FIRST APPELLATE DISTRICT

DIVISION FOUR

This product liability case against the manufacturer of silicone gel breast implants has been twice tried. The first jury returned special verdicts for the defense on strict liability and fraud, but hung on the causation element of the negligence count. (Valentine I.) The second jury returned a special verdict for the defense on negligent design and manufacturing, but deadlocked on negligent failure to warn and hung on the causation element of the negligent testing and inspection count. (Valentine II.)

Several questions never before decided emerge: Did the court presiding over the first trial have the power to accept special verdicts on some causes of actions, reserve judgment until termination of the entire action, declare a mistrial as to the remaining causes of action and then order a limited retrial? Did the defense verdict in the first trial on strict liability failure to warn subsume the cause of action for negligent failure to warn so that the court presiding over the second trial was within its authority to direct a defense judgment on that negligence count? Did that court also correctly direct a defense judgment on negligent testing and inspection upon concluding that a failure to test or inspect, standing alone, cannot cause injury? In the published portion of this opinion, we resolve that the trial court was within the law and its authority on these matters. Concluding that no prejudicial errors were committed with respect to other matters, we affirm the judgment.

In early 1975, after the birth of her son, Mildred Valentine (Mrs. Valentine) consulted Dr. Foster about having a "breast lift" or maximum mastopexy. Dr. Foster explained that the procedure would involve hospitalization, general anesthesia and two-to-three incisions in each breast. Dr. Foster also informed Mrs. Valentine of the alternative of the silicone breast implant, performed in the office with local anesthesia.

Dr. Foster advised Mrs. Valentine about the risks attendant to the implant procedure, including infection, contracture, hematoma and numbness. He never told her that implants were perfectly safe. Nor did Dr. Foster refer to any risk that the gel could migrate or bleed out into the body. However, at that time he had no knowledge of the concept of gel bleeding or migration, other than upon rupture of the implant. Dr. Foster has always kept abreast of the literature and developments in the area of plastic surgery, primarily by reading journals and attending continuing education seminars and conventions. During the time he treated Mrs. Valentine, he never came across any information that silicone implants caused systemic illness.

On January 22, 1975, Mrs. Valentine underwent the augmentation surgery with silicone breast implants manufactured by Heyer-Schulte Corporation (Heyer-Schulte). Shortly thereafter, she developed one of the complications Dr. Foster warned about—capsular contracture in the left breast. Dr. Foster performed an open capsulotomy procedure in March 1975. This entailed removing the implant, dividing the scar tissue and inserting a new implant. To reduce further contracture, Dr. Foster injected cortisone into the left breast pocket; a week later he injected an antibiotic into the pocket to eliminate a staph infection.

Nevertheless, contracture returned to the left side. This time Dr. Foster performed a closed capsulotomy, squeezing the breast to rupture the excess scar tissue. Four years later he again performed a closed capsulotomy, once on both sides, and a month later on one side.

Mrs. Valentine was diagnosed with lupus around 1976.

Dr. Rizk, a pulmonary care specialist, began treating her in 1991. Due to the severity of her lung disease, Dr. Rizk decided the breast implants should be removed and on August 18, 1992, Dr. Ramos, a plastic surgeon, performed the exploration. He reported that the implant shells were intact—not ruptured. There was no evidence of silicone outside the scar capsule, and no tissue or defects associated with the implants. When he opened the scar capsule to remove the implant, Dr. Ramos did observe some sticky gel material on the outside of the implant. Although he assumed the material would come in contact with the inside of the scar capsule, he did not see any silicone anywhere else and did not think a tissue biopsy was necessary.

Nonetheless, in December 1995 appellant underwent an MRI scan to determine if there was any silicone left behind after the implants were removed. Dr. Middleton performed the MRI. He found a granuloma, a "silicone soaked scar, a massive tissue which has silicone all through it . . . ." However, Dr. Middleton was not sure if the granuloma was located just outside, or outside and separated from, the capsule. In January 1996 Dr. Emery removed the granuloma. He described the location as in the capsule and resting up against the pectoral muscle but not penetrating the muscle. Dr. Emery sent the specimen to Dr. Ortega, a pathologist, for analysis. Analyzing the granuloma specimen, Dr. Ortega diagnosed a foreign body reaction consistent with the presence of silicone and typical of what is seen in women with silicone breast implants. The granuloma was attached to the capsule or scar tissue; it was not attached to the muscle tissue, and there was no evidence of silica.

Experts at both trials testified that: (1) Mrs. Valentine had lupus; (2) lupus is appreciably more common in women (particularly young women) than men and more common in African-American women [Mrs. Valentine was African-American]; (3) Mrs. Valentine suffered symptoms of lupus before undergoing the implant process; (4) the epidemiological studies indicate there is no causal relationship between breast implants and autoimmune diseases such as lupus; and (5) Mrs. Valentine’s symptoms did not improve significantly upon removal of the implants.

Heyer-Schulte was formed in 1962. It manufactured a variety of silicone products for implantation in humans, including hydrocephalic shunts, penile prostheses, kidney shunts, urethral stents as well as custom devices. The quality assurance department answered directly to the president, not to the production unit. The company had a quality assurance program for raw materials as well as finished goods, with various checks at different phases of the manufacturing process. For example, Heyer-Schulte quarantined the raw silicone components upon receipt from the supplier, and then, as to each batch, tested the physical properties of the raw material to determine if it conformed with vendor specifications. In particular, the incoming silicone gel materials were tested to determine the proper ratio between the components in order to attain the proper gel consistency. As well, tests for acute toxicity were conducted by outside contractors. Upon receipt of certification on the toxicity tests, the raw materials were released to production.

The mix ratio was then set on the mixer machine, the components were added and a sample was taken and run through curing to determine if the proper consistency was actually being delivered. Periodically, during the process of filling the shells, samples were taken and cured to again ensure proper consistency. Finally, the prostheses produced on a given day were oven cured and destructive testing was performed on implants from each lot to verify proper curing.

Silicone polymer, used in the Heyer-Schulte breast implants, is a stable material that will not degrade unless exposed to extreme temperatures, very strong acid or a strong base with critical heat. It resists migration through an aqueous environment such as the human body. Silicone polymer was first used medically during World War II for treatment of burns and gastrointestinal wounds.

Silicone gel will not degrade into silica under any conditions present in the body’s breast cavity. However, all silicone gel-filled breast implants will bleed microscopic amounts of silicone to the outside of the elastomer shell. But even the microscopic quantities of gel bleed do not degrade into silica.

There was a substantial body of scientific and medical literature published between 1948 and 1974 on silicone as a biomaterial. These studies covered different animal species, different routes of administration, different forms of silicone (e.g., fluid, resin), and effects on various body functions. By January 1975, there was sufficient knowledge of silicone as a biomaterial such that it was reasonable for a manufacturer of medical devices to conclude silicone was safe to use for human implants.

This pre-1975 research confirmed that silicone in the body caused only a localized foreign body reaction. There was no evidence that silicone caused systemic ill effects.

By 1975 the medical community had 10 years of clinical experience with silicone gel breast implants. As of that time there were no reports of systemic disease in implanted patients. The first case report of implanted patients with any systemic disease was published in 1982 describing three women who coincidentally developed autoimmune connective tissue disorders after implantation. By the time of the second trial in this case, over 30 controlled epidemiological studies had been conducted, none showing a statistically significant risk of systemic disease in the breast-implanted population.

In June 1992 Mrs. Valentine and her husband sued Heyer-Schulte, Baxter and others for personal injuries caused by the silicone breast implants. Twice the case went to a jury.

At the close of the first trial, the jury returned defense verdicts on strict liability (failure to warn or manufacturing defect) and fraud. As to negligence, the jury found Baxter was "negligent in failing to exercise reasonable care in the design, manufacture, testing or inspection of the product or in failure to adequately warn," but hung on the issue of causation. The trial court found that the several causes of action were severable, entered "interlocutory judgment" in favor of Baxter on the fraud and strict liability causes, but declared a partial mistrial on the negligence cause.

The issues of negligence in the design and manufacture of the implants as well as negligent failure to warn were submitted to the second jury. It determined Baxter was not negligent in designing or manufacturing the implants, but after seven days of deliberation the jury was unable to reach a verdict on negligent failure to warn. At this juncture, at the request of plaintiffs’ counsel, the court added a question to the special verdict form: "Were the Defendants negligent in failing to exercise reasonable care in testing and inspecting Plaintiff’s breast implants?"

The jury remained at impasse on negligent failure to warn. Although it voted nine to three that Baxter was negligent in testing or inspecting, it split eight to four on causation. The court declared a mistrial. Subsequently, on Baxter’s motion, the court directed entry of judgment in favor of Baxter as a matter of law on these causes of action. This appeal followed denial of the Valentines’ motion for new trial.

Can a trial court declare a partial mistrial and reserve judgment on some, but not all, causes of action pending a second trial? This issue has never been resolved by an appellate court of this state. The answer is: "Yes, it can."

We begin by surveying the myriad procedural devices that vest trial courts with authority to partially resolve issues in cases before them. (See discussion, Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 324-325.) First, at the pretrial stage a court can eliminate causes of action and defenses on demurrer and through motions for summary judgment or adjudication. (Code Civ. Proc., §§ 430.50, 437c, subd. (f).) A trial court can also bifurcate the trial for discrete resolution of special defenses or any issue or part of an issue. (§§ 597, 597.5, 598.)

During trial a court can grant a nonsuit in a defendant’s favor as to some or all of the issues involved in the action. (§ 581c, subd. (b).) As with the directed verdict (see below), if the partial nonsuit is granted, final judgment is postponed until termination of the action at which time judgment is awarded as determined by any matters in the trial as well as by the order for nonsuit. (Ibid.) Similarly, in a court trial after a party has completed presentation of evidence, the court can grant a motion for judgment as to some but not all of the issues in the action. (§ 631.8, subd. (b).) Again, the final judgment shall reflect matters resolved by the motion as well as any matters determined in the trial. (Ibid.)

The court likewise has discretion to direct the jury to find a special verdict upon all, or any of the issues. (§ 625.) Section 628 provides in relevant part: ". . . [U]pon receipt of a verdict, an entry must be made in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length; and where special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it."

Posttrial, a court may grant a directed verdict as to some or all of the issues. (§ 630, subd. (b).) In the event of a partial directed verdict, "no final judgment shall be entered prior to the termination of the action, but the final judgment, in addition to any matter determined in the trial, shall reflect the verdict ordered by the court as determined by the motion for directed verdict." (Ibid.) If the jury has been discharged without rendering a verdict, the court, on its own motion or upon motion of a party, can direct judgment in favor of a party where a directed verdict would have been proper. (Id. subd. (f).)

A court can also render judgment notwithstanding the verdict whenever a motion for directed verdict should have been granted had such a motion been made. (§ 629.) This authority includes the authority to grant a partial judgment notwithstanding the verdict, since the court can grant a directed verdict as to some, but not all, of the issues. (Beavers v. Allstate Ins. Co., supra, 225 Cal.App.3d at pp. 322, 323.)

Finally, a trial court can grant a new trial on all or part of the issues (§ 662) and, on appeal, an appellate court can reverse the judgment on some or all of the issues. The appellate court may also order a retrial on a limited issue (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801), or order that a different judgment be entered on a limited issue (Noack v. Zellerbach (1936) 14 Cal.App.2d 249, 251-252).

As explained in Beavers, since 1965 the Legislature has consistently expanded the trial court’s ability to partially resolve the issues before it. (Beavers v. Allstate Ins. Co., supra, 225 Cal.App.3d at pp. 324-328.) And, where appellate courts expressed concern that, for example, the one final judgment rule would be violated by granting partial nonsuits (see Estate of Jamison (1953) 41 Cal.2d 1, 5-6), the Legislature stepped in, decreeing that despite granting the nonsuit motion, final judgment could not be entered until termination of the action (§ 581c, subd. (b), as amended by Stats. 1980, ch. 187, § 1, p. 409). Similarly, the Legislature has provided the means to satisfy the one final judgment rule while simultaneously allowing partial resolution of issues in the case of motions for judgment in a court trial (§ 631.8, subd. (b), as amended by Stats. 1980, ch. 187, § 2, p. 410) and motions for directed verdict (§ 630, subd. (b), as amended by Stats. 1986, ch. 540, § 12, p. 1936). Where the Legislature has not closed the gap between partial resolution of issues and the one final judgment rule, reviewing courts have. (See Horton v. Jones (1972) 26 Cal.App.3d 952, 956-957, 959, and discussion thereof in Beavers v. Allstate Ins. Co., supra, 225 Cal.App.3d at p. 326 [defendant found liable in first phase of bifurcated trial pursuant to section 598 moved unsuccessfully for judgment notwithstanding the verdict and attempted an appeal before trial of the damages phase. The reviewing court held that an interim appeal would defeat the purpose of bifurcated proceedings. Thus, after the first stage of a bifurcated proceeding, the trial court should enter a minute order but not a judgment, then proceed with trial of the remaining issues, with entry of final judgment awaiting terminating of the action].)

Although the power of the trial court to direct the jury to find a special verdict is not 100 percent analogous to its power to direct a verdict or grant a nonsuit or a motion for judgment notwithstanding the verdict, it is similar. The court can direct the jury to find a special verdict "upon all, or any of the issues"—thus, the statutory scheme contemplates a partial special verdict. (§ 625.) Upon receipt of a special verdict and entry in the court minutes, the court can render judgment thereon where appropriate or order the special verdict reserved, with the case proceeding for argument or further consideration. (§ 628.) This procedural device is not inconsistent with accepting and reserving the special verdict on discrete causes of action, then proceeding with retrial as to remaining causes of action on which the jury hung.

We must point out, however, that here the court initially directed special verdicts on all the issues. It was not until the court learned that the jury had answered all questions but one and could not agree on it, that it directed the jury to sign and return the partial verdict on causes of action upon which it did reach resolution. That verdict indicated that the jury had determined all conclusions of fact pertaining to the strict liability and fraud causes of action. The court then accepted and entered those verdicts. Nothing remained but for it to draw the legal conclusion of nonliability as to Baxter on those counts. (§ 624.) The court’s power to proceed in this matter was not outside the scope of sections 625 and 628 permitting direction to find a special verdict on some of the issues, and receiving and entering that verdict in the minutes as the conclusive adjudication of those causes of action pending entry of final judgment upon termination of the case after retrial. Indeed, in Phelps v. Superior Court (1982) 136 Cal.App.3d 802, 814, the reviewing court validated separate special verdicts which the jury returned on certain issues even though remaining special verdicts were not properly determined, thus necessitating retrial of those issues.

The question becomes, then, whether the causes of action subject to the special verdicts were, as the court ruled, severable such that the negligence cause could be separately retried. They were.

There is no constitutional impediment to a retrial of a limited issue, so long as that issue is sufficiently distinct and severable from the others that a limited retrial would not result in an injustice. (Gasoline Prods. Co. v. Champlin Co. (1931) 283 U.S. 494, 499-500; Brewer v. Second Baptist Church, supra, 32 Cal.2d at p. 801.) And, where special verdicts on one matter do not depend on inconclusive special verdicts on another matter, the remaining matter can properly be determined on retrial. (See Phelps v. Superior Court, supra, 136 Cal.App.3d at pp. 814-815 [comparative negligence special verdicts were not dependent upon determination of special verdicts on punitive damages, which were inconclusive; thus issues concerning punitive damages could be separately submitted for retrial].)

The trial court correctly ruled that negligence was separate and severable from the independent causes of action for strict liability and fraud. It was separately pled, separately covered on the verdict form, and subject to separate instructions. Negligence and strict liability form independent bases of liability. Appellant cites Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530 for the proposition that a plaintiff "forced" to retry a negligence count should be allowed to pursue again the strict liability count. There, the jury specially found there was no defect in the subject vehicle at the time it was manufactured and sold, but that both the manufacturer and servicing dealer had been negligent. However, the trial court did not instruct on contributory negligence. The Supreme Court reversed for failure to deliver contributory negligence instructions and further stated: "Considerations of fairness also convince us that [plaintiff] should not be precluded from again pursuing his strict liability theory. . . . [W]e cannot say, upon this record, that the jury clearly reached a conclusion that any basis of strict liability was lacking; moreover, this strict liability theory is closely linked with that of negligence on the basis of the evidence adduced. Further, the similarity of evidence on the alternative theories at the first trial persuades us that no significant judicial time would be saved by precluding assertion of a strict liability count on retrial." (Id. at p. 553.)

We are not in the Hasson situation. First, the retrial has already occurred. Second, the record is clear that strict liability was eliminated as a basis of liability. To not honor the jury’s verdict on those counts would mean the defendant would lose an advantage fairly won. Third, retrial in Hasson was necessitated by instructional error as opposed to a hung jury.

Nor are we in the situation presented in Falls v. Superior Court (1987) 194 Cal.App.3d 851, a case where the partial special verdict failed to dispose of all elements of a single cause of action for negligence. There, the jury resolved the issue of defendant’s negligence but did not resolve the issue of liability in plaintiff’s favor since it did not reach the issue of plaintiff’s comparative negligence, if any, or the contributory negligence of the settling defendant. (Id. at p. 855.)

Further, contrary to appellant’s suggestion, there has been no denial of the right to have a decision upon the facts from the jury that hears the evidence. Appellant refers us to the case of European Beverage, Inc. v. Superior Court (1996) 43 Cal.App.4th 1211, 1214. After conclusion of the first phase of a bifurcated court trial, the trial judge who determined plaintiff’s ownership interest in a corporation was reassigned to another department. Defendants unsuccessfully sought to prevent transfer of the case to a new judge. On their petition for writ of mandate, the reviewing court accorded them relief, holding that absent a waiver or stipulation, a party is entitled to have the same judge try all phases of a bifurcated trial that depend on weighing evidence and determining credibility. If that judge is unavailable, a mistrial is in order. (Id. at p. 1213.) The court relied on the concept that where there has been an interlocutory judgment subject to modification prior to entry of final judgment, it is a denial of due process for a new judge to render final judgment without having heard all the evidence. (Id. at p. 1214.) To reiterate, although the trial court in this case said it was entering "interlocutory judgment," in substance it determined as a matter of law from the special verdicts on fraud and strict liability that those causes of action had been conclusively resolved and adjudicated in Baxter’s favor, and reserved entry of judgment pending further consideration of the negligence count, all in accordance with sections 624 and 628. The decision on those causes of action was not subject to further modification and thus there was no denial of due process in having the remaining cause of action tried by another jury.

Appellant also contends that there is no legislative authority for declaring a partial mistrial. Section 616 provides that where the jury is discharged without having rendered a verdict, the action may be tried again immediately or at such time as the court directs. Of course section 616 does not say that partial retrials cannot be ordered. It makes no sense to narrowly construe this statute in a manner that is at odds with the trial court’s ability to partially resolve matters before it and thus contain the issues for future determination. Not only is our decision today consistent with the statutory scheme on special verdicts and consistent with the legislative trend to craft procedural devices to enable partial resolution of issues when appropriate, it also advances the policy of this state to promote judicial economy. Where jury efforts on special verdicts can be preserved rather than lost and issues thus narrowed upon which evidence must be taken at trial and upon which a second jury must deliberate and decide, the burden on the parties and the courts is reduced.

We next take up the matter of the directed judgment against appellant on negligent failure to warn. The precise issue is whether the negative finding on strict liability failure to warn in Valentine I subsumed the negligent failure to warn theory and thus exonerated Baxter of any liability for failure to warn.

In arguing for a limited scope of retrial that would omit negligent failure to warn, Baxter claimed just that, but the Valentine II court disagreed and sent all five negligence theories to the jury. Then, after the jury deadlocked on negligent failure to warn as well as whether any negligence in testing or inspection caused injury to Mrs. Valentine, the court granted the defense motion for directed judgment pursuant to section 630, subdivision (f). We conclude the directed verdict on negligent failure to warn was correct because the strict liability verdict in Valentine I foreclosed a finding of negligent failure to warn.

The Valentine I jury was instructed as follows on strict liability/failure to warn: "A product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer knows or should have known of the danger but fails to give adequate warning of such danger. [¶] A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer is either aware or should be aware, and that would not be recognized by the ordinary user. [¶] A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution. [¶] In the case of silicone breast implants, such [a] warning must be given to the physician."

Later, after the jurors commenced deliberations, they asked the court, with regard to strict liability duty to warn, whether that duty includes "continuous duty as long as product in use? (it’s defined that way for question #3 [negligence] but it’s not defined in question #1 [strict liability])." The judge answered the question in writing and returned it to the jury: "The duty to warn physicians is a continu[ous] one."

The court instructed the Valentine I jury on negligent failure to warn, as follows: "One who supplies a product . . . which the supplier knows or has reason to know is dangerous or is likely to be dangerous for the use for which it is supplied, has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those who the supplier would expect to use the product or to be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition." "A manufacturer’s duty to warn is a continuous duty which lasts as long as the product is in use."

Under the strict liability/duty to warn instructions, the verdict in the first trial disposed of any liability for failure to warn. First, contrary to appellant’s assertion, the court expansively advised the jury that under any theory, the duty to warn physicians was a continuous duty as long as the product was in use. Appellant argues that the finding that Baxter was not liable for failure to warn was capped at 1975 (date of Mrs. Valentine’s implant) under the strict liability instructions tying the duty to warn of side effects to what was scientifically knowable at the time of manufacture and distribution. But again, the judge specifically told the jurors that the duty to warn physicians was continuous. This additional instruction thus modified the instruction about scientific knowledge at the time of manufacture and distribution. Therefore, under the modified instructions, as more information about adverse effects develops over time, the manufacturer must continue to provide physicians with warnings, at least so long as it is manufacturing and distributing the product.

Second, the strict liability definition of defective product, coupled with instructions on the strict liability duty to warn physicians of the potential risks or side affects of silicone breast implants that were "known or knowable," more than subsumed the elements of duty to warn set forth in the negligence instructions. The court defined a product as defective if its use involved a substantial danger that would not be readily recognized by the ordinary user and the manufacturer knows/should have known of the danger but fails to warn. Under the negligence warning instructions, the manufacturer was charged with knowing/having reason to know that the product is dangerous or likely to be dangerous for its intended use.

To begin with, we fail to see a real difference between warning to ordinary users about a product use that involves a substantial danger, and warning about a product that is dangerous or likely to be dangerous for its intended use. The former warning centers on the term "use." A product whose use involves a substantial danger may or may not harm any particular user. The latter warning centers on (1) the dangerous condition of the product, or (2) facts likely to make the product dangerous. Again, under the "likely" prong, the product may or may not harm any particular user. As a practical matter then, the difference in the two concepts is so small as to make no difference.

Moreover, we disagree with appellant’s assertion that the jury may have decided that the "ordinary user" referred to in the strict liability instructions did not include people highly susceptible to autoimmune disease. This argument makes no sense. In the case of prescription drugs and implants, the physician stands in the shoes of the "ordinary user" because it is through the physician that a patient learns of the properties and proper use of the drug or implant. Thus, the duty to warn in these cases runs to the physician, not the patient. (See Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1116, 1118.) In any event, even if we were to construe "ordinary user" as the patient, we would not conclude that the instruction is drawing a distinction between ordinary people and highly susceptible people in terms of danger from product use. Rather, taken this way, the instruction is drawing a distinction between what an ordinary person would recognize as dangerous in the reasonably foreseeable use of the product, as opposed to what a moron or a person with special knowledge or training, would recognize.

Further, the finding of the Valentine I jury that the implants were not defective due to Baxter’s failure to warn included the finding that Baxter discharged its duty to warn of potential risks or side effects which were "known or knowable . . . ." The manufacturer’s duty, per strict liability instructions, to warn of potential risks and side effects envelopes a broader set of risk factors than the duty, per negligence instructions, to warn of facts which make the product "likely to be dangerous" for its intended use. A "potential" risk is one "existing in possibility" or "capable of development into actuality," while a product "likely" to be dangerous will "in all probability" or "probably" be dangerous. Stated differently, if Baxter adequately warned of potential risks and side effects, it of necessity warned of facts likely to render the product dangerous to the user. But conversely, one could discharge the duty to warn of likely risks without discharging the duty to warn of potential risks. In sum, the manufacturer’s strict liability duty to warn is greater than its duty under negligence, and thus negligence requires a greater showing by plaintiffs.

Moreover, the "known or knowable in light of" language in the strict liability instruction at a minimum encompasses the "knows or has reason to know" language in the negligence instruction. Under a negligence standard, a reasonable manufacturer would not be charged with knowing more than what would come to light from the prevailing scientific and medical knowledge. As explained in Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003: "Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about. Strict liability is not concerned with the standard of due care or the reasonableness of a manufacturer’s conduct. The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. Thus, in strict liability, as opposed to negligence, the reasonableness of the defendant’s failure to warn is immaterial." (Fn. omitted.)

Finally, appellant’s authority to the contrary is inapposite. First, Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1802, 1826-1828. Although the plaintiff in that case apparently proceeded against the defendant on a strict liability theory for design defect and failure to warn, the special verdict simply indicated there was no design defect. However, the jury did find for the plaintiff on the negligence count. Several negligence themes were argued, including failure to equip the crane with a special device, failure to give adequate warning and failure to conduct an adequate retrofit campaign. The reviewing court concluded that the no design defect finding did not preclude a negligence verdict because failure to conduct an adequate retrofit campaign could constitute negligence apart from the issue of design defect. Unlike Hernandez, here we have a jury finding of no strict liability for failure to warn, which finding cannot admit a companion finding for negligent failure to warn. Thus, Hernandez does not pertain. Next, to a similar effect is Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 382, 385 (plaintiff entitled to negligence instructions; on what were in effect strict liability instructions for manufacturing defect, jury could have found that the ladder in question was not defective when sold because it was safe for use on hard ground, while simultaneously finding manufacturer should have warned against its use on soft ground).

The trial court instructed the jury in Valentine II along the lines of the language of BAJI No. 9.21 (8th ed. 1994) that a "manufacture[r] of a product that is reasonably certain to be dangerous if negligently made has a duty to exercise reasonable care in the . . . testing and inspection of that product . . . so that the product may be safely used in a manner and for a purpose for which it was made." The comment to BAJI No. 9.21 indicates that the testing and inspection aspect of the instruction derives from two sources. First is Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724, 730, where the issue was whether the evidence would support a finding of negligence due to defective design or failure to caution about the safety factors involved in operating the gas burner. In resolving the negligence question, the court held that the duty of care owed by a manufacturer to users of its product "requires reasonable care to be exercised in assembling component parts and inspecting and testing them before the product leaves the plant." (Id. at p. 736.)

Second is the Restatement Second of Torts section 396, having to do with the effect of a third party’s duty to inspect. As explained in comment (b), the inspection duty is tied inextricably to a manufacturer’s other duties: "The fact that the inspection, if made, would have disclosed the dangerous character of the chattel and enabled him who owed the duty to correct the defect or give a warning or instructions which would have made it possible to use it safely, subjects the one who fails to perform the duty to liability for physical harm resulting to those to whom the duty is owed." Thus, the duty of testing and inspecting has no significance apart from the results of the product’s design, manufacture and the relevant warnings. And, in these activities, Baxter is charged constructively with the best scientific and medical knowledge, and with knowledge of substantial dangers involved in the implant’s reasonably foreseeable use of which Baxter, as manufacturer, should be aware, but that the ordinary user would not recognize. Since Baxter has been exonerated of liability for manufacture, design and warning, nothing remains upon which to hang the testing and inspection duties.

This concept has been cogently framed by the district court in Kociemba v. G.D. Searle & Co. (D. Minn. 1989) 707 F.Supp. 1517. The jury returned a defense verdict for negligent design and manufacture, while rendering a plaintiff’s verdict on negligent failure to warn and negligent testing and inspection. On defendant’s motion for judgment notwithstanding the verdict as to negligent testing and inspection, the court had this to say: "The Court elevated the duty to test to an independent cause of action by including an interrogatory on the special verdict form asking whether [defendant’s] negligent failure to test caused plaintiff’s injuries. [¶] Presumably, the reason that manufacturers are under a duty to test their products is to discover defects or dangers associated with [the] use of the products. Once the manufacturer has discovered a defect or [a] danger the manufacturer should either change the product’s design or manufacturing process, or warn consumers of the danger associated with using the product. [¶] Thus, unless the manufacturer’s breach of its duty to test leads the manufacturer to produce a product that is defective in design, manufacture, or warning, no injury can result. If the manufacturer designs the product safely, manufactures the product safely, and provides an adequate warning of dangers inherent in the use of the product, then a failure to test the product cannot, standing alone, cause any injury. The duty to test is a subpart of the other three duties because a breach of the duty to test cannot by itself cause any injury." (Id. at p. 1527.)

In calling for an independent duty to test, appellant posits that "appropriate testing for long term effects would have revealed different information from what was ‘known or knowable’ in the scientific community," that is, it "would have produced information that was not otherwise known or knowable in the scientific community at the time of manufacture and distribution, simply because the dangers only become ‘knowable’ with time." (Original italics and bold print.) Appellant forgets that Baxter was charged with an ongoing duty to warn of side effects "known or knowable" in the scientific community. In this light, imposition of liability for breach of an independent duty to conduct long-term testing, where the causal link to the known harm to plaintiff is the unknown outcome of testing that was not done, would be beyond the pale of any California tort doctrine we can identify.

Appellant also complains that the verdict in the second trial is fatally flawed because the special verdict form erroneously pinpointed specific acts of negligence, thereby ultimately enabling the trial court to direct judgment for the defense. Appellant relies on Stoner v. Williams (1996) 46 Cal.App.4th 986. We agree with the reasoning of Stoner, that at least nine of twelve civil jurors must concur that each element of a cause of action has been proved by a preponderance of the evidence, but, faced with multiple or alternative acts which could support an element of a cause of action, nine jurors need not concur on which act is proved. (Id. at p. 1002.) However, we do not agree that Stoner renders the instant verdict fatally flawed.

As explained in Stoner, the issue boils down to whether there is one, or multiple causes of action and whether one, or multiple "primary rights" of plaintiff have been violated. (Stoner v. Williams, supra, 46 Cal.App.4th at p. 1003.) According to the "primary rights" theory, the breach of plaintiff’s primary right and the corresponding duty devolving upon defendant gives rise to a single cause of action. "‘[T]he primary right and duty and the delict or wrong combined constitute the cause of action . . . .’" (McKee v. Dodd (1908) 152 Cal. 637, 641, quoting Pomeroy; see also 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 24, pp. 85-86.) Thus, the cause of action is based on the harm suffered, not the particular theory which the litigant asserts. (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.)

Here, there was a single cause of action against the manufacturer for negligence in making the product. The court delivered the following instruction patterned after BAJI No. 9.21 (8th ed. 1994): "The manufacture[r] of a product that is reasonably certain to be dangerous if negligently made has a duty to exercise reasonable care in the design, manufacture, testing and inspection of that product . . . ." Mrs. Valentine sought damages for the purported violation of a single right, the right to be supplied with an implant that was not negligently made.

Thus, under Stoner, nine jurors need not have agreed on the alternative theories of design, manufacture, inspection or testing. But submission of the special verdict form did not harm appellant because, even if one added up the votes on all theories, including failure to warn, nine jurors did not concur on all elements of the cause of action. While nine jurors found negligent testing and inspection, only eight found causation and in any event that verdict was legally superfluous, as discussed above.

Appellant complains nonetheless that the special verdict form in Valentine II impermissibly called for evidentiary facts as opposed to ultimate facts. But the special verdicts did not call for evidentiary facts—where, for example, are the evidentiary facts in Question No. 1: "Were the Defendants negligent in failing to exercise reasonable care in the design of Plaintiff’s breast implants?" There are none. True, these questions parse the negligence cause of action more finely than had the jurors simply been asked: "Were the Defendants negligent?" But, given that there were two trials and two sets of verdicts, with some issues having been decided in the first trial, selection of a more detailed special verdict form was well within the trial court’s discretion. A special verdict asking the generic question whether the defendant was negligent would have resulted in no verdict at all and an unnecessary third trial on legal theories that were unavailable to appellant. This was a case calling for special verdicts that would pinpoint the jury’s fact finding and enable judgment to be entered rather than prolonging litigation with a possible third trial.

Alastair Winn, a Heyer-Schulte employee from 1974 to 1979, came to the company with a B.A. in biochemistry. At first he worked as a quality assurance technician, inspecting raw materials, and then moved into the materials process and development group which was responsible for evaluating new materials and processes. He progressed there from assistant engineer to acting manager. During his time at Heyer-Schulte, Winn was intimately involved in the manufacturing of silicone implantable devices.

The Valentines attempted to exclude Winn’s testimony at both trials on grounds he was not designated as an expert. The objection is renewed on appeal. Baxter has taken the position that Winn was being called as a percipient witness and as such his testimony went to the state of mind of Heyer-Schulte, what the company knew and did not know, etc.

In Valentine I the trial court permitted Winn to testify, ruling that it would deal with expert opinion issues on a question-by-question basis. Winn proceeded to testify to his role in conducting biocompatibility testing; his work on the physical properties of silicones in the manufacturing of silicone gel breast prostheses; the quality assurance program at Heyer-Schulte and the company’s standard operating procedures; various testing programs and procedures and studies carried on by Heyer-Schulte, including biocompatibility studies; government regulation and standards applicable to the industry; and his work in monitoring clinical performance of products. As well, Winn described the properties of silicone, the polymer chemistry of silicone and the specifications for the gel and the shell materials. Additionally, Winn testified, based on his own knowledge and experience in physical property testing of returned prostheses, to the importance of silica in creating strength in the membrane. On this point Winn stated he never observed evidence that the membranes became brittle or broke down while in the body. Winn also testified, in response to the question whether, from a biomaterial standpoint, the materials used for the gel and shell were suitable for human implantation, that they were. Finally, he stated that the materials used by Heyer-Schulte, during his tenure, were "‘medical grade.’"

In Valentine II Winn testified from his personal experience as to the building blocks for making silicone gel, the conversion of fluid to elasatomer shell, and how silicone gel behaved. As well, he described tests he reviewed that were conducted by another laboratory and studies he was familiar with but did not participate in.

Appellant objected frequently at both trials throughout the course of Winn’s testimony. The trial court sustained a number of objections and struck a number of answers.

A witness may only testify to facts of which the witness has personal knowledge. (Evid. Code, § 702, subd. (a).) Lay witnesses may give testimony in the form of an opinion in limited situations where the opinion is rationally based on the witness’s perception and helpful to a clear understanding of his or her testimony. (Evid. Code, § 800, subds. (a), (b).) On the other hand, expert witnesses may give opinion testimony based on their special knowledge, skill, experience, training and education, and on subjects that are "sufficiently beyond common experience" that an expert opinion would assist the trier of fact. (Evid. Code, § 801, subds. (a), (b).)

We have reviewed Mr. Winn’s testimony at both trials and conclude he properly testified as a company biochemist about what he did and observed while employed at Heyer-Schulte. His role as a biochemist integrally involved in the manufacture of silicone breast implants, clinical testing, etc., went to the knowledge and understanding that he lent to his employer. Sometimes, to give a clear understanding to the testimony, it was on the line between fact and opinion as permitted by Evidence Code section 800. And in any event, any error in admission of elements of his testimony could not be prejudicial because, as appellant admits, other designated experts spoke to the same points. Winn’s testimony was cumulative.

1. No Juror Misconduct

After the verdict was returned in Valentine I, appellant moved to "strike" it on account of juror misconduct, presenting the affidavit of Juror J.G. Baxter produced six juror declarations. Reviewing Juror J.G.’s declaration "in a vacuum," the trial court indicated it did "not find that the innuendo, hints, and conclusions would be enough to demonstrate jury misconduct. . . . [T]here is insufficient evidence in there to establish . . . ‘jury misconduct.’" Further, the court concluded that it seemed Juror J.G. "had a vested interest in the case . . . ." And finally, reviewing the declarations of the other jurors along with J.G.’s the court again did not find sufficient evidence "to even raise, let alone deal with the issue of jury misconduct . . . ."

The Legislature has delineated what is admissible to impeach a verdict and what is not: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Evid. Code, § 1150, subd. (a).)

When the matter of juror misconduct is tried on affidavits with substantially conflicting facts, we will not disturb the trial court’s determination of the controverted facts. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108.) However, once juror misconduct is established, we review the trial court’s determination de novo. (People v. Nesler (1997) 16 Cal.4th 561, 582.)

The Valentines alleged several instances of misconduct:

a. Newspaper Article

It is misconduct for a juror to read newspaper accounts of a case on which he or she sits. Indeed, our Supreme Court has warned against reading accounts of "‘"any matter in connection with the subject-matter of the trial which would be at all likely to influence jurors . . . ."’ [Citations.]" (People v. Pinholster (1992) 1 Cal.4th 865, 924.)

Juror J.G. said that "[i]n the deliberations room" two jurors "pushed a San Francisco Chronicle article on breast implants to me, which I felt was an attempt to influence my opinion on the case." Later, he stated, two other jurors showed him the same article at lunch.

The trial court correctly concluded misconduct did not occur. First, the article itself was never produced. However, according to one juror who submitted a rebutting declaration, another juror at lunch "show[ed] a small newspaper article about a 4.9 million dollar verdict against Dow Corning in a breast implant case." After being told that they should not be looking at it, the juror put it away. Baxter submitted the results of a Lexis newspaper search that produced one article from the San Francisco Chronicle that most closely fit this description. The article concerned a 1991 award against Dow Corning and slanted toward the plaintiff. Another rebutting juror said he was handed an article that appeared to be from the San Francisco Chronicle, and upon glancing at it recognized it related to breast implants and did not read further. Second, no juror, including J.G., stated that he or she read the article. The six rebutting jurors all said that no newspaper article was discussed during deliberations, and even Juror J.G. did not say anything to the contrary.

Even if the article had been read, there could be no prejudice to the Valentines. The article was very sympathetic to the plaintiff, about a case involving another defendant, decided four years earlier, and of which the jurors may already have been aware.

b. Prejudging the Case

Relying on J.G.’s declaration, appellant also maintains the jurors prejudged the case. He said that several jurors commented to the effect that they "knew" how the alternate [Juror B.] likely to replace an excused juror "felt." However, J.G. had no firsthand knowledge that jurors did in fact discuss the case with B. or others—he simply "deduced" that other jurors had prejudged the case, in violation of court instructions. In fact, the rebutting jurors denied any discussion with B. about how he would vote and/or the details of the case. One said she might be able to guess his attitude and another said two jurors "hypothesized" about how he would vote. But in any event, B. was never seated.

J.G. also alluded to a luncheon discussion about the jurors’ feelings about doctors and lawyers in the case. Again, several rebutting jurors mentioned that a light discussion began but ended when another reminded the group of the court’s admonition, and the discussion was never repeated.

There was no evidence before the court that B.’s views were actually discussed, and the abrupt termination of conversation about lawyers and doctors if anything shows the jury’s attention heeding the court’s instructions. These situations are a far cry from open discussion or agreement among jurors evincing deliberate refusal to obey court instructions. Such transitory references and oblique remarks, even if intruding on inappropriate matter, do not and could not rise to the level of prejudice.

c. Racial Bias

Juror J.G. reported that Juror L. gave him a copy of a document called "City of Los Angeles High School Math Proficiency Exam" from which he drew the innuendo of bias against Hispanics. The document was a spoof which posed math questions using urban crimes as the subject matter: drive-by shootings, drug sales, pimping, tagging, gang activity, and the like. Several of the characters had Hispanic names. Mrs. Valentine was African-American. Juror L. squarely denied bias, and explained that it was Juror G. who requested a copy of the document and therefore Juror L. complied. The court’s finding of no misconduct is supported by this evidence.

d. Burden of Proof

J.G. also complained that Juror F.G. "voiced his desire for 100% scientific proof of Mrs. Valentine’s illness, and had a hard time considering the 51%/49% preponderance of the evidence standard . . . ." Juror F.G. in turn rejected this contention, declaring that he applied the preponderance of the evidence standard and did not require 100 percent scientific proof. No misconduct.

2. Objections by Baxter

Appellant lodges a general complaint of meritless—and legion—objections on the part of Baxter that confused the jury and diluted the import of plaintiffs’ proffered testimony. Appellant discusses several examples of what he sees as abusive, "over objection." In these instances the trial court asked for rephrasing of some questions and in other instances overruled the objection. Similar behavior, in terms of repeating objections, occurred on the part of appellant. In our adversary system of trial, it is the job of counsel to object to inadmissible evidence. Sometimes counsel becomes overzealous in objecting and it is up to the court to attempt to reign in such behavior. The trial court here took a respectful but low key approach to handling objections, which would tend to minimize disruption. We can identify no cognizable claim of error.

Appellant first urges that Dr. Jenny’s testimony was admissible under Evidence Code section 1220 as an admission of a party, personally made. Not so. That statute provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." (Italics added.) On its face Evidence Code section 1220 does not apply because the past executives, long retired, are not parties to this lawsuit in either their individual or representative capacities.

Baxter correctly points out that the pertinent section to be applied here is Evidence Code section 1222, covering authorized admissions. In his reply brief, appellant maintains the testimony was admissible under this statute. Again, not so.

Evidence Code section 1222, subdivision (a), states in part: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement." To qualify as an authorized admission, the statement must be made by an agent acting within the scope of his or her employment. (Markley v. Beagle (1967) 66 Cal.2d 951, 957; W. T. Grant Co. v. Superior Court (1972) 23 Cal.App.3d 284, 286.) Without question these declarants, by virtue of their corporate positions, had presumed authority to speak for the company on corporate affairs and concerns. But no matter how high ranking they were, as a matter of law they were engaged in personal conversations with Dr. Jenny. They were seeking his professional assistance and advice on behalf of close personal friends and relatives. There was nothing job related about the conversations.

Finally, for the first time in his reply brief appellant also argues that Dr. Jenny’s testimony was admissible under the Evidence Code section 1250 "state of mind" exception to the hearsay rule to show Heyer-Sculte’s "then existing state of mind" on the issue of notice of a problem concerning the safety of silicone gel implants. But under this theory, statements are at best nonhearsay circumstantial evidence of state of mind—they would not be used to prove the truth of their contents but as circumstantial evidence of the state of knowledge and notice of officers of Heyer-Schulte. Used in this way, without foundational facts about the reasons why the declarants preferred saline implants, the probative value of Dr. Jenny’s testimony is slight. At least one conversation took place in 1968, seven years before Mrs. Valentine’s 1975 implantation, and the time frame for the others—in the 1970’s—is of course vague. The evidence was properly excluded under Evidence Code section 352, as also urged by Baxter, to prevent prejudice, confusion and undue time pinning down dates and exploring reasons for the personal preferences.

Next, appellant attacks what he sees as an imbalance in rulings admitting evidence about other products containing silicone as contrasted with a preclusive ruling limiting their ability to question about adverse reactions from other silicone products. Because of this imbalance, he maintains Baxter was impermissibly allowed to argue the safe use of silicone in medical products and the paucity of reports of autoimmune disease associated with other silicone implants. As the second trial concerned negligence, the evidence and arguments went to Baxter’s reasonableness in relying on experience with other products when it diversified into the silicone breast implant market, as well as causation. The evidence was relevant on the issue of negligence and was properly introduced. The single ruling limiting the Valentine’s testimony was within the trial court’s discretion and had no impact on the outcome of the case.

Appellant requested the following special instruction on "Negligence - Testing": "A manufacturer has an affirmative duty to use reasonable care to test its products to protect those who will use the product from unreasonable risk of harm. The duty to test arises prior to marketing the product and continues throughout the period in which the product is in use. [¶] The extent of research and experiment must be commensurate with the dangers involved. A manufacturer is held to the knowledge and skill of an expert. A manufacturer’s status as an expert means that at a minimum it must keep abreast of scientific knowledge, discoveries and advances and is presumed to know what is imparted thereby."

The court instructed in the language of BAJI No. 9.21: "The manufacture[r] of a product that is reasonably certain to be dangerous if negligently made has a duty to exercise reasonable care in the design, manufacture, testing and inspection of that product . . . so that the product may be safely used in a manner and for a purpose for which it was made."

As authority for its proposed instruction, appellant cites two strict liability cases: Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 1204 and Christofferson v. Kaiser Foundation Hospitals (1971) 15 Cal.App.3d 75. The standard of care under negligence is that of the reasonably prudent manufacturer, who is responsible for knowing what a reasonably prudent manufacturer would have known. (See Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003 [describing manufacturer’s duty of care under negligence law for purposes of failure to warn].) The negligence instructions were correct.

This was one of the coordinated cases. The Valentines adopted the master complaint developed in the coordinated proceedings.

In charge of coordinated cases is Judge O’Neill of the San Diego County Superior Court. He has entered orders applicable to the coordinated cases. One such order granted defendants’ motion for summary adjudication on strict liability. Judge O’Neill resolved that "‘implanted medical devices, such as the mammary prostheses involved in these coordinated cases, are exempt from strict "design defect" liability as a matter of law . . . .’" (Artiglio v. Superior Court (1994) 22 Cal.App.4th 1388, 1392.) The Court of Appeal upheld this ruling in a published opinion denying a petition for writ of mandate. (Id. at p. 1397.)

Artiglio extends to manufacturers of breast implants the same exception to the rules of strict liability as our Supreme Court extended to manufacturers of prescription drugs in Brown v. Superior Court (1988) 44 Cal.3d 1049. It rejects the notion that prescribed medical devices are less deserving of exemption from strict liability than prescription drugs, explaining: "Just as drugs are injected or ingested into the body, a breast implant . . . is ‘plugged in’ to the individual. The implant . . . poses the potential of harm and the possibility of required removal. [Citation.] Just as with typical prescription drugs, the public interest is served by the development of effective and affordable medical implants . . . ." (Artiglio v. Superior Court, supra, 22 Cal.App.4th at p. 1395.) Further, the aspect of cosmetic improvement does not eliminate breast implants from exemption, because efforts to distinguish procedures based on cosmetic versus medical reconstruction purposes are fraught with difficult factual determinations and would be contrary to Brown’s rejection of a case-by-case analysis. (Id. at pp. 1395-1396.) Finally, considerations leading to protection of prescription drugs apply with equal force to implanted medical devices, as they are available only through a physician. The fact that a drug or implant must be prescribed or provided by a physician sufficiently insulates manufacturer and user so as to warrant elimination of the consumer protections afforded by strict liability. (Id. at pp. 1396-1397.)

Appellant now urges that we reexamine Artiglio and defeat its law of the case impact. This we will not do.

When a reviewing court deciding an appeal states a rule of law necessary to the decision, that rule becomes the "law of the case" and must be adhered to in it subsequent progress in the lower court, upon later appeal and in any subsequent suit for the same cause of action. Thus the "law of the case" will apply even though in subsequent consideration the reviewing court may be of the opinion that the former decision was erroneous in the particular point. (People v. Stanley (1995) 10 Cal.4th 764, 786.)

The doctrine applies to writs as well as appeals. (Kowis v. Howard (1992) 3 Cal.4th 888, 894.) It is a doctrine of policy and procedure, not jurisdiction, and may be disregarded under exceptional circumstances of hardship and injustice. The main purpose served by the law-of-the-case rule is that of judicial economy. (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435.)

Similarly, a primary benefit of the coordination procedure is the facilitation of uniform rulings on summary judgment and other motions that, if possible would permit uniform and centralized resolution on appeal. (McGhan Medical Corp. v. Superior Court, supra, 11 Cal.App.4th at p. 814.) The coordination rules allow that the general law applicable to civil actions governs coordinated actions and proceedings, except as the rules otherwise provide. (Cal. Rules of Court, rule 1504(a).) Thus, although we have not discovered any published California decision giving law of the case status to an appellate decision in a coordinated proceeding, there is no impediment to so doing. What greater need is there for such a tool than where many diverse parties to complex actions in diverse courts might otherwise relitigate the same legal issue?

There remains only the question whether exceptional circumstances exist to disregard doctrine. They do not. There has been no change of law and appellant has shown no substantial injustice to its use here.

We affirm the judgment.

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Reardon, J.

We concur:

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Hanlon, P.J.

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Trial court: San Francisco Superior Court

Hon. Richard P. Figone

Counsel for appellant: Liccardo, Rossi, Sturges & McNeil

Salvador A. Liccardo

Laura Liccardo

Counsel for respondents: Brobeck, Phlegar & Harrison LLP

Debra E. Pole

Christopher J. Menjou

Thomas M. Peterson

Rodarte, Geringer & Kamel

Daniel D. Rodarte