Metropolitan News-Enterprise


Wednesday, June 13, 2007


Page 1


Widow of Asbestos Victim Held Entitled to Backdated Judgment

Woman Whose Husband Died After Winning Jury Verdict May Collect on His Noneconomic Damages Award—Panel


By TINA BAY, Staff Writer


The widow of an asbestos victim who died days after winning a jury verdict in his favor was entitled to have a tardily-entered judgment backdated to the day before his death, the First District Court of Appeal has ruled.

Affirming a ruling by San Francisco Superior Court Judge John J. Conway, Div. Five Monday cleared the way for Maxlyn Cadlo to receive the future and noneconomic damages awarded to her late husband, Anthony Cadlo, in 2005.

Cadlo brought a personal injury action against Metalclad Insulation Company and John Crane Inc., alleging he was exposed to their asbestos-containing products while serving in the U.S. Navy in the 1960’s. During his three-year Navy career, Cadlo worked as a machinist mate aboard the USS Black and was involved in the removal of asbestos-containing pipe insulation and valve insulation pads from the vessel at the Long Beach Naval Shipyard.

Metalclad was a contracted vendor that supplied insulation materials from two companies to the shipyard. Crane manufactured and supplied asbestos-containing pump and valve packaging material and gasket material.

Testimony at trial established that Crane and Metalclad supplied insulation materials to the shipyard at the time of Cadlo’s alleged exposure.

On Marcy 22, 2005, the jury returned a special verdict finding the defendants liable for negligence, defective design and failure to warn. It awarded him monetary compensation for past medical expenses and nonmedical economic damages, as well as $174,000 in future medical expenses and $4 million in noneconomic damages.

The jury also awarded Cadlo’s wife $3 million on her wife loss of consortium claim.

Cadlo died on March 24. His attorney, who did not learn of his death until several days after the fact, submitted a proposed judgment to the defendants about that date.

The judgment on the special verdict was entered on April 4.

Motion to Vacate

Several post-judgment motions followed, including a motion by Metalclad to vacate the judgment and enter a different judgment that omitted the future medical and noneconomic damages award. Because Cadlo had died prior to the judgment’s entry, it argued, the judgment should have included only past medical and economic damages.

The defendant relied on Code of Civil Procedure Sec. 377.34, which provides that the successor in interest of a decedent’s cause of action are limited to “the loss or damage that the decedent sustained or incurred before death” and exclude damages for “pain, suffering or disfigurement.”

In response, Cadlo’s widow filed her own motion to vacate in which she asked the court to enter a new antedated judgment nunc pro tunc to March 22.  A backdated judgment was necessary to avoid a patent injustice, she asserted.

Conway granted the latter motion and entered a new judgment dated March 23.

Both defendants appealed, contending Conway abused his discretion in awarding Cadlo’s widow future and noneconomic damages because her husband had died before the entry of the original judgment.

In an opinion certified for partial publication, the Court of Appeal dismissed their reading of Sec. 377.34.

Justice Mark B. Simons wrote for a unanimous panel:

“[A]t the time of Cadlo’s death, the special verdict had been filed and nothing was left to be done except to commit the verdict to a judgment signed by the court and entered. . . . Following the jury’s verdict and before Cadlo’s death the case was in a posture that a final, appealable judgment could have been entered.  And an appealable judgment entered before the claimant’s death protects the claimant from the strictures of section 377.34.”

The justice added:

“When a court validly exercises its discretion to issue a judgment nunc pro tunc, the date of that judgment determines whether section 377.34 bars recovery. A contrary result would be illogical.”

Windfall to Plaintiff

Simons rejected the defendants’ contention that the Cadlo was at fault for the delay in entry of judgment.

He further eschewed their attack on Conway’s conclusion that backdating the judgment was necessary “to avoid injustice.”

“A contrary result would have provided defendants with a windfall for the damages for Cadlo’s pain and suffering prior to his death,” he said. “Since the jury had concluded that defendants were at fault for Cadlo’s illness, and the trial court could reasonably believe this illness killed him soon after the verdict was entered, the court did not abuse its discretion in concluding justice was better served by granting the motion.”

Presiding Justice Barbara J.R. Jones and Justice Henry E. Needham Jr. concurred in the opinion.

The case is Cadlo v. Metalclad Insulation, 07 S.O.S. 3121.


Copyright 2007, Metropolitan News Company