Phipps v. Copeland Corp. LLC, B302627 (May 18, 2021)
Copeland Corp. LLC was the only defendant remaining by the end of trial involving exposure to asbestos that resulted in mesothelioma. The jury found Copeland liable, apportioned it 60 percent of the fault, and found plaintiffs suffered $25 million in noneconomic damages. Copeland appealed, arguing substantial evidence did not support the jury’s allocation of fault.
The Court of Appeal affirmed. The court held that Copeland, as the party with the burden to establish the percentage of comparative fault attributable to others, “must demonstrate its percentage of comparative fault could not, as a matter of law, be as large as 60.”
The court also held that, on motion for new trial, the trial court did not abuse its discretion by refusing to consider a spreadsheet survey of verdicts in other mesothelioma cases that Copeland introduced at the new trial motion hearing because sufficiency of the evidence must be determined “on the minutes of the court” (Code Civ. Proc., § 658), and the survey was not part of the minutes.
The Court of Appeal’s refusal to allow the trial court to consider a survey of verdicts in other cases appears to conflict with other California appellate decisions suggesting that the trial court may consider such verdicts in evaluating whether a new trial or remittitur should be ordered on the ground of excessiveness. (See Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508; Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 821; Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997, disapproved on other grounds by Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664; McNulty v. Southern Pacific Co. (1950) 96 Cal.App.2d 841, 848-851; Conner v. East Bay Mun. Utility Dist. (1935) 8 Cal.App.2d 613, 618.)
