This appeal arises from a lawsuit alleging permanent personal injuries arising from exposure to asbestos and products containing asbestos. Denis B. Howard (Howard) and Malee C. Howard (collectively appellants) appeal a special jury verdict for respondent Owens Corning
I. FACTUAL AND PROCEDURAL BACKGROUND
Howard and his wife filed the instant lawsuit in March 1995. The complaint alleged seven causes of action based on various theories including negligence, strict liability, emotional distress, intentional tort, conspiracy
For administrative purposes, Howard's lawsuit was grouped together with a number of other asbestos personal injury cases, collectively captioned In re Bray ton Group 115, and proceeded to trial against Owens Corning alone.
Howard was born in October 1942. He enlisted in the United States Navy in 1960, soon after graduation from high school. At trial, Howard testified in detail to his occupational history, including his alleged exposure to asbestos. From 1960 until 1963, Howard was engaged in land-based basic training, classroom training in antisubmarine warfare, and assignment to service at Pearl Harbor, Hawaii, as a torpedoman's mate. His duties included cleaning and maintenance of torpedoes and delivery of torpedoes to ships stationed at Pearl Harbor. Howard testified that during this period his shipboard work was on the main deck; he had no occasion to go below deck or into engine or boiler rooms, and was not involved in any ship overhauls. He could not testify that he had any exposure to asbestos with respect to this period of time.
In September 1963, Howard was transferred to service aboard the U.S.S. Piedmont, on which he was stationed until June 1965, first as a torpedoman's mate, and later as a clerk. During this period Howard lived aboard ship. The Piedmont was a repair vessel that provided repair services to destroyers home-ported in San Diego. On several occasions, when Howard passed through the ship's machine shop he observed men "working on, what looked to me to be pipes with insulation, and there would be dust in the air...." However, he never had occasion to go to the machinery, engine or boiler rooms of the Piedmont. Howard slept in a berthing compartment, with "some" insulated pipes running overhead above the top bunks. "[P]eriodically" Howard would find "dust or other material" on his bed following work done in the area above his bunk.
Howard left the Piedmont in June 1965. For several months, he was trained in Florida as a communications technician. In December 1965, the Navy ordered him to Japan to serve in electronics intelligence. From January to September 1966, Howard was assigned to the U.S.S. Kiersage, on which he participated in conducting antisubmarine warfare exercises. During this time period, Howard never went into a boiler room or engine room, and was not in the vicinity of any insulation work. Most of Howard's work was performed in a radio room ventilated with fresh air.
In September 1966, Howard was transferred to San Miguel in the Philippines, where he served until December 1967 as an intelligence technician on a number of different ships in the 7th Fleet. During these deployments, Howard lived in the berthing quarters and worked in the communications areas of the ships. On some ships, Howard's working area was above-deck; on others it was below. The below-deck working areas were ventilated. His experience on these ships was similar to that he had had on the Kiersage. Howard did not testify to any suspected exposure to asbestos during this time period.
After additional classroom instruction and torpedo training between January and April 1969, Howard was assigned to the U.S.S. Weiss, where he served as a bosun's mate or immediate supervisor of the above-deck forces. When the decision was made in the late Summer of 1969 to decommission the Weiss, Howard supervised the work involved
In late November 1969, Howard was transferred from the Weiss to his last ship, the U.S.S. Current, on which he served as a bosun's mate until the end of March 1970. Howard did not testify to any suspected asbestos exposure on board the Current. He was discharged from the Navy in April 1970 after almost 10 years of service. Howard testified that during the entire period he was in the Navy, he never removed, applied, installed or worked directly with any material that he thought contained asbestos.
Five weeks after leaving the Navy, Howard enlisted in the United States Army. He served in the Army another 10 years, performing noncombatant duties in Alaska, Vietnam, Thailand, South Carolina and Panama. To the best of his knowledge, Howard was not exposed to any asbestos or asbestos-containing products during the entire time he served in the Army. After retiring from the Army in August 1980, Howard obtained a college degree and went into federal civil service. In August 1989, he applied for and obtained disability retirement based on his health. Howard testified that he was not exposed to asbestos either in college or while working in the civil service.
Howard testified that he began smoking cigarettes around the age of 11 or 12. Since the age of 17, he had been smoking at least 2 packs of unfiltered Camels cigarettes every day. Although he quit on three separate occasions for periods of approximately six months each, most recently following his surgery for lung cancer, Howard nevertheless resumed each time. As of the time of trial, Howard was still smoking approximately two packs of unfiltered cigarettes a day, as he had for 40 years.
None of Howard's personal treating physicians testified on his behalf at trial. Instead, he offered the testimony of two expert witnesses. Dr. Carolyn Ray, an internist, testified that she examined Howard once, on October 16, 1995. At the time, Howard complained of shortness of breath, inability to climb stairs, and extremely limited ability to engage in other physical activities. Based on this physical examination, Howard's statements to her, pulmonary-function testing, and examination of Howard's medical records and a chest X-ray showing bilateral pleural thickening with plaques Dr. Ray diagnosed Howard as suffering from asbestosis and asbestos-related pleural disease caused by his exposure to asbestos during his service in the Navy. Dr. Ray also diagnosed Howard's lung cancer as asbestos-related.
Dr. Ray testified that pathological testing of actual lung tissue was "the ultimate or the gold standard" of tests for diagnosing asbestosis. Nevertheless, Howard did not introduce any pathological evidence at trial and, instead, relied on clinical diagnoses. Dr. Ray testified there were two "absolute requirements" for any clinical (as opposed to pathological) diagnosis of asbestosis: (1) some history of a "significant exposure to asbestos"; and (2) a minimum "reasonable" amount of time—-"generally 20 years"—between the first exposure to asbestos and the date of the clinical evaluation. Dr. Ray testified that during Howard's single interview with her in October 1995, he described an occupational history of "significant and heavy" asbestos exposure over a period of 10 years, during which time he personally worked at removing asbestos-containing insulation, ripping out asbestos-containing pipe wrapping, and in a Navy machine shop in conditions "like walking in a snowstorm...." Dr. Ray had not heard Howard's own trial testimony describing his occupational history.
On cross-examination, Dr. Ray acknowledged that Howard had a history of lung disease in this family, and suffered from a large number of chronic disorders and diseases unrelated to asbestos exposure. Based on all the testimony in the record,
Howard's other expert witness was Dr. Allan Smith, an epidemiologist. Dr. Smith testified that asbestos exposure significantly increases the risk of lung cancer in nonsmokers, but increases the same risk exponentially for cigarette smokers. On direct examination, Dr. Smith was asked to assume that Howard had suffered "substantial exposure" to asbestos while on board ship in the Navy, had been diagnosed as suffering from asbestos, and had also "smoked heavily" most of his life. Based on these assumptions, Dr. Smith testified to his opinion that both the smoking and the exposure to asbestos had contributed to causing Howard's lung cancer.
On cross-examination, Dr. Smith admitted that (a) the minimum threshold amount of asbestos exposure necessary before developing asbestosis was unknown; (b) virtually everyone has some "background" exposure to asbestos; and (c) there is no reason to believe such background exposure would cause asbestosis. Asked whether his opinion of the cause of Howard's lung cancer would change on the basis of evidence Howard's only contact with asbestos beyond normal background exposure had been during a twomonth period when he had intermittently walked through an area where other persons were performing work with asbestos-containing insulation, Dr. Smith testified "it would change my answer. I guess it would become a question." However he reiterated his opinion that "the asbestos caused the lung cancer," based on the assumption Howard's chest X-ray provided evidence of asbestos exposure.
Owens Coming's trial counsel failed to file a timely designation of expert witnesses or tender expert reports to Howard's counsel. The trial court denied Owens Coming's motion to submit its expert witness list, and granted Howard's cross-motion to exclude any testimony from Owens Coming's experts. Owens Corning was therefore barred from introducing any expert witness testimony at trial.
After the defense rested, Howard's trial counsel moved for a directed verdict finding that Howard had suffered damage, loss or harm from exposure to asbestos. He argued "there is no defense expert testimony whatsoever" to counter either Dr. Ray's diagnosis of asbestosis, asbestos-related pleural disease and asbestos-related lung cancer or Dr. Smith's expert opinion that Howard's lung cancer was caused by exposure to asbestos. The trial court denied the motion on the ground the jury could disregard or reject the expert testimony offered on behalf of Howard if there was any reasonable basis to do so, such as a finding that there was insufficient factual foundation for the expert testimony, Dr. Ray's diagnosis was suspect because of her lack of current technical certification in reading X-rays, or the expert testimony was neither impartial nor unbiased.
The trial court instructed the jury on expert testimony in accordance with BAJI Nos. 2.40, 2.41 and 2.42.
II. Standard of Review
On appeal, Howard argues the trial court erred in denying him a directed verdict based on the expert witness testimony that he is suffering from asbestos-related illnesses. Because Owens Corning presented no expert witness testimony of its own, leaving Howard's own expert witness testimony uncontradicted, Howard contends there was no evidence either to justify the denial of a directed verdict in his favor, or to support the jury's ultimate verdict for Owens Corning. Howard is wrong.
Like a motion for nonsuit, a motion for a directed verdict is in the nature of a demurrer to the evidence. (Walters v. Bank of America (1937) 9 Cal.2d 46, 49, 69 P.2d 839; Metzenbaum v. R.O.S. Associates (1986) 188 Cal.App.3d 202, 208, 232 Cal.Rptr. 741; Fuchs v. Southern Pac. Co. (1935) 5 Cal.App.2d 409, 412;, 42 P.2d 704 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 430, p. 491.) In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. It may not grant a directed verdict where there is any substantial conflict in the evidence. (7 Witkin, Cal. Procedure, supra, Trial, §§ 419, 431-432, pp. 480-481, 492-494.) A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. (Casey v. Proctor (1963) 59 Cal.2d 97, 103, 28 Cal.Rptr. 307, 378 P.2d 579; Walters v. Bank of America, supra, 9 Cal.2d at p. 49, 69 P.2d 839; Estate of Lances (1932) 216 Cal. 397, 400-401, 14 P.2d 768; Shapiro v. Hu (1986) 188 Cal.App.3d 324, 334, 233 Cal.Rptr. 470; Milliard v. AH: Robins Co. (1983) 148 Cal.App.3d 374, 394-395, 196 Cal.Rptr. 117; Grafton v. Mollica (1965) 231 Cal.App.2d 860, 862, 42 Cal.Rptr. 306; Estate of Easton (1931) 118 Cal.App. 659, 662, 5 P.2d 635; 7 Witkin, Cal. Procedure, supra, Trial, §§ 419, 431-432, pp. 480-481, 492-494.)
Our consideration of the issue whether the judgment was supported by substantial evidence is governed by the wellestablished standard of review applicable to any claim that a judgment or finding is not supported by the evidence in the record. Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60, 148 Cal.Rptr. 596, 583 P.2d 121; County of Mariposa v. Yosemite West Associates (1988) 202 Cal.App.3d 791, 807, 248 Cal.Rptr. 778; Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86, 97;, 178 Cal.Rptr. 831 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 359, pp. 408-410.)
It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 697, 139 Cal.Rptr. 700, 566 P.2d 602; Estate ofTeel (1944) 25 Cal.2d 520, 526-527, 154 P.2d 384; Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183; County of Mariposa v. Yosemite West Associates, supra, 202 Cal.App.3d at p. 807, 248 Cal.Rptr. 778; Henry v. Sharma (1984) 154 Cal.App.3d 665, 670, 201 Cal.Rptr. 478; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, 197 Cal.Rptr. 925; McKinney v. Kull (1981) 118 Cal.App.3d 951, 955,173 Cal.Rptr. 696.)
We emphasize that the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this "substantial" evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing. (Campbell v. Southern Pacific Co., supra, 22 Cal.3d at p. 60,148 Cal.Rptr. 596, 583 P.2d 121; County of Mariposa v. Yosemite West Associates, supra, 202 Cal.App.3d at p. 807, 248 Cal.Rptr. 778; Chodos v. Insurance Co. of North America, supra, 126 Cal.App.3d at p. 97;, 178 Cal.Rptr. 831 9 Witkin, Cal. Procedure, supra, Appeal, §§ 359-364, pp. 408-415.) In short, even if the judgment of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is "substantial," that is, of "ponderable legal significance," "reasonable in nature, credible, and of solid value...." (United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 392-393, 88 Cal.Rptr. 551; Estate of Teed (1952) 112 Cal.App.2d 638, 644;, 247 P.2d 54 9 Witkin, Cal. Procedure, supra, Appeal, §§ 359-364, pp. 408-415.)
Both in their briefs on appeal and at oral argument, appellants have strenuously maintained that the jury was required to accept his experts' diagnosis of asbestosis, asbestos-related pleural disease and asbestos-related lung cancer to the extent it was based on Dr. Ray's examination of Howard's chest Xrays, because this evidence was uncontroverted concerned a matter that was within the knowledge of experts only, and was not within the scope of common knowledge. Appellants do not stop here, however. They go so far as to argue that, as a matter or law, "[i]t is only when there is a conflict between expert testimony and the facts of the case, that the jury may determine the relative weight of the evidence. But when the expert testimony is uncontroverted, and no conflict exists, as here, the 'uncontroverted testimony upon matters of expert knowledge is conclusive.' " (Italics in original, fns. omitted.) In support of this assertion, appellants cite two cases involving alleged professional negligence or malpractice (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 277, 7 Cal.Rptr.2d 101; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 313, 136 Cal.Rptr. 603), and several older negligence cases (Mittelman v. Seifert (1971) 17 Cal.App.3d 51, 69, 94 Cal.Rptr. 654; Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 94, 199 P.2d 302; Lindsay v. County of San Diego Ret. Bd. (1964) 231 Cal.App.2d 156, 160, 41 Cal.Rptr. 737).
Appellants have seriously misstated the law. A careful examination of the cases they cite reveals that the stated principle—uncontroverted expert opinion testimony may be "conclusive" on the jury—is actually the "single exception" to the general rule that "expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary." (Conservatorship of McKeown (1994) 25 Cal.App.4th 502, 507-510, 30 Cal.Rptr.2d 542.) Thus, "[a]s a general rule, `[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]' [Citation.] This rule is applied equally to expert witnesses." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890, 92 Cal.Rptr. 162, 479 P.2d 362.) The exceptional principle requiring a fact finder to accept uncontradicted expert testimony as conclusive applies only in professional negligence cases where the standard of care must be established by expert testimony. In such instances, "the plaintiff must prove by members of the defendant's profession the standard of care or skill ordinarily used in the practice of that profession at a particular place" (Liberty Mut. Ins. Co. v. Industrial Acc. Com., supra, 33 Cal.2d at p. 95, 199 P.2d 302); only then may this "standard of care, when testified to by experts who are uncontradicted, ... be conclusively shown by such testimony." (Conservatorship of McKeown, supra, 25 Cal. App.4th at p. 509, 30 Cal.Rptr.2d 542.)
Because the instant case does not present any issues of professional negligence or medical malpractice, there was no reason to require the trier of fact to accept as "conclusive" the uncontradicted testimony of appellant's experts. Instead, the general rule applies. Under this rule, as the trial court correctly instructed the jury, the opinion of any expert witness "is only as good as the facts and reasons on which it is based...." (BAJI No. 2.40.) If the jury finds that the party offering expert testimony has failed to prove any foundational fact, or that some fact on which the expert's opinion is based has been disproved by the opposing party, the jury is required to consider that in evaluating the expert testimony. Although a jury may not arbitrarily or unreasonably disregard the testimony of an expert,
In this case, there was substantial evidence in the record contradicting or disproving the foundational facts on which the testimony of Howard's two experts was based. Although Dr. Ray testified at trial (and appellant repeats in his briefs) that Howard's exposure to asbestos was "significant and heavy," with conditions "like walking in a snowstorm," this description was hers, not Howard's. In fact, Howard's trial testimony supports a conclusion he had at most only incidental exposure to asbestos for a brief period during this naval career. Howard testified unequivocally that he was not exposed to asbestos while serving in the Army, while attending college, or while working in the federal civil service. During his approximately 10 years of service in the United States Navy, he worked either as a torpedoman, a communications technician, or as a bosun's mate. In connection with all these jobs, he worked primarily in ventilated or above-deck areas, never venturing into the boiler or engine rooms on board ship. During the entire period he was in the Navy, Howard never removed, applied, installed or worked directly with any material that he thought contained asbestos. Howard's only testimony relative to possible asbestos exposure was his comment about periodic unidentified "dust" on his bunk blanket, and his description of supervising the removal of asbestos insulation for approximately two months in 1969. Based on this testimony, the jury could reasonably have concluded Howard had simply not received sufficient asbestos exposure to cause the injuries alleged.
Side by side with this paucity Of evidence of asbestos exposure, there was substantial evidence that Howard's breathing difficulties and lung-related illnesses were caused by factors or agents other than asbestos. Howard had a lifetime habit of smoking at least two packs of unfiltered cigarettes a day, beginning when he was still a young teenager. There was uncontradicted evidence Howard suffered from chronic obstructive pulmonary disease, a condition unrelated to asbestos exposure that produced difficulty in breathing. In addition, there was undisputed evidence that both of Howard's parents had died of lung disease, and that Howard was genetically predisposed to lung cancer. The jury could reasonably have concluded Howard's lung disease was caused by a combination of these factors rather than by asbestos exposure.
The jury could also have deemed it significant that Howard did not introduce any pathological evidence showing he was suffering from asbestos-related disease, despite Dr. Ray's own testimony that pathological evidence was the "ultimate or gold standard"
The jury may have found Dr. Ray's testimony lacking in credibility for other reasons. Dr. Ray first told the jury that occupational history showing significant exposure to asbestos" was an essential component of the clinical examination and diagnostic process. She then testified she based her asbestosis diagnosis in part on Howard's single interview with her in October 1995, and his description of an occupational history of "significant and heavy" asbestos exposure over a period of 10 years during which he personally worked in a Navy machine shop in conditions "like walking in a snowstorm," ripping out asbestos-containing insulation and pipewrapping. On cross-examination, Dr. Ray admitted she had not heard Howard's trial testimony, which clearly contradicted her understanding of Howard's occupational history. As the record shows, Howard did not work personally or directly on the removal of asbestos-containing insulation. The jury could conclude either that Dr. Ray had misunderstood the nature of Howard's occupational history, or that Howard had been less than accurate in how he described it to Dr. Ray. In either case, the conflict between Dr. Ray's understanding of Howard's occupational history and his trial testimony describing that history undermines the factual foundation for much of Dr. Ray's expert opinion evidence, and with it the credibility of her testimony.
Alternatively, the jury could have disbelieved Dr. Ray's testimony based on her admitted lack of certification in the commonly accepted system used to read, grade, and make diagnoses of occupational pulmonary disease from chest X-rays. Aside from her (faulty) understanding of Howard's occupational history, the primary basis for Dr. Ray's clinical diagnosis of asbestos was her analysis of Howard's chest X-ray. In evaluating her opinion testimony, the jury could take into account the fact Dr. Ray had failed to take the examinations necessary to maintain her X-ray reading certification. It could also consider her acknowledgment on crossexamination that she had previously written that pleural plaques do not impair lung functioning, which was directly contrary to her earlier trial testimony and the stated basis for her diagnosis of asbestos in Howard's case.
Finally, with regard to Dr. Smith's relatively brief testimony, the record shows his expressed opinion that asbestos exposure was a cause of Howard's lung cancer was explicitly based on Dr. Ray's diagnosis of Howard. To the extent the jury rejected Dr. Ray's testimony, it could also reject that of Dr. Smith. In any event, Dr. Smith's testimony was based on the hypothetical assumption that Howard had "substantial exposure" to asbestos and worked "routinely" around or with it on board ship. The jury could properly reject his opinions to the extent it found the assumption on which they were based lacked an adequate factual foundation. As discussed, there was ample evidence in the record contradicting the assumption Howard suffered substantial routine exposure to asbestos. The jury was therefore well within its right to reject Dr. Smith's opinion.
In sum, there is substantial evidence in the record to support the jury verdict in favor of Owens Corning. The jury was not required to treat as conclusive the expert witness testimony offered by Howard, even though Owens Corning did not offer any expert witness testimony of its own. Contrary to Howard's apparent assumption, failure to provide opposing expert witness testimony does not
The judgment is affirmed.
CORRIGAN, J., and PARRILLI, J., concur.
"An opinion is only as good as the facts and reasons on which it is based. If you find that any such fact has not been proved or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based.
"You are not bound by an opinion. Give each opinion the weight you find it deserves. However, you may not arbitrarily or unreasonably disregard the expert testimony in this case."