1

Filed 11/6/20 Barr v. Parker

- Hannifin Corp. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

BARRY BARR, AS SUC C ESSOR IN INTEREST, Plaintiff and Respondent,

v. PARKER

- HANNIFIN CORPORATION, ET AL., Defendan ts and Appellants. A156632
(Alameda County Super. Ct. No. RG17880698)

Barbara Barr developed mesothelioma decades after she was exposed to automotive brake products containing asbestos that were made by defendants Parker

- Hannifin Corporation (Parker) and its successor Standard Motor Products (S tandard ). 1 A jury found in favor of Barr, awarding compensatory damages against both Parker and Standard . The jury also awarded punitive damages against Parker

. On appeal, 2 Standard contends reversal is required be cause the trial court erred in excluding evidence of

1 Barr died shortly after the notice of appeal was filed. We granted the unopposed motion by Barr’s adult son, Barry Barr, to substitute in as her successor in interest.

2 Although d efendants have separately appealed, they join and incorporate each other’s arguments. At times, we will refer collectively to Par ker and Standard as defendants and individually where necessary.2

alternate sources of Barr’s asbestos exposure . Parker claims the evidence of malice was insufficient to support an award of punitive damages and that the award violates due process

. We affirm. BACKGRO UN D Asbestos is a naturally occurring mineral that has historically been used in various commercial products, including automotive brakes. Approximately, 95 percent of asbestos is chrysotile, which belongs to the serpentine mineral group. The remaining 5 per cent is a mosite and
crocidolite , belonging to the amphibole mineral group. In 1978, Parker purchased EIS, a manufactur e r and s eller of brake products. Parker, through its EIS division, sold the brakes until EIS was purchased by Standard in 1986. It is u ndisputed that from 1978 until 1988 EIS brakes contained asbestos. In 1979, Barr and her then husband, David Knecht opened an automotive parts and repair shop in Grass Valley, California. Barr primarily worked in the retail area, selling parts. She fre quently went into the service bays where Knecht did brake jobs. Knecht used compressed air when servicing automotive brakes to blow dust from brake drums and assemblies. Beginning in 1981, Barr and Knecht exclusively sold EIS brakes. Barr did not see any warnings on the boxes or any other paperwork associated with the EIS brakes. Barr opened the boxes and personally handled new EIS brakes. She also handled used EIS cores when she sent them back to the
distributor. Barr routinely cleaned up dust that accumulated in the store from the brake work performed in the adjacent service bays. She also washed Knecht’s dirty work clothes. Barr stopped working at the store in
1988.3

I n 2017, Barr was diagnosed with mesothelioma at age 71. Mesothelioma is a fatal cancer that affects the lining of the lungs. The only known cause of mesothelioma in North Americ a is asbestos exposure. The jury found that EIS brakes were a substantial fa ctor in Barr’s risk of developing mesothelioma, and that defendants were liable under negligence, design defect, and failure to warn theories. The jury awarded $8 million in past and future noneconomic damages, and about $620,000 in economic damages. The jury allocated 85 percent of fault to EIS brakes, and the remaining 15 percent was equally divided among three other brake manufacturers. The other defendants were Bendix, Wagner , and Raybestos. The jury did not find Standard liable for punitive damages , but awarded $6 million in punitive damages against Parker.

I. The Trial Court ’s Exclusion of Evidence
Barr moved in limine to exclude evidence that her father worked as a welder at the Hunters Point Naval Shipyard (Hunters Point)

. The court granted the in limine motion and further precluded any reference to Barr’s unwillingness to sign an authorization for release of her father’s employment records. The trial court also excluded Barr’s interrogatory responses and allegations from h er complaint in which she asserted she was exposed to asbestos from two other brake brands in addition to EIS, as well as from gaskets and clutches made by several other companies. Standard , joined by Parker, argues th e evidence about her father’s emplo yment was relevant to the defense theory that Barr’s mesothelioma was caused by her exposure to amphibole asbestos that he brought home on his work clothes. Standard further contends that exclusion of Barr’s discovery responses and complaint allegations prevented the jury from allocating fault

to other brake, gasket , and clutch man ufacturers.4

Although it is well

- establish ed that we review evidentiary rulings for

an abuse of discretion (see LAOSD Asbestos Cases (2020) 44 Cal.App.5th 475, 485), Standard argues that we should review the issue de novo because exclusion of the proffered testimony was tantamount to

a grant of no nsuit on its theory that Barr was exposed to shipyard asbestos

. (See, e.g., Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1280 [granting motion in limine to exclude all evidence on an element of proof is equivalent to a nonsuit] .) While the trial court ’s evidentiary rulings had the effect of excluding evidence which the defense hoped would demonstrate an alternate source of Barr’s exposure , the court did not exclude all defense evidence of
other sources . The challenged evidence was excluded because it was found insuf ficiently probative of the defense theory of alternate causation under the ordinary rules of evidence. Accordingly, we will review its exclusion for an abuse of discretion.
A. Proposed Testimony of Barr and Her Siblings
The trial court excluded all testimony from Barr and her siblings that

t he i r father, Moses Kleinberg, worked as a welder at Hunters Point when
Barr was growing up. Barr testified in deposition that she lived with her

p arents and her siblings until she was 18 years old. Barr never visited Kleinberg at work and she had no information about his job duties. Barr did not wash her father’s clothing. She did not know if her father was a government employee or a private cont ractor. She also did not know if her father worked on military ships or civilian ships. Barr did not recall anything about the condition of her father’s clothing when he came home from work. Barr’s sister, Ilene Poindexter, testified in deposition that her father
worked on ships at Hunters Point. She had no specific information about5

what he did there, other than he worked as a welder. She never visited her father at work. Poindexter never saw Barr doing the laundry . Poindexter did
not recall seeing dirt on her father’s work clothes. Barr’s brother, David Kleinberg, also testified in deposition that his father worked as a welder at Hunters Point, but he never visited him there,
and did not know exactly what he did . He also had no informatio n that his father ever worked with insulation in his job

. David Kleinberg did not recall that his father wore special clothes to work; he did not recall his father’s clothing being dust y ; and he did not remember if his father showered after
work. Genera lly, witnesses must have personal knowledge of a subject for
their testimony to be admissible. (Evid. Code, § 702, subd. (a).) “Personal knowledge means a present recollection of an impression derived from the exercise of the witness ’ s own senses. [Citation.] A witness cannot competently testify to facts of which he or she has no personal knowledge. [Citation.]” (

Alvarez v. State of California (1999) 79 Cal.App.4th 720, 731 ( Alvarez ), abrogated on other grounds in Cornette v. Depart ment of Transportation (2001) 26 Cal.4th 63, 74, fn. 3

. )
Even if Barr’s deposition testimony that her father was a welder would
have been admissible as a party admission, neither Barr nor her siblings had

any personal knowledge of the facts pertaining to their father's work at the shipyard, and any testimony from them regarding their father's employment was properly excluded as irrelevant. Evidence is “relevant” if it has any tendency in reason to prove or disprove any disputed fact of

consequence. (Evid . Code, § 210.) Conversely, evidence is irrelevant when it only invites speculation. If the existence or nonexistence of a disputed fact to
be inferred from proffered evidence is based on speculation, conjecture, or6

surmise, the proffered evidence is irr elevant . (See People v. Louie (1984)
158 Cal.App.3d Supp. 28, 47.) The inference s defendants sought the jury to draw here were that Barr’s father was possibly exposed to asbestos at the shipyard, further that he brought asbestos home on his clothing, and that Barr was exposed to this asbestos

. These inferences would be based on mere speculation and conjecture. The trial court did not abuse its discretion in excluding th is testimony of Barr and her siblings.
B. Barr’s Refusal to Sign a Rele ase Regarding Her Father’s Employment Records
Prior to trial , defendants moved to compel Barr to sign an authorization for release of her father ’s employment records . The trial court denied the motion, on the basis that defendants failed to offer any aut hority
for such an order. Later, t he trial court precluded defendants from referring to Barr’s refusal to sign the release

. According to defendants , the jury should have been allowed to hear about Barr’s “suppression of evidence.” We disagree. It is well established that California courts lack the power to order civil discovery by a method that is not authorized in the Code of Civil Procedure

. ( Haniff v. Superior Court (2017) 9 Cal.App.5th 191, 200.) The request t hat a party sign a release for a non
- party’s employment records is not a method expressly or impliedly include d in the Civil Discovery Act. (See , e.g., Code Civ. Proc., § 2019.010. ) Accordingly, Barr had no obligation to sign the authorization. We fail to see how Barr could have “su ppressed” evidence she was never required to produce. The trial court did not abuse its discretion
when it exclud ed any defense reference to Barr’s refusal to sign the release

.7

C. Barr’s Complaint Allegations and Interrogatory Responses Defendants contend a new trial is warranted because the trial court erroneously excluded allegations in Barr’s complaint and her interrogatory responses that she was exposed to asbestos from f r iction products made and sold by seve ral defendants other than Standard and Parker. According to defendants , the allegations and interrogatory responses were admissible as judicial admissions that would have undermined Barr’s theories and supported the defense case

. On direct examination, B arr testified that she could no t remember the product names of any brakes other than EIS. Near the end of trial, defendants sought to read one of Barr’s interrogatory responses to the jury.
The interrogatory asked Barr to list the manner and duration of each claimed employment

- related asbestos exposure

. Barr responded that during her co

ownership of automotive businesses with her former husband, she “purchased brakes, specifically EIS, Wagner and Bendix brakes, clutches, speci fically BorgWarner and gaskets, speci fically Fel

- Pro and McCord, through wholesalers,” and that she “was exposed on a daily basis to the products that were handled, removed and replaced by herself and others.” The court denied the request on Evidence Code section 352 grounds, on the basis that the interrogatory answers were “formulaic responses by attorneys early in the litigation,” a nd it did not consider them to be “the true thought

- out responses” of Barr. Th e court concluded that in light of the

“ paucity of evidence” presented by the defense to justify “ contribution by other parties,” permitting defendants to read Barr’s answer would be unfairly prejudicial. Defendants contend that excluding the se statements was erro neous because they constitute admissions by Barr that non
- EIS brakes, gaskets and8

clutches contributed to her mesothelioma. They assert that th is evidence would have contradicted Barr’s theory of liability and allowed the jury to allocate fault t o the other defendants

. First, t he record does not demonstrate that the allegations in the complaint were judicial admissions. A judicial admission is a fact alleged by one party that has been admitted by the opposing party. It is removed from the litigation because the parties agree on its truth. ( Barsegian v. Kessler &
Kessler (2013) 215 Cal.App.4th 446, 451

- 452.) Here, Barr’s claim that she was exposed to asbestos products manufactured by other defendants was contested throughout the litigation. These statements were not judicial admissions. Rather, Barr’s allegations and interroga tory answers were possibly admissible under the exception to hearsay for an admission by a party opponent

. (Evid. Code § 1220.) Assuming the statements were admissible on this basis, the trial court has broad discretion under Evidence code section 352 to exclude otherwise admissible evidence. ( We bber v. Inland Empire Investments (1999) 74 Cal. App.4th 884, 910.)
T o the extent the allegations and interrogatory responses were minimally relevant, their probative value was outweighed by the potential for
undue prejudice of confusing the issues and misleading the jury regarding the role of absent defendants. O n this record, the jury would likely have been misled into believing that all the former parties to the litigation , irrespective of individual fault, played a part in causing Barr’s mesothelioma. Additionally, Barr’s counsel would have had to explain to the jury the reasons others were sued , and the purpose that pleadings and discovery serve at various stages of the litigation

. Such matters were wholly irrelevant t o the issues the jury was charged to decide. The trial court acted well within its broad discretion in excluding this evidence.9

Moreover, e ven if the court erred in excluding this evidence , the defendants have not established prejudice. “A court’s error in excluding evidence is grounds for reversal only if the appellant demonstrates a miscarriage of justice, that is, that a different result would have been probable had the error not occurred.” ( Major v. R.J. Reynolds Tobacco Co. (2017) 14 Cal.App.5th 11 79, 1202 ( Major ) .) Defendants were not prevented from introducing evidence regarding Barr’s exposure to non

- EIS brakes, gaskets and clutches. Rather, defendants were merely prevented from relying on Barr’s allegations and statements to do so

. T he jury did hear evidence that Barr was expos ed to non

- EIS brakes and it apportioned fault to Wagner and Bendix brakes, as well as to Raybestos, a brand of brakes not even identified in Barr’s responses. The jury also heard evidence from Barr and the defendants that she was exposed to asbestos from gaskets and clutches, which contributed to her risk of developing mesothelioma. Barr’s material scientist testified that both
A

- 1 Clutch and BorgWarner clutches contained asbestos. Barr’s occupational health expert testified that Barr experienced some mi nor exposure to asbestos from clutch repairs

. Similarly, d efendants’ industrial hygienist testified that Barr was exposed to asbestos from both clutch and gasket work. The jury rejected those opinions and found that only exposure to asbestos from brake s was a substantial factor contributing to Barr’s harm. The jury apportioned no fault to any clutch or gasket manufacturer even though Barr’s counsel explicitly told the jury in closing arguments that he thought some percentage of fault, albeit a small on e , should be assigned to A

1 Clutch. Where the jury rejects the causation opinions of a qualified expert, the exclusion of a plaintiff’s lay opinion of causation is unlikely to have had any prejudicial effect. ( Major, supra, 14 Cal.App.5th at p. 1204.)10

Accordingly, the exclusion of Barr’s complaint and discovery responses was not prejudicial and does not warrant the drastic remedy of a new trial. 3 (See, Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.)
D. Testimony of Former Shipyard Welder
The trial court excluded proposed testimony from Jerry Casaba, a former welder at Hunters Point. Casaba testified in deposition that welders would often use blankets, gloves, and sleeves containing asbestos

. Casaba, however, preferred using “leathers” rather than the asbestos sleeves. Casaba
had never met Moses Kleinberg and had no personal information that Kleinberg ever worked at Hunters Point. Instead, Casaba testified as to what he did, including that he wore coveralls for dirty jobs , and sometimes wore his street clothes. Casaba saw other welders work ing in street clothes

o r coveralls. He did not know what Kleinberg wore to work or if he ever took shower s in the shower rooms at the shipyard. Casaba did not know if the two of them ever worked on the same ships

. Casaba acknowledged that welders performed a variety of jobs a t the shipyard, some on ships, and some in “shops” located outside. He did not know if Kleinberg worked inside ships or topside on deck

.

3 Standard makes the passing statement that it was unfair to exclude Barr’s interrogatory responses while admitting a mistaken “slip of the pen” interrogatory response from Standard that its brakes contained crocidolite

— the most toxic form of asbestos

— instead of chrysotile. But Standard presents no cogent legal argument supported by applicable authority. Instead, it merely asserts, “What’s good for the goose is good for the gander.” To the extent Standard appears to challenge the propriety of the trial court’s admission of this interrogatory response, the challenge has been forfeited on appeal. (See Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873 [ “An appellate court is no t required to consider alleged errors where the appellant merely complains of them without pertinent argument.” ]) We will not entertain this argument.11

Casaba’s possible testimony regarding what he did at Hunters Point was properly excluded because it w ould have been i rrelevant. Casaba’s deposition testimony did not establish that all welders at the shipyard were exposed to asbestos. Th e fact th at he and other welders sometimes worked in street clothes and used asbestos

- containing blankets, gloves and sleeves, does

no t establish that Kleinberg was exposed to asbestos at the shipyard, let alone that he brought asbestos home on his clothin g or exposed Barr to it

. This proposed testimony was speculative and pure conjecture on the issue of
alternate causation. The trial court acted well within its discretion in excluding this evidence.
E. Expert Witness Deposition Testimony The trial court excluded evidence regarding defendants’ take

- home

exposure theory because defendants had not shown “beyond speculation” that Kleinberg was exposed to asbestos at the shipyard , that he brought it home, or that Barr had been exposed to it. The majority of expert witnesses, both plaintiff and def ense, testified at deposition that they could not opine that Barr was exposed to asbestos brought home on Kleinberg’s clothing because they lacked information about
hi s work at the shipyard. For example, Barr’s material scientist, Dr. William Longo testif

ied that he was aware that asbestos products were used in Navy shipyards during the time Kleinberg worked at Hunters Point, but he could not opine that Kleinberg was exposed without some foundational evidence of his particular job duties , “other than being a welder.” Similarly, Barr’s other experts, an epidemiologist, two industrial hygienists, and a toxicologist, lack ed foundational evidence that Kleinb erg was exposed to asbestos and brought that asbestos home.12

Despite the absence of evidence regarding the specifics of Kleinberg’s work, several defense experts were prepared to testify at trial that Kleinberg was exposed to asbestos due to his work arou nd amosite

- containing insulation at Hunters Point. The se experts intended to testify that Kleinberg brought home amosite asbestos on his clothing, and Barr was exposed to this
asbestos

. Defendants’ Navy expert, Captain Charles Wasson, testified that as a welder, Kleinberg would have “spent a large portion [of his time] out on the ships [,]” and as a result that Kleinberg “had an opportunity for exposure .” However, Wasson had no information regarding Kleinberg’s work at Hunters
Point other than he was a we lder. W asson reviewed Casaba’s deposition testimony, and acknowledged that what Casaba did at Hunters Point “is not necessarily what Kleinberg did.” W hile Wasson personally spent time onboard a Naval ship while it was overhaul ed at Hunters Point in 1961, Wasson did not know Kleinberg or observe his work. Defendants’ industrial hygienist John “Tony” Watson testified that Kleinberg was likely exposed to amosite

- containing insulation. According to Watson, “[i]t would be an absolute miracle, nearly impossib le,” that a welder
in a shipyard where naval ships were overhauled and repaired would not have been exposed. However, Watson could not link any amosite insulation to Kleinberg

. H e did not know if Kleinberg worked on a ship or in the yard

. H e did not know what job duties Kleinberg had at the shipyard, other than welding

. H e admitted that one could decontaminate by showering at work , but he did not know whether Kleinberg showered and changed clothing before he went home. Defendants’ epidemiologist Dr. Gabor Mezei testified that in his opinion, Kleinberg worked onboard ships and worked near others working13

with insulation. He opined that Kleinberg was exposed to asbestos as a result, and he brought this asbestos fiber home on his clothing and person.
M ezei based t his testimony solely on Kleinberg’s job title of welder and the general epidemiological literature showing increased rates of mesothelioma

among shipyard welders. However, Mezei had no information regarding specific tasks Kleinberg performed o n a given day

. H e admitted that he did not know whether Kleinberg showered before going home , and he could not state definitively that Kleinberg worked with or around amphibole
insulation. An expert’s opinion has no evidentiary value and does not assis t the trier of fact when it is based on assumptions of facts that are speculative or conjectural. ( Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1233 ( Casey ).) Thus, “under Evidence Code sections 801, subdivision (b), and 802, the trial court acts a s a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies,

or ( 3) speculative. ( Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771

- 772.) Stated another way, “the court

must .

. . determine whether the matter relied on can provide a reasonable basis for that opinion or whether that opinion is based on a leap of logic or conjecture.” ( Id. at p. 772.) Here, the only evidence that Kleinberg worked as a welder at Hunters Point came from Barr and her siblings. This evidence was properly excluded and thin at best. However, even assuming that Kleinberg was a welder at the shipyard, the only evidence of his duties there came from his job title. There was no evidence that Kleinberg was ever exposed to asbestos or that he brought asbestos home on his clothing.14

Without evidence of exposure there is no causation. ( Rutherford v. Owens

- Illinois, Inc. (1997) 16 Cal.4th 953, 982.) Mere presence at a site
where asbestos was present is insufficient to establish legally significant asbestos exposure. ( Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 112.) The simple “possibility” of exposure similarly doe s not suffice. ( McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098, 1105 ( McGonnell ) [speculation that at some time plaintiff might have cut into a wall that might have contained defendant’s compound that might
have contained asbestos is insufficient evidence].) There must be some evidence that exposure actually occurred. ( Soto v. BorgWarner Morse TEC
Inc. (2015) 239 Cal.App.4th 165, 203.) The testimony from numerous experts that Kleinberg could have been exposed to asbestos at the ship yard, that he
could have brought this asbestos home, and that Barr could have been exposed to it is not sufficient to demonstrate alternate causation. Without evidence of actual exposure to asbestos, defendants’ proffered expert testimony “creates only a dwindling stream of probabilities that narrow into conjecture.’” ( McGonnell, supra, 98 Cal.App.4th at p. 1105.) This type of opinion has negligible evidentiary value. ( Id. at p. 1106.) “Indeed, exclusion of expert opinions that rest on conjectur e or surmise is an inherent corollary to the foundational predicate for admission of expert
evidence. ( Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, 1119 [expert opinion that if a “constellation of events” occurred, then the injury would occur, is not helpful absent additional evidence that more likely than not such “constellation of events” occurred].) Accordingly, an expert’s opinion that something could be true if certain assumed facts are true, without any founda tion for concluding those assumed15

facts exist in a given case, is lacking foundation. (See ibid. )” ( Casey, supra, 206 Cal.App.4th at p. 1235.) Since an expert opinion “ ‘is worth no more than the reasons and facts on which it is based,’” the proffered expert opinion that Barr was exposed to asbestos brought home by her father had “ ‘no evidentiary value.’” ( Casey,

supra, 206 Cal.App.4th at p. 1236.) The trial court did not abuse its discretion in excluding the proffered testimony that Kleinberg was e xposed to asbestos at work, that he brought the asbestos home, and as a result Barr was exposed to it. II. The Punitive Damages Award Parker, joined by Standard, contends there is insufficient evidence of malice to support punitive damages. Parker also a rgues that the punitive damages award violated due process because it was based on the defense’s litigation conduct rather than on the conduct that injured Barr.
A. Evidence at Trial Barr presented evidence that by 1964 the risks of asbestos exposure had received national media attention. In 1964 Dr. Irving Selikoff, a leading researcher on asbestos, held a large conference on asbestos

- related disease that was attended by members of industry, labor, science and governmen t

. Numerous studies were presented that consistently and repeatedly concluded

“ asbestos cause s asbestosis, it cause s lung cancer, and it cause s mesothelioma.” In 1965, the findings of the conference were published and publicly available. By the late 19 70s, the connection between asbestos and disease was irrefutable among the scientific community

. “[B]y 1978 it was very clear that asbestos caused death, disability, and disease. ” According to the medical literature of the time, “[i] f a product contained asbestos

. . . [and] that16

asbestos was released ” and inhaled , “ it was

. . . certain that disease could result.” Parker’s designated corporate representative, Sanford Kay, testified
about the company’s knowledge of asbestos hazards. Kay was a corporate executive at Standard from 1976 until h e retire d in 2012. During this time, Kay was Standard’s corporate secretary and vice

- president of human

resources . Kay was a member of Standard’s due diligence te am that examined Parker’s EIS brake division when Standard purchased the EIS line from Parker in 1986. Kay testified that Parker manufactured and sold EIS brakes with asbestos linings from the time that it purchased the company in 1978 until it sold EIS to Standard in 1986. The f r iction lining s on EIS brakes were intended to wear down through ordinary use. Parker expected that customers purchasing EIS brake s would replace worn brakes with brakes purchased from EIS . At no time, however, did Parker cond uct testing regarding whether asbestos was release d during a routine brake replacement procedure

. As of 1972, following the promulgation of the Occupational Safety and Health Administration (OSHA) limits on asbestos

- containing products in the workplace, P arker knew that inhalation of asbestos dust posed a potential
health hazard. During the 1970s and 1980s, Parker warned its employees that exposure to brake dust was hazardous

. W orkers were told that EIS brakes
contained asbestos

. They were advised to avoid disturbing brake dust , and not use compressed air to clean surfaces

. Parker also made the material safety data sheets (MSDS) it received from its friction material suppliers
available to its employees

. The sheets provided information ab out hazardous17

materials in the friction linings, and were available to anyone at the plant in a binder in the plant’s offices. But Parker never provided the MSDS sheets to
its customers. Daniel Kudek worked at the EIS plant from 1978 through 1986.
E mplo yees there handled boxes of EIS brake cores and the cores themselves. Parker provided these employees with disposable coveralls and masks to protect them from “free asbestos in the boxes.” Parker also protected employees with vacuum systems in areas wher e they had potential exposure to brake dust. The vacuums pulled brake dust directly off the machines so it would stay out of employees’ breathing space, and help ensur e their working conditions were clean. Parker provided its employees who cleaned the brake dust collection system with fitted canister respirators and coveralls to protect them from exposure to dust. Parker disposed of the collected brake dust through a private company that specialized in hazardous waste disposal. Parker also conducted r outine air monitoring at its plant to ensure that its workers were not exposed to hazardous levels of asbestos. Employees were also offer ed annual chest x

- rays and pulmonary function tests to screen them for lung disease.
B. Governing Principles
P unitive damages may be awarded pursuant to Civil Code se ction 3294 when a plaintiff proves by clear and convincing evidence that a defendant has
acted with oppression, fraud, or malice. The statute defines “Malice” as either (1) “conduct which is intended by the defendant to cause injury to the plaintiff,” or (2) “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘[ M ] alice does not requir e actual intent to harm

. . . .18

Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. ’ ” ( Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1139 ( Romo ), overruled on other grounds in People v. Ault (2004) 33 Cal.4th 1250, 1272.) In the case of a corporate defendant, liability attaches where “an officer, director, or managing agent” authorized or rat ified the oppression, fraud , or malice. (Civ. Code, § 3294, subd. (b).) For the purpose of determining punitive damages, “managing agents” are defined as “those corporate employees who exercise substantial independent authority and judgment in their corp orate decisionmaking so that their decisions ultimately determine corporate policy.” ( White v. Ultramar, Inc. (1999) 21 Cal. 4th 563,
566

- 567.) However, it is a “fundamental misconception of the required proof” to suggest, as defendants do, that Barr wa s “required to introduce clear and convincing proof that at least one particular

. . . employee, officer, director or managing agent [of a defendant] had the requisite malicious state of mind.” ( Romo , supra , 99 Cal. App.4th at p. 1139 , italics omitted

. ) Indeed, the complexities of the modern corporation are such that “[i]t is difficult to imagine how corporate malice could be shown in the case of a large corporation except by piecing together knowledge and acts of the corporation ’ s multitude of managing agents.” ( Id. at p. 1141

. ) “ There is no requirement that the evidence establish that a particular committee or officer of the corporation acted on a particular date with ‘malice.’ ” ( Id. at p. 1140.) Rather, “[i]t is enough if the evidence pe rmits a clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in ‘willful and conscious disregard of the rights or safety of others.’

” ( Id. at p. 1141.) A plaintiff may satisfy the “managing agent” requir ement19

of Civil Code section 3294, subdivision (b) by presenting evidence beyond mere speculation “that permits an inference that the information in fact moved upward to a point where corporate policy was formulated.” ( Romo , at

p. 1141

. )
For these reasons , we disagree with defendants’ contention that the testimony of Sanford Kay and Daniel Kudek regarding corporate practices

was insufficient to justify punitive damages because neither was a managing agent. W e instead will review th eir testimony to determine whether there is substantial evidence to support a clear and convincing inference that within the corporate hierarchy authorized persons acted with the requisite willful ness and conscious disregard of the rights or safety of others.
While t he parties agree the substantial evidence standard generally applies to our review, they disagree on how we should apply it to the requirement that a plaintiff prove oppression, fraud, or malice by clear and convincing evidence. Barr asserts th at “no heightened standard applies”; whereas Parker asserts the standard of review is whether “ ‘ the record
contains “ substantial evidence to support a determination by clear and convincing evidence. ” ’ ” Our Supreme Court recently answered this question.
We “must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under
this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before [us] is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting [our] review, [we] must view the record in the l ight most favorable to the prevailing party below and give appropriate deference to how the trier of fact20

may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” ( Conservators hip of O.B. (2020) 9 Cal.5th 989, 1011

- 1012 .) Under this standard, we review the evidence in the light most favorable to Barr, giving her the benefit of every reasonable inference, and resolving all conflicts in her favor, with due attention to the height ened standard of proof. ( Pfeifer v. John Crane (2013) 220 Cal.App.4th 1270, 1299 ( Pfeifer ).) C. Substantial Evidence of Malice
In considering whether there was sufficient evidence of malice to warrant a punitive award , Pfeifer guides our review

. There, the evidence established that a manufacturer of asbestos

- containing p acking and gaskets was aware of the dangers of asbestos as early as 1970. ( Pfeiffer, supra, 220 Cal.App.4th at p. 1300.) In 1972 the defendant began monitoring the air in its fac tories for asbestos levels in compliance with OSHA regulations , and used engineering controls to suppress dust levels. ( Ibid. ) The defendant
warned its employees that asbestos caused asbestosis and cancer, but did not disclose the dangers of asbestos to its customers . ( Ibid. ) Although the defendant knew its customers were replac ing gaskets by methods that created asbestos dust, it never tested its products to determine whether those methods generated excessive concentrations of asbestos. ( Ibid. ) In af firming

a punitive damages award, the court concluded “the evidence was sufficient to show malice, that is, despicable conduct coupled with a conscious disregard for the safety of others

. . . [Defendant] fully understood that asbestos dust endangered work ers, but it did not issue warnings to customers until 1983, notwithstanding its awareness that they used the products in ways that generated considerable asbestos dust. Indeed, although [defendant] informed its employees that the asbestos used in making 2 150 sheet gaskets caused21

cancer, [defendant] provided that information to customers only when they asked for the 2150 safety data sheet. The evidence thus established that [defendant] carried on despicable conduct with an awareness of the ‘probable danger ous consequences,’ and ‘willfully fail[ed] to avoid such consequences.’ ” ( Pfeifer, supra, 220 Cal.App.4th at pp. 1300

– 1301.)
The evidence in this case is analogous. A s early as 1972, Parker k new asbestos was hazardous and it took action to protect its own employees from
these hazards. For a ten

- year period, Parker warned employees about the hazards of asbestos

. B ut Parker did nothing to inform its customers that EIS
brakes contained asbestos , or to provide guidance to minimiz e risk to the end

users of its product. As a result, end

- users and bystanders like Barr were unprotected, utilizing neither air monitoring, respirators, no r cleanup precautions. Parker gave its employees data sheets rega rding friction linings, but never made these sheets available to customers. Even though Parker knew that the asbestos friction lining s on EIS brakes were designed to wear and be replaced, Parker conducted no research into whether o r how much asbestos fibe r was r eleased in a typical brake replace ment . Parker also never placed a warning on EIS brakes regarding the hazards of asbestos. This evidence was sufficient to show malice, that is, despicable conduct coupled with a conscious disregard for the safety o f others. In view of Parker’s compliance with OSHA regulations regarding its own workplace, it is clear Parker fully understood that asbestos dust endangered workers, but did not warn its customers, even though its managing agents knew those

customers use d the products in ways that generated asbestos dust. Indeed, although Parker informed its employees that breathing asbestos dust was hazardous to their health, customers were not advised of such risks. The22

evidence thus established that Parker carried on despicable conduct with an awareness of the “probable dangerous consequences,” and “willfully fail[ed]” to avoid those consequences. ( Angie M. v. Superior Court (1995)
37 Cal.App.4th 1217, 1228.) Parker, like the defendant in Pfeifer, supra, 220 Cal.App.4th at p

. 1301, maintains the evidence of malice or oppression is insufficient , arguing there was no evidence that it intentionally marketed a product it believed was defective. Parker says there is no evidence it believed “its products posed a
he alth risk to end

- user s like Ms. Barr.” According to Parker, “the weight of epidemiological evidence did not then, and does not now, support the existence of any such risk.”
Parker ’s argument “misapprehends our role as an appellate court. Review for subst antial evidence is not trial de novo.” ( OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007)
157 Cal.App.4th 835, 866.) When there is substantial evidence to support the jury’s actual conclusion, “it is of no consequence that the [ju ry] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” ( Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.) The jury could have interpreted the evidence in the manner Parker

sugges ts, but the evidence also supports a n interpretation that Parker did
not share the known dangers of asbestos with its customers or with individuals who would, predict a bly, be exposed to dust from its products. Substantial evidence supports the inescapable conclusion that Parker’s corporate hierarchy authorized despicable conduct in willful disregard of the safety of its customers.23

D. No Due Process Violation Parker contends the punitive damages award violate s due process and
should be stricken because it is based on the litigation conduct of the defense

. Not only is this argument forfeited on appeal, it fails on the merits.
Parker contends that in closing argument, Barr’s counsel expressly argued that the litigation tactics of Parker and its counsel should form the basis for punitive damages. Parker relies on the following instances. Barr’s counsel argued that Parker had “invested more in their selection and planning to defend this case than they ever di d to protect people like Barbara Barr.” Barr’s counsel further argued: “Standard and Parker also came here. They made accusations about Barbara

. . . . They came here on this public record and sullied her name; accused her of putting her children and her
customers who she knew in her little town at risk

. . . . ¶ Unlike most of the harms in this case, that’s one you can fix 100 percent.” Barr’s counsel also accused defense counsel of having “engaged in trickery from the start of this case. They continue t o do it today.” Parker never objected to the challenged remarks or otherwise asked for
a curative instruction during closing arguments . Rather, outside of the presence of the jury, Parker’s counsel objected t hat the comment from Barr’s
counsel “about the high

- priced defense attorney that the defendant spent money on rather than .

. . protecting people” w as improper argument. T his generic objection did not preserve Parker’ s due process claim or otherwise put
the court on noti ce that Barr’s counsel was improperly arguing that the defense’s litigation strategy was the basis for punitive damages. R elying on Simmons v. Southern Pacific Transportation Co. (1976) 62 Cal.App.3d 341, 355, Parker claims its trial counsel “objected as effectively as possible under the circumstances[,]” and thus preserved the issue on appeal. Simmons24

involved repeated instances of misconduct from plaintiff’s counsel who “from the very beginning of the trial embarked on a campaign of hate, vilification

a nd subterfuge for the sole purpose of prejudicing the jury against [the defendant].” ( Id. at p. 351.) T he failure to object was excused as an objection
would have been futile under these circumstances. ( Id. at p. 355.) Simmons is of little assistance t o Parker. Here, there is nothing akin to the flagrant and repeated instances of misconduct that occurred in Simmons. Nevertheless, addressing this obviously forfeited claim, it fails on the
merits. Nothing in the challenged statements even remotely suggested to the jury that the defense litigation strategy justified punitive damages. In fact, Barr’s counsel told the jury that Parke r should be held liable for punitive damages because: “this company knew about hazards and didn’t fully disclose them[.] That’s punitive damages.” There is no basis to believe that the jury awarded punitive damages for any other reason. DISPOSITION
The judgment is affirmed. Barr’s successor

- in

- interest, Barry Barr, is entitled to costs on appeal.25 _________________________ Siggins, P.J.

WE CONCUR:

_________________________ Fujisak i , J.

_________________________ Jackson, J.

Barr v. Parker

- Hanniflin Corporation, et al . A156632