Citations
- 49 Cal. App. 4th 1
Full opinion text
Opinion
HANLON, J.
Maintenance worker Luis Torres died from bums he received at the Rhdne-Poulenc chemical plant in Martinez on June 22, 1992, when he was doused with sulfuric acid sludge which escaped from a valve manufactured by Xomox Corporation (Xomox). His family filed a wrongful death and survival action against Xomox and Charles Lowe Company (Charles Lowe), the Xomox distributor which had sold the valve to RhonePoulenc. The Torres action was consolidated with the suit filed against Xomox and Charles Lowe by Richard Somborger, another employee of Rhdne-Poulenc who was injured in the accident.
A jury awarded damages to Somborger and the Torres plaintiffs, and allocated comparative fault for the accident as follows: Rhdne-Poulenc, 75 percent; Charles Lowe, 10 percent; Somborger, 5 percent; Torres, 5 percent; and Xomox, 5 percent. After the verdict was rendered, Somborger and the Torres plaintiffs settled with Charles Lowe, and Somborger settled with Xomox. Judgment was entered for the Torres plaintiffs against Xomox, from which Xomox has appealed.
Xomox contends in the alternative that: (1) judgment must be entered in its favor because no reasonable trier of fact could conclude that its actions were a legal cause of the Torres plaintiffs’ harm; (2) a new trial is required because evidence it sought to introduce was erroneously excluded; or (3) the judgment must be reduced because it was given insufficient credit for workers’ compensation benefits and settlement proceeds the Torres plaintiffs received.
In the published portion of the opinion, we first conclude that the issue of causation was properly treated as a question of fact for the jury, and thus that Xomox was not entitled to judgment as a matter of law. In the unpublished portion of the opinion, we conclude that Xomox’s evidentiary arguments lack merit and thus that Xomox is not entitled to a new trial. In the balance of the published opinion, we address two issues of apparent first impression under Proposition 51 (Civ. Code, §§ 1431.1-1431.5): the allocation of workers’ compensation benefits, and the allocation of settlements reached after damages have been determined by the trier of fact (“post-verdict” settlements), between “economic” and “noneconomic” damages, as defined by Proposition 51.
We conclude that the proper method of allocating workers’ compensation benefits under Proposition 51 is the same one that has been adopted for preverdict settlements in a line of cases beginning with Espinoza v. Machonga (1992) 9 Cal.App.4th 268 [11 Cal.Rptr.2d 498]. Under this “Espinoza” approach, workers’ compensation benefits are to be allocated between economic and noneconomic damages in the same proportions as those damages are awarded by the trier of fact. Therefore, in this case, where 55.3 percent of the jury’s award to the Torres plaintiffs was for economic damages, 55.3 percent of the workers’ compensation benefits they received were correctly credited against the judgment for economic damages.
We conclude that the Espinoza approach is an inappropriate method of allocating postverdict settlements under Proposition 51, and that a different method, what we will call a “ceiling” approach, should be used. Under this ceiling approach, the amount of a postverdict settlement is to be allocated first to noneconomic damages, but only up to the amount of the settling defendant’s liability for such damages under the verdict. The balance of the settlement, if any, is then to be credited against the judgment for economic damages. Application of the ceiling approach in this case reduces the judgment for the Torres plaintiffs by a portion of the settlement proceeds.
I. The Accident
The valve in question is a Xomox six-inch 067 plug valve which was installed at the Martinez plant in 1969, when the plant was owned by Rhone-Poulenc’s predecessor, Stauffer Chemical. The valve has a device, variously described as a gear, operator or actuator, which, when turned with a crank, opens or closes the flow of material through a pipeline. The valve has a “cover-mounted” design, where the gear is attached to the valve with a bracket, which is mounted with a set of bolts onto the cover or “bonnet” of the valve. The valve also has a “single-bolt” or “single-nut” design, where a single set of bolts, with one nut each, holds both the bracket and the cover on the valve. With this single-bolt cover-mounted design, a worker who removes the bolts to take the bracket off the valve will also loosen the cover of the valve.
The Xomox valve was part of a pipeline that lay in a three-foot deep “pit” leading out of tank 301. Tank 301 contained sulfuric acid sludge which the Rhdne-Poulenc plant recycles for nearby oil refineries. The valve was located two or three feet from the tank, attached on one side to a pipe leading out of the tank, and on the other side to an expansion joint further downstream. These parts were linked to the valve through flanges built into the sides of the valve. Flanges are donut-shaped rings with holes around the circumference, which are attached to flanges on adjacent objects with bolts through the flange holes. Downstream from the expansion joint were a reducer and a tee spool.
The project on which the accident occurred involved repairing leaks in the pipeline out of tank 301. Maintenance worker Michael Thomas and his partner Edward Gallman replaced the tee spool, further leaks were found, and it was decided to replace the expansion joint and reducer. At that point, a week or two into the project, Gallman went on vacation and Somborger and Torres took over the job from Thomas and Gallman. Somborger had worked in the maintenance department for more than 10 years, and he and Torres were the most experienced maintenance workers in the plant.
Breaking into a pipeline to fix leaks, in this instance by replacing the expansion joint and reducer, was a procedure known in the plant as a “line entry.” Line entries were a common occurrence, and Somborger had performed at least 300 of them prior to the accident. Somborger said that there were three phases to line entries in nonemergency situations: preparation, briefing, and performance.
In the preparation phase, the workers close the valves upstream from the site of the entry, and place tags with a danger symbol on these valves to insure that they will not be opened until the entry is completed. The site of the entry is roped off with tape, and production personnel are notified of the entry. In the briefing phase, the workers consult with the maintenance foreman, A1 Sammons. Sammons goes to the site, inspects the preparation, and issues a line entry permit which he and the workers sign. The permit verifies that the preparation has been completed and lists the protective gear to be worn during the entry. The workers then put on safety clothes, including rubber pants, coat, gloves and boots, hard hat, face shield and a respirator, before performing the entry in which the seal of the line is broken.
A line entry to replace the expansion joint and reducer downstream from the Xomox valve was scheduled for June 22, 1992. Somborger said that when he arrived at work that day, Sammons told him to “ ‘go up and help Mike [Thomas],’ ” who was working in the pit next to tank 301. Somborger interpreted this as an instruction to go to the site and begin the preparation phase of the entry. He and Torres first went to the maintenance shop, where they bolted the new expansion joint and reducer together, and then to the control room, where Somborger noted that a gauge for tank 301 showed it to be half full. Somborger knew that tank 301 contained sludge acid, and that the Xomox valve was the only seal in the line between the acid in the tank and the parts they would be replacing.
Somborger said that part of the preparation phase was to assess any obstacles in the way of the entry, and that a common obstacle they encountered was corrosion in the bolts securing the flanges to be opened during the entry. Since corrosion would make it difficult to work with the bolts, and workers wanted to minimize their time in the hot and cumbersome protective clothing, they sometimes substituted new flange bolts—one at a time, to maintain the integrity of the line—for existing ones during the preparation phase. When Somborger and Torres arrived at the pit beside tank 301, they found that flange bolts in the parts to be replaced were in “very bad shape.” They also found that the bracket on top of the Xomox valve blocked their access to two of the flange bolts that held the valve to the expansion joint.
The bracket on the valve was not the original Xomox bracket that had come with the valve when it was first installed in the plant. The original bracket was in an “L” shape, with the bottom of the “L” resting on the cover of the valve, and the side of the “L” standing on the upstream side of the valve, where the valve was attached to the pipe coming out of the tank. Thus, while the original “L” shaped bracket might have blocked access to the flange bolts on the upstream side of the valve, it would not have impeded access to the downstream flange bolts Somborger and Torres wanted to reach on the day of the accident. The replacement bracket they encountered did not have the same “L” shape as the original one. It was shaped like the top half of a rectangle, with short vertical sides pointing downward on both sides of the valve. These sides blocked access to the downstream, as well as the upstream, flange bolts.
The bracket in use on the day of the accident was a modified version of a Xomox bracket the plant received from Xomox’s distributor, Charles Lowe, in March of 1983. At that time, the plant ordered a replacement bracket for the,valve, and Charles Lowe furnished the wrong kind of bracket, which was designed to be mounted on the flanges, rather than the cover, of the valve, and thus did not fit on the valve. To make the bracket fit, the plant cut it apart, welded on a different piece of metal, and mounted it on the valve cover with the normal direction of the mounting bolts reversed, so that the bolts were headed upward with nuts fastened at the top.
Somborger testified that after he and Torres decided to install fresh flange bolts in preparation for the line entry, Thomas told them that they would have to remove the bracket on the valve to reach the flange bolts connecting the valve to the expansion joint. Thomas, who was at the scene cleaning in his protective gear, testified that he did not instmct Somborger or Torres to remove the bracket. Thomas recalled only that one of them—he could not remember who—mentioned that the bracket might have to be removed. Sammons testified that he instructed Somborger and Torres only to investigate whether the bracket blocked access to the flange bolts. Sammons said that he did not tell them to remove the bracket and did not intend for them to do so.
Somborger said that he was not familiar with the Xomox valve, and that he had never looked at the maintenance instmctions for it. He said that he had never worked on a valve like it, although there were a number of them in the plant. However, he had removed valve brackets in connection with other line entries, and he said that when Thomas told him the bracket would have to come off the valve he felt safe in removing it. He tmsted Thomas, and presumed that the matter had been discussed in some detail because the repair project off of tank 301 had been ongoing for some time. He “found it odd to have a bracket secured by the same bolts and securing the bonnet,” but looking down into the pit where it was “very dark,” he “could see some other bolts in there,” which appeared to be “other means of what I perceived was integrity for this valve.”
Thus, without donning their protective gear, he and Torres proceeded to remove the bracket from the valve. They removed the nuts on the bolts holding the bracket onto the valve, and then loosened the bracket with a series of hammer blows. The cover of the valve came loose along with the bracket, and Somborger realized in an instant that they had broken the seal of the line. Acid spewed out of the line with such force that it knocked Somborger’s hat and glasses off.
Somborger and Torres were helicoptered to a nearby hospital. Somborger suffered second and third degree chemical bums over 50 percent of his body, and was disabled by the accident. Torres was burned over 90 percent of his body and died in the hospital on July 4, 1992.
II. Legal Cause
A. Background
Xomox moved for a nonsuit at the close of plaintiffs’ case, and for a judgment notwithstanding the verdict, on the ground that there was insufficient evidence to find that its actions were a legal cause of the accident. Xomox argued that the valve in question was properly designed, and that the accident was caused entirely by the negligence of Rhone-Poulenc, Somborger and Torres. Plaintiffs argued that the valve was improperly designed, and they maintained that the defective design, along with Xomox’s failure to warn of the danger inherent in that design, were substantial factors in causing the accident. In support of those arguments the following evidence was adduced.
Plaintiffs’ witnesses conceded that the accident would not have occurred but for Rhdne-Poulenc’s replacement of the original bracket on the valve with a modified bracket that blocked access to the downstream flange bolts. Joseph Odrzywolski, the manager of the plant at the time of the accident, acknowledged that Rhdne-Poulenc’s modification had changed Xomox’s specifications for the replacement bracket, and he conceded that the modification was unsafe insofar as it blocked access to the flange bolts. Robert Fukumoto, the head of the plant’s maintenance department at the time of the accident, acknowledged that Rhone-Poulenc had done a “poor job” in modifying the bracket. One of plaintiffs’ expert witnesses admitted that Rhdne-Poulenc’s modification of the bracket was “not a good idea.” He said that Xomox should have anticipated use of the valve in places like the trench out of tank 301 where visibility was poor, but he conceded that reversing the direction of the bolts might have made the configuration of the valve more confusing. Xomox also elicited evidence of lax safety procedures at the plant, including failure of the plant’s line entry procedure manual to define precisely when a line entry began.
Reference materials at the plant included diagrams of the Xomox valve which clearly showed its single-bolted cover-mounted design, and Somborger admitted that the accident would not have happened if he had checked those diagrams before he started working on the valve. It was also apparent that most of the injuries could have been prevented if Somborger and Torres had been wearing their safety gear when the valve came apart. Thomas was in his gear at the scene and evidently escaped serious injury.
There were also numerous inconsistencies between Somborger’s accounts of the accident at trial and in pretrial depositions, which called into question his claim that he did not realize he would be loosening the cover when he took the bracket off the valve. When Somborger was first interviewed about the accident, he did not attribute it to any confusion about which bolts held the cover on the valve. He said that Sammons had given him a line entry permit and told him to go ahead and unbolt the line and install the new expansion joint and reducer. He said that he did not wear protective gear because he thought that tank 301 was empty and that there was no acid in the line.
Somborger acknowledged the inconsistencies at trial, and attributed them to his pain and bitterness in the aftermath of the accident. He said that the references to a permit had been a psychological defense mechanism to deflect blame for the accident. By the time of trial, he blamed the accident on the single-bolt cover-mounted design of the Xomox valve. It seemed “insane” to him that the bracket could not be removed without the valve coming apart. He admitted that his perception of fault had changed when he learned the history of other accidents involving the Xomox valve.
This type of Xomox valve had been involved in two or three previous accidents. In 1980, a worker at an Amoco refinery in Delaware was told to remove the actuator from a single-bolt cover-mounted Xomox valve in a pipeline which contained the volatile chemical polypropylene. Instead of removing the bolts that held the actuator to the bracket, the worker removed the bolts that held the bracket to the cover. The valve blew apart, causing an explosion and fire that killed five people, injured twenty-eight others, and caused $20 million in property damage. Another accident involving a single-bolt cover-mounted Xomox valve occurred in February of 1992 at the Cape Industries refinery in Castle Hayne, North Carolina. Although the parties offered somewhat differing accounts of the Cape Industries accident, it apparently involved another situation where people were injured because removal of the bracket caused the valve to come apart. Plaintiffs also presented evidence of a 1977 accident at a Pemex factory in Mexico, where removal of a bracket broke the seal of a valve, causing an explosion which resulted in one death, fifteen injuries, and $5 million in property damage. It was unclear whether the Pemex accident involved a Xomox valve, and Xomox personnel said that they first learned of that accident during discovery in this case. However, it appeared that the valve which exploded at the Pemex factory had the same single-bolted cover-mounted design as the Xomox valves which were involved in the other accidents.
Xomox’s expert, Charles Morin, testified that the accident history proved that the valve had been properly designed. The evidence showed that Xomox sold thousands of single-bolted cover-mounted valves over nearly 3 decades beginning in the 1950’s, and that the valves remained in service for 20 to 30 years. Based on the number of valves in use, the length of operation and the accident frequency, Morin calculated the risk of an accident per valve hour to be only 5.7 x 10 "H. Morin said that this meant the Xomox valve exceeded the safety standards set by the Federal Aviation Administration for parts used in the airline industry. He said that aircraft parts with reliability ratings better than 10 "9 are deemed to present no risk from an engineering perspective. Since there had been few accidents, and they had all involved some degree of worker error, Morin concluded that there was no design flaw. He explained that where design is causing a problem, the problem “will happen directly, in some direct assignable way to that design, and it will happen with some regularity.”
Plaintiffs’ experts drew different conclusions from the accident history. Based on that history, including the accident at the Rhone-Poulenc plant, safety engineer Robert Weiner testified for plaintiffs that the valve’s single-bolted cover-mounted design was defective. In Weiner’s opinion, Xomox should have used an alternative design—either double-nutting or flange-mounting—to obviate the problem of inadvertent removal of the valve cover upon removal of the bracket. With the double-nutted design, two nuts instead of one are put onto the bolts holding the bracket to the valve cover, one under the bracket and one over the bracket. Thus, a worker could remove the bracket by removing the top nuts while the lower nuts continued to hold the cover on the valve. Flange-mounted brackets are mounted on the flanges rather than the cover of the valve, so removal of the bracket does not disturb the cover.
Xomox executive vice-president Michael Sandling testified that the company did not begin making double-nutted or flange-mounted valves until the mid-1970’s. Sandling said that these designs were implemented to accommodate different actuators then coming into use, and not to rectify any safety problem associated with the single-bolt cover-mounted design. He pointed out that Xomox introduced the new designs prior to the Amoco accident, at a time when it had no notice of any accidents involving single-bolted cover-mounted valves.
However, Weiner indicated that in 1969, when the valve in question was installed at the Rhóne-Poulenc plant, at least one other manufacturer made valves that did not rely on single-bolt cover-mounting, and he opined that Xomox should have been aware of the danger associated with that design even before the Amoco accident. In Weiner’s view, proper design took into account potential errors, and Xomox should have designed the valve to eliminate the potential for a catastrophic accident from the simple removal of a bracket during maintenance. Weiner and plaintiffs’ other expert, psychologist Kenneth Zeidman, were also critical of Xomox’s response to the accidents involving the valve.
The record includes internal memoranda reflecting concerns at Xomox in the wake of the Amoco accident about inadvertent removal of covers on valves with the single-bolt design. To address those concerns, Xomox stopped selling single-bolt cover-mounted valves, and retrofitted its inventory of those valves with double-nut mounting. In May of 1983, Xomox added a warning to maintenance and replacement instructions for the valve which noted that removal of a “an older model cover-mounted bracket” would release the valve cover, and “strongly recommended” that such mounting arrangements “be replaced with the newer arrangement which secures the valve cover independently of the mounting bracket.” This warning was included in materials furnished to purchasers of replacement parts for the valves, but it was not added to the instructions until shortly after the Rhóne-Poulenc plant ordered the replacement bracket for the valve next to tank 301 in March of 1983. During the interval between the Cape Industries accident in February 1992 and plaintiffs’ accident in June of that year, Xomox drafted a product safety reminder on the risk associated with single-bolt cover-mounted valves, but then decided against sending it out.
Xomox’s witnesses testified that it would have been impossible for the company to track down the owners of all of their single-bolt cover-mounted valves because it had sold thousands of those valves, and the sales were solely to distributors who resold the valves to thousands of industrial facilities throughout the world. They said that Xomox had little success with product recalls when it contacted distributors to try to identify the owners of defective valves. Herb Roedel of Charles Lowe, Xomox’s local distributor, testified that he routinely passed along all of the literature he received from Xomox to his best customers. However, he said that Rhóne-Poulenc’s predecessor, Stauffer Chemical, had not been one of his best customers, and he had no record of distributing any updated maintenance instructions for the valve to the Martinez plant.
Weiner and Zeidman opined for plaintiffs that Xomox should have made more of an effort to warn the owners of single-bolt cover-mounted valves of the risk confirmed by the Amoco accident. Weiner opined that Xomox improperly delayed in waiting three years after that accident to add a warning to its instructions for the valves. He said that the warning should have been added before the Rhóne-Poulenc plant ordered the replacement bracket for the valve that injured plaintiffs. Zeidman opined that the warning should have been given in a separate document, rather than imbedded in instructions which were furnished only with new sales, where it was less likely to be noticed. Zeidman also said that the instructions originally furnished when the valve was first installed did not adequately highlight the problem of inadvertent removal of the cover.
B. Analysis
Xomox contends that the court erred in submitting the case to the jury because there was insufficient proof that its actions or its product were a legal cause of Torres’s death. “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor. . . .’” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118 [184 Cal.Rptr. 891, 649 P.2d 224, 35 A.L.R.4th 1036].)
For purposes of strict liability in tort, the design of a product may be found to be defective if “the risk of danger inherent in the challenged design outweighs the benefits of such design.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d l].) Once sufficient evidence is presented to sustain a finding that a design feature of the product was a legal cause of the injury, the burden shifts to the defendant to prove in light of various factors that the product was not defective. (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 119.) The relevant factors include “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.” (Barker v. Lull Engineering Co., supra, at p. 431.)
Strict liability is also imposed where a product is defective “because of the absence of an adequate warning of the dangers inherent in its use. . . . Whether the absence of a warning makes a product defective depends on several factors, among them the normal expectations of the consumer as to how a product will perform, degrees of simplicity or complication in its operation or use, the nature and magnitude of the danger to which the user is exposed, the likelihood of injury, and the feasibility and beneficial effect of including a warning.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320 [273 Cal.Rptr. 214].) While strict liability for failing to warn extends only to risks which are “known or knowable” when a product is sold (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1004 [281 Cal.Rptr. 528, 810 P.2d 549]), a duty to warn may also arise if it is later discovered that the product has dangerous propensities, and breach of that duty is a form of negligence (Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, 494 [200 Cal.Rptr. 387]). In either event it must appear that the failure to warn was a legal cause of the injury. (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
Causation was thus a necessary element of Torres’s case, and Xomox advances a number of arguments on that issue based on Rhóne-Poulenc’s modification of the valve’s bracket. Xomox contends that it cannot be held liable for any design defect or failure to warn associated with the valve because the modification of the bracket “and not anything else” caused the accident. Xomox cites various products liability cases from California and other states where manufacturers have been exonerated because their products were substantially altered in unforeseeable ways after they were sold. Cases on the subject are numerous and fact-specific. (Annot., Products Liability: Alteration of Product After It Leaves Hands of Manufacturer or Seller as Affecting Liability for Product-Caused Harm (1972) 41 A.L.R.3d 1251.) The issue in these cases is whether the modification is a concurrent or superseding cause of the harm. (Id. at p. 1253.) Xomox argues that it is not liable for a design defect because the defect, if any, did not exist when the valve left Xomox’s possession. (See BAJI No. 9.00.5 (8th ed. 1994); Moerer v. Ford Motor Co. (1976) 57 Cal.App.3d 114, 116-117 [129 Cal.Rptr. 112].) Xomox submits that it is not liable for any failure to warn because the valve was altered to such an extent that it could no longer be viewed as a Xomox product when the accident occurred. (See Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 364 [212 Cal.Rptr. 395] [duty to warn extends only to manufacturer’s own product]; cf. Young v. Aeroil Products Company (9th Cir. 1957) 248 F.2d 185, 190-191] [unfair to hold manufacturer liable when “the thing being used was not the thing sold”].)
The record does not support Xomox’s assertion that modification of the bracket was the sole cause of the accident. The record does indicate that if the bracket had not been modified there would have been no need to remove it to reach the flange bolts, and thus the modification was one apparent cause of Torres’s death. However, a number of other causes, or potential causes, were established, including: Torres’s failure to wear protective clothing; Charles Lowe’s failure to furnish the correct replacement bracket for the valve; Charles Lowe’s failure to furnish Rhone-Poulenc with all of the literature it received from Xomox; and negligence on the part of Rhone-Poulenc independent of its modification of the valve, including violations of various federal Occupational Safety and Health Administration regulations governing equipment and training in connection with the accident.
There was also substantial evidence that the accident would not have occurred but for the defective design of the valve. Plaintiffs’ expert opined that a proper double-nutted or flange-mounted design would have allowed for safe removal of the bracket without disturbing the valve cover. There was testimony indicating that flange mounting was the best design, and that the double-nut design was not foolproof because, even with that design, the valve cover might come off if the top nut got stuck when a worker tried to remove it. However, both sides’ experts said that double-nutting was a better design than single-bolt cover-mounting. Xomox’s expert acknowledged that conversion from single-bolt cover-mounting to double-nutting was a “positive engineering step” which would have prevented the accident in this case.
There was likewise substantial evidence that the accident would not have occurred but for Xomox’s failures to warn about the danger posed by its single-bolt cover-mounted valves. “Conduct can be considered a substantial factor in bringing about harm if it ‘has created a force or series of forces which are in continuous and active operation up to the time of the harm’ (Rest.2d Torts, § 433, subd. (b)), or stated another way, ‘the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another’ (Rest.2d Torts, §§ 439, 433, com. e.).” (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 253 [7 Cal.Rptr.2d 101].) The deficient warnings identified by plaintiffs’ experts were linked by “continuous” chains of cause and effect to the accident at issue. If Xomox had not waited until May of 1983 before adding a warning about bracket removal to its replacement instructions for the valve, the plant might have received that warning along with the replacement bracket it ordered, and changed the single-bolt cover-mounted configuration as recommended in the warning. When Xomox’s officer was asked why the warning was not added to the instructions until almost three years after the Amoco accident and one year after Xomox began eliminating single-bolt cover-mounted valves from its inventory, he said, “I can’t explain the reason for the time difference.” Rhone-Poulenc might also have been alerted to the cover-removal problem and taken corrective action if Xomox had sent out the product safety reminder it prepared after the Cape Industries accident in 1992, or if Xomox had ever sent a separate warning about the single-bolt cover-mounted design to its distributors with a directive that it be passed along to users of the valve.
The jury could reasonably infer that defective design and deficient warnings were substantial factors in producing the accident, and thus legal causes of Torres’s death. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 572.) “The plaintiff in a strict liability action is not required to disprove every possible alternative explanation of the injury in order to have the case submitted to the jury. ‘It is not incumbent upon a plaintiff to show that an inference in his favor is the only one that may be reasonably drawn from the evidence; he need only show that the material fact to be proved may logically and reasonably be inferred . . . .’” (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 121.)
Xomox argues that, even if plaintiffs’ injuries were attributable in some measure to defective design or warnings associated with the valve, Rhdne-Poulenc’s modification of the valve must be deemed to be a superseding cause of those injuries. Third party negligence which is the immediate cause of an injury may be viewed as a superseding cause when it is so highly extraordinary as to be unforeseeable. (Landeros v. Flood (1976) 17 Cal.3d 399, 411 [131 Cal.Rptr. 69, 551 P.2d 389, 97 A.L.R.3d 324]; Stewart v. Cox (1961) 55 Cal.2d 857, 864 [13 Cal.Rptr. 521, 362 P.2d 345].) “The foreseeability required is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his conduct was ‘a substantial factor’ in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred.” (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 976, p. 367.) It must appear that the intervening act has produced “harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.” (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 573, fn. 9.)
As Xomox notes, there are cases in which the modification of a product has been determined to be so substantial and unforeseeable as to constitute a superseding cause of an injury as a matter of law. (See, e.g., Erickson v. Sears, Roebuck & Co. (1966) 240 Cal.App.2d 793, 798, 800 [50 Cal.Rptr. 143]; Rients v. International Harvester Co. (Minn.Ct.App. 1984) 346 N.W.2d 359, 362-363 [applying Rest.2d Torts, § 402A].) However, foreseeability is a question for the jury unless undisputed facts leave no room for a reasonable difference of opinion. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56 [192 Cal.Rptr. 857, 665 P.2d 947]; Landeros v. Flood, supra, 17 Cal.3d at p. 411.) Thus, the issue of superseding cause is generally one of fact. (See, e.g., Paverud v. Niagara Machine & Tool Works (1987) 189 Cal.App.3d 858, 862 [234 Cal.Rptr. 585], disapproved on another point in Soule v. General Motors Corp., supra, 8 Cal.4th 548; Southern Cal. Edison Co. v. Harnischfeger Corp. (1981) 120 Cal.App.3d 842, 853-854 [175 Cal.Rptr. 67]; Green v. Denney (1987) 87 Or.App. 298 [742 P.2d 639, 642] [foreseeability of horse falling on roof of car was a jury issue].) Superseding cause has been viewed as an issue of fact even in cases where “safety neglect” by an employer has increased the risk of injury (Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 644-645 [105 Cal.Rptr. 890], disapproved on another point in Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624 [147 Cal.Rptr. 486, 581 P.2d 197]), or modification of the product has made it more dangerous (see, e.g., Anderson v. Dreis & Krump Mfg. Corp. (1987) 48 Wn.App. 432 [739 P.2d 1177, 1185-1186]).
In this case, whether modification of the valve was a superseding cause of Torres’s death, or only one of several concurrent causes, was correctly treated as a question of fact. Evidence that the modification made the valve more dangerous was not necessarily dispositive of the issue (Balido v. Improved Machinery, Inc., supra, 29 Cal.App.3d at pp. 644-645; Anderson v. Dreis & Krump Mfg. Corp., supra, 739 P.2d at pp. 1185-1186), and could not properly be viewed as conclusive in this instance. The parties disputed whether Xomox should have anticipated removal of brackets during the valve’s operation. Xomox’s witnesses said that removal of a bracket was unforeseeable from an engineering standpoint because it would never occur in the course of routine maintenance of the valve. However, according to plaintiffs’ expert, it was “absolutely” foreseeable that a worker might inadvertently remove the valve cover thinking that he was only removing the bracket, and proper safety engineering would have anticipated such a mistake. This conflicting evidence precluded any resolution as a matter of law of the issue of superseding cause.
A jury could reasonably conclude that the valve’s design created a foreseeable risk of the harm that befell Torres, and thus that Xomox bore some responsibility for his death even though it could not have anticipated the manner in which the accident occurred. (6 Witkin, Summary of Cal. Law, supra, Torts, § 976, p. 367, and authorities cited; Rest.2d Torts, § 442, subd. (a).) This point was brought out clearly during the cross-examination of plaintiffs’ expert: “Q. ‘Somehow they [Xomox] should have expected that someone would take their bracket, cut it up, reweld it in a way that caused it to be impossible to take the flange bolts out?’ [<]D A. ‘No, sir, I can’t expect them to expect that. But what I can expect them to expect is that whatever bracket is on there, including their own, that when you take the bracket off for a minor repair, that the valve doesn’t blow up in your face.’ ”
There was also room for reasonable disagreement on the other points Xomox raises with respect to the modification. The issue of defective design of a product made up of component parts “is to be determined with respect to the product as a whole.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 746 [144 Cal.Rptr. 380, 575 P.2d 1162].) Thus, modification of the bracket might arguably be said to have changed the design of the entire valve for purposes of the rule that a defendant is not liable for any defect that did not exist when the product left its possession. (Moerer v. Ford Motor Co., supra, 57 Cal.App.3d at pp. 116-117.) In a similar vein, the modification might arguably be said to have transformed the valve into something other than a Xomox product for purposes of the rule that a manufacturer need only furnish warnings for its own products. (Powell v. Standard Brands Paint Co., supra, 166 Cal.App.3d at p. 364.) However, both of these theories could reasonably be rejected on the ground that the modification did not alter the single-bolt cover-mounted feature which was identified as the valve’s design defect. As plaintiffs’ expert pointed out, removal of the bracket on a single-bolt cover-mounted valve resulted in removal of the valve cover regardless of how the bracket was configured.
Arguments not predicated on modification of the valve are also unavailing. Xomox submits that its valve should be deemed safe as a matter of law because of the very low rate of accidents which have occurred during its use. However, the “likelihood” of danger is only one factor in determining the safety of a product’s design. (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 431.) The “gravity” of the danger is also relevant (ibid.), and plaintiff’s expert testified that the danger posed by the valve was not statistically insignificant in light of the magnitude of the accidents it had caused. The evidence showed that accidents involving single-bolt cover-mounted Xomox valves were responsible for six to seven deaths, thirty-three to forty-nine injuries, and $30-35 million in property damage. Whether this record established that the valve was safe was a question for the jury.
Xomox contends that it should have no liability for any failure to warn because it could not feasibly communicate with the owners of its valves. Xomox notes that all of its sales are to distributors, and that thousands of its valves are in use worldwide. However, feasibility is only one factor among several by which the adequacy of product warnings is judged. (Jackson v. Deft, Inc., supra, 223 Cal.App.3d at p. 1320.) Warnings to distributors may be sufficient if a manufacturer does not deal directly with the purchasers of its products (see Persons v. Salomon North America, Inc. (1990) 217 Cal.App.3d 168, 178-179 [265 Cal.Rptr. 773]), but there is no evidence that Xomox ever addressed any written warning about inadvertent cover removal to any distributor of its single-bolt cover-mounted valves. Whether the instructions Xomox supplied with the valves and their replacement parts were adequate warnings under the circumstances was an issue for the jury. (Ibid, [adequacy of warning is usually a question of fact].) The efficacy of Xomox’s arguments that additional warnings were not required because the users of its valves were sophisticated and the risk of cover removal was obvious was also within the jury’s province.
III. Evidentiary Rulings
IV. Computation of the Judgment
A. Background
The jury awarded the Torres plaintiffs a total of $2,056,321 in damages. The special verdict specified that $1,137,073 of these damages (55.3 percent of the total) were economic damages, and $919,248 (44.7 percent) were noneconomic damages. Under Proposition 51, a defendant remains jointly and severally liable for the plaintiff’s economic damages, but the defendant’s liability for noneconomic damages is limited to its proportionate share of fault. (Civ. Code, § 1431.2, subd. (a); DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140]; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1198 [246 Cal.Rptr. 629, 753 P.2d 585].) Thus, Xomox’s maximum liability under the verdict, before any deduction for Torres’s fault, settlement proceeds, or workers’ compensation benefits, was $1,183,035.40, representing the total economic damages of $1,137,073, plus noneconomic damages of $45,962.40 (5 percent [Xomox’s fault] of $919,248 [total noneconomic damages]).
Prior to trial, Rhdne-Poulenc’s insurer filed a Labor Code section 3856 lien in the Torres action for $328,548.85 in workers’ compensation benefits paid to or on behalf of Torres for medical expenses and disability benefits. After trial, the Torres plaintiffs settled with Charles Lowe for $450,000. Xomox moved for credits for these workers’ compensation benefits and settlement proceeds received by the Torres plaintiffs against its liability for economic damages under the verdict.
Xomox argued that all of the workers’ compensation benefits should be credited against economic damages because they constituted “economic damages” within the meaning of Proposition 51. Proposition 51 defines “economic damages” as “objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.” (Civ. Code, § 1431.2, subd. (b)(1).) Proposition 51 defines “noneconomic damages” as “subjective, non-monetaiy losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” (Civ. Code, § 1431.2, subd. (b)(2).)
Xomox argued that most of the postverdict settlement should also be credited against economic damages. This argument was premised on Charles Lowe’s liability for economic and noneconomic damages under the verdict. Xomox calculated that before the settlement, Charles Lowe was jointly and severally liable for economic damages of $1,080,219.35 ($1,137,073 [total economic damages] minus $56,853.65 [Torres 5 percent fault]), and that Charles Lowe was severally liable for noneconomic damages of $87,328.56 (919,248 [total] less 45,962.40 [Torres’s 5 percent] multiplied by 10 percent [Charles Lowe’s fault]). Under this calculation, 92.5 percent of Charles Lowe’s total exposure of $1,167,547.91 was for economic damages, and 7.5 percent of its exposure was for noneconomic damages. Xomox argued that the settlement proceeds should be credited in these same percentages, with $416,250 (92.5 percent of $450,000) allocated to economic damages, and $33,750 (7.5 percent) allocated to noneconomic damages. Alternatively, Xomox argued that the $450,000 settlement should be allocated first to noneconomic damages, up to the $87,328.56 amount Xomox identified as Charles Lowe’s total liability for those damages under the verdict, with the balance—$362,671.44—allocated to economic damages.
The Torres plaintiffs opposed Xomox’s motion for credit, and argued that the judgment should be calculated according to the formula set forth in Peyrat, Calculating Judgments Under Proposition 51: Effect of Plaintiffs Fault, Settlements, and Workers’ Compensation (Cont.Ed.Bar 1993) 15 Civ. Litigation Rptr. 88. This formula, which we will discuss in detail below, essentially allocates all damages represented by the plaintiff’s percentage of fault, all prejudgment settlements, and all workers’ compensation benefits to noneconomic damages, except as otherwise required to insure that there will be no recovery of damages attributable to the plaintiff’s fault, and that no defendant will be liable for more than its percentage share of noneconomic damages. As explained below, the Peyrat formula would produce a judgment against Xomox for economic and noneconomic damages totalling $1,174,956.10.
Alternatively, the Torres plaintiffs argued that the court should apportion credits according to the method used in Espinoza v. Machonga, supra, 9 Cal.App.4th 268, for allocating the proceeds of a pre-arbitration settlement with one defendant between economic and noneconomic damages eventually awarded to the other defendant. Espinoza decided that the settlement should be apportioned between economic and noneconomic damages in the same percentages later fixed for those damages by the trier of fact. (Id. at pp. US-211) Here, 55.3 percent of the jury’s award to the Torres’s plaintiffs was for economic damages. Thus, under the Espinoza approach, 55.3 percent of the workers’ compensation benefits and 55.3 percent of the Charles Lowe settlement would be credited against Xomox’s liability for economic damages under the judgment.
The court decided to follow the Espinoza approach, and used the jury’s 55.3 percent economic damages finding to calculate credits for the workers’ compensation benefits and the postverdict settlement. The court entered judgment against Xomox as follows:
$ 919,248.00 — 45.962.40 = 873,285.60 X .05 = 43,664.28 + 1,137,073.00 — 56,853.65 - 181,687.51 _ 248.850.00 = 693,346.12 + 17,333.65 + 12.762.60 $ 723,442.37
total noneconomic damages sustained by Torres 5 percent reduction for Torres’s 5 percent fault subtotal
Xomox’s share based on Xomox’s 5 percent fault liability for noneconomic damages total economic damages sustained by Torres 5 percent reduction for Torres’s 5 percent fault
55.3 percent of $328,548.85 workers’ compensation benefits
55.3 percent of $450,000 postverdict settlement
total liability for economic and noneconomic damages
prejudgment interest
costs
total judgment
On appeal, Xomox has renewed its arguments about the proper credits for the workers’ compensation benefits and the postverdict settlement, and thereby placed the whole of the judgment calculation at issue. Before turning to Xomox’s arguments, and assuming for the moment that the court’s overall approach to calculating the judgment was correct, we note that the judgment was erroneous insofar as it failed to hold Xomox liable for a full 5 percent of the Torres plaintiffs’ noneconomic damages in accordance with the jury’s decision that Xomox was 5 percent at fault.
As counsel for the Torres plaintiffs argued at the hearing on Xomox’s motion for credits against the judgment, there was no basis under Proposition 51 or the Espinoza case for first deducting 5 percent for Torres’s fault and thereby leaving Xomox liable for only 4.75 percent (5 percent of 95 percent) of the noneconomic damages. (See Civ. Code, § 1431.2, subd. (a) [defendant is liable for noneconomic damages in “direct proportion” to its percentage of fault]; Espinoza v. Machonga, supra, 9 Cal.App.4th at p. 273 [defendant held liable for noneconomic damages based on full percentage of fault; plaintiff’s share of fault applied only to reduce economic damages].) Proposition 51 by its terms guarantees that no judgment will ever be entered against any defendant for the plaintiff’s share of noneconomic damages. Thus, no additional off-the-top reduction of those damages for the plaintiff’s fault is needed to insure that defendants will pay no more than their “direct proportion” of those damages based on their percentage of fault. Accordingly, Xomox’s liability for noneconomic damages should have been fixed at $45,962.40 (5 percent of the total noneconomic damages), rather than $43,664.28 as calculated in the judgment, an increase of $2,298.12.
B. Workers’ Compensation Benefits
(1) Introduction
Prior to Proposition 51, “the proper method of computing plaintiff’s recovery [was] to first subtract from the total award the proportionate amount attributable to plaintiff’s negligence . . . and then to subtract the proportionate amount attributable to the employer’s negligence up to the amount of the workers’ compensation benefits paid.” (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 512 [156 Cal.Rptr. 41, 595 P.2d 619].) “If the employer’s share of fault exceeded the benefits paid or owed, its claim for reimbursement, lien or credit should be denied. If the benefits paid or owed exceeded the employer’s share of fault, the employer should recoup the excess only. . . . Under this formula, third party defendants remained jointly and severally liable to the injured employee for all damages attributable to the employer’s fault which were not covered by workers’ compensation benefits.” (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at p. 599, citations omitted.)
“In DaFonte, the court held the above rule of joint and several liability was modified with the enactment of Proposition 51: Although a defendant remains jointly and severally liable to the injured employee for all economic damages, the defendant’s liability for noneconomic damages is several and limited to defendant’s own proportionate share of comparative fault.” (Engle v. Endlich (1992) 9 Cal.App.4th 1152, 1162 [12 Cal.Rptr.2d 145].) Thus, after Proposition 51, the question arises “whether the credit [for workers’ compensation benefits] should be applied exclusively to reduce the balance of economic damages, or should instead be allocated in some fashion between economic and noneconomic damages.” (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at p. 604.) The DaFonte court wrote that “[t]he proper allocation of the benefit credit in a Proposition 51 case is a matter of some difficulty and importance,” but decided that the issue was best left to the determination of the Court of Appeal upon remand under the circumstances of that case. The case then settled without any decision on the point. (Peyrat, Calculating Judgments Under Proposition 51: Effect of Plaintiffs Fault, Settlements, and Workers’ Compensation, supra, 15 Civ. Litigation Rptr. at p. 91.)
It appears that no case since DaFonte has taken up the issue. The issue could have been raised in Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791 [34 Cal.Rptr.2d 732], where the trial court reduced the economic damages portion of a judgment by the full amount of workers’ compensation benefits paid under the federal Longshore and Harbor Workers’ Compensation Act (id. at p. 1803). Hernandez states that the economic damages were “properly reduced” by the benefits. (Hernandez v. Badger Construction Equipment Co., supra, at p. 1810.) However, because no argument for any different allocation was raised or addressed in the opinion, it does not constitute authority on the issue. (See Ginns v. Savage (1964) 61 Cal.2d 520, 524 [39 Cal.Rptr. 377, 393 P.2d 689] [opinions are not authority for propositions they do not consider]; Civil Damages (1994) 22 Cal. Workers’ Comp. Rptr. 317, 324 [“question of how the calculation should be done in a given case remains open” after Hernandez].) The issue could also have been raised in Poire v. C.L. Peck/Jones Brothers Construction Corp. (1995) 39 Cal.App.4th 1832 [46 Cal.Rptr.2d 631], where economic damages were reduced in the trial court by the full amount of workers’ compensation benefits paid (id. at p. 1837), and calculation of the judgment was at issue in the appeal. Again, however, the propriety of allocating a portion of the benefits to noneconomic damages was not raised or considered. Thus, a full decade after Proposition 51 became effective, the proper treatment of workers’ compensation benefits under that law is apparently still an open question. (Flahavan et al., Cal. Practice Guide: Personal Injury (The Rutter Group 1995) § 2:845.2 rev. #1, 1995 [“. . . it is unclear how the workers’ comp benefits credit should be applied against the third party judgment”].)
(2) Xomox’s Argument
Xomox’s opening brief on appeal sets forth the following argument for allocation of all of the workers’ compensation benefits to economic damages:
“Under the workers’ compensation system, a compensable injury or death may make the employer liable for (1) medical, surgical, and hospital treatment (Lab. Code, §§ 4600-4608); (2) disability benefits (Lab. Code, §§ 4650-4663); (3) death benefits and burial expenses (Lab. Code, §§ 4701-4709); reimbursement for expenses in submitting to medical examination at request of employer or employer’s insurer (Lab. Code, § 4600); and (5) rehabilitation benefits (Lab. Code, §§ 4635-4647). ...
“It does not require extended analysis to see that medical, surgical, and hospital treatment provided as a compensation benefit (Lab. Code, §§ 4600-4608) is the equivalent of medical expenses under Civil Code section 1431.2(b). Disability benefits are ‘objectively verifiable monetary losses’ as well because they are a substitute for loss of earnings. Sections 4650-4663 of the Labor Code specify the calculation of disability benefits as being based upon the employee’s earnings, the nature and extent of the injury, and the injury’s effect of the employee’s ability to hold employment. These are precisely the same factors against which a loss of earnings claim is made in a tort case. See BAJI §§ 14.01, 14.11, 14.12. . . .”
At this point in the argument, Xomox notes that the lien claim herein only reflects payments for medical expenses and disability benefits, and suggests that we need only address these two categories of benefits in deciding this case. However, we believe that a piecemeal approach to different types of workers’ compensation benefits would be inappropriate, and that a single rule for the allocation of all such benefits is the only workable solution. Xomox anticipates this response and argues that the other types of benefits are in the nature of economic damages as well:
“Reimbursement of expenses for submitting to medical examinations, payment of rehabilitation benefits, and payment of burial expenses also fit in the category of ‘economic damages’ as defined by Proposition 51. These expenses are objectively verifiable by receipts of expenses incurred. Additionally, payments toward the rehabilitative training of the plaintiff are also objectively verifiable, because the employer pays the actual cost of the rehabilitative training. Burial expenses are explicitly included in Proposition 51’s definition of economic damages. Death benefits provided for under Labor Code section 4702 also fall into Civil Code section 1431.2’s category of economic damages. Not only are these benefits objectively determined strictly by the number of dependents, but the purpose of the benefits is to support dependents, and therefore the benefits are similar in nature to Toss of earnings . . . loss of employment and loss of business or employment opportunities,’ which are explicit examples of economic damages under Proposition 51.”
Xomox cites the established rule that workers’ compensation benefits are to be credited against a damage award so as to prevent a “double recovery” for the employee’s loss (Witt v. Jackson (1961) 57 Cal.2d 57, 73 [17 Cal.Rptr. 369, 366 P.2d 641]), and Xomox reasons that, because workers’ compensation benefits are for economic damages, they must be credited in full against the economic damages portion of the judgment to prevent the Torres plaintiffs from obtaining a “double recovery” of such damages. Xomox contends that this credit is mandated by Proposition 51 ’s distinction between economic and noneconomic damages, and that it is consistent with the Proposition 51 principle that “defendants in tort actions shall be held financially liable in closer proportion to their degree of fault.” (Civ. Code, § 1431.1.)
(3) The Peyrat Formula
The opposite approach to the one Xomox proposes is advocated in Peyrat, Calculating Judgments Under Proposition 51: Effect of Plaintiffs Fault, Settlements, and Workers’ Compensation, supra, 15 Civ. Litigation Rptr. 88 (hereafter Peyrat). In this commentator’s view, workers’ compensation benefits should “diminish noneconomic damages first and economic damages only if the benefits paid (together with plaintiff’s fault percentage and the amount of settlements) more than exhausts noneconomic damages.” (Id. at p. 97.) Peyrat offers a method of calculating judgments consistent with this view, which tends to maximize a plaintiff’s damages in cases involving workers’ compensation, but eliminates any recovery for the plaintiff’s percentage of fault, and insures that defendants will pay no more than their percentage of fault for noneconomic damages.
Peyrat’s step-by-step instructions for computing all judgments are as follows: “Step 1: Render a joint and several judgment for the plaintiff against all defendants. The amount of this judgment is the amount of the economic damages finding unless Step 1A requires entry of a lesser amount. [<]D Step 1A: . . . Subtract the ‘combined reduction amount’ from ‘total damages’ (defined below). If the remainder is less than the economic damages finding, enter this lesser amount as the judgment in Step 1 . . . H Step. 2: Render a separate several judgment for the plaintiff against each defendant. The amount of each such judgment is that defendant’s fault percentage times the noneconomic damages amount unless Step 2A requires entry of a lesser amount. HQ Step 2A: (Use only if a reduction factor is present.) Subtract the ‘combined reduction amount’ from the amount of the noneconomic damages finding. The remainder is the highest dollar amount that can be entered in Step 2, as a several judgment against any individual defendant." (Peyrat, supra, at p. 99.)
For purposes of this formula, the following definitions apply: “ ‘Defendant’ is a party-defendant to whom the trier of fact has assigned a fault percentage other than zero, [f] ‘Judgment’ is the judgment before the addition of costs or interest. [