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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant s. B2 98989

(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 Responden t. 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 Irania n 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 tri al 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 suffic ient 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, w e 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 defendants 2 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 st ipulation, t he 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 foun d only FEI and MEF acted negligently.3

procurement of materials, and construction. [¶] With respect to the Tehran [II] refinery pr oject [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 no t 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 c alcium silicate insulation from Nippon Asbestos Company (Nippon) for external use in its “ pipe [ s ] and vessel [s].” In the early 1970s c ompanies in the United States “started moving away” fr om using c alcium 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 defenda nt, 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 ca me 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 th e 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 th e 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

c reated the design documents for Tehran II, which specified the
use of asbestos

- containing pipe insulation. Fluor duplicated th e Tehran II specifications for its construction of the Esfahan refinery

. The same vendors approved for Tehran II were approved f

or construction of Esfahan. Bidding for the Esfahan project began in 1974 or 1975.

4 The Fluor defendants designated P escarolo as their p erson 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 as bestos

- containing
material s were used at Esfahan on the fact s that “ [t] he contract was copied from Tehran [I] and [II]. Approved vendors were the
same. Other vendors were the same. Materials were th e 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 Flu o r’s
construction of Esfahan , Shahabi would have “ had to [h ave 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 “Asbes t os F ree Insulation [¶] Urgent

. ” (Capitalization o mitted.) 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 t he 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.” (Underlin in g omitted.)
So metime 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 t he brand name “Tombo 4601.” Fluor did not have any
invoice s , packing slip s , or purchase order s 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 S abetian Sabetian was born in Tehran, Iran

. After studying industrial managemen t 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. W e do not reach FEI’s contention there is n o 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 bei ng performed . At other
times he was fa r ther 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 b etween three and eight f eet away. The prefabricated pipe insulation had to be “cut to the measure in
order to use it.” T he 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 observe d 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 t he 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 d uring its construction “so many times.” Sabetian described the work he observed at Tehran II: “You ha ve 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 “ installing8

the pump machinery.” Sabetian observed workers “using insulation for the equipment.” Sabetian explained insulation was “really one of the main biggest activit y 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
refiner ies 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 testi mony:

“ ‘[ 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 refi nery.” 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 nobo dy 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 te stimony from Sabetian about his 1 982 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 p enalty 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 diagno sed 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 [as bestos 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 presum ed to have the same risk factor.” A sbestos 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 th e 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

. I ndustrial hygiene seeks to reduce industrial
asbestos levels to these background levels. Based on his review of industrial hygiene liter ature and his familiarity with the insulation products used in Iranian refineries, Garza opined to a reasonable degree of scientific certainty that where asbestos

containing dust is visible to the naked eye

, a bystander would be exposed to levels between 2 0 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 pul monologist, 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 t he human body can handle a “very modest exposure to asbestos,” a large exposure overwhelm s the body’s defense mechanism s 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. Ho rn 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

. Pla intiffs’ 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 wa s 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. S abetian’s development of m alignant mesothelioma,” Dr. Horn responded, “Yes.”

(d) Dr. Zhang
Dr. David Zhang , a physician and occupational medicine practitioner

, testified o ccupational medicine focuses on find ing
the cause of disease. Although Dr. Zhang is not an epidemiologist, he was train ed to interpret and apply epidemiological studies. Dr. Zhang explained asb estos 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 th em 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 unt il 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 me sothelial 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 specialist s held in
Helsin ki

, 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 mesothe l ial 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
3 0 case reports and case series reports published in the peer

reviewed scientific literature concerning mesothelioma of the

11 Although plaintiffs’ counsel marked the 1997 Helsinki

consensus report an d the 2015 updated report as Exhibits 29 and 30
, n either 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 peritone al 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 . . . espec ially 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 Croh n’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. 5 9 (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 evide nce at trial

.15

the risk of developing in particular tunica vaginalis
mesothelioma.” Dr. Zhang also reviewed the Mensi case series report of indivi duals 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 t o 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. Dom inik Alexander

, who ha s 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, e pidemiologists 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 asbe stos 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 o ut of “hundreds” of analy tical epidemiological16

studies, no ne 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 affe c t 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 great er carcinogenic potency than chrysotile

. ” Dr. Alexander opined
there w as “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 neglig ent, and that their negligence was a substantial factor contributing to Sabetian’s risk of developing
mesothelioma. The jury found the other defendant s 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

respon sible.17

D. Fluor Defen dants’ Motion s for Judgment Notwithstanding
the Verdict and for New Trial
The Fluor defendants filed motion s for judgment notwithstanding the verdict (JNOV) in which they argued there

was not substantial evidence of Sabetian’s exposure to asbestos
attribut able 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 argu ed 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 . I n 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 challeng e 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 Flu or defendants timely appealed.

DISCU SSION

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.’” ( C abral 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 deter mine 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

mot ion 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. Exces sive 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 appli cation.” 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 Caus in g 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 argu e 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 o f 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 Co urt 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 probabi lity that a particular exposure or series of exposures was21

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 contri buting 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. omitt ed; 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.)
I n 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

pecu liar 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 factors22

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 plainti ff’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, b y 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 the re 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 pr ocured 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 o ver 20,000 linear
feet of unused calcium si licate pipe insulation was transferred from Tehran II to the Esfahan project. The same design23

specifications used for Tehran II were again used for the Esfahan project

. Further, Fluor 15 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 asbestos

containing insulation. FEI then “urgently” requested NIOC “relax [its] demand that insulation be asbestos free.” In November 1976 NIOC granted FEI permission to u se asbestos

containing 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 b y 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. Th e 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 asbestos

containing 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 c ontention 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) [ e ach 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 refi nery 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

exposur e 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 reasonab le 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 const ruction 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 refiner y projects under construction, in cluding 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 o bserved 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 asbestos

containing 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 cutti ng 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 1027

occasions substantially contributed to the aggregate dose of
asbest os 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 pro cess, 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, S abetian 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

— contradict ed 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 Janua ry 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 witn ess ’ 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 wha t 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 Sabe tian 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 tha n 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 , sup ra , 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 ca use 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. Spe cifically, 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 asbes tos 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 informatio n 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 the refore could not create a triable issue of fact to defeat summary judgment. ( Id. at pp. 735

- 736.) T he 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, h is opinions were properly based on the medical literature. 21 “[E]ven w hen [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, In c. (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 s upported 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

re sts. ’ ” ]; 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

co njecture 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. Daneshman d.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 co nclusion, 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, “a n 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 m esothelioma 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 type s 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)].” I n 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 the32

macrophage or by lymphatic fluid, travels from the lung to the pleura, to the abdomen, and to the scrotum.”
The Fluor defendants con tend 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 d efendants 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 cross

examination 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

expre ssed disagreement with these statements, they bely the Fluor defendants’ assertion the report reached no conclusion s 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 a33

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 w hether 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 asb estos 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 6 0 years) before mesothelioma manifests itself

. The Fluor defendants assert further that Dr. Zhang
acknowl edged 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 cross

22 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 testim ony about the study

.34

examination about an epidemiological study of 17,800 individuals
who worked i n 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 t ime 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 acknowledge d 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
Interna t. 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 th e 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 princi pally relied35

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
th e 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 formin g 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 reac h
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 woul d 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 cr edibility 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 in dividuals 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, argu ing California and Iran ian law materially
differe d as to each issue and Iran’s legitimate governmental37

interest in the issues would be impaired if California law was applied. In support of the ir 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 co mpensation (‘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 compensa tion, 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 n o 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

com pensation 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 Ri als.” (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 suff ered 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 are38

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 medic al 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 f or 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 o f 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 Iranian39

G overnment 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 th at 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 l aws 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 comp ensation 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 Artic le 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 s uch 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 ca use 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 Investmen t 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 has41

always been interpreted to apply equal treatment only to “tax exemptions conferred to investments in Iran for domestic
investors.”
At the October 1 8, 2018 hearing on the choice of law

mo tions , 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 t he 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 app ear 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 alt er 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 th e cap is not so arbitrary in nature and application that it42

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 no t 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. Th erefore, 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 motio n 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, plu s 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 billio n Rials (approximately43

$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 allow ed 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 a ttached to the supplemental Katirai
declaration an Iranian news article , translated into English, announcing the Iranian D epartment of J ustice’s payment schedule for the Iranian calendar year running from March 2 1, 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,
du ring 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 compe nsation . . . 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 circ umstances 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 i ts 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, 139 5 [ the governmental interest analysis must be performed separately “ with regard to45

the particular issue in question ” ] ; Beech Aircraft Corp. v. Superi or 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, a nd 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, 150 3 ; 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 suc h 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 explicit46

indi cation 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
entitie s 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 activitie s 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
C alifornia 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 ‘ business

friendly ’ law, Oklahoma could not provide any reasonable

ass urance

— 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 cou rt47

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, socie ty, 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 injur y.’” 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 un der 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 clos e of the Sabetians’ case

— the parties could have addressed the choice of law question in light of the evidence48

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 submitt ed 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 Ir anian 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. Ha d 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, u nder 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 req uest 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 interests 26 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
b usinesses 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 sati sfied because the laws of Iran and California are different. Further, i n contrast to the Fluor defendants’ challenge to the application of California law to damages for loss of consortium, which we conclude wa s 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 provid ed 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 wa s 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 recov er 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 t o 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 .) Th us, 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’s51

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 deficienc ies 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 Fluo r 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 uninte ntional 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 Musli m 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 statu tory compensation for physical impairment that does not vary by season or date where, as here, the claimant is alive at trial .” (Italics added, f n. 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 qualif ication,

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

of the loss of a testicle, the Islamic Penal Co de 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 o f 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 o f 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 determin e 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 operatin g 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 a pplying California’ s law would prevent Oklahoma from providing “any

re asonable 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

se ek to promote and protect foreign businesses with domestic54

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 r esidents 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 Cali fornia
has an interest in ensurin g 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 residen t 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.