Filed 3/24/21 Sabetian v. Fluor Enterprises CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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

SORAYA SABETIAN,

Plaintiff and Respondent,

v.

FLUOR ENTERPRISES, INC., et 

al.,

Defendants and Appellants.

 B298989

 (Los Angeles County

 Super. Ct. No. BC699945)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Weitz & Luxenberg, Benno Ashrafi and Josiah Parker for 

Plaintiff and Respondent.

Berkes Crane Robinson & Seal, Robert H. Berkes, 

Steven M. Crane, Barbara S. Hodous and Carmen Santana for 

Defendants and Appellants.

__________________________
1

Defendants Fluor Enterprises, Inc. (FEI), and Middle East 

Fluor (MEF) (collectively, the Fluor defendants) appeal from a 

judgment entered after a jury trial in favor of plaintiff Soraya 

Sabetian.

1 Soraya and her husband Houshang Sabetian brought 

claims for negligence, premises liability, and loss of consortium, 

alleging Sabetian contracted testicular mesothelioma caused by 

exposure to asbestos while he was an Iranian citizen working for 

the National Iranian Oil Company (NIOC) from 1959 to 1979 in 

facilities under construction by the Fluor defendants. The jury 

found FEI and MEF were negligent, and their negligence was a 

substantial cause of Sabetian’s injury.

On appeal, the Fluor defendants contend the trial court 

should have granted their motions for judgment notwithstanding 

the verdict and for a new trial because substantial evidence does 

not support the jury’s determination Sabetian was exposed to 

asbestos attributable to the Fluor defendants with sufficient 

frequency, regularity, and proximity to constitute a substantial 

factor in causing Sabetian’s injury. They also argue substantial 

evidence does not support the jury’s determination Sabetian’s 

exposure to asbestos caused him to develop mesothelioma in the 

testes, a rare form of mesothelioma. Finally, the Fluor 

defendants assert the trial court erred in denying their post-trial 

motions to reduce the jury’s damages award in accordance with 

Iranian law. We affirm.

1 During the pendency of this appeal, Houshang Sabetian 

died. On July 29, 2020 we granted Soraya Sabetian’s motion to 

be substituted in place of Houshang Sabetian as his successor in 

interest. To avoid confusion, we refer to Houshang Sabetian as 

Sabetian and Soraya by her first name.
2

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

Sabetian and Soraya filed this action on March 28, 2018 

against the Fluor defendants2 and others, alleging causes of 

action for negligence, strict liability, premises liability, and loss of 

consortium. The complaint alleged the Fluor defendants 

provided gaskets, packing, and insulation that negligently 

created asbestos dust Sabetian was exposed to while he worked 

at Iranian oil refining facilities in the 1960s and 1970s. In 

January 2017 Sabetian was diagnosed with mesothelioma, which 

Sabetian alleged was caused by his exposure to asbestos at these 

facilities.

B. The Sabetians’ Case at Trial

1. The Fluor defendants

At the beginning of trial, the parties reached a stipulation 

as to the Fluor defendants’ individual responsibilities with 

respect to construction of the Tehran I, Tehran II, and Esfahan 

refineries operated by NIOC, and construction of the Crude 

Distillation Unit No. 85 (CDU-85) at the Esfahan refinery.

Pursuant to the stipulation, the trial court instructed the jury:

“With respect to the Tehran [I] refinery project, Fluor 

International, Inc., was responsible for the engineering, 

2 The Sabetians named seven Fluor entities as defendants in 

their complaint. At the beginning of trial, pursuant to the 

stipulation of the parties, the trial court dismissed with prejudice 

three of the Fluor defendants, leaving FEI, MEF, Fluor 

Corporation, and Fluor International, Inc. The jury found only 

FEI and MEF acted negligently.
3

procurement of materials, and construction. [¶] With respect to 

the Tehran [II] refinery project [also known as] Tehran refinery 

expansion, [MEF] was responsible for the engineering, 

procurement of materials, and construction. [¶] With respect to 

the Esfahan refinery project, [FEI] . . . was responsible for the 

design, engineering, procurement of materials, and project 

management. [¶] With respect to the Crude Distillation Unit 

No. 85 project in Abadan, [FEI] . . . was responsible for the 

performance of all services which [were] to be performed in the 

United States and Japan, including but not limited to detailed 

engineering services, materials[] procurement services, the 

supply, inspection, and arrangement for the shipment of plant 

materials and equipment and other related services.”

2. Presence of Asbestos at the Refineries

According to Gary Bryan, a designated representative of 

the Fluor defendants,

3 Fluor performed work on multiple oil 

refinery construction projects in Iran from 1961 to 1979, 

including the Tehran I, Tehran II, and Esfahan refinery projects. 

During the period from 1953 through 1978 or 1979, Fluor 

purchased calcium silicate insulation from Nippon Asbestos 

Company (Nippon) for external use in its “pipe[s] and vessel[s].” 

In the early 1970s companies in the United States “started 

moving away” from using calcium silicate insulation containing 

3 The Sabetians called Bryan as an adverse witness to 

explain the use of asbestos in the Fluor defendants’ refinery 

construction projects. Because the parties stipulated as to the 

responsibility of each Fluor defendant, the witnesses at trial did 

not distinguish between the Fluor defendants, typically referring 

to them collectively as “Fluor,” as do we.
4

asbestos. However, calcium silicate insulation containing 

asbestos continued to be available overseas, including in Japan.

All of the calcium silicate insulation used in the Tehran 1 

construction project came from Nippon and contained asbestos.

Construction on Tehran I took place from 1963 through early 

1969.

In 1972 NIOC hired Fluor to construct the Tehran II

refinery project. The project design specifications stated the pipe 

insulation “‘shall be molded sectional-type covering of calcium 

silicate, amosite asbestos, or expanded silica for temperatures up 

to 1200 degrees Fahrenheit.’” In 1974 Fluor purchased the 

calcium silicate pipe insulation from Nippon for use in the 

construction of Tehran II. Bryan did not know whether the

calcium silicate used at Tehran II contained asbestos. When the 

construction of the refinery project was completed in early 1975, 

Fluor transferred over 20,000 linear feet of unused calcium 

silicate pipe insulation procured for use at Tehran II to the 

Esfahan project.

Dominick Pescarolo worked for Fluor on both the Tehran II 

and Esfahan refinery projects.4 According to Pescarolo, Fluor

created the design documents for Tehran II, which specified the 

use of asbestos-containing pipe insulation. Fluor duplicated the 

Tehran II specifications for its construction of the Esfahan

refinery. The same vendors approved for Tehran II were 

approved for construction of Esfahan. Bidding for the Esfahan 

project began in 1974 or 1975.

4 The Fluor defendants designated Pescarolo as their person 

most qualified. Excerpts from his deposition testimony were read 

to the jury.
5

Amanollah Shahabi, assistant refinery manager for the 

Tehran I and II refineries, similarly testified Fluor “used 

asbestos-containing material [at Esfahan], exactly the same as 

Tehran [II].”5 Shahabi based his view that asbestos-containing 

materials were used at Esfahan on the facts that “[t]he contract 

was copied from Tehran [I] and [II]. Approved vendors were the 

same. Other vendors were the same. Materials were the same.” 

Further, Fluor procured most of the materials for Esfahan in 

1972 or 1973. Shahabi explained that “if there [had] been such a 

change” away from using asbestos-containing materials in Fluor’s 

construction of Esfahan, Shahabi would have “had to [have been]

informed,” but he did not learn of alternative materials for 

insulation until 1977.

On October 25, 1976 Fluor sent a telex to the “Fluor 

Thyssen Joint Venture” in Tehran with the subject “Asbestos 

Free Insulation [¶] Urgent.” (Capitalization omitted.) The 

message stated, “Nippon Asbestos has stopped their production of 

insulation containing asbestos. [¶] . . . Were you able to get 

NIOC to relax their demand that insulation be asbestos free? 

[¶] . . . Answer urgently required.” (Capitalization omitted.) On 

November 4, 1976, in a message with the subject “Esfahan 

Refinery Project Asbestos in Insulation,” NIOC responded, 

“Please be advised that we have no objection to the presence of 

asbestos in calcium silicate insulation if it is contained.”

(Underlining omitted.)

Sometime after October 25, 1976 Nippon was acquired by 

or changed its name to Nichias Corporation, and it changed the 

5 Excerpts of Shahabi’s videotaped deposition were played for 

the jury.
6

name of its calcium silicate insulation from “silicalite cover” 

(which it sold in 1974) to “new silicalite board,” while continuing 

to use the brand name “Tombo 4601.” Fluor did not have any 

invoices, packing slips, or purchase orders showing Fluor ever 

purchased “new silicalite” products for use in Iran. Fluor 

completed construction of the Esfahan refinery in 1978 or 1979.6

3. Testimony of Sabetian

Sabetian was born in Tehran, Iran. After studying

industrial management in Tehran and London, in 1959 Sabetian 

began to work for NIOC in its “organization for methods and 

systems” department, where he remained for most of his career 

at NIOC. Sabetian’s role in the department was to create 

systems to make NIOC’s operations more efficient. Sabetian

worked at the Abadan oil refinery from about 1960 until 1963, 

when he transferred to a fertilizer plant in Shiraz, Iran.

In 1967 Sabetian returned to Tehran and began to travel 

regularly to several refinery projects that were under 

construction, including Tehran II, Esfahan, and CDU-85. While 

working for NIOC during this period, Sabetian was “always [in] 

6 The Sabetians also presented evidence at trial regarding 

the construction of the CDU-85 at the Abadan refinery. We do 

not reach FEI’s contention there is no substantial evidence to 

support the jury’s finding Sabetian was exposed to asbestos 

attributable to FEI during the construction of CDU-85 because

the jury did not distinguish in its verdict between FEI’s 

responsibility for actions taken at Esfahan and at CDU-85, and 

substantial evidence supports the jury’s finding that Sabetian’s 

exposure at Esfahan was a substantial factor in causing 

development of mesothelioma. Accordingly, we do not discuss the 

evidence relating to CDU-85.
7

the air,” traveling. As part of his job, Sabetian observed the 

installation of piping and pipe insulation at each refinery he 

visited. Sabetian sometimes stood as close as two or three feet 

from where the insulation work was being performed. At other 

times he was farther away, but he mostly “was close enough to be 

able to observe the operation.” Sabetian’s “usual” practice at 

each site was to observe workers cutting pipe insulation while 

Sabetian stood between three and eight feet away. The 

prefabricated pipe insulation had to be “cut to the measure in 

order to use it.” The cutting of pipe insulation “always” produced 

dust. As Sabetian explained, the insulation material was “always 

dusty” and “really created a lot of dust.” While Sabetian observed

the insulation work, there were “people working all over the unit” 

with insulation. Sabetian would stand a few feet from one 

worker installing insulation, and at the same time he would be 

15 to 20 feet from other workers also performing insulation work.

Construction of Tehran II was “a huge activity,” and 

Sabetian visited the refinery project during its construction “so 

many times.” Sabetian described the work he observed at 

Tehran II: “You have to make a lot of insulation, putting pipe, 

putting the different machinery. But the main thing was the 

insulation activity that Fluor was responsible for.” He explained 

the work at Tehran II was the same as what he had observed at 

other refineries he visited. He added, “What I observed it is all 

similar. I mean, nothing, no difference.” Sabetian observed 

workers at Tehran II working with pipe insulation on “[d]efinitely 

more than ten” occasions.

Sabetian visited Esfahan “more than 10 [or] 12 time[s]” 

during its construction. The construction of Esfahan was “similar 

to other refineries,” with workers “cutting pipe” and “installing 
8

the pump machinery.” Sabetian observed workers “using 

insulation for the equipment.” Sabetian explained insulation was 

“really one of the main biggest activity that . . . building a 

refinery needs. Every corner, every part of the refinery, the 

machinery has to be insulated in order to be operational.” When 

the pipe insulation at Esfahan was cut, “similar to other 

refineries that [Sabetian] observed [there was] always dust.” 

Sabetian observed the cutting of pipe insulation at Esfahan 

“many times, so many times” while standing “between three to 

seven, eight feet away from the actual operation.” Sabetian 

described the insulation process as the “same as usual.”

On cross-examination, Sabetian denied that Esfahan was 

95 percent completed when he first visited the refinery.

However, defense counsel played for the jury an excerpt from 

Sabetian’s videotaped deposition testimony:

“‘[Q]: When you visited the Esfahan refinery, would you 

visit the units that had already completed 

construction and were working units?[’”]

“‘[A]: When I visited Esfahan, the refinery was nearly 

95 percent finished. . . . And they were starting to 

start up some of the units.’” 

Sabetian explained at trial, “I think if I made such a 

statement, it is wrong because it wasn’t – because it took four 

years or more. And it faces the revolution, which stopped . . . 

[the] finishing [of] the refinery.”

Breathing the dust caused by the cutting of pipe insulation 

at the refinery project sites would sometimes cause Sabetian to 

cough. Sabetian did not know, and was never informed, the dust 

was a health hazard. According to Sabetian, “Absolutely nobody 

told us this . . . dust would really affect your health.”
9

In 1979 Sabetian retired from his position with NIOC and 

fled Iran to escape the revolution, eventually settling in Los 

Angeles in 1980 or 1981. On cross-examination, defense counsel 

elicited testimony from Sabetian about his 1982 application to

the United States Department of Justice’s Immigration and 

Naturalization Service (immigration application). The 

immigration application directed Sabetian to list his 

“employment [for the] last five years.” (Capitalization omitted.) 

In response, Sabetian listed his occupation as the head of NIOC’s 

industrial department from 1975 to 1980. Sabetian signed the 

declaration, declaring under penalty of perjury the information 

was true and correct. The immigration application stated, 

“Severe penalties are provided by law for knowingly and willfully 

falsifying or concealing a material fact.” (Capitalization omitted.)

In 2017 Sabetian was diagnosed with mesothelioma of the 

tunica vaginalis testis (TVT). Sabetian’s right testicle was 

surgically removed. Pathological diagnosis of the removed 

testicle showed malignant mesothelioma of the TVT.

4. The Sabetians’ Expert Evidence

(a) Dr. Daneshmand

Dr. Sia Daneshmand, a urologic oncologist, treated

Sabetian’s mesothelioma of the TVT, which was only the second 

case of the disease he had treated in his career.7

Dr. Daneshmand explained the tunica vaginalis is comprised of 

mesothelial cells identical to the mesothelial cells located in the 

pleura, the peritoneum, and the pericardium. Dr. Daneshmand 

7 Dr. Daneshmand’s videotaped deposition testimony was 

played for the jury.
10

opined, “[G]iven the known risks and if I were told [Sabetian] had 

significant exposure to asbestos, I would assume more likely than 

not that [asbestos exposure] was a contributing cause of his 

disease . . . .” Dr. Daneshmand explained, “[I]t’s incredibly rare 

to develop [mesothelioma] in the tunica vaginalis, but half the 

cases that I had read about had some exposure to asbestos, and it 

is presumed to have the same risk factor.” Asbestos exposure 

“appears to be the only plausible risk factor for development” of 

Sabetian’s condition. On cross-examination, Dr. Daneshmand 

acknowledged he had not “exhaustively looked at the literature” 

regarding the epidemiology of the disease. He also acknowledged 

there are many reported cases of mesothelioma of the TVT in 

individuals with no known asbestos exposure.

(b) Kenneth Garza

Kenneth Garza, a certified industrial hygienist,8 opined 

asbestos is present at “a background level” in the ambient air at a 

range between .00000001 and .0001 asbestos fibers per cubic 

centimeter. Industrial hygiene seeks to reduce industrial 

asbestos levels to these background levels. Based on his review 

of industrial hygiene literature and his familiarity with the

insulation products used in Iranian refineries, Garza opined to a 

reasonable degree of scientific certainty that where asbestoscontaining dust is visible to the naked eye, a bystander would be 

exposed to levels between 20 and 100 asbestos fibers per cubic 

centimeter. Garza added, “And in this case, [Sabetian] was 

within feet, so that’s pretty darn close to that activity.”

8 Industrial hygiene involves “anticipating, recognizing, 

evaluating, and controlling hazards in the workplace,” including 

the hazard of asbestos.
11

(c) Dr. Horn

Dr. Barry Horn, an occupational medicine specialist and 

board certified pulmonologist,9 opined that exposure to asbestos 

in the ambient air differed from exposure in an occupational 

setting because “in an occupational setting, you overwhelm the 

body’s defense mechanisms. . . . [¶] . . . And when you inhale 

foreign material down in the lung, [alveolar macrophages][10] get 

stimulated and go over to the area where these foreign particles 

are and gobble them up. [¶] That leads to a whole series of 

complex chemical reactions, which . . . cause other cells to move 

into the lung and to produce potential[] changes in DNA that can 

ultimately lead to cancer.” While the human body can handle a 

“very modest exposure to asbestos,” a large exposure overwhelms

the body’s defense mechanisms causing an inflammatory 

response, “which result[s] in a whole variety of responses, one of 

which is to produce scarring, another is to produce cancer.” 

Dr. Horn opined that standing 10 feet away from a person cutting 

asbestos-containing pipe insulation would be considered an 

occupational exposure to asbestos, which would be significant in 

increasing the exposed individual’s risk of developing 

mesothelioma. Plaintiffs’ counsel presented a hypothetical in 

which Sabetian “was within ten feet of people cutting or removing 

asbestos pipe insulation on several occasions in the 1960s and 

1970s” that “created visible dust at the point of work, and assume 

Mr. Sabetian was breathing.” When asked whether under the 

9 Pulmonology is “the study of diseases of the lung or 

diseases of other body parts that impact lung function.”

10 Dr. Horn described alveolar macrophages as “scavenger 

white blood cells” in the air sacs of the distal airways.
12

hypothetical “each of those occasions [was] significant in 

increasing the risk of Mr. Sabetian’s development of malignant 

mesothelioma,” Dr. Horn responded, “Yes.”

(d) Dr. Zhang

Dr. David Zhang, a physician and occupational medicine

practitioner, testified occupational medicine focuses on finding

the cause of disease. Although Dr. Zhang is not an 

epidemiologist, he was trained to interpret and apply 

epidemiological studies.

Dr. Zhang explained asbestos fibers are most often inhaled 

into the lungs, and from there the fibers may move throughout 

the body in lymphatic fluid that flows throughout the mesothelial 

linings or in defensive macrophages (white blood cells) that 

consume the fibers and carry them to other parts of the body. 

“[T]he fiber inhaled in the lung, carried by the macrophage or by 

lymphatic fluid, travels from the lung to the pleura, to the 

abdomen, and to the scrotum.” An individual exposed to asbestos 

may not develop mesothelioma until 40 to 60 years after the 

exposure.

Dr. Zhang opined, “The scientific community who is 

familiar with asbestos-related disease would agree that asbestos, 

no matter what type of asbestos, can cause all types of 

mesotheliomas in any location lined by the mesothelial cells.” 

Mesothelioma of different areas of the body is the same disease 

with the same cell origin, but with a different location. When 

asked whether “the mesothelioma that originates in the tunica 

vaginalis [membrane covering the testes] [is] a different disease 

than a mesothelioma that originates in the peritoneum or the 

pleura [membrane covering the lungs],” Dr. Zhang responded, 
13

“No, it’s the same disease from the same cell origin.” Dr. Zhang 

opined, “[I]f you are exposed to asbestos, you will increase the 

risk to develop mesothelioma—pleural, peritoneal, pericardial, or 

tunica vaginalis [(TVT)].” Further, if Sabetian was exposed to 

asbestos, the exposure “definitely” caused Sabetian’s 

mesothelioma of the TVT.

In reaching his opinion, Dr. Zhang relied on a report titled 

“Asbestos, Asbestosis, and Cancer, the Helsinki Criteria for 

Diagnosis and Attribution” (Helsinki consensus report), which 

was the product of a 1997 meeting of 19 specialists held in 

Helsinki, Finland. The Helsinki consensus report was updated in 

2015 following a meeting of over 20 scientists and doctors in 

2014. Dr. Zhang stated as to the report there was a consensus 

that asbestos causes all different forms of mesothelioma. The 

Helsinki consensus report identified areas in need of further 

research, but those did not include whether inhalation of asbestos 

fibers can cause mesothelioma in all mesothelial linings 

throughout the body. Both reports were published in the 

Scandinavian Journal “Work, Environmental Health.”11

Dr. Zhang expressed his agreement with the consensus report’s 

conclusion there is “no need to find asbestos fibers in the tissue to 

attribute the mesothelioma to asbestos exposure.”

Dr. Zhang also based his opinion on his review of more than 

30 case reports and case series reports published in the peerreviewed scientific literature concerning mesothelioma of the 

11 Although plaintiffs’ counsel marked the 1997 Helsinki 

consensus report and the 2015 updated report as Exhibits 29 and 

30, neither was introduced into evidence at trial, and they are not 

part of the record on appeal.
14

TVT,12 as well as one epidemiological study showing that 

asbestos can cause pleural peritoneal mesothelioma. Dr. Zhang 

stated mesothelioma of the TVT is very rare, occurring in only 

about one in 10 million persons. The rarity of the condition 

makes it difficult to conduct an epidemiological study at the 

appropriate scale. Dr. Zhang explained, “[Y]ou probably need the 

entire world [to participate in the study] to generate enough 

testicular mesothelioma to look at this one,” making it “virtually 

impossible to do this study.” For this reason, “case reports 

sometimes are very important . . . especially for the rare disease.”

Case reports are written by treating physicians regarding 

interesting medical cases; case series reports are based on

evaluation of multiple individuals. Dr. Zhang gave as an example 

of the importance of case reports that Crohn’s disease was 

identified by Dr. Crohn, who prepared a case report on the 

disease, leading to a treatment, even though there were not 

epidemiological studies showing the disease was an autoimmune 

disease.

In reaching his opinions, Dr. Zhang relied on a case report

“that shows that those who have exposure [to asbestos] increase 

12 “Case reports are reports by a clinician of the occurrence of 

a disease in a particular individual. When there are multiple 

case reports regarding an unusual occurrence of a certain disease 

among a group, the study is referred to as a case series report. 

([H.] Checkoway et al., Research Methods in Occupational 

Epidemiology (2d ed. 2004) p. 59 (Occupational Epidemiology).)” 

(Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 

491.) The list of medical reports relied on by Dr. Zhang was 

marked by plaintiffs’ counsel as Exhibit 28, but does not appear 

to have been admitted into evidence at trial.
15

the risk of developing in particular tunica vaginalis 

mesothelioma.” Dr. Zhang also reviewed the Mensi case series 

report of individuals exposed to asbestos in Italy, which showed

“in the Italian cohort, . . . they have people develop the testicular 

mesothelioma.” Dr. Zhang identified an additional case series 

report by Dr. Attanoos that “reported testicular mesothelioma 

and exposure responsible for some of the disease or some of the 

cases.”

Dr. Zhang acknowledged there were reported cases of 

mesothelioma of the TVT in patients with no documented history 

of asbestos exposure. He explained patients may not be aware of 

their exposure to asbestos, and the determination of whether 

they have been exposed may depend on the quality of the medical 

interview, for example, evaluating the patient’s prior work 

history. Also, it is difficult for people to recall an exposure 20 to 

30 years earlier.

5. Defense Case

Dr. Dominik Alexander, who has a Ph.D. in epidemiology, 

testified for the defense. He explained epidemiology is “the study 

of the distribution and determinants of disease in human 

populations.” Further, epidemiologists are “interested in the 

causes of disease in human populations and the patterns of 

disease nationally and internationally.” Dr. Alexander opined 

the available medical literature on health outcomes for 

individuals exposed to occupational asbestos did not support the 

conclusion exposure to asbestos dust is a cause of mesothelioma 

of the TVT, although the studies show an increased risk of 

pleural mesothelioma among workers exposed to asbestos fibers. 

He testified that out of “hundreds” of analytical epidemiological 
16

studies, none reported individuals exposed to occupational 

asbestos contracted mesothelioma of the TVT.

On cross-examination, Sabetian’s attorney asked 

Dr. Alexander to explain the meaning of the statement in the 

Helsinki consensus report that “[m]alignant mesothelioma 

affecting any serosal membrane may be induced by asbestos 

inhalation.” Dr. Alexander responded, “I think it speaks for 

itself. I believe that the authors are indicating that – exactly 

what it says, malignant mesothelioma may affect any serosal 

membrane.” But Dr. Alexander disagreed with the statement in 

the report that “[a]ll types of malignant mesothelioma can be 

induced by asbestos with amphiboles showing greater 

carcinogenic potency than chrysotile.” Dr. Alexander opined 

there was “no analytical epidemiologic evidence . . . supporting a 

conclusion that asbestos exposure of any fiber type is even 

associated” with mesothelioma of the TVT.

C. The Jury Verdict

The jury found on a special verdict form that FEI, MEF, 

and NIOC were negligent, and that their negligence was a 

substantial factor contributing to Sabetian’s risk of developing 

mesothelioma. The jury found the other defendants had not 

acted negligently.

The jury awarded Sabetian $6 million and Soraya 

$3 million for past noneconomic loss and $8 million to each 

plaintiff for future noneconomic loss, for a total of $25 million in 

damages. The jury found FEI was 60 percent responsible for the 

harm to Sabetian, while MEF and NIOC were each 20 percent

responsible.
17

D. Fluor Defendants’ Motions for Judgment Notwithstanding 

the Verdict and for New Trial

The Fluor defendants filed motions for judgment 

notwithstanding the verdict (JNOV) in which they argued there 

was not substantial evidence of Sabetian’s exposure to asbestos 

attributable to the Fluor defendants or that exposure to asbestos 

causes mesothelioma of the TVT. The Fluor defendants also 

challenged the award of damages to Soraya on the basis damages 

for loss of consortium were not available under Iranian law, 

which they argued applied to the case.

The Fluor defendants also filed a motion for new trial

raising the same issues and arguing the jury’s award of damages 

was excessive and contrary to Iranian law. In support of both

motions the Fluor defendants submitted a supplemental 

declaration by Iranian law expert Mahmoud Katirai, which we 

discuss below.

The trial court denied the JNOV motions. It also denied 

the new trial motion as to Sabetian, but it conditionally granted 

the motion as to Soraya unless she consented to a reduction in 

damages, finding the jury’s damages award was excessive and 

should be reduced from $11 million to $1.4 million (comprised of 

$400,000 for past loss of consortium, and $1 million for future 

loss of consortium).

As to the Fluor defendants’ contention Iranian law applied 

and limited recoverable damages, the court “decline[d] to deviate 

from the pre-trial rulings issued by Judge John [J.] Kralik 

regarding the application of Iranian law.[13] First, none of the 

13 Judge Kralik presided over the pretrial choice of law 

motions and issued the ruling on the motions. In October 24, 
18

parties indicated that it wanted this Court to apply Iranian law 

during the trial. Had the Court applied Iranian law, the jury 

would have been asked to deliberate the case based on the law 

given to it, and the jury has been discharged. Second, the Court 

interprets Judge Kralik’s rulings to preclude the application of 

Iranian law in this case. The Court notes that Defendants have 

not waived their objections to applying Iranian law to the verdict, 

and presumably, Defendants can challenge Judge Kralik’s 

rulings directly with the Court of Appeal[].”

Soraya accepted the remittitur of the damage award to 

$1.4 million. On July 3, 2019 the trial court entered an amended 

judgment for the Sabetians. The Fluor defendants timely 

appealed.

DISCUSSION

A. Standard of Review

“‘A motion for judgment notwithstanding the verdict may 

be granted only if it appears from the evidence, viewed in the 

light most favorable to the party securing the verdict, that there 

is no substantial evidence in support.’” (Cabral v. Ralphs Grocery 

Co. (2011) 51 Cal.4th 764, 770 (Cabral); accord, Johnson & 

Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 313 

(Johnson & Johnson).) “‘“On appeal from the denial of a motion 

for judgment notwithstanding the verdict, we determine whether 

there is any substantial evidence, contradicted or uncontradicted, 

supporting the jury’s verdict. [Citations.] If there is, we must 

2018 Judge Kralik granted in part and denied in part the defense 

motions to apply Iranian law, which we discuss below.
19

affirm the denial of the motion.”’” (Newland v. County of Los 

Angeles (2018) 24 Cal.App.5th 676, 684; accord, Cabral, at p. 770; 

see IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639 [denial 

of a motion for judgment notwithstanding the verdict “is 

essentially the same as appealing the judgment itself for a lack of 

substantial evidence”].)14 

The appellate court, like the trial court, may not reweigh 

the evidence or judge the credibility of witnesses. (Johnson & 

Johnson, supra, 37 Cal.App.5th at p. 313.) “‘“‘“If the evidence is 

conflicting or if several reasonable inferences may be drawn, the 

motion for judgment notwithstanding the verdict should be 

denied.”’”’” (Ibid., quoting Hauter v. Zogarts (1975) 14 Cal.3d 

104, 110.) “The denial of a new trial motion is reviewed for an 

abuse of discretion, except that a trial court’s factual 

determinations are reviewed under the substantial evidence 

test.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514, fn. 7; 

see People v. Johnson (2019) 8 Cal.5th 475, 524 [“We will not 

disturb a trial court’s denial of a motion for a new trial unless ‘a 

“manifest and unmistakable abuse of discretion”’ clearly 

appears.”].) 

Code of Civil Procedure section 657 provides seven grounds 

for granting a new trial where the error “materially affect[s] the 

substantial rights” of a party, including as applicable here: 

“5. Excessive or inadequate damages. [¶] 6. Insufficiency of the 

evidence to justify the verdict or other decision, or the verdict or 

14 We apply the same substantial evidence standard to an 

appeal from a judgment following a jury trial. (Flores v. Liu

(2021) 60 Cal.App.5th 278; Gomez v. Smith (2020) 54 Cal.App.5th 

1016, 1026.) 
20

other decision is against law. [and] [¶] 7. Error in law, occurring 

at the trial and excepted to by the party making the application.” 

However, “[a] new trial shall not be granted upon the ground of 

insufficiency of the evidence to justify the verdict . . . unless after 

weighing the evidence the court is convinced from the entire 

record, including reasonable inferences therefrom, that the court 

or jury clearly should have reached a different verdict or 

decision.” (Code Civ. Proc., § 657.)

B. Substantial Evidence Supports the Jury’s Finding Exposure 

to Asbestos Attributable to the Fluor Defendants Was a 

Substantial Factor in Causing Sabetian’s TVT 

Mesothelioma

The Fluor defendants contend substantial evidence does 

not support the jury’s finding Sabetian was exposed to asbestos 

attributable to the Fluor defendants in quantities sufficient to 

cause his mesothelioma. They further argue substantial evidence 

does not support the jury’s finding inhalation of asbestos dust 

was a substantial factor in contributing to Sabetian’s risk of 

developing mesothelioma of the TVT because there is no evidence 

asbestos exposure can cause mesothelioma of the TVT. We agree 

with Soraya substantial evidence supports the jury’s verdict.

To prove exposure to asbestos from a particular product 

was a legal cause of a plaintiff’s injury, the plaintiff must satisfy 

the two-part test enunciated by the Supreme Court in

Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953

(Rutherford). “[T]he plaintiff must first establish some threshold 

exposure to the defendant’s defective asbestos-containing 

products, and must further establish in reasonable medical 

probability that a particular exposure or series of exposures was 
21

a ‘legal cause’ of his injury, i.e., a substantial factor in bringing 

about the injury.” (Id. at p. 982, fn. omitted, italics omitted; 

accord, LAOSD Asbestos Cases (2020) 44 Cal.App.5th 475, 488.) 

“If an asbestos plaintiff fails to prove exposure, there is no 

causation and no liability as a matter of law.” (LAOSD Asbestos 

Cases, at p. 488; accord, Shiffer v. CBS Corp. (2015) 240 

Cal.App.4th 246, 251 (Shiffer); Weber v. John Crane, Inc. (2006) 

143 Cal.App.4th 1433, 1438.)

“[P]laintiffs may prove causation in asbestos-related cancer 

cases by demonstrating that the plaintiff's exposure to 

defendant’s asbestos-containing product in reasonable medical 

probability was a substantial factor in contributing to the 

aggregate dose of asbestos the plaintiff or decedent inhaled or 

ingested, and hence to the risk of developing asbestos-related 

cancer, without the need to demonstrate that fibers from the 

defendant’s particular product were the ones, or among the ones, 

that actually produced the malignant growth.” (Rutherford, 

supra, 16 Cal.4th at pp. 976-977, fn. omitted; accord, LAOSD 

Asbestos Cases, supra, 44 Cal.App.5th at p. 488.) “[A] particular 

asbestos-containing product is deemed to be a substantial factor 

in bringing about the injury if its contribution to the plaintiff[’s]

or decedent’s risk or probability of developing cancer was 

substantial.” (Rutherford, at p. 977.)

In determining whether the plaintiff’s inhalation of 

asbestos fibers from a particular product is a “‘substantial factor’” 

contributing to the plaintiff’s cancer, relevant factors include “the 

length, frequency, proximity and intensity of exposure, the 

peculiar properties of the individual product, any other potential 

causes to which the disease could be attributed (e.g., other 

asbestos products, cigarette smoking), and perhaps other factors 
22

affecting the assessment of comparative risk . . . .” (Rutherford,

supra, 16 Cal.4th at p. 975; accord, Johnson v. ArvinMeritor, 

Inc. (2017) 9 Cal.App.5th 234, 240, 245 [affirming grant of 

summary judgment for defendants where plaintiff presented 

evidence defendants’ brake lining components contained asbestos

and plaintiff’s father handled brake linings in his vehicle repair 

work (to which plaintiff was exposed), but plaintiff failed to raise 

triable issue that defendants produced the brake linings handled 

by plaintiff’s father].)

1. Substantial evidence supports the jury’s finding 

Sabetian was exposed to asbestos attributable to FEI

FEI contends there is no substantial evidence the pipe 

insulation used at the Esfahan refinery contained asbestos 

because Nippon did not ship its pipe insulation to Esfahan until 

January 1977, by which time Nippon was no longer using 

asbestos in its calcium silicate pipe insulation. FEI also asserts 

there is not substantial evidence Sabetian was exposed to 

asbestos during pipe cutting operations at the Esfahan refinery. 

We agree with Soraya there is substantial evidence FEI used 

asbestos-containing pipe insulation at Esfahan to which Sabetian 

was exposed.

At trial the Sabetians presented evidence the design 

documents for Tehran II specified the use of asbestos-containing 

pipe insulation. MEF procured calcium silicate pipe insulation 

from Nippon in 1974 for use in the construction of Tehran II. The 

Fluor defendants do not dispute the pipe insulation used at 

Tehran II contained asbestos. At some point over 20,000 linear 

feet of unused calcium silicate pipe insulation was transferred 

from Tehran II to the Esfahan project. The same design 
23

specifications used for Tehran II were again used for the Esfahan

project. Further, Fluor15 procured most or all of the calcium 

silicate pipe insulation for the Esfahan project from Nippon, as it 

did for the Tehran I and Tehran II projects. Shahabi confirmed 

Fluor “used asbestos-containing material [at Esfahan], exactly 

the same as Tehran [II],” explaining he did not learn of the use of 

asbestos-free insulation until 1977.

Fluor’s urgent request in 1976 to use asbestos-containing 

insulation at Esfahan, which NIOC granted, further supports the 

inference Fluor procured asbestos-containing insulation for use at 

Esfahan. As discussed, sometime before October 25, 1976 FEI 

learned Nippon was no longer going to produce asbestoscontaining insulation. FEI then “urgently” requested NIOC 

“relax [its] demand that insulation be asbestos free.” In 

November 1976 NIOC granted FEI permission to use asbestoscontaining calcium silicate insulation “if it is contained.” Nippon 

then changed the name of its calcium silicate insulation product 

from “silicalite cover” to “new silicalite cover.” But Fluor did not 

present evidence it ever purchased “new silicalite” insulation for 

Esfahan.

16 In 1977 FEI received two shipments of calcium 

silicate pipe insulation from Nippon totaling approximately 

675,000 linear feet of insulation. FEI argues this pipe insulation 

would not have contained asbestos because by then Nippon had 

15 As discussed, the witnesses referred to the Fluor 

defendants collectively as “Fluor.” However, the testimony about 

Fluor with respect to the Esfahan refinery refers to FEI because 

it was responsible for construction at that refinery.

16 Contrary to FEI’s contention, Soraya does not argue the 

change of the company name from Nippon to Nichias Corporation 

is evidence the insulation used at Esfahan contained asbestos.
24

changed its product. But the Sabetians presented an invoice for 

the January 1977 shipment of insulation showing the insulation 

had been ordered from Nippon pursuant to a June 21, 1975

contract—before Nippon switched to a new product. The invoice 

states Nippon was providing “[m]aterial and [e]quipment as per 

contract,” supporting an inference that Nippon had shipped its 

earlier “silicalite cover” product containing asbestos. This 

evidence supports a reasonable inference FEI used asbestoscontaining insulation at Esfahan.17

FEI’s argument Sabetian had insufficient contact with the 

cutting of pipe insulation at the Esfahan refinery to show his 

exposure was a legal cause of his developing mesothelioma also 

lacks merit. Sabetian testified he visited Esfahan more than 10 

or 12 times during its construction. He observed workers cutting 

17 FEI also asserts the evidence did not show whether the 

insulation Sabetian observed being cut contained asbestos

because Sabetian did not know whether he observed the cutting

of insulation for high- or low-temperature pipes. But FEI has not 

provided any citation to the record for its assertion only 

insulation for high-temperature pipes “could possibly have 

asbestos insulation.” FEI’s contention is therefore forfeited. (See 

Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 

[“‘[T]o demonstrate error, an appellant must supply the reviewing 

court with some cogent argument supported by legal analysis and 

citation to the record.’”]; Multani v. Witkin & Neal (2013) 

215 Cal.App.4th 1428, 1457 [plaintiffs forfeited claim of error by 

failing to “present meaningful legal analysis supported by 

citations to authority and citations to facts in the record that 

support the claim of error”]; Cal. Rules of Court, rule 

8.204(a)(1)(C) [each brief must “[s]upport any reference to a 

matter in the record by a citation to the volume and page number 

of the record where the matter appears”].)
25

pipe and using insulation for the equipment, and he described the 

cutting of the pipe insulation as always creating dust. Sabetian 

observed the cutting of pipe insulation at Esfahan “so many 

times” while he was standing “between three to seven, eight feet 

away from the actual operation.”18

2. Substantial evidence supports the jury’s finding 

Sabetian’s exposure to asbestos attributable to MEF at 

the Tehran II refinery project was a substantial factor 

in causing his injury

MEF contends there is no substantial evidence Sabetian’s 

exposure to asbestos at the Tehran II refinery project was a 

substantial factor in causing his mesothelioma because there is 

no evidence of the proximity, duration, or intensity of Sabetian’s 

exposure to asbestos dust at Tehran II. MEF also argues 

Sabetian stated under oath in his immigration application he 

worked for NIOC from 1975 to 1980, which MEF argues is 

inconsistent with Sabetian’s testimony he observed construction 

18 FEI points out Sabetian was later asked, “Why did you 

need to be so close to the insulation process?” to which he 

responded, “Well, in actual fact, I wasn’t too close. But 

sometime[s] the measuring the distance perhaps was very 

difficult. . . . I may actually have been more than three feet or 

four feet or five feet, something like that.” It was the role of the 

jury to judge Sabetian’s credibility and weigh the evidence in 

determining how close he was to the cutting of the insulation. 

(Johnson & Johnson, supra, 37 Cal.App.5th at p. 313.) It was a 

reasonable inference that Sabetian was close enough to the 

cutting of pipe insulation that he was exposed to visible asbestos 

dust.
26

at Tehran II because construction was completed by January 

1975. Neither contention has merit.

Construction of Tehran II began in the early 1970s and 

concluded in January 1975. During the 1970s, Sabetian was 

regularly traveling to multiple refinery projects under 

construction, including Tehran II. Sabetian visited Tehran II “so 

many times” during its construction. Sabetian testified he 

observed at Tehran II the same type of work he saw at other 

refineries, including “the insulation activity that Fluor was 

responsible for.” He observed Fluor workers installing pipe 

insulation at Tehran II on more than 10 occasions. Sabetian’s

usual practice was to observe the cutting of pipe insulation while 

he was standing three to eight feet away. While Sabetian 

observed the work, there were “people working all over the unit” 

with insulation. And cutting the insulation “always” produced “a 

lot of dust.”

Industrial hygienist Garza opined that where asbestoscontaining dust is visible to the naked eye, a bystander would be 

exposed to levels of asbestos fibers many orders of magnitude 

greater than the amount in the ambient air and that Sabetian’s 

position within feet of the insulation cutting was “pretty darn 

close.” Dr. Horn similarly testified that a bystander positioned 

10 feet from the cutting of asbestos-containing pipe insulation 

and exposed to visible dust in the air would experience an 

occupational exposure to asbestos that significantly increased the 

bystander’s risk of developing mesothelioma.

The testimony from Sabetian, Garza, and Dr. Horn 

provides substantial evidence from which the jury could 

reasonably have concluded that Sabetian’s observation of Fluor 

workers installing pipe insulation at Tehran II on more than 10 
27

occasions substantially contributed to the aggregate dose of 

asbestos Sabetian inhaled and was a substantial factor in 

increasing his risk of developing mesothelioma.

Shiffer, supra, 240 Cal.App.4th 246, relied on by MEF, is 

distinguishable. There, the plaintiff contended he was exposed to 

asbestos in turbine insulation the defendant provided to a power 

plant where plaintiff worked during one summer. (Id. at p. 248.) 

In affirming the trial court’s grant of summary judgment for the 

defendant, the Court of Appeal concluded the plaintiff in his 

declaration stated only that he “‘observed construction . . . 

including insulators insulating piping in the turbine building.’ 

Although he also declared he was frequently in the turbine room

for training, he did not say whether or on how many occasions he 

observed the insulation process, itself, or whether he merely saw 

the results of the process after being off-site for some time. Mere 

presence at a site where asbestos was present is insufficient to 

establish legally significant asbestos exposure.” (Id. at p. 252.) 

In contrast, Sabetian testified he stood three to eight feet from 

workers cutting pipe insulation on more than 10 occasions, from 

which the jury could reasonably conclude Sabetian was exposed 

to occupational levels of asbestos dust that significantly increased 

his risk of developing mesothelioma.19

MEF also argues Sabetian’s statement in his 1982 

immigration application—that he worked as head of NIOC’s 

industrial department from 1975 to 1980—contradicted his trial 

testimony he visited Tehran II many times during its 

construction, because MEF completed construction of Tehran II 

19 MEF also relies on McIndoe v. Huntington Ingalls Inc. (9th 

Cir. 2016) 817 F.3d 1170, 1173, but that case involved application 

of federal maritime law, not California law.
28

in January 1975. However, at trial, “contradictions between a 

witness’s testimony and his or her prior statements, under oath 

or otherwise, affect only the witness’s credibility, and it is 

exclusively the function of the jury to determine which, if any, of 

a witness’s assertions are credible.” (Lobo v. Tamco (2014) 

230 Cal.App.4th 438, 446; accord, Clemmer v. Hartford Insurance 

Co. (1978) 22 Cal.3d 865, 878 [“[T]he fact that inconsistencies 

may occur in the testimony of a given witness does not require 

that such testimony be disregarded in its entirety for the 

purposes of a motion for judgment notwithstanding the 

verdict . . . . It is for the trier of fact to consider internal 

inconsistencies in testimony, to resolve them if this is possible, 

and to determine what weight should be given to such 

testimony.”], overruled on another ground by Ryan v. Rosenfeld

(2017) 3 Cal.5th 124.)

Sabetian’s statements in his immigration application and 

at trial are not necessarily contradictory. The immigration form 

requested Sabetian list his “employment last five years.”

Sabetian submitted his application in July 1982 and stated he 

was last employed from 1975 to 1980 as the head of NIOC’s 

industrial department. Nowhere did the form request Sabetian 

list his employment other than for the latest five-year period.

The jury could have reasonably inferred Sabetian properly 

responded to the precise question on the form—asking for the last 

five years of employment—or that Sabetian was employed by 

NIOC prior to that time in a position other than as head of the 

industrial department. And to the extent the application was 

inconsistent with Sabetian’s testimony, it was the jury’s function 

to assess Sabetian’s credibility and resolve any inconsistencies. 
29

(Clemmer v. Hartford Insurance Co., supra, 22 Cal.3d at p. 878; 

Lobo v. Tamco, supra, 230 Cal.App.4th at p. 446.)20

3. Substantial evidence supports the jury’s finding 

exposure to asbestos was the legal cause of Sabetian 

developing mesothelioma of the TVT

The Fluor defendants argue there is no substantial 

evidence asbestos exposure can cause Sabetian’s particular 

injury, mesothelioma of the TVT. They contend the testimony of 

Drs. Daneshmand and Zhang regarding causation does not 

constitute substantial evidence because the testimony lacked 

foundation in appropriate medical literature. Specifically, the 

20 MEF’s reliance on Davis v. Foster Wheeler Energy 

Corp. (2012) 205 Cal.App.4th 731 is misplaced. In Davis, the 

plaintiffs alleged the deceased husband of one of the plaintiffs 

(Ronald Davis) was exposed to asbestos dust from the defendant’s 

stripping of old asbestos-containing insulation from the boilers at 

Davis’s jobsite. (Id. at pp. 734-735.) Plaintiffs relied on 

deposition testimony from Davis’s coworker that the coworker

had witnessed a contractor wearing a hat bearing the defendant’s 

initials remove insulation from around the boiler. (Ibid.) 

However, when the coworker was asked in other deposition 

testimony who employed the worker who had removed the 

insulation, the coworker answered he had no information that 

the worker was employed by defendant. (Id. at p. 735.) The 

Court of Appeal affirmed the trial court’s grant of summary 

judgment for the defendant, concluding the coworker’s deposition 

testimony was “not ambiguous, but is contradictory,” and it 

therefore could not create a triable issue of fact to defeat 

summary judgment. (Id. at pp. 735-736.) The Davis court also

acknowledged a different standard would apply where, as here, 

the court is evaluating a post-trial motion for judgment 

notwithstanding the verdict. (Id. at p. 736.)
30

Fluor defendants contend there are no epidemiological studies 

that establish the requisite causation. Although the Fluor 

defendants are correct that Dr. Zhang did not principally rely on 

epidemiological studies to support his conclusions, his opinions 

were properly based on the medical literature.21

“[E]ven when [a] witness qualifies as an expert, he or she 

does not possess a carte blanche to express any opinion within 

the area of expertise.” (Jennings v. Palomar Pomerado Health 

Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (Jennings); 

accord, Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 

1178.) “‘[W]hen an expert bases his or her conclusion on factors 

that are “speculative, remote or conjectural,” or on 

“assumptions . . . not supported by the record,” the expert’s 

opinion “cannot rise to the dignity of substantial evidence” . . . .

[Citations.]’” (Johnson & Johnson, supra, 37 Cal.App.5th at 

p. 314; accord, Jennings, at p. 1117 [“[W]hen an expert’s opinion 

is purely conclusory because unaccompanied by a reasoned 

explanation connecting the factual predicates to the ultimate 

conclusion, that opinion has no evidentiary value because an 

‘expert opinion is worth no more than the reasons upon which it 

rests.’”]; see Sargon Enterprises, Inc. v. University of Southern 

California (2012) 55 Cal.4th 747, 770 (Sargon) [“the matter relied 

on must provide a reasonable basis for the particular opinion 

offered, and . . . an expert opinion based on speculation or 

conjecture is inadmissible’”].)

21 Because we conclude Dr. Zhang’s testimony is substantial 

evidence from which the jury could conclude inhalation of 

asbestos dust caused Sabetian’s mesothelioma of the TVT, we do 

not address the Fluor defendants’ challenges to the testimony of 

Dr. Daneshmand.
31

“[A]n expert’s conclusory opinion that something did occur, 

when unaccompanied by a reasoned explanation illuminating 

how the expert employed his or her superior knowledge and 

training to connect the facts with the ultimate conclusion, does 

not assist the jury. In this latter circumstance, the jury remains 

unenlightened in how or why the facts could support the 

conclusion urged by the expert, and therefore the jury remains 

unequipped with the tools to decide whether it is more probable 

than not that the facts do support the conclusion urged by the 

expert.” (Jennings, supra, 114 Cal.App.4th at p. 1117.) However, 

“an expert, in reaching a specific causation opinion, need not 

exclude all other possibilities before he or she can express an 

opinion that the defendant’s conduct or product caused the 

plaintiff’s harm.” (Cooper v. Takeda Pharmaceuticals America, 

Inc. (2015) 239 Cal.App.4th 555, 580; accord, Sarti v. Salt Creek 

Ltd. (2008) 167 Cal.App.4th 1187, 1210.)

The Fluor defendants’ argument the Sabetians’ experts “did 

not opine that asbestos exposure can cause TVT mesothelioma as 

a general proposition” is contrary to the record. Dr. Zhang opined 

at trial that “asbestos, no matter what type of asbestos, can cause 

all types of mesotheliomas in any location lined by the mesothelial 

cells.” (Italics added.) He opined further, “If you are exposed to 

asbestos, you will increase the risk to develop mesothelioma—

pleural, peritoneal, pericardial, or tunica vaginalis [(TVT)].” In 

reaching his opinion, Dr. Zhang relied on the Helsinki consensus 

report, more than 30 case reports and case series reports, and one 

epidemiological study. He also based his opinion on how the 

human body’s defense mechanisms cause the asbestos fibers to 

travel from the lungs to other parts of the body. As Dr. Zhang 

testified, “[T]he fiber inhaled in the lung, carried by the 
32

macrophage or by lymphatic fluid, travels from the lung to the 

pleura, to the abdomen, and to the scrotum.”

The Fluor defendants contend the Helsinki consensus 

report is not a reliable source for Dr. Zhang’s opinion because it 

was the product “of a meeting convened ‘to discuss disorders of 

the lung and pleura in association with asbestos,’” not 

mesothelioma of the TVT. But the Fluor defendants provide no 

citation to the record for this quote regarding the purpose of the 

Helsinki meeting. They respond that no party introduced the 

Helsinki consensus report into evidence at trial. But an expert 

may rely on medical reports regardless of whether the report is 

admissible or introduced into evidence. (People v. Linton (2013) 

56 Cal.4th 1146, 1200 [“‘An expert may generally base his opinion 

on any ‘matter’ known to him, including hearsay not otherwise 

admissible, which may ‘reasonably . . . be relied upon’ for that 

purpose.’”].)

Further, although the Helsinki consensus report and 

updated report are not in the record, during his crossexamination defense expert Dr. Alexander acknowledged the 

report stated, “Malignant mesothelioma affecting any serosal 

membrane may be induced by asbestos inhalation,” and further, 

“All types of malignant mesothelioma can be induced by 

asbestos . . . .” Of course, malignant mesothelioma of the TVT is 

a type of malignant mesothelioma. Although Dr. Alexander 

expressed disagreement with these statements, they bely the 

Fluor defendants’ assertion the report reached no conclusions 

regarding mesothelioma of the TVT.

The Fluor defendants’ challenge to the medical literature 

relied on by Dr. Zhang to support his opinions rings hollow. As 

part of their challenge, the Fluor defendants cherry pick a 
33

handful of studies of the 30 on which Dr. Zhang relied. For 

example, the Fluor defendants point out that one of the articles 

relied on by Dr. Zhang reported only six out of 24 patients who 

developed mesothelioma of the TVT had confirmed asbestos 

exposure. But Dr. Zhang noted nine of the patients in the study 

did not specify whether or not they had any history of asbestos 

exposure. The Fluor defendants point out that in another article 

relied on by Dr. Zhang, only about one-third of the 74 patients 

who had developed mesothelioma of the TVT had confirmed 

asbestos exposure. But Dr. Zhang emphasized the other patients 

did not report any known exposure. As Dr. Zhang explained, 

“[E]xposure history sometimes can be very, very challenging” and 

depends on the quality of the patient evaluation because 

individuals may not recognize asbestos exposure when it occurs, 

and there is “recall bias” inherent in the passage of time from 

exposure to the development of the disease. The Fluor 

defendants attack this explanation as “partisan” and “baseless,” 

but it is not an unreasonable proposition that persons exposed to 

asbestos may not recognize they have been exposed and may not 

recall their exposure given the lengthy passage of time (up to 60 

years) before mesothelioma manifests itself.

The Fluor defendants assert further that Dr. Zhang 

acknowledged there are no epidemiological studies performed 

that show asbestos exposure specifically causes mesothelioma of 

the TVT.22 They also point to Dr. Zhang’s testimony on cross22 Dr. Zhang relied on one epidemiological study showing that 

asbestos can cause pleural peritoneal mesothelioma in reaching 

his conclusion, but defense counsel failed to cross-examine 

Dr. Zhang about the study. The record contains no additional 

testimony about the study.
34

examination about an epidemiological study of 17,800 individuals 

who worked in occupations typically involving high levels of 

asbestos exposure. Dr. Zhang acknowledged there were no 

recorded cases of mesothelioma of the TVT among this cohort, but 

he explained that “documentation of the disease [was] not 

accurate . . . during the time of [the] study.” Specifically, 

mesothelioma of the TVT historically had been misdiagnosed as 

adenocarcinoma; the study author relied on death certificates for 

the diagnoses; and the author later acknowledged he 

misclassified “quite a lot” of the cases.

The Fluor defendants cite federal authorities for the 

proposition only epidemiological studies, not case reports or case 

series reports, can support an expert’s opinion on causation in a 

toxic tort case. The Court of Appeal in Davis v. Honeywell 

Internat. Inc. (2016) 245 Cal.App.4th 477 rejected this argument, 

reasoning, “While [defendant] is generally correct that in many 

(or even most) instances epidemiological studies provide the best 

evidence of causation, its implied argument that it is improper for

an expert to rely upon any other tools to determine causation, 

such as case reports, is not universally accepted.” (Id. at p. 491, 

fn. omitted.) Further, “‘[c]ase series reports can be virtually 

conclusive in their own right when the health outcome identified 

is a very rare disease or an uncommon manifestation of a 

relatively common condition.’” (Ibid., quoting H. Checkoway 

et al., Research Methods in Occupational Epidemiology (2d ed. 

2004) p. 78.) In Davis, the Court of Appeal concluded the trial 

court properly allowed plaintiff’s expert to testify at trial as to 

whether the decedent’s exposure as a mechanic to defendant’s 

asbestos-containing brake linings substantially contributed to his 

development of mesothelioma, where the expert principally relied 
35

on case reports to support his opinions and several 

epidemiological studies had shown no association between the 

mechanics’ exposure and the risk of developing mesothelioma. 

(Davis, at pp. 480, 489, 491-492.) The Court of Appeal explained 

the trial court’s gatekeeping function under Sargon, supra, 

55 Cal.4th at page 769 “bars expert opinion only if it fails to meet 

the minimum qualifications for admission. If the opinion is based 

on materials on which the expert may reasonably rely in forming 

the opinion, and flows in a reasoned chain of logic from those 

materials rather than from speculation or conjecture, the opinion 

may pass, even though the trial court or other experts disagree 

with its conclusion or the methods and materials used to reach 

it.” (Davis, at p. 492.)

Dr. Zhang testified at trial that case reports “sometimes are 

very important” in determining causation, “especially for the rare 

disease.” He explained mesothelioma of the TVT is so rare that a 

proper epidemiological study would require participation of the 

population of the planet, making it “virtually impossible” to 

conduct. To the extent the Fluor defendants rely on the contrary 

opinion of their expert Dr. Alexander, “[i]t is ‘not the role of this 

court to redetermine the credibility of experts or to reweigh the 

relative strength of their conclusions.’” (People v. Kirvin (2014) 

231 Cal.App.4th 1507, 1514; accord, Estes v. Eaton Corp. (2020) 

51 Cal.App.5th 636, 652 [“The jury was certainly free to side with 

[defense expert’s] opinions and conclusions over [plaintiff’s 

expert’s]. And we are not free to reweigh this evidence.”].)

Finally, the Fluor defendants contend Dr. Zhang failed to 

rule out other causes of Sabetian’s mesothelioma of the TVT. 

Contrary to their assertion, Dr. Zhang did not “acknowledge[] 

that there are multiple potential causes” of Sabetian’s condition. 
36

When asked on cross-examination whether trauma is a risk 

factor for mesothelioma of the TVT, Dr. Zhang responded, 

“[T]here’s no . . . evidence, scientific and medical indicating 

trauma itself can absolutely cause mesothelioma.” While he 

acknowledged that in one study the author identified viral 

infection and ionizing radiation as “other hypothetical causes” of 

mesothelioma of the TVT, he did not agree with the conclusion. 

Further, that study stated, “Asbestos is the only established risk 

factor for testicular mesothelioma.” Dr. Zhang acknowledged 

genetic causes of the disease where it occurred in individuals as 

young as seven. But even if genetic predisposition contributed to 

Sabetian’s development of mesothelioma of the TVT, it does not 

follow his exposure to asbestos did not substantially increase his 

risk. Dr. Zhang was not required to “exclude all other 

possibilities” in expressing an opinion that asbestos exposure is a 

substantial factor in increasing the risk of an individual 

developing mesothelioma of the TVT. (Cooper v. Takeda 

Pharmaceuticals America, Inc., supra, 239 Cal.App.4th at p. 580.)

C. The Trial Court Did Not Err in Applying California Law

1. Proceedings below

(a) Defendants’ pretrial choice of law motions

In August 2018 codefendants Foster Wheeler, LLC, Exxon 

Mobil Corporation, and ExxonMobil Oil Corporation filed pretrial 

motions to apply Iranian law. The Fluor defendants joined the 

motions. The motions sought to apply Iranian law as to the 

negligence standard of care, strict liability, joint and several 

liability, punitive damages, compensatory damages, and loss of 

consortium, arguing California and Iranian law materially 

differed as to each issue and Iran’s legitimate governmental 
37

interest in the issues would be impaired if California law was 

applied.

In support of their motions, defendants filed a declaration 

from Mahmoud Katirai, an Iranian lawyer and scholar of Iranian 

law. On the issue of compensatory damages for personal injury, 

Katirai opined, “Under Iranian law, [p]laintiffs’ remedies are 

limited to a statutory compensation (‘diyeh’) pre-determined by 

the legislature, plus financial damages such as medical expenses 

and loss of income. These statutory limitations also apply in a 

personal injury case[] even if the victim does not die . . . . This 

statutory compensation, which is based on Islamic law, has been 

codified in the Islamic [Penal Code of Iran], but are of [a] civil 

nature. . . . [¶] . . . Statutory compensation . . . calls for payment 

in certain commodities[;] . . . since payment in such commodities 

is no longer practical, however, the price of such commodities is 

determined each year by virtue of a decree of the Department of 

Justice[,] and Iranian courts are required to award [a] remedy 

based on such decision. Presently, the amount of the statutory 

compensation in cases of death is 2,310,000,000 Rials. During 

certain lunar months (i.e., Zel-ghadeh, Zel-hajeh, Rajab, and 

Moharam) which are called ‘haram’ (celebratory months), the 

amount of the statutory compensation in cases of death is 

3,080,000,000 Rials.” (Footnotes omitted.)

As to loss of consortium, Katirai opined, “Under Iranian 

law, those who are related to the victim may not claim any loss, 

other than the statutory compensation (‘diyeh’), in case the victim 

has passed away, unless they have suffered a mental harm as the 

result of the tort inflicted on their beloved one. . . . [¶] . . . In [the] 

case of the death of the victim, however, his heirs are entitled to 

statutory compensation . . . as well as other damages which are 
38

provided in the Civil Responsibility Act. The spouse, however, is 

not entitled to a remedy for loss of consortium. [¶] . . . The 

Supreme Court of Iran has also decided that, in addition to the 

statutory compensation, Iranian courts may award financial 

damages, such as medical expenses and loss of income.” 

(Footnote omitted.)

Katirai also opined punitive damages were not available 

under Iranian law, declaring that damages under Iranian law 

“are compensatory and are awarded as the measure of actual loss 

suffered by the victim, not as a punishment of defendant’s 

conduct.” Katirai opined, “[T]he proper measure of damages 

under the Civil Responsibility Act is to put the injured party in 

the same situation he or she would have been in had the injury 

never occurred . . . . Thus, compensation is available for financial 

damages, including physical injuries as well as non-financial 

damages, including mental and emotional harms, but punitive 

damages are not available under Iranian law.”

Katirai cited to Article 3 of the Iranian “Act for Attraction 

and Protection of Foreign Capital” (Foreign Investment Act), 

enacted in 1955, which provided, “The capital imported into 

Iran . . . as well as profits accrued from the investment of the said 

capital, shall be subject to the legal protection of the Government, 

and all the rights, exemptions and facilities accorded to domestic 

capital and private productive enterprises shall also apply to 

foreign capital and corporations. . . .” Based on this language, 

Katirai stated in his opinion that “if any foreign companies that 

invest (or do business in Iran) are sued in an Iranian court, 

Iranian law will apply to them, just as it would for any Iranian 

company or citizen.” Katirai opined “the intent of the Iranian 
39

Government in making such laws applicable to foreign nationals 

was to, inter alia, promote foreign investment in Iran.”

Defendants filed multiple exhibits, translated into English, 

in support of the Katirai declaration. Article 4 of the 1980 

Constitution of the Islamic Republic of Iran stated that all laws 

and regulations “must be based on Islamic standards.” 

Article 448 of the Islamic Penal Code of Iran provided, “Decreed 

statutory compensation (‘diyeh moghadar’) consists of a specified 

property which has been provided in the [holy] religion . . . when 

a non-intentional crime has been committed and has caused 

death, [or] loss of a member . . .” Article 549 of the Islamic Penal 

Code of Iran stated further, “The instances of full (death)[23]

statutory compensation are those set forth in the religion and the 

amount of it will be decided at the beginning of each year by the 

head of [the] judiciary branch based on the opinion of the leader.”

A judicial decision of “Chamber 15 of Appellate Court of Tehran 

Province” held the statutory compensation laws of the Islamic 

Penal Code of Iran applied to the civil case before it: “In this 

court’s opinion, statutory compensation (diyeh) is of a civil 

nature, even though it has been mentioned in criminal laws and 

its rules have been set forth in the said laws and is applied in the 

way that is normal in criminal matters, because it consists of the 

definite damages which the legislature, following the [holy] 

religion, considers as being sustained and the compensation 

thereof has been guaranteed.”

23 The Fluor defendants later presented evidence a tort victim 

whose injury did not result in death may be entitled to the full 

amount of statutory compensation depending on the injury, such 

as when the victim loses both testicles due to the same injury.
40

With their opposition the Sabetians filed a declaration from

Amirhassan Boozari, an Iranian law scholar and practitioner. 

Boozari opined damages for loss of consortium are recoverable 

under Iranian law, quoting Article 6 of the Civil Liability Act: 

“When at the time of accident, the victim was, or would have 

later been, legally responsible for the care of a third party who

will be deprived of such care should the victim die, the tortfeasor 

must pay such a pension to such a third party that is 

proportionate to the normal life expectancy of the victim as long 

as such victim would be obligated to render care for such third 

party.” Boozari stated the recovery for a “third party” includes 

the wife of a tort victim because under Iranian law married men 

have a legal responsibility “to maintain the emotional and 

psychological health and balance of each member of their 

families.” Boozari quoted Dr. Hossien Safei, an Iranian civil law 

expert, as translated: “Emotional distress is one of the intangible 

damages that are referred to in Article 9 of the Criminal 

Procedure Code. Even causing damage to a person’s emotions 

due to friendship, family relation, religious belief, and pain and 

suffering consequent to accidents can be a cause of action for 

intangible damages. . . . Under Iranian law, one can say that 

emotional harm must be significant to be viewed as emotional 

damage.”

Boozari challenged Katirai’s conclusion the Iranian 

government intended in enacting the Foreign Investment Act 

that the language in Article 3 providing that the Act’s extension 

of all “rights, exemptions, and facilities” accorded to domestic 

entities apply to foreign capital and corporations broadly means 

Iranian tort law applies to any lawsuit filed against a foreign 

company investing in Iran, instead opining the language has 
41

always been interpreted to apply equal treatment only to “tax 

exemptions conferred to investments in Iran for domestic 

investors.”

At the October 18, 2018 hearing on the choice of law 

motions, counsel for codefendants Exxon Mobil Corporation and 

ExxonMobil Oil Corporation represented to the court that the 

statutory compensation available under Iranian law for 

Sabetian’s injury would depend on when his “loss occurs,” 

explaining “[i]t goes from 2.3 billion to 3.08 billion Rials, 

depending on the time of year.”

On October 24, 2018 the trial court granted in part and 

denied in part the motions to apply Iranian law. The court 

reasoned, “[T]he Government of Iran would have had a strong 

interest in applying its own laws to a refinery it owned and an 

employee that it employed. . . . California has little interest in 

legislating behavior at such refineries and oil fields.” However, 

the court ruled it would apply Iranian law only as to the issues of 

strict liability, joint and several liability, and punitive damages, 

as each was not available under Iranian law. The court declined 

to apply Iranian law to limit Sabetian’s recovery of compensatory 

damages, explaining, “Although the experts do not appear in 

disagreement that there is some sort of monetary cap on general 

damages, the Court declines to apply it in this case. 

Apparently[,] the cap is set by reference to a memorandum 

prepared by unnamed Iranian government lawyers who have the 

power to alter the cap as they see fit. Defendants did not produce 

a sample determination for the Court, leaving the Court in doubt 

as to what the cap was and how it is determined. The cap also 

varies by season of the year. As such, the Court is left unsure 

that the cap is not so arbitrary in nature and application that it 
42

would offend fundamental due process if applied in an American 

court.”

The court also declined to apply Iranian law to bar 

damages for loss of consortium, stating it was “worried that Iran 

does not neatly define loss of consortium in the same way that 

California does, and that the damages could be considered in 

other categories under Iranian law. (See Boozari Dec., ¶¶ 55-58.) 

Therefore, the Court finds that this prohibition is not established 

with sufficient clarity in Iranian law to allow for application in 

this case.” The court issued its ruling without prejudice to its 

later reconsidering the ruling, stating, “The subject of what law 

to apply to a trial, and how to instruct the jury, are under the 

continuing jurisdiction and responsibility of the trial judge. 

Sometimes, the evidence can evolve in a direction that causes 

revision in the law to be submitted to the jury. Therefore, the 

trial court retains its power to revise these rulings as it sees fit 

and to hear further evidence from experts regarding Iranian law 

should it find such evidence necessary.”

(b) The Fluor defendants’ posttrial choice of law 

motions

In their motion for new trial, the Fluor defendants 

addressed the choice of law issue and submitted a supplemental 

declaration from Katirai. Katirai again opined Iranian law 

limited Sabetian’s recovery to a statutorily prescribed amount for 

his physical impairment, plus medical expenses and lost income. 

The Iranian Department of Justice determines the formula for 

statutory compensation each year. “For the loss of testes,” 

Katirai declared Sabetian was entitled to “the full statutory 

compensation amount,” or 2.7 billion Rials (approximately 
43

$64,000).24 Sabetian was also entitled to an uncertain percentage 

of the same amount for impairment of his general health. 

Sabetian’s recovery for his physical injury was therefore limited 

to a maximum of two times the amount allowed for a single 

injury, 5.4 billion Rials (approximately $128,000).

Katirai also opined that under Iranian law Soraya “is not 

entitled to any monetary compensation for the harms listed on 

the Special Verdict. . . . [¶] . . . Under Iranian law, a spouse of a 

living plaintiff is not entitled to any recovery unless the spouse 

has suffered a mental injury as the result of the incident which 

inflicted an injury on the plaintiff.” Katirai noted the special 

verdict form did not award to Soraya any compensation for a 

mental injury.

The Fluor defendants attached to the supplemental Katirai 

declaration an Iranian news article, translated into English,

announcing the Iranian Department of Justice’s payment 

schedule for the Iranian calendar year running from March 21, 

2019 to March 20, 2020. The article quoted the first deputy head 

of Judiciary as stating, “[I]n the new year, during regular 

months, the statutory compensation (diyeh) for a Muslim male 

shall be 270 million Toumans [2,700,000,000 Rials]. Of course, 

during the sacred [haram] months, the said amount would be 

increased by one third.” The Fluor defendants also submitted an 

English translation of Article 665 of the Islamic Penal Code of 

Iran, which stated, “Full statutory compensation (‘diyeh’) shall 

apply in cases where both testes are amputated at the same time; 

the removal of [the] left testis shall require payment of two 

24 Katirai appears mistakenly to have believed both of 

Sabetian’s testicles were removed to treat his mesothelioma. The 

record reflects only his right testicle was removed.
44

third[s] of the statutory compensation . . . and the removal of the 

right testis shall require payment of one third of the statutory 

compensation.”

2. Governing law

“‘[T]he governmental interest approach generally involves 

three steps. First, the court determines whether the relevant law

of each of the potentially affected jurisdictions with regard to the 

particular issue in question is the same or different. Second, if 

there is a difference, the court examines each jurisdiction’s 

interest in the application of its own law under the circumstances 

of the particular case to determine whether a true conflict exists. 

Third, if the court finds that there is a true conflict, it carefully 

evaluates and compares the nature and strength of the interest of 

each jurisdiction in the application of its own law “to determine 

which state’s interest would be more impaired if its policy were 

subordinated to the policy of the other state” [citation] and then 

ultimately applies “the law of the state whose interest would be 

more impaired if its law were not applied.”’” (McCann v. Foster 

Wheeler LLC (2010) 48 Cal.4th 68, 87-88 (McCann); accord, 

Chen v. Los Angeles Truck Centers, LLC (2019) 7 Cal.5th 862, 

867.)

“[A] separate conflict of laws inquiry must be made with 

respect to each issue in the case . . . .” (Washington Mutual 

Bank v. Superior Court (2001) 24 Cal.4th 906, 920 (Washington 

Mutual); accord, Kearney v. Salomon Smith Barney, Inc. (2006) 

39 Cal.4th 95, 110 (Kearney) [“distinct state interests . . . may 

underlie separate aspects of the issue in question”]; Smith v. 

Cimmet (2011) 199 Cal.App.4th 1381, 1395 [the governmental 

interest analysis must be performed separately “with regard to 
45

the particular issue in question”]; Beech Aircraft Corp. v. 

Superior Court (1976) 61 Cal.App.3d 501, 518 [“Each choice of 

law issue requires separate consideration.”].)

“The party arguing that foreign law governs has the burden 

to identify the applicable foreign law, show that it materially 

differs from California law, and show that the foreign law 

furthers an interest of the foreign state.” (Frontier Oil Corp. v. 

RLI Ins. Co. (2007) 153 Cal.App.4th 1436, 1465; accord, 

Washington Mutual, supra, 24 Cal.4th at p. 919 [the movant 

“‘“must demonstrate that the latter rule of decision will further 

the interest of the foreign state and therefore that it is an 

appropriate one for the forum to apply to the case before it”’”].) 

We review the choice of law question de novo. (Scott v. Ford 

Motor Co. (2014) 224 Cal.App.4th 1492, 1503; accord, Brown v. 

Grimes (2011) 192 Cal.App.4th 265, 274 [“The choice-of-law issue 

is a legal one that is decided de novo.”].)

In McCann, the Supreme Court held Oklahoma’s statute of 

repose, which “required any cause of action against a designer or 

constructor of an improvement to real property to be filed within 

10 years of the substantial completion of the improvement,” 

applied to bar the cause of action brought by a California resident 

who was exposed to asbestos in Oklahoma decades earlier while 

he was a resident of that state. (McCann, supra, 48 Cal.4th at 

pp. 74-75, 102.) The McCann court found Oklahoma had “a 

legitimate interest in attracting out-of-state companies to do 

business within the state, both to obtain tax and other revenue 

that such businesses may generate for the state, and to advance 

the opportunity of state residents to obtain employment and the 

products and services offered by out-of-state companies.” (Id. at 

pp. 91-92.) The court reasoned, “In the absence of any explicit 
46

indication that a jurisdiction’s ‘business friendly’ statute or rule 

of law is intended to apply only to businesses incorporated or 

headquartered in that jurisdiction (or that have some other 

designated relationship with the state—for example, to those 

entities licensed by the state), as a practical and realistic matter 

the state’s interest in having that law applied to the activities of 

out-of-state companies within the jurisdiction is equal to its 

interest in the application of the law to comparable activities 

engaged in by local businesses situated within the jurisdiction.” 

(Id. at p. 92.) Although California also had a legitimate interest 

in the compensation of its resident, the court concluded 

Oklahoma’s interest would be more impaired by application of 

California law than the converse. (Id. at pp. 96-98.) The court 

reasoned, “If Oklahoma’s statute were not to be applied because 

plaintiff had moved to a state with a different and less ‘businessfriendly’ law, Oklahoma could not provide any reasonable 

assurance—either to out-of-state companies or to Oklahoma 

businesses—that the time limitation embodied in its statute 

would operate to protect such businesses in the future.” (Id. at 

p. 98.)

3. The Fluor defendants’ challenge to the jury’s award of 

damages to Soraya for loss of consortium is untimely

As discussed, Judge Kralik declined to apply Iranian law to 

bar Soraya’s claim for loss of consortium without prejudice to the 

trial court revisiting the ruling if the evidence “evolve[s] in a 

direction that causes revision in the law to be submitted to the 

jury.” The court also retained its power to hear evidence from 

experts regarding Iranian law if it became necessary. In their 

motion for new trial, the Fluor defendants argued the court 
47

should strike the damages awarded to Soraya for loss of 

consortium because the special verdict clarified the types of 

injuries Soraya suffered, none of which was compensable under 

Iranian law. On appeal, the Fluor defendants argue the trial 

court erred in denying their motion because “the Special Verdict 

form revealed the exact loss for which recovery was awarded to 

[Soraya]: past and future ‘noneconomic loss, including loss of 

love, companionship, comfort, care, assistance, protection, 

affection, society, and moral support,’” none of which is available 

under Iranian law. They argue the spouse of a living tort victim 

can recover only damages for “mental injury,” and at trial the 

Sabetian’s “proffered no evidence that [Soraya] sustained any 

‘mental injury.’” The Fluor defendants’ argument illustrates the 

untimeliness of their contention: Both sides prepared for trial 

based on California law.

“‘“[G]enerally speaking the forum will apply its own rule of 

decision unless a party litigant timely invokes the law of a foreign 

state.”’” (Washington Mutual, supra, 24 Cal.4th at p. 919, italics 

added; accord, Hurtado v. Superior Court (1974) 11 Cal.3d 574, 

581.) Although California law does not clarify what constitutes a 

timely request to apply the law of another state, a timely request 

will necessarily be one that does not prejudice an opposing party. 

Here, the record does not reflect any objection raised by the Fluor 

defendants to instruction of the jury with CACI No. 3920 on loss 

of consortium under California law. Rather, the Fluor 

defendants first raised the application of Iranian law (following 

Judge Kralik’s ruling) in their motions for new trial. Had the 

Fluor defendants raised the applicability of Iranian law during 

trial—or after the close of the Sabetians’ case—the parties could 

have addressed the choice of law question in light of the evidence 
48

presented at trial before the case was submitted to the jury. And 

had the trial court indicated it was revisiting its ruling that 

California law applied, the Sabetians potentially could have 

presented evidence and argument at trial to satisfy their burden 

to show compensable injury under Iranian law.25 

Further, had the trial court ruled in favor of the Fluor 

defendants before the case was submitted to the jury, the court 

could have instructed the jury on the types of damages that are 

compensable under Iranian law for loss of consortium. (See 

Chen v. Los Angeles Truck Centers, LLC, supra, 7 Cal.5th at 

p. 870 [“After the court determines the choice of law, factfinders 

must then ‘try the facts necessary to determine liability in 

accordance with such choice.’”].) As the trial court observed in 

denying the Fluor defendants’ posttrial motions, “[N]one of the 

parties indicated that it wanted this Court to apply Iranian law 

during the trial. Had the Court applied Iranian law, the jury 

would have been asked to deliberate the case based on the law 

given to it, and the jury has been discharged.” Under these 

25 For example, Judge Kralik credited Boozari’s opinion the 

Iranian law rule that a “tortfeasor must pay . . . a pension to . . . 

[a] third party that is proportionate to the normal life expectancy 

of the victim as long as [the] victim would be obligated to render 

care for such third party” could apply to Soraya. Had Soraya 

been on notice the trial court intended to consider whether 

Iranian law applied to loss of consortium damages, she arguably 

could have shown her entitlement to a pension. Further, under 

California law, “‘loss of consortium . . . is principally a form of 

mental suffering.’” (Kindrich v. Long Beach Yacht Club (2008) 

167 Cal.App.4th 1252, 1263.) Soraya could have presented 

evidence focused more specifically on her mental suffering had 

she been on notice that Iranian law applied.
49

circumstances, the Fluor defendants’ untimely request for the 

court to apply Iranian law prejudiced Soraya and was properly 

denied.

4. The trial court did not err in applying California law 

to the jury’s award of compensatory damages to 

Sabetian

(a) A true conflict exists between California’s and 

Iran’s interests26

As to the second prong of the governmental interest test, 

the Fluor defendants contend a true conflict exists between 

California’s interest in providing a remedy for tort victims who 

are California residents and Iran’s interest in “protecting 

businesses operating in Iran against unknown or exorbitant tort 

liability, to attract foreign investment in Iran, in accordance with 

26 We do not address the first prong of the governmental 

interest test given the parties’ agreement this prong is satisfied 

because the laws of Iran and California are different. Further, in 

contrast to the Fluor defendants’ challenge to the application of 

California law to damages for loss of consortium, which we 

conclude was untimely, the Fluor defendants’ challenge to the 

award of compensatory damages was timely because application 

of Iranian law did not require additional evidence to be presented 

at trial or a revision in the jury instructions. Rather, as Judge 

Kralik found, the experts agreed that Iranian law provided a cap 

on compensatory damages. As the defendants argued at the 

pretrial hearing before Judge Kralik, the court would consider 

the amount of the cap under Iranian law “about at the time of 

[the] verdict.” Thus, the Fluor defendants’ posttrial motion was 

timely to the extent it sought to cap the jury’s award of 

compensatory damages based on Iranian law.
50

the Foreign Investment Act.” Soraya argues there is no true 

conflict because the purpose of tort liability in both Iran and

California is to compensate the victim for his or her injury. 

Neither party is correct. There is a true conflict between 

California and Iranian law, but the conflict is between 

compensation of injured parties based on the evidence of injury 

(California) and compensation under Islamic law (Iran).

As discussed, at the second step of the governmental 

interest analysis, we must “examine ‘each jurisdiction’s interest 

in the application of its own law under the circumstances of the 

particular case to determine whether a true conflict exists.’” 

(McCann, supra, 48 Cal.4th at p. 90.) The Fluor defendants do 

not dispute California has a legitimate governmental interest in 

having its law applied. The principal purpose of a damages 

award under California tort law is “to compensate a wrongfully 

injured party for injury to person or property.” (Romo v. Ford 

Motor Co. (2003) 113 Cal.App.4th 738, 746; accord, Civ. Code, 

§ 3281 [“Every person who suffers detriment from the unlawful 

act or omission of another, may recover from the person in fault a 

compensation therefor in money, which is called damages.”].) As 

the McCann court observed, application of California law “to a 

current California resident who suffers an . . . illness as a result 

of his . . . prior exposure to asbestos in another jurisdiction would 

assist such residents in obtaining compensation for their injuries 

and in not becoming dependent on the resources of California for 

necessary medical, disability, and unemployment benefits.” 

(McCann, at p. 96.) Thus, California’s interest is substantial.

We disagree, however, with the Fluor defendants’ 

characterization of Iran’s interest as the promotion and 

protection of foreign investment in Iran. We must evaluate Iran’s 
51

interest in the context of the particular Iranian law the Fluor 

defendants seek to apply. (See McCann, supra, 48 Cal.4th at 

p. 91 [Court of Appeal erred in concluding Oklahoma’s law 

governing design and construction deficiencies on real property

was “substantially a local one” where statute sought to protect 

and incentivize out-of-state business].) The Fluor defendants 

assert the salient Iranian interest at issue is embodied in its 

Foreign Investment Act, which protects foreign companies doing 

business in Iran by applying Iranian law to claims arising from 

conduct in Iran. But the Fluor defendants seek to impose the 

limitation on compensation for personal injury actions as codified 

in the Islamic Penal Code of Iran “based on Islamic law,” which 

provides statutory compensation as “provided in the [holy] 

religion” to compensate for unintentional conduct resulting in the 

“loss of a member.” The evidence submitted by the Fluor 

defendants highlights this interest served by Iranian law. They 

submitted an Iranian news article characterizing statutory 

compensation as the amount due to “a Muslim male” in a 

particular calendar year, as well as evidence showing the amount 

of statutory compensation depended on whether the victim’s loss 

occurred in one of the “sacred” months of the year.27 In the case 

27 The Fluor defendants assert that Katirai’s supplemental 

declaration “explained that in a personal injury action, Iranian 

law allows recovery of statutory compensation for physical 

impairment that does not vary by season or date where, as here, 

the claimant is alive at trial.” (Italics added, fn. omitted.) 

Katirai’s supplemental declaration contains no such explanation, 

but rather, is silent as to compensation due in the sacred months 

of the Iranian calendar. Evidence submitted in support of the 

supplemental declaration indicates, without qualification, 

“during the sacred [haram] months, the [statutory compensation]
52

of the loss of a testicle, the Islamic Penal Code of Iran specifies 

payment of one-third the amount of full statutory compensation 

for removal of the right testicle, and two-thirds of the amount for 

the left,28 plus an additional proportion of the statutory 

compensation for impairment to general health. There can be no 

dispute these rules are “based on Islamic standards.”

Therefore, there is a true conflict between Iran’s interest in 

compensation of a tort victim whose injury occurred in Iran in 

accordance with Islamic law, and California’s interest in

compensation of its residents according to proof at trial. Both 

jurisdictions have legitimate interests in the application of their 

own law.

(b) California’s interests will be more impaired by 

the failure to apply its laws

“Under the comparative impairment analysis, we must 

‘carefully evaluate[] and compare[] the nature and strength of the 

interest of each jurisdiction in the application of its own law “to 

determine which state’s interest would be more impaired if its 

policy were subordinated to the policy of the other state.”’” 

amount would be increased by one third.” Regardless of whether 

the rule would apply to Sabetian in this case, the variation in 

prescribed recovery by reference to the sacred months of the 

Iranian calendar illustrates the essential religious nature of 

Iran’s law of statutory compensation.

28 In their motion for new trial, the Fluor defendants 

requested the trial court issue a remittitur for the dollar 

equivalent of twice the statutory compensation amount (that is,

full statutory compensation for Sabetian’s loss of his right 

testicle, and full compensation for impairment of his general 

health).
53

(McCann, supra, 48 Cal.4th at pp. 96-97; accord, Kearney, supra,

39 Cal.4th at p. 108.) We must determine the appropriate

“‘“limitations on the reach of state policies—as distinguished from 

evaluating the wisdom of those policies . . . . [E]mphasis is placed 

on the appropriate scope of conflicting state policies rather than 

on the ‘quality’ of those policies . . . .”’ [Citation.]

[¶] Accordingly, our task is not to determine . . . [which] rule is 

the better or worthier rule, but rather to decide—in light of the 

legal question at issue and the relevant state interests at stake—

which jurisdiction should be allocated the predominating 

lawmaking power under the circumstances of the present case.”

(McCann, at p. 97; accord, Kearney, at p. 112.)

The Fluor defendants are correct that “a jurisdiction 

ordinarily has the ‘predominant interest’ in regulating conduct 

that occurs within its borders (citations), and in being able to 

assure individuals and commercial entities operating within its 

territory that applicable limitations on liability set forth in the 

jurisdiction’s law will be available to those individuals and 

businesses in the event they are faced with litigation in the 

future.” (McCann supra, 48 Cal.4th at pp. 97-98.) That 

argument has some force here, where Sabetian’s injury was 

caused by conduct that occurred in Iran while he was a resident 

of that country. But the concern in McCann—that applying 

California’s law would prevent Oklahoma from providing “any 

reasonable assurance . . . that the time limitation embodied in its 

statute would operate to protect . . . businesses in the future”

(McCann, at p. 98)—does not apply with the same force to the 

present circumstances where the Iranian law at issue does not 

seek to promote and protect foreign businesses with domestic 
54

business dealings, but rather, to ensure damages awards are 

consonant with state-endorsed religious teachings.

California’s interest in protecting recovery of damages for 

injuries suffered by its residents would be severely impaired if 

Iranian law applied in light of the significant reduction in 

recovery under Iran’s statutory compensation scheme. Sabetian 

suffered his injury while a resident of California, and California 

has an interest in ensuring that Sabetian is fully compensated so 

he does not become dependent on California’s resources for 

necessary medical, disability, and unemployment benefits. By 

contrast, Iran’s interest in limiting damages paid by a foreign 

company to a California resident in accordance with the tenets of 

Islamic law (the same as Iranian companies) is relatively weak. 

Thus, California law applies to the Sabetians’ recovery of 

compensatory damages.

DISPOSITION

The judgment is affirmed. Soraya is to recover her costs on 

appeal.

FEUER, J.

WE CONCUR:

PERLUSS, P. J.

SEGAL, J.