Filed 4/13/21 LAOSD Asbestos Cases CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LAOSD ASBESTOS CASES

ARTHUR PUTT et al.,

Plaintiffs and Appellants,

v.

FORD MOTOR COMPANY,

Defendant and Appellant.

 B303627

 (Los Angeles County

 Super. Ct. No. 

 18STCV06912/JCCP4674)

 ORDER MODIFYING 

OPINION AND DENYING 

REHEARING

 

 NO CHANGE IN 

 JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on March 25, 

2021, be modified as follows:

1. On page 13, bottom of the page and after the sentence 

“Taken together, this evidence compels a finding that “some 

nonzero percentage of fault is properly attributed” to the 
2

other automakers and the brake pad manufacturers and 

suppliers” insert the following as a new footnote:

Contrary to what plaintiff suggests for the first time 

in his petition for rehearing, our partial reliance on 

the jury’s special verdict findings in assessing what 

the totality of the evidence compels regarding 

allocation is not an implicit determination that the 

jury returned inconsistent special verdicts. We are 

not citing those findings to show that they are 

somehow inconsistent with other findings by the jury.

Instead, we are citing them because they reflect the 

facts the jury actually found, and it is those facts 

along with the other evidence we cite that compels a 

contrary allocation finding in this case.

* * *

There is no change in the judgment. 

Plaintiffs’ petition for rehearing is denied.

——————————————————————————————

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
Filed 3/25/21 LAOSD Asbestos Cases CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LAOSD ASBESTOS CASES

ARTHUR PUTT et al.,

Plaintiffs and Appellants,

v.

FORD MOTOR COMPANY,

Defendant and Appellant.

 B303627

 (Los Angeles County

 Super. Ct. No. 

 18STCV06912/JCCP4674)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Stephen M. Moloney, Judge. Reversed in part

and remanded.

Simmons Hanly Conroy, Deborah R. Rosenthal and 

William A. Kohlburn; Law Office of Ted W. Pelletier and Ted W. 

Pelletier for Plaintiffs and Appellants. 
2

Horvitz & Levy, Jason R. Litt and Emily V. Cuatto; Snell & 

Wilmer, Warren E. Platt and Alina Mooradian for Defendant and 

Appellant.

Fred J. Hiestand for The Civil Justice Association of 

California and the U.S. Chamber of Commerce as Amicus Curiae 

on behalf of Defendant and Appellant.

* * * * * *

A former gas station employee performed brake jobs in the 

1960s and 1970s, at a time when all brake pads contained 

asbestos. He contracted mesothelioma, and sued several entities, 

including Ford Motor Company (Ford). Everyone but Ford 

settled. A jury awarded the employee and his spouse $8.5 million 

in compensatory damages, awarded the employee $25.5 million in 

punitive damages, and found that Ford was at fault for 100 

percent of the employee’s injuries. Because it was undisputed at 

trial that the brake pads manufactured by others were identical 

to those incorporated into Ford’s vehicles, the jury’s special 

verdict findings against Ford apply with equal force to the other 

automakers and brake pad manufacturers and suppliers, such 

that the jury’s apportionment of 100 percent of fault to Ford is 

unsupported by the evidence. The trial court may have erred in 

instructing the jury regarding the possible liability of the 

employee’s employers (that is, the gas station owners), but this 

error is not prejudicial. We accordingly leave intact the jury’s 

finding of liability against Ford, its compensatory damages 

award, and its finding that punitive damages are appropriate, 

but reverse and remand the matter for a new trial on 

apportionment of fault among the automakers and brake pad

manufacturers and suppliers as well as a new trial on the 

amount of punitive damages.
3

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Plaintiff was exposed to dust from brakes in the 

1960s and 1970s

Arthur Putt (plaintiff) worked at various gas stations in the 

1960s and 1970s. Between 1966 and 1970, he worked in 

California at stations owned by Exxon Mobil and Chevron Oil. In 

1975 and 1976, he worked in Indiana at stations owned by 

Standard Oil. 

While so employed, plaintiff worked as an auto mechanic 

and regularly replaced the brake pads on vehicles. He followed a 

specific process: (1) he removed the used brake pads from the 

brake drums; (2) he used an air compressor to blow out the debris 

that had accumulated in the drum from brake use; (3) he sanded 

down the new brake pads he planned to install to remove the 

glaze on them; and (4) he then installed the new brake pads. He 

was exposed to dust from the used brakes when he blew out the 

debris and exposed to dust from the new brakes when he sanded 

them.

Plaintiff worked with brake pads supplied by various 

entities. 

The used brake pads plaintiff removed came from cars 

manufactured by Ford, Chevrolet, or Dodge/Chrysler. Plaintiff 

estimated that he replaced the brake pads on Ford vehicles 

approximately 40 percent of the time while he was working in 

California and approximately 30 percent of the time while he was 

working in Indiana. Plaintiff also estimated that he performed 

the first brake pad replacement on those vehicles—that is, that 

he removed the factory-installed brake pads—approximately 40 
4

percent of the time. Although Ford did not itself manufacture the 

brake pads installed on its new vehicles in factories and instead 

used brakes manufactured by third parties to Ford’s 

specifications, Ford’s incorporation of those brake pads into its 

new vehicles renders Ford liable for any defects with them. (E.g., 

Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 

1178, 1193-1194 (Arena) [entities “within the same chain of 

distribution of a single product” are jointly liable for injuries 

caused by that product].) Thus, approximately 16 percent—that 

is, 40 percent of 40 percent—of the brake pads plaintiff removed 

are attributable to Ford.

The new brake pads plaintiff installed all came from third 

party manufacturers, and never from Ford. Plaintiff said he 

bought replacement pads exclusively from NAPA or Pep Boys. 

B. The brake pads contained asbestos

In the 1960s and 1970s, all brake pads manufactured and 

used in the United States contained approximately 40 to 60 

percent asbestos by weight. There are many types of asbestos. 

Brake pads of this vintage contained the type known as 

chrysotile: Most experts opine that chrysotile was the only type 

of asbestos in brake pads of this vintage, although a few opine 

that brake pads of this vintage also “occasionally” contained “low 

levels” of either amosite or tremolite, both of which are more 

potent forms of asbestos than chrysotile. However, it is 

undisputed that the dust generated from the brake pad 

replacement process contained only chrysotile. 

Plaintiff was exposed to asbestos during two steps of the 

process for changing brake pads. First, he was exposed when he 

inhaled the dust generated by blowing out debris from the used 

brake pads, although asbestos accounted for less than 15 
5

percent—and, as most experts opined, less than one percent—of 

the debris (because the driver’s repeated use of the brakes 

converted the bulk of the asbestos into other, non-harmful 

compounds). Second, plaintiff was exposed when he inhaled the 

dust generated when he sanded the new brake pads. 

C. Plaintiff contracts mesothelioma

The inhalation of asbestos causes mesothelioma, a type of 

cancer of the lungs. 

Mesothelioma is a “dose-response disease[],” which means 

“the more [a person is] exposed to [asbestos], the more likely [he 

is] to get” mesothelioma. This means that every exposure to 

asbestos “above background” is causally “meaningful” and 

“important” because every exposure “add[s] to the dose and 

increase[s] the risk” of contracting mesothelioma. This is true no 

matter which product gives rise to the asbestos fibers that are 

inhaled. As a result, no exposure is causally “insignificant” and 

“the causal contribution of” exposure to asbestos “dust” from any 

source cannot be “disregard[ed]” or “discounted.” 

Plaintiff was diagnosed with mesothelioma in 2018. 

Mesothelioma is incurable, and hence fatal.

II. Procedural Background

A. Complaint

In December 2018, plaintiff and his wife sued Ford and 15

other entities he alleged were responsible for his exposure to 

asbestos, as pertinent here, under theories of (1) negligence, (2) 

strict products liability, and as to plaintiff’s wife, (3) loss of 

consortium.1

1 Plaintiff also alleged claims for making false 

representations under Restatement of Torts, section 402-B; for 

intentional injury and deceit (Civ. Code, §§ 1708-1710); and for 
6

All of the defendants but Ford settled prior to trial; those 

settlements came to a total of $2,280,000. 

B. Trial against Ford

The matter proceeded to a three-week jury trial against 

Ford alone. 

The trial court instructed the jury that Ford could be liable 

to plaintiff and his wife under theories of (1) strict liability for (a) 

defectively designing a product that “did not perform as safely as 

an ordinary consumer would have expected,” and (b) failing to 

warn of the “potential risks” of its product, and (2) negligence for 

(a) its product design, (b) its failure to warn, and (c) its failure to 

recall the product. 

The court also instructed the jury that it had to “assign[]

percentages of responsibility” to each nonparty “listed on the 

[special] verdict form” if Ford established that (1) any of those 

nonparties—namely, the gas stations for whom plaintiff worked 

“and/or [the] manufacturers or suppliers of asbestos-containing 

products”—“were [also] negligent or at fault” for plaintiff’s 

injuries, and (2) their “negligence or fault was a substantial 

factor in causing [plaintiff’s] harm.” The special verdict form 

listed three groups of potentially responsible nonparties: (1) 

aiding and abetting a battery. These claims were not presented 

to the jury in the trial against Ford.

The other 15 defendants were CBS Corporation; CertainTeed Corporation; Crown Cork & Seal Company; Forest River, 

Inc.; Foster Wheeler Energy Corporation; General Electric 

Company; Genuine Parts Company; Industrial Holdings 

Corporation; Ingersoll-Rand Company; John Crane Inc.; Kelly 

Moore Paint Company, Inc.; The Pep Boys, Manny, Moe & Jack 

of California; Pneumo Abex LLC; Soco West, Inc.; and Union 

Carbide Corporation. 
7

“[plaintiff’s] employers (Standard Oil, Chevron and Exxon),” (2) 

“Other automakers (Chevrolet, Chrysler),” and (3) 

“Manufacturers or suppliers of replacement brakes (NAPA and 

Pep Boys, as sellers of Bendix, Pneumo Abex products).” 

In its special verdict, the jury found Ford liable on every 

theory presented. As to strict liability for defective product 

design, the jury specially found that Ford’s product did not 

“perform as safely as an ordinary consumer would have 

expected,” that it was “used in a way that was reasonably 

foreseeable to Ford,” and that “the failure of Ford[’s] 

. . . product(s) to perform as safely as an ordinary consumer 

would have expected [was] a substantial factor in causing harm 

to” plaintiff. 

With regard to damages, the jury awarded plaintiff 

$500,000 in economic damages, which was the amount to which 

plaintiff and Ford stipulated. The jury awarded plaintiff and his 

wife each $4 million in noneconomic damages. The jury also 

found that Ford had acted with malice, oppression, or fraud. 

After a brief punitive damages phase, the jury returned a 

further verdict imposing $25.5 million in punitive damages on 

Ford. 

The trial court entered judgment for plaintiff in the amount 

of $33,892,748.80, which included costs and incorporated a 

$107,251.20 offset from the settlements of the other parties. 

C. Posttrial motions

Ford moved for a new trial and for judgment 

notwithstanding the verdict challenging the jury’s apportionment 

of liability, the jury instructions, and the amount of punitive 

damages. After fulsome briefing, the trial court issued a 

tentative ruling that granted a new trial on the issues of 
8

apportionment and punitive damages. After an hour-long 

hearing, the trial court issued a final ruling that upheld the jury’s 

apportionment of liability and rejected Ford’s claims of 

instructional error, but reduced the punitive damages award to 

$8,785,569.60.

In its final ruling, the trial court upheld the jury’s 

apportionment of 100 percent fault to Ford for what boils down to 

three reasons: (1) Ford was required to prove “what percentage of 

fault should be attributable to each entity” listed on the special 

verdict form, but did not “prove [that] percentage” or “suggest[ it] 

to the jury” and thus left the jury to “speculate,” (2) Ford did not 

call any witnesses or introduce any documentary evidence 

regarding the fault of the other entities, and (3) Ford did not offer 

any evidence regarding the “specific properties of the other 

entities’ products which contained asbestos” or the extent of 

plaintiff’s usage or exposure to those products, and instead relied 

upon the “‘mere possibility of exposure . . . to establish 

causation.’” In reducing the punitive damages award, the court 

recounted the parties’ various positions and then, without any 

further explication, declared that the jury’s $25.5 million award 

was “excessive” and that “the appropriate multiplier is two-toone.” 

D. Entry of judgment, appeal and cross-appeal

After the trial court entered an amended judgment for 

plaintiff in the amount of $17,427,713.40, Ford filed a timely 

appeal and plaintiff filed a timely cross-appeal.

DISCUSSION

In its appeal, Ford argues that the trial court erred in 

denying its new trial motion because (1) substantial evidence did

not support the jury’s apportionment of 100 percent of fault to 
9

Ford, and (2) the court erred in refusing two of Ford’s requested 

jury instructions; on the basis of these errors, Ford seeks a new 

trial on all issues. In his cross-appeal, plaintiff argues that the 

trial court erred in reducing the jury’s $25.5 million punitive 

damages award; he seeks reinstatement of that award. As 

discussed below, we agree with Ford that the jury’s special 

verdict findings, when read in conjunction with the record, 

compel a finding that Ford is not 100 percent at fault for 

plaintiff’s injury and that the jury’s contrary finding is not 

supported by substantial evidence. This error, we explain, 

warrants a new trial on apportionment and the amount of 

punitive damages. We also conclude that any error in the jury 

instructions regarding the liability of the gas station owners—as 

it bears on apportionment of liability to them—was not 

prejudicial. These conclusions obviate the need to reach the 

merits of plaintiff’s cross-appeal regarding punitive damages.

I. Motions for New Trial, Generally

As pertinent here, a trial court may grant a new trial when 

“the evidence” is “[i]nsufficien[t]” “to justify the verdict or other 

decision, or the verdict or other decision is against law.” (Code 

Civ. Proc., § 657, subd. (6).) 

For purposes of a new trial motion, the evidence can be 

insufficient in one of two ways: (1) it can be “insufficient” “to 

justify the verdict” because the trial court, sitting as a thirteenth 

juror who independently weighs the evidence, would have come to 

a different result (Mercer v. Perez (1968) 68 Cal.2d 104, 112), or 

(2) it can be “against law” because the verdict is “unsupported by 

any substantial evidence” (Sanchez-Corea v. Bank of America

(1985) 38 Cal.3d 892, 906-907). Although Ford’s motion for new 

trial argued the “thirteenth juror” type of insufficiency and the 
10

trial court’s tentative ruling granted a new trial on this same 

type, Ford’s motion for new trial also argued that the jury’s 

apportionment verdict was unsupported by substantial evidence 

because the evidence at trial “compelled” a different 

apportionment, the trial court’s final ruling seemed to rest on this 

type, and this is the type of insufficiency argued by both parties 

in their briefs on appeal. (Accord, Siry Investment, L.P. v. 

Farkhondehpour (2020) 45 Cal.App.5th 1098, 1131-1132, fn. 11 

[trial court’s citation to incorrect statutory ground for new trial 

relief is of no moment where the reason it granted relief was 

raised by the movant], review granted July 8, 2020, S262081.) As 

a result, the substantial evidence type of insufficiency is properly 

before us. 

A new trial may also be granted if the jury instructions are 

prejudicially incorrect. (Code Civ. Proc., § 657, subd. (7); McCarty 

v. Department of Transportation (2008) 164 Cal.App.4th 955, 

984.)

We review the trial court’s denial of a new trial motion for 

an abuse of discretion. (Minnegren v. Nozar (2016) 4 Cal.App.5th 

500, 514, fn. 7.)

II. Sufficiency of the Evidence Underlying the Jury’s 

Apportionment Verdict

In actions for “personal injury,” a defendant is “liable only 

for the amount of non-economic damages allocated to that 

defendant in direct proportion to that defendant’s percentage of 

fault.” (Civ. Code, § 1431.2, subd. (a); Rutherford v. OwensIllinois, Inc. (1997) 16 Cal.4th 953, 958 (Rutherford).) “[I]f 

supported by the evidence,” a jury must apportion fault against 

parties and nonparties found responsible for the plaintiff’s injury,

and must do so regardless of whether they are at fault due to 

negligence or instead on a theory of strict liability. (Arena, supra, 
11

63 Cal.App.4th at pp. 1194, 1198; DaFonte v. Up-Right, Inc.

(1992) 2 Cal.4th 593, 603.) Apportionment is meant to “protect[] 

the defendant [who goes to trial] from paying more than its share 

of noneconomic damages.” (Arena, at p. 1193.) 

Once the plaintiff proves that the defendant is at fault for 

his injury, it becomes the defendant’s burden to “establish[] that 

some nonzero percentage of fault is properly attributed to” 

others—whether they be “the plaintiff, other defendants, or 

nonparties to the action.” (Pfeifer v. John Crane, Inc. (2013) 220 

Cal.App.4th 1270, 1285 (Pfeifer); CRST, Inc. v. Superior Court

(2017) 11 Cal.App.5th 1255, 1261, fn. 4.) Where, as here, the 

defendant is arguing that the jury’s finding that no fault should 

be apportioned to others is unsupported by substantial evidence, 

the defendant will prevail on appeal only if it proves that the 

evidence—when viewed in the light most favorable to the jury’s 

apportionment finding—nevertheless “compel[s] a finding” that 

“some nonzero percentage of fault is properly attributed” to 

others. (Pfeifer, at pp. 1285-1287; Rosh v. Cave Imaging Systems, 

Inc. (1994) 26 Cal.App.4th 1225, 1234 (Rosh); Estes v. Eaton 

Corp. (2020) 51 Cal.App.5th 636, 651.)

The nonparties to whom Ford seeks to attribute fault in 

this case fall into two broad categories—namely, (1) the entities

who might be liable on strict products liability theory (that is, the 

other automakers who sold vehicles whose used asbestoscontaining brake pads plaintiff removed and the manufacturers 

and suppliers of asbestos-containing brake pads that plaintiff 

removed from vehicles whose factory-installed brake pads had 

previously been replaced and that plaintiff installed as 

replacements), and (2) plaintiff’s employers at the gas stations 
12

where he replaced brake pads. The sufficiency analysis for each 

category is different.

A. The automakers and the manufacturers and 

suppliers of asbestos-containing brake pads

As pertinent to this case, an individual or company is 

strictly liable for a design defect in its product that injured the 

plaintiff by causing cancer if (1) “the product . . . failed to perform 

as safely as an ordinary consumer would expect when used in an 

intended or reasonably foreseeable manner,” and (2) the product 

was “a substantial factor in bringing about [the plaintiff’s] injury” 

because “it was,” “in reasonable medical probability,” “a 

substantial factor contributing to the plaintiff’s . . . risk of 

developing cancer.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 

465, 479; Rutherford, supra, 16 Cal.4th at pp. 968, 977; see 

generally CACI No. 1203.)

The jury’s finding that Ford is 100 percent at fault for 

plaintiff’s injury is unsupported by substantial evidence because 

the record compels a contrary finding that “some nonzero 

percentage of fault is properly attributed” to the automakers and 

the manufacturers and suppliers of the asbestos-containing brake 

pads to which plaintiff was also exposed. This contrary finding is 

compelled by (1) the jury’s special verdict finding that Ford’s 

brake pads did not “perform as safely as an ordinary consumer 

would have expected” and were “a substantial factor in causing” 

plaintiff’s mesothelioma, in combination with (2) several 

undisputed facts in the record. Because it was undisputed that 

the brake pads manufactured, supplied, or used by the other 

automakers, manufacturers, and suppliers had the same 

composition as the brake pads used by Ford in terms of their 

asbestos content, the jury’s special verdict finding that Ford’s 
13

brake pads were defective applies with equal force to the brake 

pads manufactured, supplied, or used by these other entities. 

Because it was undisputed that plaintiff’s exposure to dust from 

the brake pads used by Ford was a “substantial contributing

factor in causing his mesothelioma,” because it was undisputed 

that plaintiff was also exposed to the dust from the brake pads 

manufactured, supplied, or used by the other automakers and the 

manufacturers and suppliers, because it was undisputed that 

every exposure to this dust “add[s] to the [cumulative] dose and 

increased [plaintiff’s] risk” of contracting mesothelioma, and 

because an exposure that “contribut[es] to [a] plaintiff’s . . . risk of 

developing cancer” is a “substantial factor” (Rutherford, supra, 16 

Cal.4th at p. 977), the jury’s special verdict finding that the brake 

pads used by Ford were a substantial factor contributing to 

plaintiff’s mesothelioma also applies with equal force to the brake 

pads manufactured, supplied, or used by these other entities. 

Taken together, this evidence compels a finding that “some 

nonzero percentage of fault is properly attributed” to the other 

automakers and the brake pad manufacturers and suppliers. 

Indeed, plaintiff in his opening statement recognized as much: 

His counsel noted that plaintiff had been “exposed to other 

brakes,” that “all of the exposures” are what “raise[d] the risk” of 

mesothelioma, and that, as a result, Ford was not “the only 

company at fault” and that the “other companies” that 

manufactured, supplied, or used these other brake pads were also 

“at fault.” 

Plaintiff resists this conclusion with a plethora of 

arguments that boil down to four broad assertions.

First, plaintiff asserts that Ford did not carry its burden of 

proving that the other automakers and the brake pad 
14

manufacturers and suppliers were at fault for his mesothelioma 

under a strict liability theory. Strict liability, he reminds us, 

does not equal absolute liability. (Anderson v. Owens-Corning 

Fiberglas Corp. (1991) 53 Cal.3d 987, 994.) Because all Ford 

offered the jury was a “vague impression that [the] other products 

[were] somewhat similar,” because Ford did not put on any 

independent evidence about the “specific properties” of the brake 

pads manufactured, supplied, or used by these other entities, 

about their performance, about plaintiff’s extent of usage, or 

about their effects on him in terms of how they contributed to his 

contraction of mesothelioma (Sparks v. Owens-Illinois, Inc. (1995) 

32 Cal.App.4th 461, 478 (Sparks)), and because there was 

evidence that the brakes Ford installed in its new vehicles were 

different because they “occasionally” also contained amosite, 

plaintiff argues that the jury’s finding of fault regarding the 

brake pads used by Ford does not compel the same finding of 

fault as to the other automakers and the manufacturers and 

suppliers of other brake pads plaintiff replaced.

Both the law and the record refute these arguments. 

As a threshold matter, the law permits Ford to carry its 

burden of proving the need for apportionment by relying on 

evidence introduced by, or elicited from, plaintiff’s witnesses. 

(Williams v. Barnett (1955) 135 Cal.App.2d 607, 612 [so holding]; 

CACI No. 200.) Contrary to what plaintiff and the trial court 

both suggest, Ford is not required to introduce independent 

evidence in support of its bid for apportionment.

Further, the record does not support plaintiff’s assertion 

that the evidence gave only a “vague impression” of similarity 

among the brake pads installed by Ford and the other brake pads 

plaintiff encountered, or their contribution to his mesothelioma. 
15

To the contrary, and as noted above, it was undisputed that the 

asbestos content of all of the brake pads of that vintage was the 

same; that all of the brake pads accordingly generated the same 

type of asbestos-containing dust plaintiff inhaled; and that each 

and every one of plaintiff’s exposures to this dust was a 

substantial factor contributing to his development of 

mesothelioma because each exposure to that dust contributed to 

that development and none of those exposures was “insignificant”

or capable of being “disregard[ed]” or “discount[ed].”2 Plaintiff is 

correct that no medical expert explicitly testified that his 

exposure to the dust from brake pad jobs on vehicles other than 

Fords with factory-installed brake pads was a “substantial factor” 

in his contraction of mesothelioma, but there is no “requirement 

that specific words . . . be recited by [an] expert” (Hernandez v. 

Amcord, Inc. (2013) 215 Cal.App.4th 659, 675) and, due to the 

identity between all of the brake pads of that vintage, the 

experts’ opinions regarding the causal link between plaintiff’s 

2 For the first time at oral argument, plaintiff suggested that 

Ford voluntarily took on a heavier burden with respect to proving 

causation because it stipulated to a jury instruction that listed 

seven factors “relevant” to assessing whether “an alleged asbestos 

exposure” “was a substantial factor” contributing to plaintiff’s 

injury—namely, (1) “the type of asbestos,” (2) “the nature of the 

exposure,” (3) “the frequency of the exposure,” (4) “the regularity 

of the exposure,” (5) “the duration of the exposure,” (6) “the 

proximity of the asbestos-containing product,” and (7) “the type of 

asbestos-containing product.” However, the enumeration of these 

factors did not modify or otherwise increase Ford’s burden of 

proving causation and, more to the point, it did not negate the 

undisputed evidence establishing that the asbestos brake pads 

used, manufactured, or supplied by others were a “substantial 

factor” contributing to plaintiff’s mesothelioma.
16

mesothelioma and the brake pads used by Ford apply with equal 

force to the brake pads used, manufactured, or supplied by the 

other entities. Although this link turns in part on the notion that 

every exposure to asbestos dust was a “substantial factor”

contributing to plaintiff’s risk, that was the notion that formed 

the very basis for every expert opinion plaintiff offered; plaintiff

cannot now disclaim that basis in order to avoid its effect on 

apportionment. (Cf. Pfeifer, supra, 220 Cal.App.4th at p. 1288,

fn. 1 [no liability where plaintiff did not rely upon a theory that 

every exposure was a substantial factor].)

And the record does not support plaintiff’s assertion that 

the brake pads Ford factory-installed in its vehicles were 

different or that this difference mattered to this case. Plaintiff’s 

sole support for that assertion is a passage from a July 1968 draft 

report prepared by an industrial hygiene specialist employed by 

Ford: “The brake linings in current use may contain 40 to 60 

[percent] asbestos when manufactured – the asbestos being 

normally in the chrysotile form, and occasionally in the amosite 

form.” (Italics added.) Plaintiff says that this entire passage 

refers solely to “Ford brakes”; because other testimony at trial 

indicated that brake pads of that vintage contained only

chrysotile, plaintiff continues, Ford’s brake pads had a unique 

composition that render them different from—and, indeed, more

potent in causing mesothelioma than—the brake pads used by 

other automakers or manufactured or supplied by other entities. 

The record does not support the inference plaintiff seeks to draw 

from the July 1968 draft report. Even if we assume that the

report is ambiguous as to whether it refers to brake pads 
17

installed solely on Ford vehicles,3 it is undisputed that Ford used 

the same brake pads manufactured by others and available to 

everyone in the automobile industry. At best, therefore, the July 

1968 draft report created a conflict in the evidence regarding 

whether the brake pads of that vintage contained any amosite, 

but says nothing about whether the pads used in Ford’s vehicles 

were different than the other pads used at that time.4 And even 

if we were to agree with plaintiff’s reading of the July 1968 draft 

report as establishing that the composition of the brake pads 

used by Ford was somehow different, it was undisputed that the 

dust generated from the brake pad replacement process 

contained only chrysotile. Because mesothelioma was caused by 

plaintiff’s inhalation of that dust, the brake pads used by Ford 

were indistinguishable from those used by others in the one 

respect that mattered to plaintiff’s lawsuit—namely, their 

contribution to his mesothelioma.

Second, plaintiff urges that the record does not compel a 

finding that Ford is not 100 percent at fault because Ford failed 

to prove the precise percentage of fault that should be 

apportioned to each of the other automakers and the brake pad 

3 At a sidebar, Ford’s counsel represented that the July 1968

draft report referred to the brake pads installed in Ford vehicles. 

This is of no consequence to our analysis because (1) counsel’s 

representations to the court at a sidebar is not evidence, and (2) 

we are assuming for the purpose of our analysis that the July 

1968 draft report examined only the brake pads factory-installed 

in Ford’s vehicles.

4 Indeed, plaintiff’s counsel repeatedly represented to the 

jury during plaintiff’s opening statement that the trial would 

include “no evidence” or “testimony” about plaintiff being exposed 

“to anything but chrysotile.” 
18

manufacturers and suppliers listed on the special verdict form, 

such that any apportionment by the jury would be wholly 

speculative. Plaintiff relies upon language from several cases 

indicating that a defendant has the “burden to . . . prov[e] . . . the 

percentage of legal cause attributable to the other companies.” 

(Sparks, supra, 32 Cal.App.4th at p. 478; Stewart v. Union 

Carbide Corp. (2010) 190 Cal.App.4th 23, 33 (Stewart), 

disapproved on other grounds in Webb v. Special Electric Co., Inc.

(2016) 63 Cal.4th 167.) 

We decline to read this language as requiring a defendant, 

as a precondition for overturning a verdict apportioning 100 

percent of fault against it, to prove the precise percentage of fault 

attributable to each other entity. The origin of this language is 

Sparks, but that language was dicta because Sparks’s affirmance 

of the 100 percent apportionment in that case rested on a failure 

to prove others were at fault at all rather than a failure to assign 

a specific percentage of fault. (Sparks, supra, 32 Cal.App.4th at 

p. 478.) What is more, the three cases Sparks cited in support of 

its language—namely, Vermeulen v. Superior Court (1988) 204 

Cal.App.3d 1192, American Motorcycle Assn. v. Superior Court

(1978) 20 Cal.3d 578, and Gentry Construction Co. v. Superior 

Court (1989) 212 Cal.App.3d 177—do not deal with fixing specific 

percentages and thus do not lend any support to plaintiff’s 

proffered reading of Sparks. 

Most importantly, reading Sparks to require a defendant to 

prove up and then assign a specific percentage of fault to each 

nonparty would render Sparks inconsistent with other precedent

and with the fundamental purpose of apportionment. The other 

precedent obligates a defendant seeking to void a finding of 100 

percent fault merely to show “some” or “a” “nonzero percentage of 
19

fault” that is “reasonably” attributable to others rather than a

specific percentage of fault. (Pfeifer, supra, 220 Cal.App.4th at 

pp. 1285, 1286; Hernandez v. County of Los Angeles (2014) 226 

Cal.App.4th 1599, 1614.) Moreover, requiring a specific and 

precise percentage of fault would be inconsistent with the very 

nature of apportionment itself, which is a “flexible, commonsense 

concept” designed to “arrive at an ‘equitable apportionment or 

allocation of loss.’” (Knight v. Jewett (1992) 3 Cal.4th 296, 314; 

Rosh, supra, 26 Cal.App.4th at p. 1233; Pfeifer, at p. 1285.) If 

anything, it would be manifestly inequitable—and hence at odds 

with the function of apportionment—to saddle a defendant with 

100 percent of the fault for a plaintiff’s injury when the record 

compels a finding that it was not 100 percent at fault merely 

because it did not assign specific percentages—individually or in 

the aggregate—to others who are otherwise shown by the 

evidence to share the fault. This is perhaps why plaintiff, 

somewhat quixotically, seems to acknowledge that “Ford is 

correct in noting that” the law does not “require[] evidence . . . as 

to other entities’ precise percentages of fault . . . .”

And contrary to what plaintiff suggests, apportionment is 

not speculative merely because a party does not prove up a 

precise percentage of shared fault. The equitable nature of 

apportionment contemplates that juries will have a fair degree of 

leeway in apportioning liability without that leeway being 

invalidated as impermissible speculation. In Scott v. County of 

Los Angeles (1994) 27 Cal.App.4th 125, a child sued the county, 

her social worker, and her foster mother after the foster mother 

burned the child by submerging her in scalding water for 30 

seconds. (Id. at pp. 133, 138.) When the jury apportioned 99 

percent of the liability to the county and social worker for failing 
20

to supervise the foster mother, but only 1 percent to the foster 

mother who actually inflicted the harm, the Scott court did not 

hesitate in concluding that the 1 percent apportionment “was 

improper as a matter of law.” (Id. at pp. 136, 147.) If 

apportionment of liability among various tortfeasors in Scott was 

deemed not to be speculative, the apportionment required in this 

case is certainly not speculative. That is because, under 

plaintiff’s theory and evidence, the risk (and hence injury) to 

plaintiff was a function of his repeated exposure to asbestoscontaining dust, and because it is possible to estimate how often 

plaintiff worked with brake pads by various automakers, 

manufacturers, and suppliers and to apportion fault on that 

basis.

Third, plaintiff contends that Ford effectively forfeited its 

right to challenge the jury’s apportionment because Ford, in its 

closing argument, made the tactical decision not to “connect the 

dots” between its observations that Ford was responsible for only 

a “small percentage” of the “brake dust debris” to which plaintiff 

was exposed on the one hand, and the jury instructions regarding 

apportionment on the other hand. This contention lacks merit. 

Because the argument of counsel is not evidence (e.g., Beagle v. 

Vasold (1966) 65 Cal.2d 166, 181), the absence of argument does 

not equate to an absence of evidence, and the latter is all that 

matters to a substantial evidence challenge. Although a party, in 

its arguments, may commit itself to one of several alternative 

theories of liability or affirmatively concede an issue, Ford did no 

such thing here: The trial court instructed the jury on its duty to 

apportion liability and Ford argued the facts supporting 

apportionment; Ford’s failure to tie those facts to the 

apportionment instructions neither committed it to one of several 
21

alternative theories nor constituted a concession of the issue.5 

(Cf. Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 

874-878 [party waived issue by committing to one of several 

alternative theories in closing argument, but changing theories 

on appeal].)

Fourth, plaintiff argues that this case is analogous to 

several other cases—namely, Sparks, supra, 32 Cal.App.4th 461, 

Stewart, supra, 190 Cal.App.4th 23, Pfeifer, supra, 220 

Cal.App.4th 1270, and Rutherford, supra, 16 Cal.4th 953—where 

the jury’s apportionment of the bulk of fault to the defendant was 

affirmed as supported by substantial evidence. These cases are 

not controlling. In Sparks, the court upheld the jury’s verdict not 

to apportion any fault to other manufacturers of “asbestoscontaining products” because there was no evidence that the 

plaintiff had been exposed to the asbestos-containing dust from 

those products. (Sparks, at pp. 477-478.) Here, by contrast, it 

was undisputed that plaintiff was exposed to dust generated by 

the brake pads of the other entities. In Stewart and Pfeifer, the 

courts upheld the jury’s verdicts not to apportion any fault, or to 

apportion significantly less fault, to other manufacturers of 

asbestos-containing products because the plaintiffs’ exposure to 

the defendants’ products were far more extensive and significant 

5 What is more, the jury was instructed—per the parties’ 

agreement—that it could not consider plaintiff’s other 

occupations aboard a military ship and in HVAC and 

construction work as contributing to plaintiff’s exposure to 

asbestos; this selective determination of which entities were 

subject to the jury’s allocation finding further demonstrates that 

Ford certainly did not abandon the issue of allocation of fault to

the other automakers and the brake pad manufacturers and 

suppliers. 
22

than to the products of others. (Stewart, at pp. 32-33; Pfeifer, at 

pp. 1289-1290.) Here, by contrast, the undisputed expert 

testimony was that every exposure was significant and no 

exposure could be discounted; further, it is undisputed that

plaintiff’s work with brake pads in Ford vehicles—and hence his 

exposure to dust from those pads—constituted at most 8 percent 

of his work history as a gas station mechanic (that is, at most 16 

percent of the installation half of a brake replacement). And 

Rutherford dealt with the proper standard for imposing liability 

upon a party-defendant in the first place, and not the subsequent 

apportionment of fault vis-a-vis nonparties; indeed, Rutherford 

took pains to distinguish the two analyses. (Rutherford, at pp. 

958, 983.)

For these reasons, substantial evidence does not support 

the jury’s verdict apportioning no fault to the other automakers 

and to the manufacturers and suppliers of asbestos-containing 

brake pads.

B. Plaintiff’s former employers (the gas stations)

Any fault of plaintiff’s former employers at the gas stations 

where he worked would be grounded in negligence. Negligence 

requires proof of a duty of care, breach of that duty, injury to the 

plaintiff, and a causal link between the breach and that injury. 

(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) 

The jury’s finding that plaintiff’s former employers are to 

be apportioned no fault for plaintiff’s mesothelioma is supported 

by substantial evidence because the record does not compel a

finding of fault. Here, it was legally undisputed that plaintiff’s 

former employers owed plaintiff a duty of care to “maintain a safe 

workplace” by “discover[ing] . . . dangerous condition[s],” warning 

of them, and using “safe practices and procedures,” and it was 
23

factually undisputed that two of plaintiff’s former employers 

(Standard Oil and Exxon) breached that duty by allowing 

plaintiff to perform brake replacement jobs without warnings or 

protective gear despite knowing of the dangers of asbestoscontaining dust from blowing out and sanding brake pads. 

Plaintiff’s injury was also undisputed. Yet there was no evidence 

as to precisely what actions the gas station owners should have 

taken to protect plaintiff and no evidence as to how, if any at all, 

those actions would have reduced plaintiff’s risk of contracting 

mesothelioma. Maybe they would have, and maybe not. Either 

way, the record before us does not compel a finding of a causal 

link, and the jury’s implicit finding that no such link exists is 

accordingly supported by substantial evidence.

III. Instructional Error

Ford argues that it is entitled to a new trial on 

apportionment vis-à-vis plaintiff’s former employers for a second 

reason—namely, that the jury instructions did not sufficiently 

inform the jury what it would need to find in order to find those 

employers at fault.6 Because plaintiff’s former employers did not 

manufacture or supply asbestos-containing brake pads, any fault 

on the part of plaintiff’s gas station employers would need to be

grounded in negligence, as noted above. This presents the 

question: Did the court’s instructions properly instruct the jury 

on the elements of that theory of liability? We independently 

6 Ford also argues the trial court’s apportionment instruction 

was defective because the court used the standard CACI jury 

instruction (CACI No. 1207B) rather than Ford’s special

instruction modifying that standard language. Our reversal on 

substantial evidence grounds moots out the need to reach this

issue. 
24

review the correctness of jury instructions. (People v. Nelson

(2016) 1 Cal.5th 513, 538.)

The jury instructions may well have been erroneous. 

Although the court instructed the jury that an entity’s 

“negligence” was a basis for apportioning fault, and that an 

employer had a “non-delegable duty to . . . furnish” its employees 

“with a safe place to work,” the court did not instruct the jury on 

the elements of negligence generally. The closest the court came 

was the instruction on negligent product design, but that 

instruction was couched in terms of product design and was 

limited to Ford; it is far from clear that a reasonable jury would 

retrofit these instructions to fit a different type of negligence 

against an unnamed, nonparty.

But any error was not prejudicial. An error in instructing 

the jury warrants a new trial only if it is reasonably probable 

that a proper instruction would have yielded a different verdict. 

(Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1072.) Here, it 

would not have. That is because, as noted above, there was a 

dearth of evidence regarding the causal link between any 

negligence by plaintiff’s former employers and plaintiff’s 

mesothelioma. Making the elements more explicit would not 

have cured this gap in the evidence.

IV. Scope of Retrial

Our conclusion that the jury’s verdict apportioning no fault 

to the other automakers and to the manufacturers and suppliers 

of brake pads is not supported by substantial evidence means 

that Ford is entitled to a new trial on the issue of apportionment

among Ford and those other entities. But this presents the 

question: Is Ford entitled to a new trial on any other issues? 
25

Ford urges that it is entitled to a new trial on all issues. 

We disagree. There is no need to retry the jury’s finding of 

liability against Ford on any of the five theories presented, the 

jury’s finding that Ford engaged in conduct worthy of punitive 

damages, or the jury’s award of $8.5 million in compensatory 

damages. Each of these findings is supported by substantial 

evidence, and Ford does not challenge them except to generally 

complain that they are infected by “passion and prejudice.” 

There is accordingly no reason to disturb them. There is also no 

merit to Ford’s contention that all new trials must encompass all

issues whenever punitive damages are at issue because, under 

Civil Code section 3295, the same jury that finds a defendant 

liable when a case is tried must also be the one to impose 

punitive damages; as the cases cited next indicate, that is not the 

rule when it comes to what must be retried.

Plaintiff urges that we should leave the jury’s punitive 

damages award intact—preferably the original $25.5 million 

award, but, failing that, even the $8.7 million reduced award. We 

disagree with plaintiff’s suggestion, as well. This is not a case 

where we are vacating or reducing the compensatory damages 

award; in such circumstances, courts need not also vacate the 

punitive damages award if the ratio of punitive to compensatory 

damages is likely to remain within the constitutionally valid ratio 

of 10-to-1 or less. (Izell v. Union Carbide Corp. (2014) 231 

Cal.App.4th 962, 984; Behr v. Redmond (2011) 193 Cal.App.4th 

517, 536-537; cf. Auerbach v. Great Western Bank (1999) 74 

Cal.App.4th 1172, 1190 [requiring new trial on punitive damages 

amount where ratio on remand would be greatly in excess of 10-

to-1]; Frommoethelydo v. Fire Ins. Exch. (1986) 42 Cal.3d 208, 220 

[requiring new trial on punitive damages where “most of the 
26

compensatory damages must be set aside”].) This makes sense 

because the defendant’s contribution to the plaintiff’s injury 

remains the same as it was before.

Here, by contrast, we are invalidating the jury’s 

apportionment of 100 percent of fault to Ford for—and thus, 

Ford’s contribution to—plaintiff’s injury. Should, as Ford urges, 

the jury apportion fault in direct proportion to plaintiff’s exposure 

to the brake pads for which it is legally responsible, that jury 

could apportion Ford at most 8 percent of fault, and possibly less. 

This would paint a substantially different picture of Ford’s 

overall culpability, especially vis-à-vis the other entities 

responsible for exposing plaintiff to asbestos-related brake pads. 

Because punitive damages are meant to reflect “the magnitude of 

[a] defendant’s violation” of public policy (Zhadan v. Downtown 

L.A. Motors (1976) 66 Cal.App.3d 481, 496-497), the potential for 

a jury to find that Ford’s violation is of a substantially smaller 

magnitude counsels in favor of letting the jury on retrial evaluate 

the opprobrium of Ford’s conduct in light of Ford’s proportionate 

fault for plaintiff’s injury rather than simply using the 

constitutional maximum as a back-end safety valve. 
27

DISPOSITION

The judgment is reversed and remanded for a new trial on 

the issues of (1) apportionment among Ford, the other 

automakers, and the manufacturers and suppliers of brake pads, 

and (2) the amount of punitive damages. The jury’s verdict as to 

Ford’s liability, the liability of plaintiff’s former employers, Ford’s

eligibility for punitive damages, and the total amount of 

compensatory damages is affirmed. Each party is to bear its own 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ