributing factor to his problem
is, just what the percentages are.
You have heard from the evidence that you haven't heard any
medical numbers that you can scientifically apportion. However, you
have heard that there are, if you believe this, that there are, it is up to
you to determine how you weigh this, but there are two separate
disease processes that may be present, if you find that way.
Certainly, all doctors agree there was a cigarette smoking component.
And there's testimony, if you believe it, that there's also an asbestos
component to the disease. It's up to you judging from what you have
heard about the relative cigarette smoking history and asbestos
history to do the best two causes. That wili be the second you will be
asked to put a percentage figure on that. (Transcript, pp. 42-44.)
The jury in Karpiak reduced the damage award by 80% due to cigarette smoking.
Although Martin was apparently the first case in which a jury instruction based on
Restatement of Torts (Second) section 433A was given, damages were reduced due to cigarette
smoking in several asbestos cases prior to Martin. (See, e.g., Martin v. Louisville Insulation &
'Plaintiff in Karpiak has appealed the issue of the propriety of this jury instruction to the
.| Pennsylvania Supreme Court.
3.
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Supply Co., Claim No. 80-29600 (Ky. Workmen's Comp. Bd. Nov. 23, 1981), reprinted in Asbestos
Litig. Rep. (Andrew) 4791 (Mar. 26, 1982) (ruling that asbestos victim's disability compensation
award should be cut by 50% because he suffered from other respiratory ailments that stemmed
from smoking); Asbestos Litig. Rep. (Andrew) 4160 (Nov. 25, 1981) (summarizing Hillen v.
Johns-Manville Corp., C.A. No. 79-73236 (E.D. Mich. order issued Nov. 23, 1981) (jury award
reduced by 90% because plaintiff smoked two packs of non-filtered Camel cigarettes each day for
years; asbestos exposure was only six years)).)
2, CALIFORNIA LAW
A Restatement (Second) of Torts, Section 433A
The well-established tort principles set forth in Section 433A of the Restatement (Second)
of Torts provides a firm basis for apportioning damages in California between injury caused by
cigarette smoking and injury caused by asbestos exposure.
Section 433A provides:
(1) Damages for harm are to be apportioned among two or more
causes where (a) there are distinct harms, or (b) there is a
reasonable basis for determining the contribution of each cause to a
single harm.
(2) Damages for any other harm cannot be apportioned among two or
more causes.
Comment A to Section 433A notes that:
the rules stated in this Section apply whenever two or more causes
have combined to bring about harm to the plaintiff, and each has
been a substantial factor in producing the harm . .. . The rules stated
also apply where one or more of the contributing causes is an
innocent one.
The California judiciary adopted this Restatement provision in Carlotto Ltd. v. County of
Ventura. (47 Cal. App. 3d 931 (1975).). In Carlotto, silt inundated plaintiff's property when a flood
control system overflowed during a rainstorm. While the court recognized that defendant county
and flood control district was to some extent responsible for the damage because of a failure to
clean out a debris basin, it found this was a proper case for apportionment under Restatement
(Second) of Torts, section 433A. The court noted that a large portion of the silt would have been
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deposited on plaintiff's property regardless of defendant's failure to clean the basin. (/d. at 936,
citing Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal. App. 2d 657,
704-706 (1965).)
Fibreboard involved a strike against Fibreboard's Emeryville manufacturing plant.
Specifically, plaintiff sought damages from various unions for expense and loss of profits allegedly
caused by the tortious conduct on the part of the picketers in violation of a temporary restraining
order and a preliminary injunction. The court acknowledged that plaintiff's damages could be
reduced proportionately between non-tortious conduct (i.e., failure to cross picket lines because of
union principles) and tortious conduct (i.e., failure to cross picket lines because of fear of violence),
provided defendants met their burden of proving apportionment. (Fibreboard, 227 Cal. App. 2d at
704-705. )
In Fidelity Savings Loan Associations v. Aetna Life and Casualty Corp (440 F. Supp. 862
(N.D. Cal. 1977) (applying California law), the federal district court ordered apportionment of
damages citing Restatement (Second) of Torts section 433A. There, plaintiff lost funds on deposit
with San Francisco National Bank ("SFNB") when SFNB closed under financial distress. Plaintiff
had a "standard savings and loan association blanket bond" with defendant and sought to enforce a
provision which covered loss of property due to dishonesty or fraud.
With regard to the apportionment issue, the court found that dishonesty was only one cause
of the plaintiff's loss and should be apportioned from other causes. By way of analogy the court
quoted "a familiar principle of tort law," referring to Restatement section 433A. (/d. at 876.)
B. BAJI-California Jury Instructions Civil
California Jury Instructions, Civil ("BAJI") also provides jury instructions for damage
apportionment. BAJI No. 14.65 governs circumstances regarding damages for aggravation of a
pre-existing condition. The instruction was incorporated into case law in Ng v. Hudson (75 Cal.
App. 3d 250 (1977)). The instruction provides that a person cannot recover for a pre-existing
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injury, only for the aggravation of that condition.? Necessarily, a jury must weigh the evidence to
apportion damages attributable only to the pre-existing condition and those resulting from the
condition's aggravation. In Ng v. Hudson, the court instructed that BAJI No. 14.65, where
| appropriate, should be given in addition to jury instructions regarding proximate cause.
BAJI No. 3.77 provides for a jury instruction on concurring causes.> BAJI No. 3.77
acknowledges that occasionally this jury instruction may be modified to include apportionment
where injury results from two or more independent negligent acts and the evidence would support a
finding that the damages are capable of apportionment between tortfeasors. Case law supports this
modification in Apodaca v. Haworth (206 Cal.App.2d 209 (1962)). Specifically, a BAJI No. 3.77
note provides that the instruction could be modified by adding the following language:
However, if defendant (second tortfeasor) establishes by a
preponderance of the evidence that his conduct was not the
[proximate] [legal] cause of certain injuries sustained by the plaintiff,
he would not be liable for injuries which were not caused by him.
(BAJI 3.77 USE NOTE, citing Apsodaca v. Haworth, 206 Cal. App.
2d 209, 214 (1962); 4 B. Witkin, Summary of Califomia Law, Torts
§ 35, pp- 2333-34 (8th Ed. 1974); Eramdjian v. Interstate Bakery
Corp., 153 Cal. App. 2d 590 (1957).
?4 person who has a condition or disability at the time of an injury is not entitled to recover
damages therefore. However, a plaintiff is entitled to recover damages for any aggravation of
such pre-existing condition or disability [proximately] [legally] resulting from the injury.
This is true even if a condition or disability made plaintiff more susceptible to the possibility of
ill effects than a normally healthy person would have been, and even if a normally healthy
person probably would not have suffered any substantial injury.
Where a pre-existing condition or disability is so aggravated, the damages as to such condition
or disability are limited to the additional injury caused by the aggravation.
SBAJI 3.77 CONCURRING CAUSES
There may be more than one [proximate] [legal] cause of an injury. When negligent conduct of two or
more persons contributes concurrently as [proximate] [legal] causes of an injury, the conduct of each
of said persons is a [proximate] [legal] cause of the injury regardless of the extent to which each
contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted
with another cause to produce the injury. [It is no defense that the negligent conduct of a person not
joined as a party was also a [proximate] [legal] cause of the injury.]
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The exact language of the instruction contemplates apportionment between multiple
tortfeasors. However, the concept is easily applicable to plaintiff and defendant(s) in
| asbestos-related injury cases where plaintiff has a proven history of cigarette smoking.
i. The Doctrine of Equitable Indemnity
The doctrine of equitable indemnity has been applied by the California judiciary to
apportion damages among tortfeasors. In Niles v. City of San Rafael, 42 Cal.App.3d 230 (1974),
the court instructed the jury to bring in a general verdict regarding the negligence and a special
verdict apportioning liability based on proximate cause in a personal injury cause of action. In that
case, the City of San Rafael sought indemnity from liability for the negligent acts of a doctor
treating a young boy after he was injured on a public school playground. The jury instruction in
Niles is based on the forerunner case of Herrero v. Atkinson, 227 Cal. App. 2d 69 (1964).
The facts of that case involve a wrongful death action arising from a motor vehicle accident
in which Herrero was one of the drivers. Decedent underwent surgery for the injuries suffered in
the automobile accident and died from an alleged negligent blood transfusion. Her estate brought
suit against Herrero, the hospital and the attending doctors. On appeal, the court upheld Herrero's
cross-complaint for indemnity against the hospital and doctors for their alleged negligent acts,
thereby reversing the trial court's dismissal. The appellate court found "no reason why the ultimate
burden of damages should not be distributed . . . and each made to bear that portion of the judgment
which in equity and good conscience should be borne by him.” (Jd. at 75.)
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3. CONCLUSION
Based on the foregoing, it is clear that Prosser's dictum is applicable in Califomia: “Where
a factual basis can be found for some rough practical apportionment, which limits a defendant's
liability to that part of the harm of which that defendant's conduct has been a cause in fact, it is
likely that the apportionment will be made.” (Prosser & Keeton, Torts § 345 (5th ed. 1984).)
DOWMAN therefore respectfully requests that the jury instruction be provided by the Court to
apportion damages between decedent's injuries due to cigarette smoking and exposure to asbestos.
Dated: March 30 , 2010 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP
». (aw vl
Robert M. Channel
Tan P. Dillon
Attorneys for Defendant
HAMILTON MATERIALS, INC.
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DEFENDANT HAMILTON MATERIALS, INC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
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PROOF OF SERVICE
Jam employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612.
On March 30, 2010, I served the within document(s) described as:
DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING
APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND
ASBESTOS EXPOSURE
on the interested parties in this action as stated below:
Brayton Purcell LLP
222 Rush Landing Road
P.O. Box 6169
Novato, CA 94948
(BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above
electronically to the LexisNexis File & Serve Website to the parties on the Service List
maintained on the LexisNexis File & Serve Website for this case. If the document is
provided to LexisNexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to LexisNexis. A copy of the "LexisNexis File &
Serve Filing Receipt" page will be maintained with the original document(s) in our office.
Executed on March 30, 2010, at San Francisco, California.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Cheryl Lieu v
(Type or print name) (Signature)
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DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN
908241 SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN
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© Oe IY A HWA PF WN Nw YY NY NY NH NN Ne eee Be OR Re IAA BB YUN = Gwe wna Dw BP WN SF TS 28 Walsworth, Franklia, Revins & McCall, LLP Arrowsiersartaw ROBERT M. CHANNEL, STATE BAR NO. 109273 IAN P. DILLON, STATE BAR NO, 203612 |] WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP 1601 Montgomery Street, Ninth Floor ELECTRONICALLY San Francisco, California 94111-2612 FILED Telephone: (415) 781-7072 Superior Court of California, Facsimile: (415) 391-6258 County of San Francisco APR 01 2010 Attorneys for Defendant Clerk of the Court HAMILTON MATERIALS, INC. BY: CHRISTLE ARRIOLA Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE JUELCH and NORMAN JUELCH, SR., | Case No. CGC-09-275212 Plaintiffs, DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM v. OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 ASBESTOS DEFENDANTS, et al., REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE Defendants. SMOKING AND ASBESTOS EXPOSURE MEMORANDUM OF POINTS AND AUTHORITIES The above jury instruction which instructs the jury to reduce the award of damages decedent's condition by the percentage due to cigarette smoking was affirmed in Martin v. Johns-Manville Corporation (502 A.2d 1264, 54 U.S.C.W. 2368 (Pa. Sup. 1985)). Both the reasoning of Martin and existing California law mandate the application of this jury instruction in this case. 1. THE MARTIN CHARGE In two Pennsylvania cases, the court gave the jury the instruction on apportionment between, cigarette smoking and asbestos exposure requested in this motion. Martin v. Johns-Manville Corporation, 502 A.2d 1264, 54 U.S.C.W. 2368 (Pa. Sup. 1985) affirmed on appeal the trial court's instruction to the jury that it could reduce any award of damages DEFENDANT HAMILTON MATERIALS, INC'S VEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 398241.1 1155-5.2557_ RMN RYN NR KD Ne ee maa a Dn WR FF Ww NY KF§ SD ODO BH DQ DHMH FF WHY KY SS 28 Walsworth, Frankdin, Bevias & ‘McCall, LL ATTORNEXS AT LAW Co wm TN DH B® WN for appellant's disability by the percentage of his disability due to cigarette smoking. The Martin plaintiff had been an asbestos worker for 39 years and had begun smoking in 1941. The Martin court cited the Restatement (Second) of Torts, Section 433A as authority to give the jury instruction requested in this motion. The court noted that it is for the trial court as an initial matter to determine whether the evidence permits apportionment, “[i]t is the function of the court to determine . .. whether the harm to the plaintiff is capable of apportionment among two or more causes. (Martin, 502 A.2d at 1267, citing Restatement (Second) of Torts, § 434.) Martin held that "upon determining that the evidence did permit apportionment, the trial court was bound to instruct the jury on apportionment.” Jd. at 1267 (emphasis added). Importantly, the court noted that it was irrelevant that no expert testimony at trial assigned a specific percentage of causation to cigarette smoking or fo asbestos exposure. The court stated: "In our view, the evidence that was produced was insufficient to enable the jury to reach a reasonable approximation of harm due to each cause." (id.) The court noted that the issue is not whether respective percentage contributions were proved, but "whether there was a reasonable basis for the jury to apportion appellant's disability among those causes." (See also Prosser and Keeton, Torts 345 (Sth ed. 1984) ("Where a factual basis can be found for some rough practical apportionment, which limits a defendant's liability to that part of the harm which that defendant's conduct has been a cause in fact, it is likely that the apportionment will be made."). The court further noted that: the testimony did not establish the exact proportion that each disease contributed to appellant's disability suggests, not that the damages should not have been apportioned, but only that medical science has not yet been able to calculate the proportions as exact percentages. (Ud, at 1271.) In applying Section 433A, Martin noted that harm may be apportioned either when the plaintiff has suffered distinct harms, or when there are separate causes of a single disability. The court decided that there was a single harm, plaintiff's disability, and that the separate causes, smoking and asbestos, were fairly capable of apportionment. Martin also noted that damages may be apportioned even if plaintiff's conduct, which contributed to the harm, was innocent. That is, “the question whether appellant was negligent in smoking cigarettes is irrelevant to deciding DEFENDANT HAMILTON MATERIALS, INC'S TEMORANDUN OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 898241.1 1155-5.2557wm YN HD HW Bw N | NN N YN NN NY ee oe we ee ee Re eS IAA BW YN =— Be © A A HAH BP wBwNH S| 28 Walsworth, Franklin, Bevins & McCall, LLP ATTORNEISAT LAE whether his damages may be reduced because of the part that smoking played in his disability.” In another Pennsylvania asbestos case, the trial court gave a jury instruction on apportionment similar to that given in Martin. (Karpiak v. Johns-Manville Corporation, No. 5771 (159), Court of Common Pleas, First Judicial District of Pennsylvania, Trial Division, transcript of proceeding dated February 4, 1986, cited in Mealey's Litigation Reports, Asbestos, p. 3675 (1986).") In Karpiak, the judge gave the following jury instruction: The first question is whether asbestos exposure was a significant contributing factor to Mr. Karpiak's medical condition. Another way of phrasing it is a substantial contributing factor. It doesn't have to be the only factor contributing to the condition here, but it has to be real, actual, not a factor that has no connection with or only an insignificant connection with. As you have heard, there is no question that at least a part of Mr. Karpiak's breathing problems are caused by his smoking history. The next question you will be asked to decide, if you find that asbestos is, at least, a substantial contributing factor to his problem is, just what the percentages are. You have heard from the evidence that you haven't heard any medical numbers that you can scientifically apportion. However, you have heard that there are, if you believe this, that there are, it is up to you to determine how you weigh this, but there are two separate disease processes that may be present, if you find that way. Certainly, all doctors agree there was a cigarette smoking component. And there's testimony, if you believe it, that there's also an asbestos component to the disease. It's up to you judging from what you have heard about the relative cigarette smoking history and asbestos history to do the best two causes. That wili be the second you will be asked to put a percentage figure on that. (Transcript, pp. 42-44.) The jury in Karpiak reduced the damage award by 80% due to cigarette smoking. Although Martin was apparently the first case in which a jury instruction based on Restatement of Torts (Second) section 433A was given, damages were reduced due to cigarette smoking in several asbestos cases prior to Martin. (See, e.g., Martin v. Louisville Insulation & 'Plaintiff in Karpiak has appealed the issue of the propriety of this jury instruction to the .| Pennsylvania Supreme Court. 3. DEFENDANT HAMILTON MATERIALS, INC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 898241.1 1155-5,2557ne NN N NN NN ND BH Rew ee a i NY DA BF YW YN |= DBwe we HDA BF wBWNH & 28 ‘Walsworth, Franklin, Bevins & ‘McCall, LLP ATTORNEYS APLAR Co Oe YN DH A FF WN Supply Co., Claim No. 80-29600 (Ky. Workmen's Comp. Bd. Nov. 23, 1981), reprinted in Asbestos Litig. Rep. (Andrew) 4791 (Mar. 26, 1982) (ruling that asbestos victim's disability compensation award should be cut by 50% because he suffered from other respiratory ailments that stemmed from smoking); Asbestos Litig. Rep. (Andrew) 4160 (Nov. 25, 1981) (summarizing Hillen v. Johns-Manville Corp., C.A. No. 79-73236 (E.D. Mich. order issued Nov. 23, 1981) (jury award reduced by 90% because plaintiff smoked two packs of non-filtered Camel cigarettes each day for years; asbestos exposure was only six years)).) 2, CALIFORNIA LAW A Restatement (Second) of Torts, Section 433A The well-established tort principles set forth in Section 433A of the Restatement (Second) of Torts provides a firm basis for apportioning damages in California between injury caused by cigarette smoking and injury caused by asbestos exposure. Section 433A provides: (1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes. Comment A to Section 433A notes that: the rules stated in this Section apply whenever two or more causes have combined to bring about harm to the plaintiff, and each has been a substantial factor in producing the harm . .. . The rules stated also apply where one or more of the contributing causes is an innocent one. The California judiciary adopted this Restatement provision in Carlotto Ltd. v. County of Ventura. (47 Cal. App. 3d 931 (1975).). In Carlotto, silt inundated plaintiff's property when a flood control system overflowed during a rainstorm. While the court recognized that defendant county and flood control district was to some extent responsible for the damage because of a failure to clean out a debris basin, it found this was a proper case for apportionment under Restatement (Second) of Torts, section 433A. The court noted that a large portion of the silt would have been 4. DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 898241.1 1155-5.2557Co OY DHA Bw N NR NY NY NH NY NO RD Rt a a AY DA BB YUN &— So wm I AH BF WH HY S 28 Walsworth, Franklin, Bevins & McCall, LLP deposited on plaintiff's property regardless of defendant's failure to clean the basin. (/d. at 936, citing Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal. App. 2d 657, 704-706 (1965).) Fibreboard involved a strike against Fibreboard's Emeryville manufacturing plant. Specifically, plaintiff sought damages from various unions for expense and loss of profits allegedly caused by the tortious conduct on the part of the picketers in violation of a temporary restraining order and a preliminary injunction. The court acknowledged that plaintiff's damages could be reduced proportionately between non-tortious conduct (i.e., failure to cross picket lines because of union principles) and tortious conduct (i.e., failure to cross picket lines because of fear of violence), provided defendants met their burden of proving apportionment. (Fibreboard, 227 Cal. App. 2d at 704-705. ) In Fidelity Savings Loan Associations v. Aetna Life and Casualty Corp (440 F. Supp. 862 (N.D. Cal. 1977) (applying California law), the federal district court ordered apportionment of damages citing Restatement (Second) of Torts section 433A. There, plaintiff lost funds on deposit with San Francisco National Bank ("SFNB") when SFNB closed under financial distress. Plaintiff had a "standard savings and loan association blanket bond" with defendant and sought to enforce a provision which covered loss of property due to dishonesty or fraud. With regard to the apportionment issue, the court found that dishonesty was only one cause of the plaintiff's loss and should be apportioned from other causes. By way of analogy the court quoted "a familiar principle of tort law," referring to Restatement section 433A. (/d. at 876.) B. BAJI-California Jury Instructions Civil California Jury Instructions, Civil ("BAJI") also provides jury instructions for damage apportionment. BAJI No. 14.65 governs circumstances regarding damages for aggravation of a pre-existing condition. The instruction was incorporated into case law in Ng v. Hudson (75 Cal. App. 3d 250 (1977)). The instruction provides that a person cannot recover for a pre-existing 5- DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 898241.1 1155-5.255728 Walsworth, Franidin, Bevins & McCall, LLP ATTORNENE ATLA injury, only for the aggravation of that condition.? Necessarily, a jury must weigh the evidence to apportion damages attributable only to the pre-existing condition and those resulting from the condition's aggravation. In Ng v. Hudson, the court instructed that BAJI No. 14.65, where | appropriate, should be given in addition to jury instructions regarding proximate cause. BAJI No. 3.77 provides for a jury instruction on concurring causes.> BAJI No. 3.77 acknowledges that occasionally this jury instruction may be modified to include apportionment where injury results from two or more independent negligent acts and the evidence would support a finding that the damages are capable of apportionment between tortfeasors. Case law supports this modification in Apodaca v. Haworth (206 Cal.App.2d 209 (1962)). Specifically, a BAJI No. 3.77 note provides that the instruction could be modified by adding the following language: However, if defendant (second tortfeasor) establishes by a preponderance of the evidence that his conduct was not the [proximate] [legal] cause of certain injuries sustained by the plaintiff, he would not be liable for injuries which were not caused by him. (BAJI 3.77 USE NOTE, citing Apsodaca v. Haworth, 206 Cal. App. 2d 209, 214 (1962); 4 B. Witkin, Summary of Califomia Law, Torts § 35, pp- 2333-34 (8th Ed. 1974); Eramdjian v. Interstate Bakery Corp., 153 Cal. App. 2d 590 (1957). ?4 person who has a condition or disability at the time of an injury is not entitled to recover damages therefore. However, a plaintiff is entitled to recover damages for any aggravation of such pre-existing condition or disability [proximately] [legally] resulting from the injury. This is true even if a condition or disability made plaintiff more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. Where a pre-existing condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation. SBAJI 3.77 CONCURRING CAUSES There may be more than one [proximate] [legal] cause of an injury. When negligent conduct of two or more persons contributes concurrently as [proximate] [legal] causes of an injury, the conduct of each of said persons is a [proximate] [legal] cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. [It is no defense that the negligent conduct of a person not joined as a party was also a [proximate] [legal] cause of the injury.] -6- DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 898241.1 1155-5.2557oO IN DH BF YW YY RN NM YN RNY RD Ee eB ew we oe ee Yao 8 BBX FSF Ce WA BAEBGEHKASG 28 ‘Walsworth, Frankia, Bevins & McCall, LLP The exact language of the instruction contemplates apportionment between multiple tortfeasors. However, the concept is easily applicable to plaintiff and defendant(s) in | asbestos-related injury cases where plaintiff has a proven history of cigarette smoking. i. The Doctrine of Equitable Indemnity The doctrine of equitable indemnity has been applied by the California judiciary to apportion damages among tortfeasors. In Niles v. City of San Rafael, 42 Cal.App.3d 230 (1974), the court instructed the jury to bring in a general verdict regarding the negligence and a special verdict apportioning liability based on proximate cause in a personal injury cause of action. In that case, the City of San Rafael sought indemnity from liability for the negligent acts of a doctor treating a young boy after he was injured on a public school playground. The jury instruction in Niles is based on the forerunner case of Herrero v. Atkinson, 227 Cal. App. 2d 69 (1964). The facts of that case involve a wrongful death action arising from a motor vehicle accident in which Herrero was one of the drivers. Decedent underwent surgery for the injuries suffered in the automobile accident and died from an alleged negligent blood transfusion. Her estate brought suit against Herrero, the hospital and the attending doctors. On appeal, the court upheld Herrero's cross-complaint for indemnity against the hospital and doctors for their alleged negligent acts, thereby reversing the trial court's dismissal. The appellate court found "no reason why the ultimate burden of damages should not be distributed . . . and each made to bear that portion of the judgment which in equity and good conscience should be borne by him.” (Jd. at 75.) Mt Mf dit if if Mf Mt Mt it DEFENDANT HAMILTON MATERIALS, INC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 898241.1 1155-5.255728 ‘Walsworth, Franidin, Bevins & ‘McCall, LLP avToMNersartaw 3. CONCLUSION Based on the foregoing, it is clear that Prosser's dictum is applicable in Califomia: “Where a factual basis can be found for some rough practical apportionment, which limits a defendant's liability to that part of the harm of which that defendant's conduct has been a cause in fact, it is likely that the apportionment will be made.” (Prosser & Keeton, Torts § 345 (5th ed. 1984).) DOWMAN therefore respectfully requests that the jury instruction be provided by the Court to apportion damages between decedent's injuries due to cigarette smoking and exposure to asbestos. Dated: March 30 , 2010 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP ». (aw vl Robert M. Channel Tan P. Dillon Attorneys for Defendant HAMILTON MATERIALS, INC. 8. DEFENDANT HAMILTON MATERIALS, INC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND 898241.1 1155-5.255728 ‘Walsworth, Frankdin, Bevins & McCalt, LLP arronsersariaw PROOF OF SERVICE Jam employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is 601 Montgomery Street, Ninth Floor, San Francisco, California 94111-2612. On March 30, 2010, I served the within document(s) described as: DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN CIGARETTE SMOKING AND ASBESTOS EXPOSURE on the interested parties in this action as stated below: Brayton Purcell LLP 222 Rush Landing Road P.O. Box 6169 Novato, CA 94948 (BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above electronically to the LexisNexis File & Serve Website to the parties on the Service List maintained on the LexisNexis File & Serve Website for this case. If the document is provided to LexisNexis electronically by 5:00 p.m., then the document will be deemed served on the date that it was provided to LexisNexis. A copy of the "LexisNexis File & Serve Filing Receipt" page will be maintained with the original document(s) in our office. Executed on March 30, 2010, at San Francisco, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Cheryl Lieu v (Type or print name) (Signature) -9- DEFENDANT HAMILTON MATERIALS, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN 908241 SUPPORT OF MOTION IN LIMINE #8 REGARDING APPORTIONMENT OF DAMAGES BETWEEN 1155-5.2557