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C.A. Upholds $25 Million Noneconomic-Damage Award
Says Judge Flurer, in Ruling on New-Trial Motion, Properly Disregarded Awards in Other Asbestos Cases
By a MetNews Staff Writer
The Court of Appeal for this district yesterday upheld a $25 million award of noneconomic damages in favor of a former air conditioning technician who developed mesothelioma as the result of working on asbestos-filled compressors manufactured by the defendant, rejecting the contention that the judge, in ruling on a motion for a new trial based on excessive damages, erred in declining to consider the amount of awards in like cases.
Justice John L. Segal of Div. Seven authored the opinion which affirms a judgment against Copeland Corporation LLC, found by a jury to have been 60 percent responsible for the harm to cancer patient William Phipps and his wife, Linda Phipps.
Segal declared that Los Angeles Superior Court Judge Michele Flurer properly disregarded a spreadsheet Copeland’s lawyers wanted her to review in determining whether the size of the award was reasonable, explaining:
“The Court does not believe it is proper for this Court to consider the case summaries for any comparative analysis or to determine an appropriate amount for an award in this matter. The Court does not consider the evidence for the purpose of establishing a threshold or ratio. This Court looks only to the evidence presented in this case, to determine if the verdict is supported. While such cases may help determine if an award results from passion or prejudice, they cannot be used to determine an appropriate amount in a particular case.”
Segal’s Opinion
Segal wrote:
“The trial court did not abuse its discretion in refusing to consider Copeland’s survey of awards in other cases because, if for no other reason, [Code of Civil Procedure] sections 657 and 658 prohibited the court from considering such material.”
He noted that §657 sets forth grounds for a new trial, one of which is excessive damages; that ground, Segal pointed out, is among those which §658 specifies must be based on the content of the minutes.
“The survey Copeland prepared and submitted in support of its motion were not among the minutes of the court, he said. “Therefore, the trial court could not consider that material.”
Raises Question
The jurist went on to raise this question:
“But what about the filed verdicts (and filed judgments reflecting those verdicts) that accompanied Copeland’s survey—could the trial court have considered them as ‘minutes of the court,’ albeit minutes of the court in other cases?”
He answered:
“Putting aside the linguistic difference between the minutes of ‘the’ court and the minutes of ‘a’ court…, stretching ‘minutes of the court’ in section 658 to include minutes of the court in other cases would have allowed the trial court to consider only the bare, as-filed verdicts and judgments. There would be nothing to explain how these cases were selected (and thus how representative of ‘similar cases’ they were), no underlying facts from the cases (and thus little assurance they were in fact ‘similar’), and no indication whether the verdicts had survived posttrial challenges or appellate review. Absent any contextual information about those filed verdicts (and judgments), we could not say the trial court abused its discretion in ruling the material was insufficiently informative to be relevant and was therefore inadmissible.”
Precedent Cited
Copeland pointed to the April 16, 1985 decision by Div. Four of this district’s Court of Appeal in Sprague v. Equifax, Inc. There, the court, in an opinion by Justice John A. Arguelles (who later served on the California Supreme Court and is now retired) affirmed an order slashing a jury’s $5 million punitive-damage award to $1 million.
Arguelles said:
“Appellants…contend that the court’s comparison of this award with that in other cases shows that the court improperly considered itself bound by a set ratio of punitive damages to income, worth, or compensatory damages. However, the totality of the record reflects that the trial court’s review of the awards in other appellate and Supreme Court decisions were used only for guideline purposes, in conjunction with a review of other factors and the evidence.”
Segal remarked that “even assuming that under” that decision “(or any other authority) it would have been error for the trial court here to categorically refuse to consider awards in published decisions, there is no indication the court did that; it simply didn’t mention the published decision Copeland cited.”
Recited the rule that “Error is never presumed,” he said:
“We do not assume the trial court made a silent, erroneous ruling on the propriety of considering awards in published decisions.”
Segal also concluded that Copeland failed to meet its burden in establishing that the evidence showed the apportionment of fault to have been erroneous and that substantial evidence supported the $25 million award.
The case is Phipps v. Copeland Corp., 2021 S.O.S. 2104.
David R. Carpenter, Collin P. Wedel and Andrew B. Talai of the downtown Los Angeles firm of Sidley Austin represented Copeland. The Phipps’s lawyers on appeal were Joshua Paul and Peter Beirne of The Paul Law Firm in Westlake Village and Brian P. Barrow and Jennifer L. Bartlett of Bartlett Barrow in Pasadena.
William Phipps died on May 8, 2020 at age 71.
Copyright 2021, Metropolitan News Company