Sandy v. Exxon Mobil Corp.

Filed 3/27/08 Sandy v. Exxon Mobil Corp. CA1/2

Received for posting 4/1/08

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Merle Sandy died of cancer after a jury awarded him damages of more than $700,000.[1] The sole defendant at trial was Exxon Mobil Corporation. After its motion for judgment notwithstanding the verdict was deemed denied by operation of law, Exxon appealed from the judgment and from the denial of its motion. Exxon contends that: (1) the trial court erred in denying its motion because there is not substantial evidence to establish liability; (2) the trial court committed instructional error; and (3) the trial court abused its discretion in limiting the testimony of two defense expert witnesses.

The first two of Exxons contentions are founded on the premise that Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659 (Kinsman) effected a radical restriction in the scope of the still recent decision in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker). In Hooker, our Supreme Court concluded that an employee of an independent contractor may sue the hirer of the contractor if the hirers conduct affirmatively contributed to the employees injuries. In Kinsman, the court set forth the conditions under which the employee of an independent contractor may sue the hirer of the independent contractor when the hirer is the owner of real property having a hazardous condition that contributed to the employees injuries. We conclude that Exxons premise is untenable in that nothing in Kinsman hints at any intent by the court to effect any curtailment of Hookers scope. We further conclude that Exxons final contention is without merit. We therefore affirm the judgment and the order.

BACKGROUND

Much of the relevant detail is not in dispute. It is not in dispute that at the time of trial plaintiff was 60-years-old and suffering from colon cancer, caused by asbestos, that had metastasized to his liver. Plaintiff presented expert testimony that asbestos, a known carcinogen, can get to the colon either by swallowing or, once inhaled into the lungs, by migrating via the lymphatic system or the bloodstream. The jury also heard expert testimony that diseases caused by asbestos are total dose diseases, that is, the amount of asbestos accumulates to the point where in effect it reaches critical mass and starts the disease. Finally, it is not scientifically possible to identify which particular exposure to asbestos began the disease process; conversely, it is also impossible to exclude any specific exposure as not contributing to the process.

Plaintiff spent most of his working life working with pipe, first welding it, then fitting it. His was a nomadic existence, stretching from Alaska to Libya. He worked for a number of employers, and at a number of oil fields and refineries. His work, particularly dealing with gaskets, flanges, and valves, constantly exposed him to dangerous doses of asbestos; the pipe itself was more often than not insulated with asbestos.

What is important for our purposes is the period from 1969 through the early 1970s, particularly when plaintiff was employed as a pipefitter by Albay Construction Company. During this period plaintiff worked pretty much exclusively at Exxons Benicia refinery, where Albay had a contract to do maintenance. Plaintiff testified that wed work six, sometimes seven days, ten-hour days, anything to do with maintenance, because Exxon insisted on strict compliance with its schedules. A large portion of plaintiffs time at the refinery was spent changing gaskets and flanges made of asbestos. Changing a gasket or flange was often a lengthy process, and could occupy most of a days work.

Although plaintiff received a one-hour safety lecture from Exxon when he started work at the refinery, asbestos was not mentioned; and plaintiff never received written guidelines regarding the use of asbestos. Plaintiff could recall no instance where Exxon halted work for safety reasons. Albay held weekly safety meetings for its employees, but there was never a mention about asbestos during the time plaintiff worked at the Benicia refinery. In other words, plaintiff was unaware that he was exposed to asbestos on a continual basis. Plaintiff did recall at least one incident where asbestos rained down from a scaffold onto workers; the insulators working on the scaffold told the workers below, Hey, dont worry about it. It wont hurt you.

At the refinery, Exxon provided the materials used by Albay employees, including gaskets and flanges containing asbestos that plaintiff used. As plaintiff testified: Q. Exxon never advised you that those materials contained asbestos as they gave them out to you? [] A. Thats right. [] Q. Or not to create dust or debris with those materials? [] A. No. [] Q. Or how to protect yourself from asbestos? [] A. No. Indeed, the current manager for maintenance at the refinery, who was a former employee of Exxon when it owned the refinery, testified that Exxon was not particularly forthcoming with information about asbestos at the refinery even with its own employees.

Plaintiff further testified that much of the work done by Albay was controlled by Exxon though its permit system, via permits issued by Exxon personnel at the refinery. The permits specified the possible hazards the Albay employee might encounter, and what protective measures the employee should take. When the particular job was completed, the permit had to be returned to Exxon. In plaintiffs words, Exxon had control of . . . safetywe had to rely on Exxon.

According to plaintiff, I didnt even know what asbestos was until the late 80s, early 90s, even though hed been working it for decades. Exxon never told Albay, or plaintiff, to implement measures to reduce the airborne asbestos being generated. Exxon never advised plaintiff where there was asbestos at the refinery, and never told him on one of its permits that he should wear a respirator.[2]

Plaintiff stopped working at Exxons Benicia refinery in 1974, when Albays maintenance contract expired; he then worked briefly at another refinery, and then moved north to work on the TransAlaska pipeline, where he stayed for 14 years. During the Alaskan winter, plaintiff did return to work for Exxon three times, twice in the 1970s, and once in the 1980s. He worked as a welder.

What was in dispute was the extent of Exxons knowledge that asbestos was hazardous. Plaintiff presented evidence from Richard Cohen, M.D., who specialized in occupational medicine, about the state of knowledge about the dangers of asbestos. Dr. Cohen testified that a connection between asbestos and disease began to generate professional attention from about 1900. He described how by the 1930s numerous studies in the United States and Europe had documented a higher incidence of disease among workers exposed to asbestos dust. The studies began in the asbestos industry but soon expanded to other workplace situations. Initially asbestosis, and then cancerfirst in the lung, and then elsewherewere observed in increased numbers. These studies were published in scientific and medical journals. Some of the studies were undertaken by government agencies.

Dr. Cohen further testified that early in this process there began to be recommendations for reducing the level of airborne asbestos dust. Wetting down the workplace was one recommendation; use of respirators by workers was another. Dr. Cohen described a widening consensus by the end of the 1930s of the correlation between asbestos and cancer. One of the studies mentioned by Dr. Cohen was a 1937 study prepared by Roy Bonsib of Standard Oil concerning asbestos exposure at refineries.[3]

According to Dr. Cohen, in about 1940 the United States and California adopted the suggestion of a Dr. Dreessen of the U.S. Public Health Service, that worker exposure to asbestos be limited to no more than five million particles per cubic foot of air. The professional agreement about the correlation between asbestos and cancer continued. And by 1947 Exxons future director of industrial hygiene, James Hammond, would describe the connection between asbestos and disease as old hat within the industrial hygiene community.[4]

Dr. Cohen further testified that the first studies of pipe workers and asbestos appeared about 1950. Not surprisingly, they also found a higher incidence of cancer among workers exposed to asbestos fibres, particularly an increased numbers of gastrointestinal cancer. The Bonsib study had also found that pipefitters were at increased risk, a conclusion Dr. Cohen testified was consistent with what was known at the time. Dr. Cohen also testified companies like Standard Oil . . . , Exxon, they knew in 1937 that this group was at risk. In fact, according to Dr. Cohen, by 1970 everybody was aware that asbestos . . . was hazardous. In 1972, the federal OSHA tightened the permissible ambient air concentration of asbestos to 5 fibres per cubic centimeter. In about 1976, it was reduced still further, to 2 fibres per cubic centimeter. The final reduction, which is still in force today, is 1 fibre per cubic centimeter.[5]

Exxons answer to Dr. Cohen was Dr. Francis Weir, who was also an industrial hygienist. Dr. Weir downplayed the very concept of providing detailed information about hazardous substances to workers, questioning whether it was either desired or useful. He did admit that by 1970 there was a large body of scientific studies linking asbestos to cancer, but it was pertinent to insulators for the most part; it did not necessarily apply to pipefitters.[6] Thus, he testified, there was no obligation for Exxon to warn pipefitters like plaintiff. If anyone had the obligation, it was Albay, plaintiffs direct employer. But his conclusion was that in the early 1970s there was no known appreciable danger from asbestos that Albay should have warned its employees. And in his opinion it was Albay, not Exxon, that controlled plaintiffs activities at the refinery.

Moving to particulars, Dr. Weir testified that plaintiff was probably not in fact exposed at the Benicia refinery to sufficient levels of asbestos capable of causing disease. As Dr. Weir put it: For the most part, not always, but for the most part [plaintiff] was working outdoors in an open environment, not a closed-in space. And there was considerable ventilation to carry off this [i.e., asbestos]. The exposure from replacing asbestos-containing flanges would have been very low to insignificant. As for gaskets, Dr. Weir testified that it was believed that these [did] not represent a threat to health and was not perceived to be a threat until the mid-70s and the late 70s. Theres no evidence anywhere in the published literature that . . . working with gaskets . . . should have an elevated risk of disease because the asbestos fibres were the wrong configuration for inhalation. The same is true for packing valves on pipelines. Dr. Weir believed it more probable that plaintiff was exposed to asbestos in disease-causing quantities when he was working on the Alaska Pipeline.

Exxon also presented evidence that during the period when the five million particles per cubic foot standard was in effect, Exxon was using a stricter one million particles per cubic foot standard, and was always striving for even stricter limits. Also, Exxon was constantly looking to stop using asbestos products if they could get an acceptable substitute.

Plaintiff discovered he had cancer in 2004, by which time he had already sued Exxon and other defendants. The case was first tried, against Exxon alone, in late 2005, but the jury was unable to reach a verdict and a mistrial was declared.

The second trial against Exxon commenced on January 6, 2006. Exactly one month later, the jury returned a verdict finding that Exxon negligently exercise[d] retained control at its Benicia Refinery, was negligent with regard to a preexisting hazardous condition at its Benicia Refinery, and that each was a legal cause of harm to plaintiff Merle Sandy. The jury further determined that plaintiff suffered damages of $1,083,000 ($392,000 in medical expenses, $327,000 in non-medical economic damages, and $364,00 in non-economic damages), and that Exxon was responsible for 15% of these damages. After making deductions for settlements, and applying Proposition 51, the court entered judgment for plaintiff for damages of $636,667.01, costs of $65,899.02, and prejudgment interest.

Exxon moved for judgment NOV on the ground that the evidence did not establish the facts necessary to support the jurys finding of negligent exercise of retained control or negligence with respect to a pre-existing hazardous condition. The record does not include a written order denying the motion, so it will be presumed that that the motion was denied by operation of law. (See Code Civ. Proc.,  629.)

Exxon filed a timely notice of appeal from the judgment and the order denying its motion for judgment NOV.[7]

DISCUSSION
I. Hooker and Kinsman

The law for plaintiffs case against Exxon comes from Hooker and Kinsman. The court in Hooker explained the general nature of the governing rules, and the specific holding of the case as follows:

This is the latest in a series of cases in which we have considered whether an employee of an independent contractor may sue the hirer of the contractor under tort theories covered in chapter 15 of the Restatement Second of Torts . . . . In Privette v.Superior Court (1993) 5 Cal.4th 689 . . . and Toland v. SunlandHousing Group, Inc. (1998) 18 Cal.4th 253 . . . , we held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiarrisk doctrine set forth in sections 413 and 416. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractors negligent performance of the work causes injury to others. Under section 416, even if the hirer has provided for special precautions in the contract or otherwise, the hirer can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractors performance of the work causes injury to others. Most recently, in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 . . . , we held that an employee of a contractor may not sue the hirer of the contractor under the negligent hiring theory set forth in section 411. Under section 411, a hirer is liable for physical harm to third persons caused by the hirers failure to exercise reasonable care to employ a competent contractor to perform work which will involve a risk of physical harm unless it is skillfully and carefully done, or to perform any duty which the hirer owes to third persons.

The question presented in this case is whether an employee of a contractor may sue the hirer of a contractor for the tort of negligent exercise of retained control set forth in section 414. Section 414 provides: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

We conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirers exercise of retained control affirmatively contributed to the employees injuries. (Hooker, supra, 27 Cal.4th 198, 200-202, fns. omitted.)

The Supreme Court further held that it agreed with the approach adopted by Division Four of this District in Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28:

[B]ecause the liability of the contractor, the person primarily responsible for the workers on-the-job injuries, is limited to providing workers compensation coverage, it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. In fairness, as the Kinney court recognized, the imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractors employee. We are persuaded that the holdings of Privette and Toland should also apply to employees claims under section 414 at least where, as here, (1) the sole factual basis for the claim is that the hirer failed to exercise a general supervisory power to require the contractor to correct an unsafe procedure or condition of the contractors own making, and (2) there is no evidence that the hirers conduct contributed in any way to the contractors negligent performance by, e.g., inducing injurious action or inaction through actual direction, reliance on the hirer, or otherwise. The fairness rationale at the core of Privette and Toland applies equally to preclude imposition of liability on a hirer for mere failure to exercise a general supervisory power to prevent the creation or continuation of a hazardous practice, where such liability would exceed that imposed on the injured plaintiffs immediate employer, who created the hazard. (Kinney, supra, 87 Cal.App.4th at p. 36.)

[] . . . [] The Kinney court correctly applied our prior decisions. Imposing tort liability on a hirer of an independent contractor when the hirers conduct has affirmatively contributed to the injuries of the contractors employee is consistent with our decisions in Privette, Toland and Camargo because the liability of the hirer in such a case is not  in essence vicarious or derivative in the sense that it derives from the act or omission of the hired contractor.  [Citations.] To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term. (Hooker, supra, 27 Cal.4th 198, 210-212, fn omitted.)[8]

No less important is Kinsman, which was another in the Privette-Toland line of decisions, and which involved a factual setting remarkably similar to that presented here. The Supreme Court stated its conclusion as follows:

This case requires us to consider an issue not addressed by the previous cases: when, if ever, is a landowner that hires an independent contractor liable to an employee of that contractor who is injured as the result of hazardous conditions on the landowners premises? Specifically, in this case we must decide whether a carpenter employed by an independent contractor that installed scaffolding for workers who replaced asbestos insulation in an oil refinery facility may sue the refinery owners for injuries caused by exposure to asbestos, when it is claimed that only the refinery owner knew the carpenter was being exposed to a hazardous substance. [] We conclude that a landowner that hires an independent contractor may be liable to the contractors employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition. (Kinsman, supra, 37 Cal.4th 659, 664, fn. omitted.)[9]

The theory of plaintiffs case lay at the intersection of Hooker and Kinsman. Exxon, as the landowner of the refinery, knew or should have known of the presence of asbestos, a hazardous substance, on its property. Exxon hired Albay, plaintiffs employer, to perform work at the refinery. Exxon did not tell Albay of the hazardous condition. And Albay did not have independent knowledge of the danger Albays employees would encounter working at Exxons refinery. Moreover, Exxon retained a measure of control over Albays conduct at the refinery, and the way Exxon exercised that control affirmatively contributed to plaintiffs injuries.

II. The Standard of Review for Judgment NOV

Hoping to avoid yet a third trial by simply securing a reversal of the judgment, Exxon argues that the trial court erred in denying its motion for judgment NOV. Exxons hope is in vain.

The trial judges power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. [Citations.] The trial judge cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] A motion for judgment notwithstanding the verdict may properly be granted only if it appears from the evidence, viewed most favorably to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied [Citation.] (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) A reviewing court applies the same standard. (Sweatman v. Deptartment of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

In making the argument that there is no substantial evidence in the trial record, Exxon must satisfy a stern procedural condition.  It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. [Citations.] [Exxons] contention herein requires defendants to demonstrate that there is no substantial evidence to support the challenged findings.. . . [Citations.] A recitation of only the defendants evidence is not the demonstration contemplated under the above rule. [Citation.] Accordingly, if, as defendants here contend, some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is waived. [Citations.] (Foreman& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

It is neither practical nor appropriate for us to comb the record on . . . behalf of an appellant making this type of claim. (In re Marriage of Fink (1979) 25 Cal.3d 877, 888.) In addition, the burden to provide a fair summary of the evidence grows with the complexity of the record. [Citation.] [Citation.] (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) In short, an appellant will not prevail by filing a brief that is no more than a challenge to the respondent to prove that the trier of fact was right. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 101-102.)

Only the briefest comparison between Exxons and plaintiffs briefs is needed to show that Exxon failed to comply with the obligation to make a full and fair statement of all the evidence in the trial record of more than 2,500 pages. Thus, we could treat the issue as waived. (In re Marriage of Fink, supra, 25 Cal.3d 877, 887; Foreman& Clark Corp. v. Fallon, supra, 3 Cal.3d 875, 881.) However, even if we considered Exxons claims on the merits, it would not prevail.

III. Exxon Was Not Entitled to Judgment NOV

Exxon first contends that there is no substantial evidence on three aspects of the Hooker-Kinsman requirements: (1) that Exxon retained an authority that affirmatively contributed to plaintiffs injuries; (2) that Exxon knew or should have known of a hazardous condition on its property; and (3) that Albay did not know and could not reasonably have known of the hazardous condition at the Exxon refinery.

Before we take up Exxons claims, we feel compelled to comment on the manner in which Exxon tries to frame the general issue. In its opening brief, Exxon baldly states that Kinsman establishes the sole basis on which a contractors employee may recover for injuries caused by exposure to asbestos arising from a hazardous condition on the hirers property. Exxon goes on with this reasoning as follows:

Consequently, a contractors employee who claims injuries resulting from exposure to asbestos on the hirers property should not be permitted to recover for those alleged injuries under some theory of liability that would not require the employee to establish the conditions to recovery set forth in Kinsman. [] Plaintiff attempts to circumvent Kinsman by asserting a retained control theory of liability. . . . [] In a case in which the plaintiff seeks recovery for injuries caused by asbestos exposure, recovery on a retained control theory is directly contrary to Kinsmanit would permit the plaintiff to recover without proving the very elements laid out by the Supreme Court as conditions to recovery in such a case. The Supreme Court made this clear not only by expressly identifying the conditions required for recovery in Kinsman, but also expressly rejecting the holding of the Court of Appeal in that case. (Kinsman, supra, 37 Cal.4th at pp. 666, 674-675.) Under the Court of Appeals holding in Kinsman, a hirer could be held liable to a contractors employee for exposure to a dangerous condition if the hirer  had control over the dangerous condition and affirmatively contributed to the employees injury.  (Id. at p. 666, emphasis added.) The test articulated by the Court of Appeal in Kinsman is thus virtually identical to the retained control theory on which the trial court instructed in this case. . . . [] Given that the Supreme Court expressly rejected the retained control theory as the applicable test for determining whether a hirer should be liable as a result of injuries caused by an alleged preexisting dangerous condition on the hirers property, the judgment in this case cannot be affirmed on plaintiffs retained control theory.

This is a profound misreading of Kinsman. The misreading illustrates the dangers of selective quotation, and omitting just a word or two. This is what the Supreme Court said about the Court of Appeals holding in Kinsman on the pages cited in Exxons brief: The Court of Appeal . . . [a]fter reviewing Privette, Toland, Camargo, Hooker and McKown, . . . concluded that a contractors employee cannot recover under [a premises liability] theory unless the landowner had control over the dangerous condition and affirmatively contributed to the employees injury.  (Kinsman, supra, 37 Cal.4th 659, 666, italics added.) We therefore disagree with the Court of Appeal in the present case inasmuch as it held that a landowner/hirer can be liable only when it has retained supervisory control and affirmatively contributes to the to the employees injury in the exercise of that control. Rather, consistent with the above discussion, the hirer as landowner may be independently liable to the contractors employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor. (Id. at pp. 674-675, italics added.)

The crucial words are unless in the first excerpt and only in the second. Those two words make it clear that the Court of Appeal in Kinsman formulated a definition of landowner liability which the Supreme Court obviously deemed too restrictive because it required action by the landowner that affirmatively increased the danger. The test adopted by the Supreme Court allows the imposition of liability for a landowners simple passivity or failure to act affirmativelyso long as the three other required elements are proven. The landowner may be independently liable.

Exxon appears to seize on landowner and asbestos and conclude that Kinsman states the exclusive theory on which a landowner can be liable for injuries or death caused by asbestos. There is nothing in Kinsman that supports such a reading, which would have the bizarre consequence of making a landowner who affirmatively aggravates a situation less culpable than a landowner who does nothing.[10] Nothing in the Kinsman opinion hints at a sub silentio curtailing of Hooker, which is understandable because they addressed very different types of tortious behavior, i.e., injury from unwarned exposure to asbestos (Kinsman) as opposed to death from an overturned construction crane (Hooker). Perhaps the best proof against Exxons restrictive reading of Kinsman is that there is no published decision discussing it, much less embracing it.

Kinsman and Hooker state different bases of liability. We see no basis for Exxons argument that Kinsman was the only one available to plaintiff. Quite the contrary, this case demonstrates how Kinsman and Hooker can overlap and yet still work in harness.

We now discuss whether Exxons motion for judgment NOV was correctly denied because the jurys verdict has the support of substantial evidence for the elements of plaintiffs theories of liability.

A. ExxonNegligently Exercised Retained Control Under Hooker

There was substantial evidence that Exxon retained a degree of control over safety conditions, and that it exercised that control affirmatively contributed to plaintiffs injuries. The primary evidence pertained to Exxons permit system.

Viewing that evidence, as we must, most favorably to plaintiff, it shows that plaintiff performed removal and replacement of flanges and gaskets only pursuant to a permit. The permit for each job was supposed to specify the safety equipment Albay personnel would be required to use. There is a mountain of evidence behind this single sentence in plaintiffs brief: Mr. Sandy was never advised by Exxon of any hazard associated with his work in removing insulation or gasketing, nor was he advised to do anything to reduce dust or debris despite the fact that Exxon had been aware of the importance of dust suppression for decades and had issued specific asbestos handling guidelines during Mr. Sandys tenure at the Benicia refinery.

Thus, although Exxon knew about the importance of asbestos suppression since at least the time of its own 1937 Bonsib report, it never issued a permit in the 1970s at the Benicia refinery with directions for Albay employees to reduce the amount of friable asbestos fibres either by watering down the area or by using a respirator, despite the fact that these measures were advocated by the Bonsib report. But the decisive and dispositive fact is that in addition to the permit, Exxon provided the parts for Albay employees to use. Therefore, the jury could conclude that Exxons permit system provided it with the retained authority that brought the Albay employees into repeated contact with asbestos‑containing products such as gaskets and flanges, both taking off the old, and putting on the new, the latter being furnished by Exxon. The jury could further conclude that Exxon did so while aware of the dangers of asbestos, yet it took no steps to insure the workers protection using methods in existence for decades. There is ample substantial evidence to sustain both of these determinations. (Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th 62, 68; Hauter v. Zogarts, supra, 14 Cal.3d 104, 110.)

B. Exxon Knew of the Hazardous Condition

As Required by Kinsman

Turning to the Kinsman theory, Exxons contention that there is no evidence it knew that asbestos at its Benicia refinery constituted a hazardous condition verges on the frivolous. There is abundant evidence that, at least since the Bonsib report of 1937, Exxon had actual, concrete, first-hand knowledge that asbestos is a hazardous substance and that it is linked to a myriad of diseases, not the least being cancer. Exxon tries to finesse the point by reframing the argument, to wit, that it did not know, and could not have known, that plaintiff was exposed to a hazardous level of asbestos during his work at the Benicia refinery in the early 1970s. (Italics added.) This attempt fails.

Insofar as Exxons argument may be premised on Dr. Weirs testimony that plaintiff could not have contracted asbestos-related diseases while working at the Benicia refinery, the credibility of that subject was dispositively resolved against Exxon and cannot be reconsidered here. Exxon laboriously constructs an argument based on acceptable standards of ambient air levels permitted by state and federal governments in the 1970s in the apparent belief that compliance with those standards ipso facto defeats a claim of negligence.

The belief is not warranted (e.g., Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 719-720, fn. 9) and has not been for a long time. More than 60 years ago, this court stated what was even then a settled rule:  It does not follow that merely because one has complied with the terms of a statute or ordinance that he is thereby absolved from negligence. One may act in strict conformity with the terms of an enactment, and yet not exercise the amount of care which is required under the circumstances.  (Campbell v. Fong Wan (1943) 60 Cal.App.2d 553, 557 and authorities cited.) As Witkin puts it with his characteristic succinctness: compliance is not due care as a matter of law; the circumstances may call for something more. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  899, p. 132.)

Here, the jury could obviously see a need for something more. It was Exxons declared intentions to implement even more stringent use of asbestos, and to eliminate it altogether where possible. The jury simply concluded that Exxon failed to live up to those goals, knowing that asbestos posed a danger to human health. That conclusion is supported by substantial evidence. (Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th 62, 68; Hauter v. Zogarts, supra, 14 Cal.3d 104, 110.)

C. Albays Lack of Knowledge about a Hazardous Condition

at the Exxon Refinery as Required by Kinsman

Exxons second contention, that if it knew about the dangers of asbestos, Albay should also have known, is not borderline frivolous. But it still cannot prevail.

To begin with, as a matter of self-evident economic reality, Exxon clearly had access to resources far beyond those available to Albay. Indeed, as shown by the Bonsib report, Exxon had been studying the problem of asbestos in the workplace for decades. It was the first petroleum company to employ an industrial hygienist, and had a hygienist technician on staff at the facility when plaintiff was working at the Benicia refinery.

By contrast, Albay was a firm that its owner characterized as doing mechanical and general civil construction work. It had on average 40 to 50 men working at the refinery, performing the work orders as set by Exxons personnel at the refinery. Albay relied on Exxon to advise it about any hazardous conditions at the refinery. Albay not only did not have an industrial hygienist of its own, its owner did not even know what an industrial hygienist did. It was not until 1973-1974 that Albays owner first heard that there might be an issue regarding asbestos and health problems. Even then the information came in fragmentary form, in dribs and drabs.[11]

It would be reasonable for the jury to conclude that Exxon had superior knowledge about conditions at its own refinery. Likewise could the jury reasonably conclude that Albay could not be held to possess, or to be able to obtain, the same level of knowledge, particularly in light of the amount of control Exxon retained and exercised over how work by Albay was to be performed. Our review of the record establishes that there is substantial evidence to support the jurys determinations on this element required for premises liability under Kinsman.

The above discussion demonstrates that each of the elements for liability challenged by Exxon has the support of substantial evidence. It follows that the trial court correctly denied Exxons motion for judgment NOV. (Sweatman v. Dept. of Veterans Affairs, supra, 25 Cal.4th 62, 68; Hauter v. Zogarts, supra, 14 Cal.3d 104, 110.)

IV. There was No Instructional Error

A. The Instructions Given

The jury was instructed on plaintiffs claims as follows:

Plaintiff Merle Sandy is seeking damages based on a claim of negligence.

The plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the essential elements of his negligence claims. The essential elements of these claims are set forth elsewhere in these instructions.

In addition to these essential elements, plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the nature and extent of the damages or injuries claimed to have been suffered, the elements of the plaintiffs damage and the amount thereof.

The defendant, Exxon Mobil Corporation, has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the plaintiffs damages or injuries were caused by the defective products, fault, or wrongful conduct of others, if any, and the percentage amount thereof.

 Preponderance of the evidence means evidence presented in court that persuades you that what the party is trying to prove is more likely to be true than not true. After weighing all of the evidence, if you cannot decide whether a party has satisfied the burden of proof, you must conclude that the party did not prove that fact. You should consider all the evidence that applies to that fact, no matter which party produced the evidence.

[] . . . [] The plaintiff seeks to recover damages under the following claims of negligence: [] A, negligence of a supplier; [] B, negligent exercise of retained control; [] C, liability for a pre-existing dangerous condition.

In order to prevail, the plaintiff must prove by a preponderance of the evidence that:

One, the defendant was negligent in the supply of a product, in the exercise of retained control, or for failure to warn of a pre-existing dangerous condition.

Two, the negligence of the defendant was a cause of harm to the plaintiff, Merle Sandy.

Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.

It is the failure to use ordinary or reasonable care. Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.

You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.

[] . . . [] The amount of caution required of a person in the exercise of ordinary care depends upon the conditions that are apparent or that should be apparent to a reason ably prudent person under circumstances similar to those shown by the evidence.

One who supplies a product directly or through a third person, for another to use, which the supplier knows or has reason to know is dangerous or is likely to be dangerous for the use for which it was supplied, has a duty to use reasonable care to give warning of the dangerous condition of the use of the product or of facts which make it likely to be dangerous to those whom the supplier should expect to use the product or be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition. A failure to fulfill that duty is negligence.

A premises owner may be liable for injuries to an employee of an independent contractor if: [] One, the premises owner retains control over any part of the work; [] Two, the premises owner is negligent in the exercise of the retained control; [] And three, the negligence of the premises owner affirmatively contributed as a cause of [the] employees injuries.

A premises owner, quote, retains control, unquote, over the work when it, one, asserts affirmative control over, or actually participates actively, in the manner of performing the contracted work, or, two, when it supplies materials or equipment used by the employee.

A premises owner is responsible for injury to an employee of an independent contractor for injury caused by a pre-existing hazardous condition if: [] One, the premises owner knew, or should have known, of a latent or concealed pre-existing hazardous condition on its property; [] Two, the contractor did not know and could not have reasonably discovered this hazardous condition; [] And three, the premises owner failed to warn the contractor about the condition.

Exxon claims these instructions were deficient in several respects. The claims are unfounded.

B The General Negligence Instructions were Proper

Exxon begins by prefacing its specific arguments with a reiteration that Given the nature of plaintiffs claimpredicated on exposure to asbestosit was error to instruct on any liability theory other than set forth in Kinsman. We have already demonstrated that this general approach is erroneous. (See part III, ante.) There is no need to repeat our analysis.

However, the same thinking runs through Exxons next contention. According to Exxon, the trial court erred in instructing on general negligence. General negligence instructions are improper in an action by a contractors employee against a hirer because the Privette line of authority requires proof of additional elements beyond ordinary negligence, and, the argument runs, general negligence instructions do not advise the jury of these additional elements for liability.

Exxon may have a point, but only in the most abstract sense, and only if the argument is divorced from all other legitimate aspects of context. Exxon does not deny that Hooker and Kinsmanindeed the entire Privette line of decisionsare ultimately grounded upon negligence. The theory of liability may have evolved beyond the familiar principles of ordinary or general negligence, but it remains negligence. (See Kinsman, supra, 37 Cal.4th 659, 680 [landowner liability in this instance is measured by a negligence standard]; Hooker, supra, 27 Cal.4th 198, 201 [The question presented in this case is whether an employee of a contractor may sue the hirer for . . . negligent exercise of retained control].)

Thus, it strikes us as close to silly to send a case based on negligence to a jury without informing the jury what are the essential features of negligence. It follows that we can see no error in giving the jury BAJI 3.10 setting forth the definitions of negligence and ordinary care.[12] Certainly nothing in either Hooker or Kinsman flatly commands that the jury should not be instructed on general negligence as Exxon argues.

Moreover, we are not to view instructions in isolation, but consider them as a whole. (E.g., People v.Smithey (1999) 20 Cal.4th 936, 963-964; K. G. v. County of Riverside (2003) 106 Cal.App.4th 1374, 1379.) As shown by the instructions excerpted above, the jury was told that was seeking damages based upon claims of negligence, and that [t]he essential elements of these claims are set forth elsewhere in these instructions. It is therefore something of a misnomer for Exxon to speak of the jury being instructed on general negligence as if it were a basis of liability somehow separate or independent from Hooker or Kinsman.

Exxon next contends that the form of the general negligence instructions was in any event improper because they were not limited in scope. Exxons claim fails for two reasons.

First, as just mentioned, read in their entirety the instructions spell out the general concepts of negligence, and the specific elements under Hooker and Kinsman of the particular applications for which plaintiff was seeking damages. Second, because the instructions are legally correct, Exxon is only complaining about the possibility that they could be misunderstood or misapplied within the context of this case. That complaint cannot be made for the first time on appeal, in light of the well established rule in civil cases: when a trial court gives a jury instruction that is legally correct but is  too general, lacks clarity, or is incomplete  [citations], a party may challenge the instruction on appeal only if it had asked the trial court to give a clarifying instruction. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7; accord, Wirthman v. Isenstein (1920) 182 Cal. 108, 110-111; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1162.)

C. Exxons Special Instructions were Properly Refused

Exxon submitted a Special Jury Instruction No. 2, titled Causation, Substantial Factor. The trial court declined to give that instruction because it was contrary to Division Threes opinion in Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 (Jones). Exxon attacks this denial as error.

First of all, Exxon did not include a copy of the rejected instruction in the record on appeal. Consequently, the claim of error may be summarily rejected on the ground that Exxon has failed to carry its burden of demonstrating error by an adequate record. (E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Ballard v. Uribe (1986) 41 Cal.3d 564, 574; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  518, p. 562.) But even if the merits had been preserved for appeal, it is clear that Exxon would not prevail.

It seems apparent from the discussion in its brief that Exxon is claiming the trial court erred because it refused to use an instruction that would have advised the jury of the concept of but for causation in negligence. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239.) As it was, the trial court used the substantial factor definition of causation used for asbestos cases. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969, 982.)

In Jones, supra, 132 Cal.App.4th 990, 998, Division Three rejected the same claim Exxon makes herei.e., that the Rutherford substantial factor test can no longer stand alone, but must be given in conjunction with the far more general but for test of causation. Division Three stated:

Contrary to defendants assertion, the California Supreme Courts decision in Viner[, supra,]30 Cal.4th 1232 . . . did not alter the causation requirement in asbestos‑related cases. In Viner, the court noted that subsection (1) of section 432 of the Restatement Second of Torts, which provides that the actors negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent demonstrates how the substantial factor test subsumes the traditional but for test of causation. (Viner, supra, at p. 1240.) . . .  Viner, however, is a legal malpractice case. It does not address the explicit holding in Rutherford that plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiffs exposure to asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendants particular product were the ones, or among the ones, that actually produced the malignant growth. (Rutherford, supra, 16 Cal.4th at pp. 976-977.) Viner is consistent with Rutherford insofar as Rutherford requires proof that an individual asbestos-containing product is a substantial factor contributing to the plaintiffs risk or probability of developing cancer. (Id. at p. 977.) (Jones, supra, 132 Cal.App.4th 990, 998, fn. 3.)

Exxon argues that Jones was wrongly decided, but presents no persuasive argument compelling that conclusion. On the contrary, it is the Jones analysis that is compelling.

The trial court also declined to give a special instruction (designated Jury Instruction No. 413) requested by Exxon concerning industry custom and practice. The instruction would have told the jury: You may consider customs or practice in the community in deciding whether Exxon Mobil Corporation or Merle Sandy acted reasonably. Customs and practice do not necessarily determine what a reasonable person would have done in Exxon Mobil Corporations or Merle Sandys situation. They are only factors for you to consider. Following a custom or practice does not excuse conduct that is unreasonable. You should consider whether the custom or practice itself is reasonable.

This instruction figured only briefly in discussions between court and counsel. The record shows the following:

MR. ARMSTRONG [Counsel for Exxon]: We would ask, and we did in the last trial, ask for 411, and the next one, 413, and Judge Mitchell declined to give either of those, but we renew that.

THE COURT: And do you want to argue on that, or do you want my tentative ruling?

MR. ARMSTRONG: I would justthe only argument is I think these are basic negligence instructions and they are appropriate.

THE COURT: Okay. And I did review these and reviewed the evidence as I know it, so I am denying as to 411. Im denying as to 413.

Exxon tries to establish this refusal as reversible error. The effort fails. Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced or to articulate for him that which he has left unspoken. (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 701-702; accord, Stevens v. Owens-Corning Fibreglas Corp. (1996) 49 Cal.App.4th 1645, 1653.) Exxons request was perfunctory, and it declined the offer of the trial court to hear argument in support of the request. Exxon was similarly uninterested in hearing the ruling the court called only tentative, thus implicitly holding out the prospect that the courts opinion was not fixed in stone and could be changed.

With its greater knowledge of Exxons trial strategy, plaintiff advances several perceived defects with the instruction that would have warranted its rejection. One of those defects seems particularly telling. In its brief, Exxon claims that the industry custom or practice it meant to reference with the instruction was the five parts per million standard prior to OSHA formulating a standard. Yet a recurring theme of Exxons trial strategy is that it was never content to merely meet this standard, but was always bettering it and following its own stricter standard. The jury did not find the strategy persuasive, and there is no particular reason that the instruction would have increased its credibility. Moreover, as previously noted, Exxon is now trying to present arguments it did not bother to advance in a timely fashion to the trial court. For these reasons, we do not detect error, still less reversible error. (E.g., Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 511.)

V. The Trial Court Did Not Abuse its Discretion in Excluding

Evidence Exxon Did Not Produce During Discovery

Both of Exxons claims of abused discretion in imposing discovery sanctions relate to a high resolution CT scan (HRCT scan) that was performed on plaintiff on August 23, 2005.

In anticipation of the retrial, Exxon and plaintiff filed a number of in limine motions about the scan and derivative testimony. In its moving papers, Exxon stated that plaintiff provided the results of the test to his expert, Dr. Breyer, prior to his deposition, but did not provide it to Exxons experts, Drs. Moscow and McDonald, prior to their depositions, nor did plaintiff advise Exxon of the existence of the scan prior to Exxons deposition of plaintiffs expert. Exxon learned of the scan, and obtained it, just before the start of the first trial. Dr. Moscow reviewed the results, but Dr. McDonald did not. In light of these circumstances, Exxon requested that: (1) Plaintiff should be required to provide foundation evidence as to the HRCT scan . . . . Prior to such foundation, no reference should be permitted to the HRCT scan, and (2) If foundation be established, Dr. Moscow should be allowed to testify regarding the HRCT scan, and it should be provided to Dr. McDonald so that he may review it before his trial testimony, and Dr. McDonald should be permitted to testify regarding the HRCT scan.

Plaintiff filed written opposition to Exxons motion, and submitted his own motion concerning the HRCT scan. According to plaintiffs version, the scan was made on August 23, 2005. The following month, Dr. Breyer prepared a report based in part on the scan; the report was served that same month on coordinating medical defense counsel, Berry & Berry. In October 2005, plaintiff declined to depose Dr. Moscow, in reliance on the notes of Dr. Moscow dated September 11, 2005, previously served on plaintiffs counsel, which indicated that he [Moscow] had not reviewed any CT or HRCT of [plaintiffs] chest.

Dr. Breyer was deposed on October 12, 2005. According to plaintiffs opposition, During this deposition, Dr. Breyer testified with regards to the CT and the HRCT chest films he had reviewed. Upon concluding the deposition, the CT and HRCT films remained at the court reporting firm . . . . Two days later, Exxons counsel served plaintiffs counsel with correspondenc