By Brian Craig, J.D.
The trial court did not err by precluding the distributor of the machine from introducing evidence of industry custom or practice.
In a wrongful death suit brought by the children of a worker who died when he was dragged into a rock crushing machine at his employer’s asphalt production plant, a California appellate court affirmed a $30-million jury verdict in favor of the children, $20 million of which was awarded against the distributor of the rock crusher. In a decision designated as not for publication, the appeals court concluded that the trial court did not err by precluding the distributor from introducing evidence of industry custom and practice when the distributor failed to show with any specificity what evidence it believed had been improperly excluded. In affirming the jury verdict, the appeals court also concluded that substantial evidence supported the damages award based on the testimony and evidence presented during trial (Anaya v. General Equipment & Supplies, Inc., October 8, 2019, Currey, J.).
The decedent was a 34-year-old father of three who was crushed to death while he was working at an asphalt facility in Corona, California. The fatal injuries occurred when his pant leg became entrapped between the moving parts of the conveyor system, resulting in multiple, traumatic crush injuries and, eventually, mechanical asphyxia. The worker’s children filed suit against the distributor of the machine and the man’s employer, alleging claims for products liability, negligence, and negligence per se based on violations of applicable California regulations.
The jury returned a $30-million verdict in favor of the plaintiffs for the products liability claim, finding that the distributor was 70 percent at fault and that the employer was 30 percent at fault [see Products Liability Law Daily’s March 22, 2018 analysis]. The trial court entered judgment of $20,250,000 against the distributor. The distributor appealed, arguing that: (1) the trial court erred by precluding the distributor from introducing evidence of industry custom and practice; (2) the trial court erred by excluding evidence of the man’s criminal history and incarceration; and (3) the jury award was excessive as a matter of law.
Industry custom and practice. The appeals court first held that the distributor failed to demonstrate that the trial court had abused its discretion by excluding evidence of industry custom and practice. The distributor failed to show with any specificity what evidence of industry custom and practice it believed had been improperly excluded. Furthermore, the distributor failed to link the evidence of industry custom and practice to any relevant strict products liability inquiry, such as the jury’s evaluation of whether the product was designed as safely as it should be, considering the feasibility and cost of alternative designs. The California Supreme Court has recognized that while industry custom and practice evidence is not categorically inadmissible, neither is it categorically admissible. The party seeking admission of such evidence must establish its relevance. The evidence may not be introduced simply for the purpose of showing that the manufacturer was acting no worse than its competitors, however.
The evidence introduced at trial established that the safety features that were lacking on the machine—i.e., an e-lock or an interlock—were inexpensive and feasible. Witnesses testified that an e-stop was feasible and would cost about $2,000. Another witness testified that the cost of installing an interlock was minimal ($10 to $20) and that he could not think of a good reason for the machine not to have such a device installed on it. Moreover, the salesman for the distributor testified that he was aware that the design posed a risk of death to the worker. Thus, the trial court did not abuse its discretion in excluding evidence of industry custom and practice, as the distributor suffered no prejudice.
Criminal history. The appeals court also found that the trial court did not abuse its discretion by excluding evidence of the worker’s criminal history and history of incarceration. It was not reasonably probable that a result more favorable to the distributor would have been reached had that evidence been presented.
Excessive award. Finally, the appeals court concluded that the jury’s award was not excessive as a matter of law based on the given evidence. In a wrongful death action, the jury may award such damages as may be just under all the circumstances of the case. The court defers to the jury’s discretion in the absence of some other factor in the record, such as inflammatory evidence, misleading instructions, or improper argument by counsel, that would suggest the jury relied upon improper considerations. Here, the appeals court agreed with the trial court that substantial evidence supported the damages award. The decedent’s friends and family, including his three children, had testified about what his loss meant to the children. Additionally, the children had testified about their close relationship with their father.
The appeals court also found that the jury award was not excessive based on alleged improper statements made during closing arguments. The distributor argued that statements made by the opposing counsel excited the jury’s passion and prejudice against the distributor and injected improper considerations into their deliberations. But by failing to object to statements during trial, the distributor waived its contention that the statements were improper. Even if the distributor had objected to the statements, the court found that the company was not prejudiced by any statements made during closing argument. The trial court expressly instructed the jury that what parties say in closing argument is not evidence. Accordingly, the court of appeals affirmed the jury verdict award.
The case is No. B291274.
Attorneys: Donald G. Liddy (Liddy Law Firm) for Johnny Anaya. Kirk C. Jenkins (Horvitz & Levy LLP) for General Equipment & Supplies, Inc.
Companies: General Equipment & Supplies, Inc.
MainStory: TopStory DamagesNews IndustrialCommercialEquipNews EvidentiaryNews DesignManufacturingNews CaliforniaNews
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