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Polensky v. Kyocera International Inc.5/31/1996
CROSBY, J.:
A jury found defendant Kyocera International, Inc. partially responsible for plaintiff Donald Polensky's injuries resulting from exposure to beryllium. Defendant argues the court misinstructed the jury on the statute of limitations, abused its discretion in admitting testimony of an expert witness who had an allegedly confidential relationship with defendant, and the award of economic damages is disproportionate to its fault. Plaintiff also appeals, claiming the court improperly reduced non-economic damages under Proposition 51. We agree with plaintiff and affirm the judgment as modified.
I
Polensky worked at Ceradyne from 1982 to 1984. Kyocera, Ceradyne's corporate parent, negligently administered Ceradyne's worker safety program, causing plaintiff's exposure to beryllium, which ultimately resulted in a diagnosis of berylliosis. Kyocera was found 10 percent at fault.
II
Defendant first complains the court misinstructed the jury on the statute of limitations. Both sides agree the one-year limitations period of Code of Civil Procedure section 340, subdivision (3) applies, as modified by the "discovery rule." The defense was bifurcated and tried to the jury first on the following facts:
Plaintiff began working for Ceradyne in September 1982 as a sales engineer. Based on previous work and schooling, he knew beryllium and its compounds were toxic and inhaling them could result in an emphysema-like disease called berylliosis. Berylliosis is a very rare and incurable condition that results from the inhalation of minute particles of beryllium dust. A few people who inhale the dust have an allergic reaction, usually within a year, which causes their bodies to form cells around the particles in the lungs. Scar tissue develops that causes shortness of breath, coughing and fatigue, and can also result in damage to the liver and spleen. The disease has a latency period of anywhere from months to decades, where there are no clinical symptoms other than a gradual onset of fatigue or a nagging cough. Plaintiff's work at Ceradyne occasionally brought him into contact with beryllium dust. Polensky left Ceradyne in 1984 and had no further contact with beryllium.
Polensky had an episode of fatigue while hiking in the mountains in late 1984 or 1985. In August 1987 he was referred to internist/rheumatologist Dr. Thomas Abel for psoriatic arthritis. Dr. Abel prescribed methotrexate, whose side effects included lung inflammation and shortness of breath. After taking the drug for a little over a year, plaintiff complained of increased fatigue, shortness of breath, psoriasis, and subnormal lung function. Lung X-rays were abnormal, but consistent with methotrexate reaction. Use of the drug was discontinued.
Plaintiff learned in December 1988 that a co-worker at Ceradyne had been diagnosed with chronic beryllium disease. On December 20, after more abnormal X-rays, he wrote Dr. Abel with his suspicions that he might have the same thing. Ten days later he was examined by pulmonologist Daniel Persyn. Persyn did not believe beryllium was the cause of plaintiff's problems, although berylliosis was a "remote" possibility. Plaintiff underwent more tests during January and February 1989. He tested positive for beryllium sensitivity on February 24. In April, plaintiff underwent a complete examination at the National Jewish Hospital in Denver, after which Persyn made the diagnosis. Polensky filed his complaint on January 24, 1990.
The court instructed that Kyocera had the burden of proving the following: "[Plaintiff] knew, prior to January 24, 1989, that he was suffering from beryllium-related disease; or that ther
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