PEOPLE v. TRI-UNION SEAFOODS, LLC







Filed 3/11/09






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE ex rel. EDMUND G. BROWN, JR., as Attorney General, etc., et al., Plaintiffs and Appellants, v. TRI-UNION SEAFOODS, LLC, et al., Defendants and Respondents.

A116792 (San Francisco City and County Super. Ct. Nos. CGC-01-402975, CGC-04-432394)

STORY CONTINUE FROM PART I….


5. Possible Sources of Methylation
There is no agreed or certain answer to the source of methylmercury in the oceans and hence in fish. Possible sources include the deep ocean, the mixed layer and the thermocline. The Kraepiel study cast doubts on all sources except the deep ocean. Based on the results of the study, the authors hypothesized that methylmercury is formed in the deep ocean, either in hydrothermal vents or the deep sediment. Dr. William Fitzgerald, the State’s expert, also produced a recent paper that suggested for the first time that coastal sediments along the continental shelf could be a possible source of methylmercury in ocean fish.^[1]
Methylation of mercury has not been observed in deep ocean sediments. However, ocean hydrothermal vents are present in every ocean; they exist at different levels of depth and thus allow for distribution of methylmercury in the ocean waters. Dr. Morel described hydrothermal vents as areas “where volcanic activity brings material to the sea floor, and . . . the water . . . spewing out . . . is completely anoxic.^[[2]]” These are areas “of intense redox^[[3]] reactions because of this anoxic water coming in.” Dr. Morel has conducted experiments that have shown that mercury can be methylated chemically under high temperature and pressure—conditions similar to those found in hydrothermal vents. According to Dr. Morel, DNA samples from some organisms resident in deep sea vents have a methylmercury resistant gene which would detoxify the chemical.
Both Dr. Morel and Dr. Fitzgerald have found methylmercury in hydrothermal vents and agree that deep ocean vents are a major source of methylmercury in the oceans. According to Dr. Fitzgerald’s calculations, hydrothermal vents could produce enough methylmercury to account for approximately four times the amount that bioaccumulates in ocean fish each year. One study that he participated in found methylmercury below the thermocline, and that levels increased with an increase in ocean depth. A deep ocean fish, the antimora rostrata, contains high levels of methylmercury.
If deep ocean hydrothermal vents are the source of methylmercury in the ocean, then 100 percent of the chemical would be naturally occurring. Dr. Fitzgerald has stated that if these vents are the major source, then changes in mercury pollution would have little effect on the content of methylmercury in ocean fish.
B. Standard of Review
It was the Tuna Companies’ burden to show, by a preponderance of the evidence, that methylmercury in canned tuna is naturally occurring. (Regs., tit. 27, § 25501, subd. (a); Evid. Code, § 115.) A party required to prove something by a preponderance of the evidence “need prove only that it is more likely to be true than not true.” (CACI No. 200.) Preponderance of the evidence means “ ‘that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed. (Italics added.)” (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 325, fn. omitted.) In other words, the term refers to “evidence that has more convincing force than that opposed to it.” (BAJI No. 2.60.)
When findings of fact are challenged on appeal, we are bound by the familiar and highly deferential substantial evidence standard of review. This standard calls for review of the entire record to determine whether there is any substantial evidence, contradicted or not contradicted, to support the findings below. We view the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences and resolving all conflicts in its favor. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, abrogated on another point in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.)
The substantial evidence rule applies equally to expert and lay testimony. Thus, expert testimony does not constitute substantial evidence when based on conclusions or assumptions not supported by evidence in the record (Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1137), or upon matters not reasonably relied upon by other experts (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135). Further, an expert’s opinion testimony does not achieve the dignity of substantial evidence where the expert bases his or her conclusion on speculative, remote or conjectural factors. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487.) When the trial court accepts an expert’s ultimate conclusion without critically considering his or her reasoning, and it appears the conclusion was based on improper or unwarranted matters, we must reverse the judgment for lack of substantial evidence. (Pacific Gas & Electric Co. v. Zuckerman, supra, 189 Cal.App.3d at p. 1136.) On the other hand, the trial court is free to reject testimony of a party’s expert, so long as the trier does not do so arbitrarily. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633.)
C. Analysis
1. Attack on Kraepiel Study
As it did below, the State attacks the Kraepiel study on several fronts. The three main thrusts of criticism are as follows: (1) comparability issues: the two 1971 data sets differed significantly, and the 1971 and 1998 fish were not comparable for a variety of reasons; (2) there was no net increase in atmospheric mercury between 1971 and 1998; and (3) the study design was flawed because it used a three-box model.
a. Comparability Issues
First, pointing out that two sets of fish with different methylmercury levels were combined for the 1971 cohort, the State argues that this disparity demonstrates that there were unaccounted for factors that could affect the level of the toxin in the fish.^[4] However, the Kraepiel study authors ran their calculations excluding the suspect data, with no change in the results. Moreover, the set of fish containing higher levels of methylmercury contained larger fish than the other set. It would be expected that larger fish would have higher levels of methylmercury because the contaminant bioaccumulates.
The State also urges that another expert, Dr. Dean Grubbs, identified a number of confounding factors not accounted for in the Kraepiel study that could have affected levels of the contaminant in the 1971 and 1998 fish. Dr. Grubbs theorized that seasonal and climate factors could have affected the study results, but had no direct evidence on any of these points. The trial court properly rejected this testimony as too conjectural. (Leslie G. v. Perry & Associates, supra, 43 Cal.App.4th at p. 487.)
Similarly, the trial court rejected as not credible the State’s evidence that the difference in location where the 1971 and 1998 cohorts were caught was a confounding factor denigrating the study results. Dr. Grubbs opined that the diets of the two groups could have varied due to the fact that one group was caught within 20 miles from the coast of Hawaii and the other was caught offshore beyond the 50-mile mark. According to Dr. Grubbs, this was a possible confounding factor that could have compromised the results. Dr. Grubbs’s work with tuna involved studying the stomach content of tuna caught in fish aggregating devices, but only approximately 5 percent of Hawaiian tuna is associated with fish aggregating devices. As to the other 95 percent, Dr. James Josephs, an expert in tuna biology, tuna population and dynamics and tuna fisheries, testified to the effect that the distances at which the 1971 and 1998 tuna were caught would not present a confounding factor due to the highly migratory nature of tuna—they swim constantly, never rest, and are built for speed, i.e., they can swim up to 50 to 60 miles per hour. Further, they eat constantly and are opportunistic feeders, eating whatever is available to them. Therefore, food intake on any given day is not relevant to the tuna’s bioaccumulation of methylmercury over time.
b. Increase in Atmospheric Mercury
Second, the State faults the premise of the Kraepiel study that atmospheric mercury levels increased between 1971 and 1998. The State refers to Dr. Fitzgerald’s testimony that there was roughly the same amount of mercury depositions in 1971 as in 1998. On the other hand, according to Dr. Morel, the data showed that mercury levels peaked around 1990 and then declined, with a leveling off in 1998. However the level of mercury was higher “when it starts to level off even in 1995” than at the beginning point of the study. Moreover, if methylmercury were formed in surface water or at the thermocline, the increase in methylmercury up through 1990 would “carr[y] on” because it takes time for the methylmercury concentration in the water column to change. Thus, the trial court’s finding that total atmospheric mercury emissions increased between 1971 and 1998 was supported by the evidence.
In its statement of decision, the trial court noted that Dr. Fitzgerald revised his report from no change in atmospheric mercury between 1971 and 1998 to no change between 1979 and 2000 or 2001. Moreover, the expert’s own work and testimony refuted his argument that certain data points measuring pollution should not have been included because they reflected local pollution that skewed the results. That is to say, Dr. Fitzgerald admitted that elementary mercury, from whatever sources, is emitted into the atmosphere, resides there for a year, travels around the earth and is dispersed “rather broadly.” As well, Dr. Fitzgerald testified that natural and anthropogenic mercury is found in sediments of pristine Arctic lakes, thus casting doubt on the argument that regional variability is a relevant factor. Finally, data collected by Dr. Joseph Pacyna—a scientist considered well regarded by Dr. Fitzgerald—indicated that mercury emissions increased from 1990 to 2000, with a large increase coming from Asia. As the trial court observed, until at least the year 2001, Dr. Fitzgerald agreed with Dr. Pacyna that total anthropogenic mercury emissions increased in that time frame.
The State complains that there was no indication that the court “properly weighed the countervailing evidence,” citing Estate of Larson (1980) 106 Cal.App.3d 560, 567. The record shows the opposite—that the trial court considered the conflicting views of Dr. Morel and Dr. Fitzgerald—and made the choice, on substantial evidence as cited above, that the evidence did not support Dr. Fitzgerald’s opinion that there was no increase in mercury emissions during the span of the Kraepiel study. Additionally, responding to the State’s objections to its tentative statement of decision, the trial court took the opportunity to reinforce its original determinations and factual findings. The court took pains to underscore that the findings were based on evidence in the case, not “made of whole cloth,” and that it did undertake a credibility assessment, finding certain experts more credible than others based on reasons that were not arbitrary.
c. Three-box Model
Finally, the State takes issue with the Kraepiel model. First, it asserts that “Dr. Morel . . . admitted that his theory ‘could be all wrong.’ ” (Italics omitted.) Dr. Morel was asked whether the model could be all wrong. What he said is this: “So, yes, it could all be wrong. [¶] . . . [¶] . . . But what we do is try to explore the domain of likely processes and parameters . . . . We don’t just say this is a model. Here are the parameters. Let’s run it and get a result. [¶] We say this is a model. Now let’s reflect on what could be wrong and the eventual parameters. So although it could be wrong, we think we have explored the range of likely possibilities . . . .” As well, Dr. Morel testified without equivocation that he was satisfied from his research that there was no (0 or 1.5 to 2 percent) anthropogenic contribution to methylmercury in the ocean. According to Dr. Morel, the conclusion that the methylmercury in tuna is naturally occurring is not a hypothesis; it is “a reasonable scientific certainty.”
Next, as it did below, the State challenges the design of the three-box model, emphasizing that Dr. Fitzgerald criticized the model as not representing reality but only generating hypotheses to guide research. To begin with, the Kraepiel study was published in a peer-reviewed journal, and properly formed a basis supporting Dr. Morel’s opinions. (People v. Bui (2001) 86 Cal.App.4th 1187, 1195 [expert properly based opinion on epidemiological studies he conducted, which resulted in published papers subject to peer review].) Second, declining to credit the State’s criticism, the trial court noted that it is common for scientists, including Dr. Fitzgerald, to use simple models in their work with oceans. Further. Dr. Morel explained that the three-box model was selected for the purpose of determining the range of possibilities, not exact values; a simpler model allows the scientist to “vary . . . parameters very easily[,] and easily see what they do.” The model also factored in assumptions that mercury level increases were linear, exponential, or rose and then stabilized.
The State is correct that the Kraepiel study did not determine the origin of methylation in the ocean, but that does not render the study too speculative or conjectural on the issue of whether methylmercury in the ocean environment responds to human pollution. The State confuses the evidence that there is no anthropogenic contribution to methylmercury in ocean fish with hypotheses concerning the source of methylmercury in the ocean. Although the source(s) of methylmercury remains has yet to be nailed down, every study that has tested whether methylmercury in tuna has anthropogenic contribution has concluded it is naturally occurring. In any event, Dr. Morel and Dr. Fitzgerald both agree that deep ocean vents are a source of methylmercury in the deep ocean.
2. Dr. Morel’s Posttrial Statements
a. Graduate Student Poster
Additionally, the State maintains that Dr. Morel changed his opinion after trial and that the trial court abused its discretion in declining to reopen trial to admit new evidence of his opinions. According to the State, Dr. Morel made statements on a poster^[5] presented at an international conference on mercury to the effect that methylation in the thermocline could be an important source of methylmercury. The facts are these: Eileen Ekstron, a graduate student of Dr. Morel’s, presented a poster at the conference. Dr. Morel did not attend the conference, prepare the poster or present it, although he was listed as an author. Dr. Morel declared that his name was on the poster because he was involved in planning and designing the experiments conducted on two ocean cruises, and it is “customary” to include the name of an advisor as the last author on a poster.^[6] Dr. Morel reviewed the poster and was readily familiar with the information on it. He indicated that posters often are used at scientific meetings for presentations by students of their preliminary results and conclusions. He was familiar with the results of the two cruises and concluded that they did not evoke positive evidence that methylation occurs in the thermocline and may be an important source of methylmercury in the ocean. Rather, his opinion today is consistent with that expressed at trial, namely “that the fact that significant methylation has only been observed in incubation bottles under anoxic conditions provides negative evidence for mercury methylation occurring in the [oxygen minimum zone].” Further, he did not agree with Ms. Ekstron’s conclusion that direct measurement of methylmercury in hydrothermal vents implied that vents probably are not a significant source of methylmercury in the ocean, opining that her calculations were “subject to potential errors of unknown magnitude, due in large part to the complexity of the ‘plumbing’ of hydrothermal vents.”
From our review of the record, it is apparent that the trial court did not abuse its discretion in declining to reopen the trial to admit Dr. Morel’s “new opinions.”
b. Smithsonian Magazine Article
We granted the State’s request, set forth in its reply brief, to take judicial notice of a Smithsonian Magazine article that includes a statement by Dr. Morel, and a characterization of a statement by Dr. Morel, concerning the source of methylmercury in the ocean. His statement: “Right now, I’d say nobody has found a source of methylmercury in the ocean that can easily account for what we find in terms of methylmercury in open ocean fish. . . . It’s been hard to figure out where it’s coming from, where’s it’s going. Now we are beginning to understand.” The characterization: “Even Morel, who served as a key witness for the tuna companies in the San Francisco case, now says that vents don’t make up enough methylmercury to supply it to surface fish. But this realization in itself, he says, still doesn’t explain where the majority of mercury comes from.” (Jaffe, Mystery at Sea (Sept. 27, 2007) Smithsonian Magazine ( [accessed 3/11/09]).)
Opposing the State’s request for judicial notice, Dr. Morel declared that the quoted statement was inaccurate because he did not make the statement. He indicated it was not his opinion that deep ocean vents do not make up enough methylmercury to supply it to surface fish. Further, he reiterated that his “opinion at trial was that the best scientific evidence supports the conclusion that it is more probable than not that deep ocean vents are the source for virtually all of the methylmercury in tuna, which was supported by calculations from the State’s expert witness . . . .” It appears that the State confuses the evidence and finding that there is no anthropogenic contribution to methylmercury in tuna with the hypotheses about the source of methylmercury in the ocean. Evidence was presented at trial that a possible source of methylmercury is deep ocean vents, but this theory is still a hypothesis.
D. Conclusion
The State’s weakest link to victory in this litigation has been its attack on the ruling that methylmercury in tuna is naturally occurring. It may well be that there was substantial evidence that less than 98 to 100 percent of methylmercury in tuna is naturally occurring, i.e., a greater percent is from anthropomorphic sources, as the State urges. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 429-430, fn. 5.) The experts on both sides were eminent scientists who had published major peer-reviewed articles. The trial court sided with the Tuna Companies’ experts, found them more credible, and afforded their testimony greater weight than it afforded that of the State’s experts. The court explained its reasoning. We have reviewed the statement of decision and the record and cannot say that there is no substantial evidence to support the trial court’s conclusion, under the preponderance of the evidence standard, that methylmercury in tuna is naturally occurring. When substantial evidence supports the trial court’s decision, as it does here, we have no power to substitute our own deductions or preferred set of facts.
It bears contemplating, however, whether the truth about complex, threshold scientific issues encompassed within Proposition 65—such as whether methylmercury in fish is naturally occurring—is best derived by application of the substantial evidence rule to the testimony and opinions of dueling experts serving under partisan commitments. The public has a significant health and welfare interest in the accurate determination of these issues based on the whole scientific truth of the matter—or as near to the whole truth as is possible. More than a century ago our Supreme Court proposed that rather than relying on expert witnesses called by the parties, the trial courts should summon a disinterested body or board of experts to give their opinion and reasons therefore to the court and jury regardless of the consequences to either litigant. (Estate of Dolbeer (1906) 149 Cal. 227, 243.) Our Evidence Code now provides for a similar remedy, authorizing courts to appoint experts to investigate and render a report on the matter in question, subject to cross-examination by the parties. (Evid. Code, §§ 730, 732.) Resort to such a procedure could reduce the risk of a decision based on anything but the most valid scientific investigation and assessment.
Finally, we clarify the reach of our decision today. The trial court ruled for the Tuna Companies on three alternative grounds, entering judgment that the companies are not required to provide Proposition 65 warnings on their canned tuna products or pay any penalties, and therefore there is no underlying cause of action upon which an unlawful business practices claim can be based. We have confined our ruling to only one of those grounds, namely the conclusion that virtually all methylmercury is naturally occurring. Further, within that ruling, we have confined our decision to the substantial evidence question. Within the broader naturally occurring issue, we further declined to review the trial court’s decision interpreting the pertinent regulation as including within the “naturally occurring” rubric those chemicals in food that are the result of both natural and uncontrollable human activity.
Where, as here, a court of first instance renders its judgment on alternative grounds and the reviewing court affirms on only one of those grounds, the grounds not considered are not conclusively established. Thus, this court’s judgment is conclusive only as to the substantial evidence determination on the naturally occurring issue. (Newport Beach Country Club, Inc. v. Founding Members of Newport Beach Country Club (2006) 140 Cal.App.4th 1120, 1132 (Newport Beach); see Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 79; Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, 1460; but see DiRuzza v. County of Tehama (2003) 323 F.3d 1147, 1156.)
As the Newport Beach court explained, the traditional rule provides that a general affirmance of a judgment on appeal renders it res judicata as to all issues, claims or controversies encompassed in the action and passed on by the lower court, even though the reviewing court does not consider or decide upon all of them. (Newport Beach, supra, 140 Cal.App.4th at p. 1126.) This rule finds its source in the early California law opinion in People v. Skidmore (1865) 27 Cal. 287. The modern rule, embedded in the Restatement Second of Judgments, section 27, comment o, provides that where the reviewing court upholds one of the determinations but refuses to consider whether the others are sufficient and accordingly affirms the judgment, that judgment is conclusive as to the first determination. (Ibid.) Notwithstanding that Skidmore has not been expressly overruled, the Newport Beach court declined to follow it, reasoning that “[t]he traditional rule is inconsistent with an appellate court’s duty under the California Constitution, article VI, section 14 to set forth its decisions in writing ‘with reasons stated.’ Giving conclusive effect to both of two alternate grounds for a judgment, when the Court of Appeal expressly declines to address one ground, undermines the credibility and accuracy of the decision.” (Newport Beach, supra, 140 Cal.App.4th at p. 1132.) As well, modern case law has effectively dissipated the strength and viability of Skidmore. (Newport Beach, supra, at p. 1131.)
And, notwithstanding our affirmance today that substantial evidence supports the trial court finding that methylmercury in tuna is naturally occurring, there are potential scenarios that could possibly lead to a renewed Proposition 65 claim against the Tuna Companies or similar companies that would survive res judicata and collateral estoppel challenges. For example, the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency designated by the Governor to implement the provisions of Proposition 65, could amend the regulations to except the presence of methylmercury in canned tuna from the naturally occurring rules. (Regs., tit. 27, § 25102, subd. (o); see § 25249.12, subd. (a).) Similarly, the determination of whether methylmercury in tuna is naturally occurring could be lodged with the OEHHA and its scientific advisors, rather than left to dueling expert witnesses in a trial court setting. Moreover, we must recognize that scientific research on issues such as the source of methylmercury in the ocean is ongoing, and a trial court determination on whether and/or to what extent methylmercury in tuna is naturally occurring is based on the state of the scientific inquiry at a given point in time. Therefore, unlike findings based on an historical occurrence such as facts giving rise to a tort or a crime, findings based on scientific inquiry and research can easily become dated and outmoded as science develops and new research explains the phenomena in question more thoroughly and completely. “ ‘Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.’ ” (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 590, construing the term “ ‘scientific . . . knowledge’ ” as used in rule 702 of the Federal Rules of Evidence governing admissibility of expert testimony.) The high court captured succinctly the essential difference: “[T]here are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly.” (Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, at pp. 596-597.)
III. DISPOSITION
We affirm the judgment solely on the ground that substantial evidence supports the trial court’s finding that methylmercury in tuna is naturally occurring, and hence the Tuna Companies are exempt from the warning requirements of Proposition 65.

_________________________
Reardon, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Sepulveda, J.






















Trial Court: San Francisco Superior Court



Trial Judge: Hon. Robert Dondero



Counsel for Appellant
The People: Edmund G. Brown, Jr.
Attorney General
Tom Greene
Janet Gaard
Chief Assistant Attorneys General
Theodora P. Berger
Senior Assistant Attorney General
Edward G. Weil
Supervising Deputy Attorney General
Susan S. Fiering
Harrison M. Pollak
Deputy Attorneys General


Counsel for Appellant
Public Media Center: Deborah A. Sivas


Counsel for Amici Curiae
San Francisco Medical Society; San
Francisco Bay Area Physicians for
Social Responsibility; Jane Hightower,
M.D.; Natural Resources Defense
Council, Inc.; Oceana, Inc.; and
Mercury Policy Project, on Behalf
of Appellants: Natural Resources Defense Council, Inc.
Michael E. Wall


Counsel for Respondents: Goodwin Procter
Forrest A. Hainline III
Robert B. Bader


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