GARLOCK SEALING TECHNOLOGIES, LLC
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Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000918-MR
GARLOCK SEALING TECHNOLOGIES, LLC
v.
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, SPECIAL JUDGE
ACTION NO. 02-CI-00310
AVA NELL DEXTER, INDIVIDUALLY;
JAMES M. DEXTER, EXECUTOR OF THE
ESTATE OF JAMES G. DEXTER, DECEASED;
AND CERTAINTEED CORPORATION
AND
APPELLEES
NO. 2006-CA-000962-MR
JAMES M. DEXTER, EXECUTOR OF THE
ESTATE OF JAMES G. DEXTER, DECEASED
v.
APPELLANT
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, SPECIAL JUDGE
ACTION NO. 02-CI-00310
CERTAINTEED CORPORATION AND
GARLOCK SEALING TECHNOLOGIES, LLC
APPELLEES
AND
NO. 2006-CA-000988-MR
CERTAINTEED CORPORATION
v.
CROSS-APPELLANT
CROSS-APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, SPECIAL JUDGE
ACTION NO. 02-CI-00310
AVA NELL DEXTER, INDIVIDUALLY; AND
JAMES M. DEXTER, EXECUTOR OF THE ESTATE
OF JAMES G. DEXTER, DECEASED
AND
NO. 2006-CA-001025-MR
GARLOCK SEALING TECHNOLOGIES, LLC
v.
CROSS-APPELLEES
CROSS-APPELLANT
CROSS-APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, SPECIAL JUDGE
ACTION NO. 02-CI-00310
AVA NELL DEXTER, INDIVIDUALLY;
JAMES M. DEXTER, EXECUTOR OF THE ESTATE
OF JAMES G. DEXTER, DECEASED; AND
CERTAINTEED CORPORATION
OPINION
REVERSING AND REMANDING
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CROSS-APPELLEES
** ** ** ** **
BEFORE: CLAYTON AND DIXON, JUDGES; GRAVES, 1 SENIOR JUDGE.
DIXON, JUDGE: Ava Nell Dexter and James M. Dexter, executor of the estate of
James G. “Dayton” Dexter (Dayton), appeal from an order of the Marshall Circuit
Court granting Appellees a new trial pursuant to CR2 59.01 following the first trial
in the proceedings below. Garlock Sealing Technologies, LLC, and CertainTeed3
Corporation cross-appeal from a judgment for damages entered upon a jury
verdict, following retrial, adjudging them liable upon Appellants' claims relating
to Dayton's exposure to asbestos while working in close proximity to the asbestoscontaining products manufactured by the companies.
FACTUAL AND PROCEDURAL BACKGROUND
Dayton Dexter worked as a pipefitter from 1946 until his retirement
in 1984. In the course of his pipefitter duties, Dayton was exposed to asbestoscontaining products and materials, including asbestos-containing pipe gaskets and
sealants manufactured by Garlock, and asbestos-containing waterpipe
manufactured by CertainTeed. Dayton was also a former long-term cigarette
smoker.
Prior to the commencement of the present litigation, Dayton was
diagnosed with lung cancer. In connection with Dayton's cancer treatment and
1
Senior Judge John W. Graves, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
2
Kentucky Rules of Civil Procedure.
3
“CertainTeed” is also spelled “Certainteed” in the record. We have followed the spelling used
by the company in its appellate brief.
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other medical examinations it was determined that his lungs contained significant
levels of asbestos fibers. It is undisputed that Dayton's lung cancer was caused by
a combination of his exposure to asbestos and his long-term cigarette smoking.
Dayton died in March 2004, while this litigation was still pending, at the age of
79. Dayton's son, James M. Dexter, as executor of his estate, was substituted as a
party following Dayton's death.
On July 8, 2002, Dayton and Ava filed a lawsuit in Marshall Circuit
Court alleging that Dayton contracted an asbestos-related disease by reason of his
occupational exposure to asbestos-containing products during his pipefitter career.
They named nineteen corporate defendants as bearing responsibility for Dayton's
injuries, including Garlock and CertainTeed.4 The Dexters' principal theories for
recovery against the asbestos-containing products manufacturers, including
Garlock and CertainTeed, were strict products liability and common law
negligence. By third-party complaint, eleven additional corporate defendants were
brought into the litigation for purposes of the apportionment of liability.5
4
The nineteen named defendants were as follows: Triangle Insulation and Sheetmetal Co.; 4520
Corporation, Inc; Henry A. Petter Supply Company; Robertson-Ceco Corporation; Motion
Industries, Inc.; North Brothers, Inc.; ACandS, Inc.; Westinghouse Electric Corporation; General
Electric Company; CertainTeed Corporation; Garlock, Inc.; Mine Equipment and Mill Supply
Company; Hannan Supply Company; Combustion Engineering, Inc.; Rapid-American
Corporation; John Crane, Inc.; Metropolitan Life Insurance Company; Southern Manufacturing,
Inc.; and Union Carbide Corporation.
5
The eleven third-party defendants were as follows: Mead Westvaco Corporation; CC Metals
and Alloys, LLC; Air Products and Chemicals, Inc.; Tennessee Valley Authority; ISP Chemical
Products, Inc.; Arkmea, Inc.; Federal-Mogul Corporation; Federal-Mogul Products, Inc.; OwensCorning Corporation; Crawford Russell Corporation; and Johns Mansville Corporation.
-4-
Some of the companies were granted summary judgment, and various
settlements were made prior to the first trial (Dexter I), none of which is at issue in
this appeal. Ultimately only Garlock and CertainTeed did not settle and remained
to try the case to verdict. The trial in Dexter I commenced on May 11, 2005.
The case was submitted to the jury in Dexter I on May 25, 2005. The
jury found in favor of the Dexters on the products liability claim and in favor of
Garlock and CertainTeed on the negligence claim. The jury returned a verdict
awarding Dayton's estate $66,376 for past medical expenses; $5,000,000 for
physical and mental pain and suffering; and $6,750 for funeral expenses, for a
total verdict of $5,073,126. The jury apportioned fault as follows: Dayton Dexter,
35%; CertainTeed, 30%; and Garlock, 35%, and allocated no fault to the other
remaining companies appearing on the verdict form. On June 10, 2005, the trial
court entered judgment in accordance with the jury verdict.
Garlock and CertainTeed subsequently moved for a new trial
pursuant to CR 59.01, arguing that the jury's failure to allocate any fault to any of
the other empty-chair defendants whose products and materials were identified as
potential sources for Dayton's asbestos exposure, or upon whose premises the
exposure occurred, was so contrary to the evidence as to entitle them to a new
trial. Ultimately, the trial court awarded Appellees a new trial upon all issues.
The second trial (Dexter II) took place in January and February 2006.
The trial court permitted Garlock and CertainTeed to present new and additional
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evidence against the empty-chair defendants, as well as additional evidence of
Dayton's smoking habit. At the conclusion of the trial the jury returned a verdict
finding Appellees liable under both the Dexters' products liability and negligence
theories. Damages were returned as follows: $63,005 for past medical expenses;
$1,500,000 for pain and suffering; $6,744 in funeral expenses; and $15,000 for
lost of consortium. In addition, the jury assessed $100,000 in punitive damages
against CertainTeed, and $600,000 in punitive damages against Garlock. Thus,
the total verdict for damages in Dexter II was $2,314,749. Fault was apportioned
as follows: Dayton Dexter, 60%; CertainTeed, 2%; Garlock, 17%; remaining
companies, 21%. On February 22, 2006, the trial court entered judgment in
accordance with the jury verdict. The judgment also ordered that post-judgment
interest be allowed at the statutory rate of 12% per annum.
Following entry of the judgment in Dexter II, Garlock and
CertainTeed each moved for judgment notwithstanding the verdict, which motions
were denied. These appeals followed raising multiple issues. Because we find the
Dexters appeal dispositive, all remaining issues are rendered moot.
Paramount to our decision is the Dexters’ argument that the trial court
erred in granting Garlock and CertainTeed's motions for a new trial following
Dexter I. On appeal, the Dexters make several interrelated claims concerning the
trial court's decision under CR 59.01 to grant Appellees a new trial. In short, they
contend 1) that the jury had insufficient evidence to allocate fault to other
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defendants listed in the jury instructions; 2) that Appellees failed to indisputably
prove one or more other company's product/conduct was a substantial factor in
causing Dayton's lung cancer; and 3) that Appellees failed to identify which of the
26 other companies' products were a substantial factor in causing Dayton's injury.
As each of these issues is interrelated, we address all issues collectively.
In its September 8, 2005, order awarding Garlock and CertainTeed a
new trial, the trial court explained its reasoning for granting a new trial as follows:
Defendants, Garlock Sealing Technologies, LLC and
CertainTeed Corporation have moved the Court for a
new trial under CR 59.01. The basis for the motion filed
by these defendants is the jury's failure to apportion fault
to any but two (2) of the twenty-eight (28) defendants
included on the verdict for which said defendants
contend is so contrary to the evidence adduced at trial.
The Court has considered the record herein as well as
arguments of counsel. The Court being thus sufficiently
advised, it finds that the motion of Garlock Sealing
Technologies, LLC and CertainTeed Corporation are
entitled to a new trial on the issue of apportionment
because the jury's verdict finding no fault to be
apportioned to any defendant except Garlock Sealing
Technologies, LLC and CertainTeed Corporation is
manifestly unsupported by the evidence and manifestly a
product of jury passion and prejudice. Under CR
59.01(f), this Court may grant a new trial if “the verdict
is not sustained by sufficient evidence, or is contrary to
law.” The jury's finding that Garlock Sealing
Technologies, LLC and CertainTeed Corporation were
alone responsible for the plaintiffs' decedent, James G.
Dexter's exposure to the asbestos fibers that led to his
developing an asbestos-related disease and contributed
to causing his lung cancer is not supported by the
evidence.
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CR 59.01(f) permits a new trial to be granted when a jury's, “verdict
is not sustained by sufficient evidence, or is contrary to law.” As an appellate
court, we review the circuit court's ruling on a motion for a new trial motion for
an abuse of discretion and will reverse only if there is clear error. Miller v. Swift,
42 S.W.3d 599, 601 (Ky. 2001); Rippetoe v. Feese, 217 S.W.3d 887, 890 (Ky.App.
2007) (citing Thomas v. Greenview Hospital Inc., 127 S.W.3d 664 (Ky.App. 2004)
overruled on other grounds by Lanham v. Commonwealth, 171 S.W.3d 14 (Ky.
2005)). The trial court's decision is presumed correct and will not be reversed
absent clear error. Shortridge v. Rice, 929 S.W.2d 194, 196 (Ky. App. 1996).
This rule recognizes that a decision on a motion for a new trial depends, to some
extent, upon factors and impressions not included in the appellate record. Id. A
trial court has broad discretion in ruling upon a motion for a new trial and we will
not disturb such ruling absent an abuse of that discretion. Lewis v. Grange Mut.
Cas. Co., 11 S.W.3d 591 (Ky.App. 2000). “An abuse of discretion occurs when a
‘trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.’” Farmland Mut. Ins. Co., 36 S.W.3d at 368, 378 (Ky. 2000)
(quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.
2000)). “The discretion of the trial judge, who participates in the conduct of the
trial, in refusing or granting a new trial will be interfered with only in exceptional
cases.” Wilkins v. Hopkins, 278 Ky. 280, 128 S.W.2d 772, 774 (Ky.App. 1939).6
6
The parties make various arguments concerning the proper standard of appellate review upon
the granting of a motion for a new trial. We need not address those arguments, however, as the
standard is well established and remains as set forth above.
-8-
While we do not lightly disturb a trial court's discretion under CR
59.01, upon a thorough review of the extensive record in this case, it is our view
that the trial judge's decision in Dexter I to set aside the jury's verdict constituted
an abuse of discretion and was clearly in error.
At the outset, we note the inherent difficulty in reviewing decisions
under CR 59.01. Unfortunately, this rule does not require the trial court to reveal
its reasoning when nullifying a jury's finding of fact. Our review is particularly
difficult when, as occurred here, the trial lasted for approximately two and onehalf weeks, consisted of numerous witnesses, many hours of testimony and
exhibits, and required vast resources from all parties, all of which resulted in a
voluminous record. Yet, we are left to speculate as to the trial court's
determination of precisely how the evidence was insufficient to support the jury's
verdict, and exactly how the verdict was contrary to law.
While a trial court does possess broad discretion under CR 59.01,
such discretion is not limitless. For example, where conflicting testimony would
support a verdict for either party,
[i]t is the function of the jury to determine questions of
credibility and issues of fact where the evidence is
conflicting. While the trial court has a broad judicial
discretion in granting or refusing a new trial, it may not
set aside a verdict of a jury because it does not agree
with the verdict if there was sufficient evidence to
support it.
-9-
Conley v. Dunn, 552 S.W.2d 671, 672 (Ky. App. 1977), quoting Woods v. Asher,
324 S.W.2d 809, 811 (Ky. 1959). Additionally, “a trial court's discretion is
abused by granting a new trial when no sufficient or sound reason exists therefor,
or where the court travels outside the record to find grounds for granting the new
trial.” Daniel v. H.B. Rice and Co., 275 S.W.2d 924, 925 (Ky. 1955). Further, as
recognized by the Court in Aetna Life Ins. Co. v. Shemwell, 273 Ky. 264, 116
S.W.2d 328, 330 (Ky. 1938),
it is the well-known rule that the courts are not
authorized to reverse the verdict of a jury upon the
grounds that it is contrary to the preponderance of the
evidence, unless the verdict is so flagrantly against the
evidence as to raise the presumption that it was rendered
under passion or prejudice. While a mere scintilla of
evidence is not sufficient to sustain the verdict of a jury,
yet, if there is any evidence of a substantial and probative
nature to sustain the verdict, the courts are unauthorized
to disturb it.
And finally, as noted by a panel of this court in Embry v. Turner, 185 S.W.3d 209,
218 (2006), “[t]he overturning of a jury verdict in favor of a new trial is a matter
of the utmost seriousness, and should only occur when the specific criteria set
forth in CR 59.01 are carefully considered and met.”
This case presents intriguing factual issues to resolve. Did the jury in
Dexter I improperly fail to allocate fault to defendants other than those present at
trial? And, if so, was its failure to do so “manifestly unsupported by the evidence
and manifestly a product of jury passion or prejudice” necessitating a new trial?
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In order to address these questions we must first examine what proof is necessary
in order to allocate fault.
For fault to be assigned to a tortfeasor in Kentucky, there must first
exist sufficient evidence that a defendant has legally caused a plaintiff's injury.
We have adopted the legal causation standard set forth in the Restatement
(Second) of Torts, § 431 (1965):
§ 431 What Constitutes Legal Cause
The actor's negligent conduct is a legal cause of harm to
another if
(a) his conduct is a substantial factor in bringing about
the harm, and
(b) there is no rule of law relieving the actor from
liability because of the manner in which his negligence
has resulted in the harm.
See Bailey v. North American Refractories Co., 95 S.W.3d 868, 871 (Ky. App.
2001); Deutsch v. Shein, 597 S.W.2d 141, 144 (Ky. 1980); Claycomb v. Howard,
493 S.W.2d 714, 718(1973).
Once fault has been established, KRS7 411.182 controls allocation of
fault in all tort actions, including product liability. According to subsection 2,
“[i]n determining the percentages of fault, the trier of fact shall consider both the
nature of the conduct of each party at fault and the extent of the causal relation
between the conduct and the damages claimed.” Thus, there must be sufficient
evidence presented against each defendant that they were not only at fault in
7
Kentucky Revised Statutes.
-11-
causing Dayton's illness, but the extent to which their conduct caused his illness in
order to allocate fault.
Specifically here, pursuant to the court's instructions, in order to find
a manufacturer liable, the jury was required to find that 1) Dayton was exposed to
a product manufactured or distributed by each defendant; 2) the product was in a
defective condition rendering it unreasonably dangerous; 3) the defective
condition existed at the time its product was sold; 4) the existence of the defective
condition caused such a risk of harm to persons exposed to its products that an
ordinarily prudent manufacturer being fully aware of this risk would not have put
it on the market without a warning of reasonably foreseeable dangers; and 5) the
defective condition was a substantial factor in causing Dayton's injury. Similar
substantial evidence was necessary in order to hold any of the installers, suppliers
and distributors, or premises owners liable as well. Clearly, significant proof of
causation was necessary to support a finding against any defendant in this
litigation.
The Dexters proceeded to trial only against CertainTeed and Garlock,
having settled with all other defendants who had not been dismissed for various
reasons. Little evidence was presented against any other defendant by either side
during the trial in Dexter I. While CertainTeed and Garlock contend that there
was “substantial, uncontested evidence that [Dayton] had significant exposure to
asbestos fiber from products and at premises of several defendants listed on the
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verdict sheet,” they have failed to provide us with sufficient evidence from which
a jury verdict against any of these other defendants could have been supported. It
is not enough that general asbestos exposure has been established.
“[A]pportionment of fault to defendants where the evidence is insufficient to
support liability is error.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d
815, 825-826 (6th Cir. 2000). “The jury must apportion fault considering evidence
of conduct and causation. If the evidence is such that no reasonable juror could
determine a given party is at fault, logic dictates that the jury should not be
instructed to apportion fault to that party.” Id.
Significantly, the testimony Appellees reference consists entirely of a
recitation of possible sources of exposure but not how this exposure was causally
related to Dayton's illness. For example, Billy Robertson, a retired pipefitter who
worked for many years out of the same union hall as Dayton, testified that
Triangle Insulation and Sheet Metal Co. provided asbestos-containing thermal
insulation at worksites operated by third-party defendants Air Products and
Chemicals, Inc.; Mead Westvaco Corporation; ISP Chemical Products, Inc.; and
Tennessee Valley Authority. Robertson further testified to the effect that Dayton
worked in proximity to thermal insulation manufactured by Johns-Manville
Corporation; Rapid American Corporation; Owens-Corning Corporation; John
Crane, Inc., and Federal-Mogul Corporation at various worksites. Robertson also
testified that Dayton had worked in proximity to asbestos-containing products
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manufactured by Combustion Engineering Inc.; Henry A. Petter Supply Co.; and
Hannan Supply Co., and that Dayton had worked at worksites operated by CC
Metals and Alloys, LLC, f/k/a SKW; and Arkema, Inc., f/k/a Goodrich.
Similarly, Herman Mitchell, who worked as a pipefitter out of the
same union hall as Dayton, testified that he recalled Dayton working around
asbestos-containing insulation manufactured by Triangle Insulation and Sheet
Metal Company and Westinghouse at the TVA Shawnee Steam Plant; and Ron
Eades testified that Dayton worked in proximity to thermal insulation produced by
North Brothers, Inc. at the TVA Shawnee Power Plant and to pipe covering
manufactured by Owens-Corning and Johns Manville at various other facilities.
Lastly, Appellees refer us to Dayton's verified complaint and
interrogatories, and to James Dexter's testimony. They state that Dayton claimed
that nineteen companies were responsible for exposing him to asbestos in his
Complaint, and that he testified by deposition that he had worked with or around
asbestos products at the GE plant in Mount Vernon, the AEC plant in Paducah,
Air Products, B.F. Goodrich, GAF and SKW in Calvert City, the TVA Shawnee
Steam plant, the TVA Paradise Steam plant and Westvaco in Wickliffe.
James Dexter testified at trial that he had worked with his father at
several plants and recalled one instance when they were exposed to asbestos from
work performed by insulators at the GE plant in Mount Vernon. He also testified
that Triangle Insulation installed insulation at the B.F. Goodrich plant and he
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recalled Owens Corning Kaylo insulation at a number of job sites. While this
evidence demonstrates that Dayton had possible exposure from a number of
sources, Appellees utterly fail to provide us with any substantial proof that would
establish that any other specific defendant's conduct actually caused Dayton's
injury.
Based upon the foregoing proof, there is little wonder why the jury
failed to allocate fault beyond CertainTeed and Garlock. This evidence is a mere
recitation of defendants without any proof of legal causation on their part. In fact,
many of the entities referred to above were either third-party defendants or nonparties. Absent in the foregoing testimony is evidence of the length of exposure to
asbestos. Nor can we find evidence that any product manufactured by any of these
companies was in a “defective condition unreasonably dangerous.” Also lacking
is reference to testimony that any of these defendants might have expected that
Dayton would use or be exposed to their products or such products on their
premises. Nor do Appellees provide us evidence from which the jury could have
determined whether these products carried warnings, and if so, whether the
warnings were sufficient. Lastly, lacking is proof that any of these defendants’
products or conduct was a substantial factor in causing Dayton's illness and death.
From the foregoing evidence, it is just as likely that the jury could have believed
that the non-parties were at fault for some of Dayton's illness as opposed to any
named defendant. Because these entities were not listed on the verdict form, there
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is no way to know. Obviously, the failure of the jury to allocate fault to these nonparties would not merit a new trial under CR 59.01. Certainly, no more evidence
of legal causation existed against any named defendant (other than Appellees) than
these non-parties. Consequently, had the jury found any of the other defendants
liable, that finding could not have been supported by the evidence in this record.
Even Garlock acknowledged this fact in arguing to the trial court that Appellees
should be allowed to introduce additional evidence against the other defendants at
a second trial. In their motion, Garlock states:
[i]n the interest of justice, [the trial court] should allow
Garlock and CertainTeed reasonable latitude to prepare
their defenses for the new trial. This is especially so if
only to avoid the consequences of re-trying the case on
weak or insufficient evidence that does not enable the
jury to understand the facts and render a fair and
reasonable verdict. Unless the parties are allowed to
disclose supplement lay witnesses, the new trial will be
only a “re-trial” with a different jury. Without
additional witnesses to testify about the facts of the
Plaintiffs' exposure, it is entirely possible that the same
result may occur.
(emphasis ours). By granting Garlock's motion, the trial court tacitly agreed. In
fact, the court allowed Appellees wide latitude in permitting them to supply
additional proof even as to Dayton's smoking. It is unclear how this new evidence
had bearing upon allocation of damages between defendants.
CertainTeed and Garlock apparently rely on evidence in the record
establishing the number and types of asbestos fibers found in Dayton's lungs from
an autopsy performed after his death. They direct us to the testimony of their
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expert, Dr. Michael Graham, who asserted that the predominant type of fiber found
in Dayton's lungs was amosite, a type not contained in products manufactured by
either CertainTeed or Garlock. Consequently, they contend, Dayton was exposed
to “enormous” amounts of amosite asbestos fibers and relatively few of the
crocidolite fibers which would have been found in their products. Thus, they
conclude, the jury must have ignored this evidence by finding only CertainTeed
and Garlock at fault. This argument is disingenuous at best.
At first glance Appellee's argument appears to have merit. Yet, in
order to fully understand the nature of asbestos fibers, one must first consider what
types of asbestos fibers exist. Appellees direct us to testimony at trial which
indicates that amosite asbestos fibers are found in thermal insulation, while
CertainTeed products contain crocidolite asbestos fibers. What they fail to
acknowledge is that another type of asbestos fiber, chrysotile, is the predominant
fiber found in CertainTeed asbestos pipe and Garlock gaskets. Appellee’s
assertion that Dayton was obviously exposed to far more thermal fibers ignores
that other proof presented by the Dexter's expert, Dr. Sam Hammar, M.D., a board
certified anatomic and clinical pathologist, countered that it was not uncommon to
find little evidence of chrysotile in lungs of workers exposed to substantial
amounts of this fiber. Dr. Hammar elucidated that chrysotile has a half life of only
90-120 days while amosite and crocidolite fibers have half lives of 10-20 years.
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Next, Appellees argue that under a Sixth Circuit decision, Strickland
v. Owens Corning, 142 F.3d 353 (1998), the trial court would have committed
reversible error had it not granted a new trial. In Strickland, the Sixth Circuit held,
in a case tried under Kentucky law, that the district court erred when it denied a
motion for a new trial in an asbestos case where the jury had apportioned 70% of
the fault for the plaintiff's illness to the distributor of an asbestos product and only
30% of the fault to the product manufacturer. After the verdict, Owens Corning
filed a motion under the Federal Rules of Civil Procedure seeking a new trial. The
district court rejected this motion and held that the verdict was “supported by
sufficient evidence.” On appeal, the Sixth Circuit determined that the jury's
verdict was against the weight of the evidence where there was no evidentiary
basis for attributing a greater percentage of fault to the distributor of an asbestos
product than to all other companies selling asbestos-containing products, including
the manufacturer of the product actually sold by Owens Corning. Id. at 359. Such
is not the case here.
Despite Appellees’ claims to the contrary, as has previously been
demonstrated, little evidence against any other defendant exists. Furthermore,
here, CertainTeed and Garlock are the manufacturers of the asbestos-containing
products, not merely a supplier, as was the case in Strickland. Abundant evidence
in the record exists in which the jury could have reasonably relied upon to find
Appellees liable. Several witnesses testified that they had worked with Dayton
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who had seen him exposed to substantial amounts of asbestos dust coming from
CertainTeed and Garlock products over a number of years.
The testimony established that Dayton had routinely removed Garlock
asbestos-containing gaskets from the 1950's to 1986. Evidence presented also
showed that Appellees were aware, or should have been aware, of the cancer risk
their asbestos products posed to individuals installing them. Proof presented by
the Dexters showed however, that despite this knowledge, Appellees failed to
warn those who would be exposed to these dangerous fibers. Additionally, Arthur
Frank, M.D., a Professor of Public Health at Drexel University School of Public
Health, testified that Dayton's asbestos exposure to dust from cutting asbestos
cement pipe and from manipulating asbestos gasket materials was a substantial
contributing factor to the development of his lung cancer. Dr. Hammar testified
that had Dayton made only 75 cuts of CertainTeed asbestos pipe using a power
saw, the amount of asbestos fibers he would have breathed during this time alone
would have been a major contributing factor to his illness. Dr. Hammar further
testified that if Dayton removed Garlock asbestos gaskets over a 30-year period,
then this exposure also contributed to his contraction of lung cancer. This is but a
small portion of the evidence presented by the Dexters against Appellees over the
course of this two-week trial.
Moreover, while it may have seemed “unfair” to the trial court that
CertainTeed and Garlock bore most of the burden of Dayton's illness (apart from
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the 35% allocated to Dayton himself), our system of tort law has set the foundation
for this apportionment. The Restatement (Second) of Torts, § 433A, at p. 434
(1965), allows for apportionment of damages only where there are distinct harms
or where there is a reasonable basis for determining the contribution of each cause
to a single harm. Conversely, where there is no proof of a distinct harm or where
no reasonable basis exists to make such a determination, allocation of damages is
not permitted. As previously addressed, here there was a complete lack of proof as
to the type, length or depth of asbestos exposure by any other defendant.
For the reasons stated herein, the judgment of the Marshall Circuit
Court is reversed and this matter is remanded with instructions for the court to
enter judgment upon the jury's verdict entered on June 10, 2005.
CLAYTON, JUDGE, CONCURS.
GRAVES, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
GRAVES, SENIOR JUDGE, DISSENTING: I dissent solely because
I believe CR 59.01, even though flawed, has not been followed to the letter. Until
this rule is amended by the Supreme Court, we are stuck with the judgment of the
trial court.
This is precisely the kind of case that needed the common sense
judgment of the community. The centrality of the jury lent weight, credibility,
reality, and democracy to the trial. Paradoxically, CR 59.01, as it is now written
and interpreted, empowers a trial judge to find that such a verdict could not be
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reached by a reasonable jury. However, CR 59.01 does not require revealing
reasons for such ruling. For appellate review to be reliable in complex technical
cases, findings of fact are necessary to explain the conclusion that the verdict was
plainly wrong. To justify nullification of the jury’s finding of fact the trial judge
should make known the points missed by the jury.
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BRIEF FOR APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEE/CROSSAPPELLANT GARLOCK SEALING
TECHNOLOGIES, LLC:
Kenneth L. Sales
Joseph D. Satterley
John R. Shelton
Louisville, Kentucky
John K. Gordinier
Stanley W. Whetzel, Jr.
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEE/CROSSAPPELLANT CERTAINTEED
CORPORATION:
John R. Shelton
Louisville, Kentucky
Kerry B. Harvey
Benton, Kentucky
David C. Marshall
Eric A. Ludwig
Atlanta, Georgia
ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT
GARLOCK SEALING
TECHNOLOGIES, LLC:
John K. Gordinier
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT
CERTAINTEED CORPORATION:
Elizabeth Geise
Washington, D.C.
-22-
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