Widener v. Pacific Gas & Electric Co.Widener v. Pacific Gas & Electric Co.
Donald Widener (hereinafter appellant) appeals from a judgment notwithstanding the verdict and from an order granting a new trial after a jury had awarded him damages on his complaint for libel against Pacific Gas and Electric Company (PG&E) and its employee, James C. Carroll (hereinafter respondents). The verdict against PG&E was in the amount of $750,000 compensatory damages and $7 million in punitive damages and against Carroll in the amount of $8,000 punitive damages. The jury also found in favor of Widener on a cross-complaint by Carroll.
The trial court rendered a combined “Order for Judgment Notwithstanding the Verdict, Order Conditionally Granting New Trial, and Order Granting New Trial on Cross-complaint.” In its order, the trial court stated that the judgment n.o.v. was granted on the ground that appellant had failed to prodube any evidence of “actual malice” as required under
New York Times Co.
v.
Sullivan
(1964)
Widener appeals from the judgment notwithstanding the verdict and from the alternate order granting a new trial. Defendants PG&E and Carroll have taken a protective cross-appeal from the judgment entered on the jury’s verdict in favor of plaintiff.
This libel action concerns a certain letter, written by respondent James C. Carroll, a supervising steam generation engineer employed by respondent Pacific Gas & Electric. The letter, dated July 13, 1971, was
Appellant Widener was employed by KNBC as a documentary producer. Widener had received professional recognition for previous documentaries made for KNBC, and in 1971, had a one-year exclusive contract with NBC to produce three documentaries. One of these films, “Powers That Be,” concerned the subject of nuclear power as a source of electrical energy. The research, writing, interviewing, and editing of the film were done by appellant pursuant to his contract with KNBC. “Powers That Be” was narrated by the well-known film personality, Jack Lemmon, and was broadcast in prime evening time over KNBC in Los Angeles on May 17, 1971. The point of view of the film was essentially anti-nuclear.
During the preparation of “Powers That Be,” appellant filmed an interview with respondent James C. Carroll. The filming occurred in the control room of Humboldt Unit No. 3, a nuclear power plant operated by PG&E near the City of Eureka. The interview had been arranged by the public relations department of PG&E.
Respondent Carroll was aware that he was being filmed, and that his voice was being recorded on the NBC equipment, during the formal interview. During the filming, Carroll was seated facing Widener under bright lights especially set up for the interview. A member of the NBC camera crew fastened a sensitive Laveliere microphone on a cord around Carroll’s neck. The filmed questioning was preceded by the sharp report of a clapboard held in front of Carroll’s face. The entire filmed interview with Carroll was approximately four minutes in length. A one-minute segment was used in the finished film. The film as broadcast lasts approximately 50 minutes.
Carroll did not see the KNBC broadcast of the film; he first learned of the broadcast from an acquaintance. Carroll was informed that he
On May 26, about a week after the broadcast, Frederick R. (“Fritz”) Draeger, PG&E’s “nuclear information specialist” and the employee who had made the arrangements for Widener’s visit to the Humboldt Bay power plant, sent a memorandum to three of his superiors in the public relations department. The May 26th memo, which was sent to Lariy R. McDonnell, head of the PG&E News Bureau, A. J. McCollum, head of public information, and Robert R. Gros, vice president of public relations, reported that a few of Draeger’s friends who had seen the film “reacted violently” and that some friends of Dale Cook, western states public relations officer for the United States Atomic Energy Commission, “tagged the documentary as ‘smooth, professional and devastating.’ ” The May 26 memo states in full as follows:
“LRM/AJM/RRG:
“ ‘Powers that Be’ was shown on KNBC Tuesday, May 18, 1971. A few of my friends saw it and reacted violently. I understand Jack Horton was concerned and has Bill Walker trying to develop a rebuttal program. From all I heard, we should go in and ask for equal time to respond to a hatchet job. Dale Cook reports that his friends tagged the documentary as ‘smooth, professional and devastating.’
“From all I could glean as relates to our work at the Humboldt Bay Power Plant, Jim Adams wound up on the cutting room floor and J. Carroll’s footage was so placed as to give the worst possible impression.
“KNBC plans to repeat the documentary in a few months. In six to nine months they will put it in the studio’s circulating library. The film is currently being offered to affiliate stations.
“Dale Cook has promised to send me a review of it which appeared in the Los Angeles Times. The review is negative from our point of view.
“Widener’s contract has not been renewed by KNBC so he is going independent. Thus, I have had difficulties in trying to get more information. At present there is only an original of the documentary and the studio refuses to let it out. However, to assuage my feelings, atranscript is being mailed to me today. It will be reproduced here and given broad circulation.
FRD
“P.S. - Just received transcript in mail—attached.
E. A. Boone
“JCCarroll
cc: JRAdams”
A copy of the memo was also sent to Carroll.
Sometime soon after May 26, Carroll asked Draeger to seek a copy of the film for review. Draeger had already requested the film on his own. KNBC declined to release its only copy but, as Draeger had reported in his May 26 memorandum, “to assuage my feelings, a transcript is being mailed to me today. It will be reproduced here and given broad circulation.”
Draeger promptly circulated the transcript to “appropriate people in .the company who might have an interest,” but not to Carroll. Carroll finally received a copy of the film transcript about a month later, on June 25. Upon reading it, Carroll became “upset” and “quite angry” at being portrayed as evasive. Carroll believed that the transcript erroneously and unfairly portrayed him as unwilling to answer a question concerning fuel cladding. * The film transcript read, in part, as follows:
“(Jack Lemmon): This reactor in northern California has been operating since the 1950s. But not without criticism. Such as faulty fuel rods, a problem since corrected. We asked P.G. and ■ E.’s James C. Carroll about such criticisms.
“(Don Widener): Mr. Carroll, as you know, there have been published criticisms of the plant here for using improper construction materials in the beginning. Can you describe what that’s all about?
“(James C. Carroll): Well this is analogous to a problem you have in your industry. There were criticisms of improper design and constructiontechniques in early color television sets that resulted in excessive radiation to people.
“(Don Widener): What was it exactly that the critics were talking about in your case?
“(James C. Carroll): I don’t think we ought to answer that, it’s too lengthy a question. [1]
“(Jack Lemmon): Long questions. Sometimes short answers. It’s tough to get a matched set. The questions about nuclear power involve radiation, long-lasting wastes, and the possibility of a major accident. Long questions, indeed.”
Carroll’s memory was somewhat cloudy as to whether he had said the words shown in the transcript during the filming. In his testimony, Carroll did recall responding to Widener in a low voice during the filming, but “it was a mystery . . . how my . . . low voiced conversation could have ended up in the program.” The following exchange occurred at trial:
“The Court: But at the time that you were writing this [letter] or reflecting on it at your home one evening, your recollection is that something that you had said had either been dubbed out or something that you had said at a prior time had been put in. Is that what you—what did you conclude preliminarily?
“The Witness: Well, there were two things that troubled me. One is my recollection of my response to that question was that it had been held in a low voice. And I could not understand how it could have ended up in the program.
“The Court: Is this at the actual filming?
“The Witness: At the actual filming.
“The Court: And you couldn’t understand what?
“The Witness: How that could have ended up in the program because of the high background noise in the control room and the rest of it.
“The Court: What ended up in the program, these words that I’ve just read?
“The Witness: Yes.
“The Court: ‘I don’t think we ought to answer that. It’s too lengthy a question’?
“The Witness: Well, not those specific words, but- words in response to that question. Because I recalled and my memo shows this, that when the question was asked I didn’t know how to respond to it, and I dropped my voice to tiy to get Mr. Widener’s attention.”
Carroll testified that at the time he reviewed the film transcript and drafted the accusatory letter, he was certain that Widener had unfairly created the impression that Carroll had not wanted to answer the fuel cladding question; but his recollection was not clear as to specifically what he had said during the filmed interview.
Concluding that the answers that he had given during the Humboldt Bay interview had been misrepresented, Carroll decided to write a letter of complaint to KNBC-TV. Carroll submitted a draft of a letter to Fritz
“LRM/AJM:
“J. C. Carroll proposes to send the attached letter to:
“Mr. Robert Howard, Station Manager
KNBC Television
3000 Alemeida
Burbank, California 90205
“I heartily concur that Jay should send this letter because he, along with the company, has been wronged by Widener’s ‘Powers That Be’ documentary. In fact, his accusation that his tape recorded words ‘recorded without his knowing if and dubbed in on the TV film, could be most effective in preventing this highly biased program from either ever appearing on the air again or, at least, causing the section referring to us to be wiped out.
“This letter has been reviewed and approved by Paul Matthew; Bill Lindblad has reviewed it from an Engineering Department point of view. In fact, he suggests that a copy be sent to Spiro Agnew (in jest, I assume).
“By copy of this letter to P. A. Crane, I am asking for legal review and opinion.
“May I have your comment so Jay can receive any further counsel that is needed.
FRD
“Enclosure
cc: P. A. Crane, Law Department
J. C. Carroll, Steam Engineering
H. L. McMasters, Advertising-Publicity” (Emphasis added.)
On July 13, the final letter, which reflected the editorial suggestions that Draeger had collected, was mailed to Robert Howard at the KNBC studios in Burbank. The three-page letter bitterly denounced the bias of the documentary produced by appellant for KNBC, characterizing the script as “replete with halftruths, innuendos, and worse.” In the letter, Carroll charged that: “Mr. Widener apparently taped our informal discussion prior to the filmed interview without my knowledge. Some carefully edited excerpts from the taped discussion are what appears [in the film transcript].” Carroll conceded, at trial, that the charge of surreptitious taping and dubbing was false:
“Q. And as you sit here today, Mr. Carroll, is there any doubt in your mind that the words His Honor just read from the transcript, the words I just read that are transcription from this film we just saw a moment ago were uttered by you when you were on camera during the interview with Mr. Widener?
“A. No, there isn’t.
“Q. There’s no doubt in your mind now, is there?
“A. No, there isn’t. Not at this time.
“Q. Those words were not taped off camera secretly without your knowledge, were they?
“A. No, they were not.”
Carbon copies of the July 13 letter from Carroll to Robert Howard were sent to appellant Widener, Jack Lemmon, and Congressmen Chet Holifield and Craig Hosmer (two Southern California congressmen who were members of the Joint Committee on Atomic Energy). Copies of the letter were also sent to a nuclear information specialist employed by the
On July 28, 1971, additional copies of Carroll’s July 13 letter were sent by Ralph B. Dewey, PG&E’s Washington representative, to several members of Congress and to members of the Federal Communications Commission. As the jury was instructed, the letters sent to members of Congress and officials of the Federal Communications Commission were “absolutely privileged and no liability of the [respondents] could result therefrom.” The letters were apparently received only for the purpose of showing the general context of other pertinent communications.
Everyone connected with the Carroll letter recognized that in the commercial television industry the charge of surreptitious taping and dubbing was a grave accusation that could destroy the reputation of a person in that industry. Draeger and Dewey knew that the charge was “very serious.” Robert R. Gros, vice president of public relations for PG&E, testified that the charge was “quite serious,” “very unethical journalism,” that he would not permit such a practice in the production of PG&E’s own films, and that if anyone under his supervision had engaged in such conduct “I would have fired him.” Jack Lemmon characterized the accusation as “deadly” and “the kiss of death.” Reece Halsey, an expert with 32 years’ experience as an agent for television writers and producers, testified that the charge would destroy a producer’s reputation if it “received any spreading around in any way.” Robert Howard, station manager for KNBC-TV in Los Angeles indicated that proof of such an allegation would be cause for immediate dismissal from NBC.
On August 13, 1971, Robert Howard, NBC vice president and general manager of KNBC, replied to the July 13 letter he had received from Carroll. Howard stated in his letter that the charge of surreptitious taping and dubbing had been investigated by KNBC and found to be without basis in fact. Howard’s reply concluded by inviting Carroll to appear on one of the station’s interview programs.
On August 24, 1971, Carroll responded to Howard’s reply letter, declining the invitation to appear on a subsequent program. Carroll’s August 24 letter states, in part:
“Dear Mr. Howard:
“This is in response to your August 13 reply to my July 13 letter regarding the program ‘Powers That Be’ produced for KNBC by Mr. Don Widener. I have reviewed the events prior to and during the actual filming of my interview with Mr. Widener on February 10 with a number of P.G. and E. people who were present. The informal discussion between Mr. Widener and me which took place prior to the actual filming occurred while the camera crew were setting up their equipment and adjusting lighting and audio levels. Our collective recollection is that some or all of the material which was ultimately used in the program was recorded during this period.
“Even accepting your explanation that the filmed interview was a misunderstanding between Mr. Widener and me on what constituted the actual interview as contrasted to our informal discussion, I must continue to voice my same complaint about the manner in which the material from this interview was used in the program. Mr. Widener knows full well that I did not decline to discuss the subject of the fuel difficulties which occurred early in the life of the Humboldt Plant as the program implies....
“Finally, I have reviewed your series of KNBC editorials of August 3, 4 and 5, and am pleased to note that KNBC now advocates that ‘in spite of the risks, nuclear power development should continue, in Southern California.’ I take this to mean that you have no future plans for showing ‘Powers That Be’ or for making it available to organizations which do not share your views and mine about the important role nuclear power must play in meeting our future electrical energy requirements. If this proves to be the case, there is obviously no purpose in my pursuing this matter further. (Italics added.)”
In Washington, Ralph P. Dewey received several replies to his July 28 letters. Dewey also conferred by telephone with Nicholas Zapple, staff counsel of the Senate Committee on Commerce, who indicated that, while the charge of surreptitious taping appeared to be untrue, NBC was “deeply concerned” over the entire matter. Following this phone conversation with Zapple, Dewey scribbled a private memorandum on the reply correspondence as follows: “Called him [Zapple] 10 a.m. 9/13. He reiterated his own view that Carroll was ‘off base.’ I said—the case rests; but the fact that NBC is upset at our aggressive approach is just what we wanted. ” (Italics added.)
“Bob Howard telephoned today to inform me that a press relations officer at PG&E had telephoned him to discuss J. C. Carroll’s letter.
“Essentially, PG&E wanted to make it clear that Mr. Carroll had written the letter on his own initiative and that his opinion did not express the views of PG&E. He stated that neither he nor Mr. Carroll had actually seen the program Powers That Be, and that Mr. Carroll had made his judgments concerning the programs solely on the basis of comments made by others concerning the program and on the basis of scripts that KNBC had provided to him.”
Appellant contends that the trial court erred in granting respondents’ motion for a judgment notwithstanding the verdict, on the ground that appellant had failed to produce sufficient evidence that the defamatory statements were made with “actual malice,” as required by
New York Times Co.
v.
Sullivan, supra, 376
U.S. 254. In
New York Times,
the United States Supreme Court held that, in order for a public official to be able to recover for defamation, the First Amendment required the public official to prove, with convincing clarity, the defendant’s “actual malice,” at the time of the publication. “Actual malice” can be shown by proving either that the defendant knew of the falsity of the statement or that the defendant uttered the statement in reckless disregard for the truth.
(New York Times Co.
v.
Sullivan, supra, 376
U.S. at pp. 279-280 [11 L.Ed.2d at pp. 706-707].) The
New York Times
rule also applies to plaintiffs who are “public figures.”
(Gertz
v.
Robert Welch, Inc.
(1974)
Appellant contended below that he was not a public figure. However, during the settlement of jury instructions, appellant stipulated that the
New York Times
standard would be applied, and the jury was so instructed. Therefore, the
New York Times
rule will be applied here. (See
Fopay
v.
Noveroske
(1975)
Actual malice must be proved with convincing clarity.
(New York Times Co.
v.
Sullivan, supra, 376
U.S. 254, 285-286 [
In the present case, appellant was required to prove by clear and convincing evidence that respondents made the defamatory statement in
An independent review of the evidence reveals ample evidence from which the jury might infer that respondent PG&E acted with reckless indifference to the truth or falsity of the serious charge it made against Widener. There was no “hot news” element here. The PG&E executives, who participated in the drafting and review of the July 13 corporate letter, had cause seriously to question the veracity of their sole source, Carroll. Every one of them was aware of the extreme gravity of the charge of surreptitious tampering, of Carroll’s anger, and of the fact that five months had elapsed since the filming session. None of them (nor Carroll) had viewed the film, in which Carroll’s words are clearly synchronized with his lip movements and he appears to be looking directly at the camera. None checked into the technical feasibility of the charged tampering. Robert Gros, vice-president of public relations, testified as follows: “Q. Now, that’s a very unusual event, is it not, the secret or clandestine taping of somebody’s words and putting them in a finished film that goes out over broadcast? A. So unusual I’ve never heard of it.” However, none of them questioned Carroll about the charge. Respondent PG&E was very much aware of the possible resulting harm; the seriousness of the charge it was making called for a thorough investigation, but the record reveals that little or no investigation was conducted. The record also indicates that respondent intensely desired the suppression of the anti-nuclear power film, which it viewed as “smooth, professional and devastating.” Thus the jury, in applying the “clear and convincing evidence” test, might have inferred that respondent’s motive to suppress the film so overwhelmed its attention that all of
Appellant contends that there was also sufficient evidence from which the jury might have found that respondent Carroll made the surreptitious taping charge with knowledge of its falsity, or in reckless disregard for whether it was accurate or not. Carroll testified that he did not remember saying, on camera, “the things that the transcript shows [him] as saying.” Matters of credibility, however, are for the jury. The jury was not required to believe Carroll’s testimony that, at the time of the July 13 letter, he did not believe that he had said those words. There was much evidence that Carroll was extremely “upset and angiy” at being portrayed as evasive. 2 Several months had elapsed since the filming and he could not remember specifically what he had said in the interview; his own notes of the February 10 interview indicated to him that at least some conversation concerning fuel cladding was held during the filmed interview. Carroll also greatly desired to suppress the film. There was sufficient evidence from which the jury could have found that Carroll knew the charge was false, or was recklessly indifferent as to whether his statement was accurate or no,t. The trial court therefore erred when it granted the motion for a judgment notwithstanding the verdict on the ground that appellant had failed to produce sufficient evidence of actual malice to support the juiy’s verdict.
Appellant contends that the trial court was without power to make an order that it would grant a new trial if its order for judgment notwithstanding the verdict was reversed on appeal. Appellant is correct in his contention that the trial court’s order conditionally granting motion for a new trial was technically defective. The trial court’s order states: “In the event that, for any reason, the aforesaid order for judgment notwithstanding the verdict is reversed on appeal then the motion of defendants ... for a new trial is hereby granted . . . .” Under section 629 of the Code of Civil Procedure, the trial court has the authority to simultaneously grant both a motion for judgment notwith
Appellant contends that the order granting respondents a new trial must be reversed, because (1) the specifications of reasons in the trial court’s order are legally inadequate, and (2) there is “no substantial basis in the record” supporting the trial court’s reasons (see
When a new trial is granted,
The trial court conditionally granted the new trial order on two grounds: insufficiency of the evidence on the “actual malice” issue to justify the verdict, and excessive damages. The adequacy of the “insufficiency of the evidence” ground will be examined first.
Insufficiency of the Evidence
The order adequately sets forth the ground (insufficiency of the evidence) upon which the trial court relied in granting respondents a new trial but, as appellant argues, it does not contain the adequate specification of reasons mandated by
However, in response to a letter from defense counsel suggesting an amplification of the specification of reasons and citing the applicable case law in this area, the trial court, on Januaiy 12, 1976, filed an “Amplification of Orders of January 9, 1976,” setting forth a specification of reasons for granting the motion for a new trial. This procedure was proper (see
LaManna
v.
Stewart
(1975)
The specification contained in the “Amplification” adequately set forth the trial court’s reasons for granting a new trial on the ground of insufficiency of the evidence with regard to respondent Carroll. However, no specification of reasons is given as to why “the evidence” was insufficient to support the jury’s determination that “actual malice” (i.e., knowledge of falsity or reckless disregard for truth or falsity) was established with regard to respondent PG&E. Inasmuch as no reasons were specified with regard to respondent PG&E, the order granting respondent PG&E’s motion for a new trial cannot be sustained on the ground of insufficiency of the evidence (see
LaManna
v.
Stewart, supra,
The question remains whether the order granting a new trial can be sustained on another basis. Appellant contends that, even if the specification of reasons with regard to respondent Carroll was adequate, there is “no substantial basis in the record” (
Appellant correctly argues that the record contains contradictory evidence on this matter. However, the court stated in
Dietrich
v.
Litton Industries, Inc.
(1970)
Excessive Damages
Turning to the second ground (i.e., excessive damages) on which the new trial order was based, appellant contends: (1) that there was an inadequate specification of reasons for the court’s conclusion that there was no evidence of damages, and (2) even if the specificátion of
The specification of reasons for granting the motion on the ground of excessive damages was as follows:
“In this action the jury awarded plaintiff a verdict of $750,000 general damages and $7,000,000 punitive damages.
“Except for copies sent to members of Congress, which were absolutely privileged, only the original and four copies of the July 13, 1971 letter were mailed and to be considered by the jury. There is no evidence that any of the recipients of said letter republished same. The original of the letter was sent to KNBC-TV, Los Angeles. Mr. Howard, its General Manager, testified that the letter did not affect plaintiff’s relationship with National Broadcasting Company. None of the other recipients of the letter was connected in any way with the television industry.
“Plaintiff has failed to establish by a preponderance of the evidence any causal connection between the publication of the letter and his fluctuating income.
“The court is convinced that the award in this case was based on factors other than on any evidence which would indicate general or punitive damages sustained by plaintiff proximately resulting from said published letter.
“After weighing the evidence the court is convinced from the entire record, including all reasonable inferences to be drawn therefrom, that plaintiff has not suffered any loss or damage, general or punitive, by reason of the publication of the aforesaid letter.”
With regard to the excessive damages ground, the form of the January 9 order adequately complies with the requirements of
However, appellant contends that the trial court’s conclusion that there was no evidence that appellant was damaged by the defamatory
The judgment notwithstanding the verdict is reversed. The order granting a new trial is affirmed. The precautionary appeal from the judgment on the verdict is dismissed as moot. Plaintiff will recover costs on appeal.
Rattigan, Acting P. J., and Emerson, J., * concurred.
Petitions for a rehearing were denied November 28, 1977, and the opinion was modified to read as printed above. The petitions of all the parties for a hearing by the Supreme Court were denied January 19, 1978.
Notes
Cladding is the metallic shielding around the radioactive fuel elements of a nuclear power plant. Where cracks develop in the fuel cladding material, radiation leaks into the environment.
1The “out-takes” show that the following occurred immediately after the exchange used in the finished film:
“D. WIDENER: I didn’t. I didn’t, never did hear what he said. What did you say? I never did hear that last part.
“J. CARROLL: It’s too lengthy a question, I think, to answer.
“D. WIDENER: Oh, okay.
“J. CARROLL: Do you want me to spend the ten minutes answering it right? I don’t care. I will.
“D. WIDENER: No, we won’t—we don’t have ten minutes and if you—
[Third voice]: “Cut—
“D. WIDENER: can’t answer it in ten minutes, then—
[Film ends, sound continues] [Blurred film]
“D. WIDENER: —it can’t be done.”
Carroll believed that Widener’s editing of the finished film unfairly portrayed him as evasive on the fuel cladding issue, since, as the “out-takes” show, Carroll had offered to answer Widener’s question about “improper construction materials” during the formal interview if he could take ten minutes to respond. It was Widener’s position that the answer used in the film fairly captured what Widener perceived as Carroll’s evasive attitude: The fuel cladding or improper construction material issue was discussed preliminarily when the film crew arrived, and Carroll repeatedly stressed the need for “five to ten minutes to discuss it.” At that time, Widener informed Carroll that he could not give Carroll 10 minutes because it was only a 50-minute film. Also during this preliminary discussion, Carroll “offered the opinion that [he] did not see how fuel cladding problems were really of much public interest” in view of the fact that “Humboldt Bay, as well as all other U.S. commercial power reactors, had always operated well below A.E.C. limits for both gaseous and liquid radioactive waste discharges.”
CarrolI’s February 14 notes on the February 10 interview lend some support to Widener’s contention that Carroll was being evasive. Carroll’s notes acknowledged that “. . . Widener apparently realized that . . . Carroll would probably not respond to questions which [Carroll] considered improper . . . .” Also, Draeger’s written comments on an August 17 memo from Gros stated in part: “. . . Widener knew Jay [Carroll] wouldn’t answer the question as result of warm-up conversation.”
Code of Civil Procedure section 629 provides, in part: “If the court grants the motion for judgment notwithstanding the verdict or of its own motion directs the entry of judgment notwithstanding the verdict and likewise grants the motion for a new trial, the order granting the new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed, and the order granting a new trial is not appealed from or, if appealed from, is affirmed.”
Code of Civil Procedure
Since orders granting motions for new trial are infrequently reversed, “it is essential that they be the product of a mature and careful reflection on the part of the judge. Society has a manifest interest in avoiding needless retrials .. ..”
(Mercer
v.
Perez, supra,
Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.