California Court of Appeals, First District, First Division
April 16, 2015
ENVIRONMENTAL LAW FOUNDATION, Plaintiff and Appellant,
BEECH-NUT NUTRITION CORP. et al., Defendants and Appellants.
IT IS ORDERED that the opinion filed herein on March 17, 2015,
235 Cal.App.4th 307;___ Cal.Rptr.3d ___ be modified as follows and the petition for rehearing is DENIED:
1. On page 4 [235 Cal.App.4th 313, advance report, last par., line 8], in the last sentence of the first full paragraph, the reference to OEHHA should be to OSHA, so the sentence reads, “OSHA multiplied the OSHA PEL of 50 micrograms per cubic meter by 10 cubic meters (the amount OSHA determined workers breathed.. . ."
2. On page 7 [235 Cal.App.4th 316, advance report, 1st full par., line 9], in the next to the last sentence in the first full paragraph, the last two words in the sentence should be changed from “logged normal” to “log-normal, ” so the sentence now reads: “If the geometric mean is lower than the arithmetic mean, this indicates that the data were log-normal.”
3. On page 13 [235 Cal.App.4th 320, advance report, 3d full par., line 5], in the first three words on the page should be “were log-normal.”
4. On page 15 [235 Cal.App.4th 322, advance report, 2d full par., line 7], on the sixth line of the first paragraph, “far more persuasive that...” should be changed to “far more persuasive than....”
5. The text of footnote 8 on page 20 [235 Cal.App.4th 325. advance report, fn. 8] is deleted in its entirety and replaced by the following two paragraphs, so that footnote 8 now reads:
At oral argument ELF spent much of its time criticizing Petersen’s “methodology” at trial. As indicated below, we, like the trial court, find her approach legally appropriate. We note further that after full discovery, ELF submitted but two motions in limine and “objections to relatively small portions of defendants’ expert declarations.” ELF’s objection to the evidentiary basis for Petersen’s expert testimony was addressed by the trial court’s
statement of decision: “[T]he testing data the parties agreed could be admitted without objection at trial [now] provided an inadequate evidentiary basis for Dr. Petersen’s expert testimony on the lead concentrations in Defendants’ products. Plaintiff did not make this argument in its opening trial brief, its posttrial brief, its decision tree identifying issues for the Court to decide[, ] or at closing argument. Indeed, Plaintiff’s expert, Dr. Burton-Freeman[, ] used the same testing data to support her different conclusions.... It is far too late in this case for Plaintiff to introduce a new argument about the claimed inadequacy of the testing data used by both sides during trial.” (Italics added).
In a petition for rehearing, ELF faults our failure to discuss the recent Supreme Court opinion in Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 [172 Cal.Rptr.3d 371, 325 P.3d 916]. Duran is distinguishable because, in that case, the trial court was found to have erroneously extrapolated liability findings based on a skewed sample group, the composition of which neither party had endorsed. (Id. at p. 15.) In the present case, both sides stipulated to the admission of the underlying sampling data that was used by their expert witnesses.
6. On page 23 [235 Cal.App.4th 328, advance report, last par., line 4], in the last paragraph, in the second and third lines from the bottom of the page, the phrase “consumption before comparing the exposure to the 0.5 microgram per day regulatory MADL” should be changed to include the words “safe harbor, ” so the phrase now reads, “consumption before comparing the exposure to the 0.5 microgram per day regulatory safe harbor MADL.”
7. On page 23 [235 Cal.App.4th 328, advance report, last par., line 5], in the last line of the page, the phrase, “She urges that a defendant that relies on a regulatory MADL must accept...” should be changed to include the words “safe harbor, ” so that the phrase now reads, “She urges that a defendant that relies on a regulatory safe harbor MADL must accept....”
8. On page 24 [235 Cal.App.4th 329, advance report, fn. 10], in the first line of footnote 10, the term “MADL” should be be replaced with the term “regulatory safe harbor, ” so that the first line of footnote 10 now reads, “We note the regulatory safe harbor level for carcinogenic exposures is also set at a per-day level.”
There is no change in the judgment. The petition for rehearing is denied.