Unpublished Disposition, 927 F.2d 610 (9th Cir. 1991)

BACKGROUND

Elizabeth Syverson, on behalf of herself, the estate of her deceased husband, and all statutory beneficiaries, won a jury verdict of nearly $120,000 against Celotex and Fibreboard for the death of her husband found to have been caused by the defendant's asbestos products.¹  Fibreboard now appeals, raising two grounds--erroneous evidentiary rulings and improper jury instructions. Syverson seeks an assessment of attorneys fees and double costs against Fibreboard for having brought a frivolous appeal.

DISCUSSION

Prior to trial, Fibreboard moved to exclude any references to the simultaneous death of her two sons in an automobile accident twenty-seven years before the decedent's death, and the still birth of a third son eighteen years earlier. Syverson's counsel represented that he only intended to have her mention that she lost two sons in an accident and not to go into details. The trial court denied the motion saying:

I would caution counsel, however, that we should not spend any significant amount of time on that.... There is no need to go into details or anything of the kind insofar as how the children were killed.

Counsel mentioned in opening that two sons had been killed in a car accident, and referred to another who died at birth. Syverson, in answering whether she had had children after her marriage and what their names were, testified:

I had Peter, born in 1940; I had a stillborn in 1942; and Eddie, born in 1944. And Peter and Eddie were going to college in Bremerton and they were both killed, and in a very terrible accident. One was run over--

In addition, various family photographs were admitted over objection. At the conclusion of Syverson's testimony Fibreboard moved for a mistrial as a result of the testimony about "a very terrible accident." The motion was denied.

We review evidentiary rulings for an abuse of discretion, Churchill v. F/V Fjord, 892 F.2d 763, 771 (9th Cir. 1988), cert. denied, 110 S. Ct. 3273 (1990), and will not reverse in the absence of a showing of prejudice. See Lochricchio v. Legal Services Corp., 833 F.2d 1352, 1357 (9th Cir. 1987).

Essentially, Fibreboard argues that the testimony and photographs were both irrelevant and prejudicial, and that their admission warrants reversal and a new trial. Fibreboard contends that the evidence should have been excluded under Fed.R.Evid. 401 (requiring materiality and probativeness), 402 (only relevant evidence is admissible), and 403 (some relevant evidence is inadmissible if unfairly prejudicial).

As damages are an element in any negligence case, we find the evidence relevant. Syverson claimed to have sustained a loss of consortium. This justifies the admission of this evidence as relevant to that claim--her damages are enhanced by the fact that her children, as well as her husband, are dead.² 

Fibreboard concedes that "the fact that Mrs. Syverson had no children at the time of Mr. Syverson's death might have been relevant to her loss of consortium claim." However, it argues that, even assuming such relevance, how she came to have no children is irrelevant and unduly prejudicial. Even if correct about the irrelevance of the children's accident, Fibreboard must show prejudice. Here, it failed.

Fibreboard simply offers no proof of prejudice. While it argues that " [t]his is a classic instance where Rule 403 should have been invoked," it cites no appellate decision reversing a failure to exclude under Rule 403. Here, the testimony was very brief; it does not appear to have been particularly emphasized or reintroduced in closing arguments. It only occupied one-third page in a substantial trial record. Moreover, Syverson maintains, and Fibreboard does not challenge, that her jury award was the lowest of all six reported mesothelioma verdicts in the state. In addition to the Fibreboard's failure to show affirmatively any prejudice, the size of the jury verdict tends to show that the jury was not inflamed.

Therefore, we find no error in the challenged evidentiary rulings or the denial of the motion for a new trial.

In reviewing the propriety of jury instructions, we consider whether the instructions, as a whole, are "misleading or incorrectly state [ ] the law to the prejudice of the objecting party." Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir.), corrected on other grounds, 773 F.2d 1049 (1985) (citation omitted). To the extent the instructions incorporate state law, the court's application of state law is reviewed de novo. In Re McLinn, 739 F.2d 1395, 1397 (9th Cir. 1985) (en banc).

Fibreboard contends that the trial judge erred by instructing the jury that

A manufacturer or seller's duty to warn and provide adequate directions for safe use may not be delegated to an employer or other third party.

Instruction No. 16. This instruction, Fibreboard says, prejudiced it by foreclosing its theory of the case which was that there was no duty to warn decedent when it "reasonably believes that an employer, union, or other entity knew of asbestos hazards and was able to warn and protect the worker."

Fibreboard claims that, by stating "an obsolete strict liability concept of a manufacturer's duty to warn," the court's instruction misstates Washington law which, since the 1981 Tort Reform Act, adopts a negligence standard. For this proposition it cites Wash.Rev.Code Ann. Sec. 7.72.030(1) (b) (Supp.1990) which provides

A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.

The controlling decision, Lundberg v. All-Pure Chemical Co., 55 Wash. App. 181, 183, 777 P.2d 15, 18, review den., 113 Wash. 2d 1030, 784 P.2d 530 (1989), however, holds that, because Sec. 7.72.030(1) (b) focuses on the condition of a product and not the conduct of its manufacturer, it employs a strict liability standard. See also Ayers v. Johnson & Johnson Baby Products, 59 Wash. App. 287, 294, 797 P.2d 527, 531 (1990) ("Confusion created by legislative tinkering should have been erased by now; liability under Sec. 7.72.030(1) (a) & (b) rests on traditional strict liability principles in which the concept of negligence plays no part.") (citation omitted), review granted, 116 Wash. 2d 1001 (1991).

The Tort Reform legislation specifically "modifie [d] previous existing applicable law on product liability only to the extent set forth in the chapter." Lundberg, 55 Wash. App. at 184, 777 P.2d at 17 (citing Sec. 7.72.020(1)) (emphasis added). Since controlling Washington law provides that Sec. 7.72.030(1) (b) maintains the strict liability standard, it is reasonable to assume that the law in this respect did not change. Therefore, pre-act law, which Fibreboard cited for the purpose of contrasting with what it believed to be current law, is applicable.

The standard and reasoning behind a strict liability approach to warnings is set forth in Campbell v. ITE Imperial Corp., 107 Wash. 2d 807, 733 P.2d 969 (1987) which provides:

The manufacturer bears responsibility for affixing an adequate warning to its product, see Teagle v. Fischer & Porter Co., 89 Wash. 2d 149, 155, 570 P.2d 438 (1977), and this duty generally is not delegable. Minert v. Harsco Corp., 26 Wash. App. 867, 874, 614 P.2d 686 (1980). Thus, it would be anomalous to hold that an employer's failure to warn constituted a superceding cause. But see Little v. PPG, Indus., Inc., 19 Wash. App. 812, 579 P.2d 940 (1978) (failure of employer who has actual knowledge of hazard to warn employees may constitute a superceding cause), modified, 92 Wash. 2d 118, 594 P.2d 911 (1979). Such a rule might improperly shift the duty of warning to product purchasers. Although such a purchaser might be held jointly liable for breach of its duty to warn, its negligence generally should not relieve the manufacturer of liability for failure to warn.

107 Wash. 2d at 814, 733 P.2d at 973. Indeed, Fibreboard concedes that " [i]t is appropriate under a strict liability standard to instruct the jury that the manufacturer's duty to warn is nondelegable." Since Sec. 7.72.030(1) (b) employs a strict liability standard this concession is dispositive. Fibreboard is mistaken in assuming that Sec. 7.72.030(1) (b) adopts a negligence standard.

Because the statute maintains the traditional strict liability approach, the district court did not err in instructing the jury that the duty to warn is nondelegable.

3. Syverson's Request For Fees and Double Costs

Pursuant to Fed. R. App. P. 38, Syverson moves for attorney's fees and double costs. We have held that " [a]n appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit." DeWitt v. Western Pacific Railroad Co., 719 F.2d 1448, 1451 (9th Cir. 1983). Syverson argues that defendants' primary motivation has been to delay payment of the judgment. There is no evidence of such a motivation. Moreover, this appeal does not appear to be the sort characterized as a "knee-jerk-reaction to [an] unfavorable ruling." Simon & Flynn Inc. v. Time, Inc., 513 F.2d 832, 835 (2d Cir. 1975). Fibreboard's evidentiary issue is colorable. As to the jury instruction issue, there were reasonable grounds to appeal. We accordingly deny the motion for attorney's fees and double costs.

CONCLUSION

The judgment in favor of Syverson against Fibreboard is AFFIRMED.