Foreman v. AO Smith Corp.

477 S.W.3d 649

Lawrence Foreman, et al., Respondent,

v.AO Smith Corp., et al., Appellant.

No. ED 101525

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: September 22, 2015 Motion for Rehearing and/or Transfer to Supreme Court Denied December 7, 2015

James R. Dowd, 34 N. Brentwood Blvd., Ste 209, St. Louis, MO 63105, Lindsay A. Dibler, Candice C. Kusmer, John J. Kurowski, John P. Fritz, 228 West Pointe Drive, Belleville (Swansea), IL 62226, for Appellant.

Michael Gross, 231 South Bemiston Avenue, Suite 250, St. Louis, Missouri 63105, Joseph F. Yeckel, 7710 Carondelet Ave., Suite 208, St. Louis, Missouri 63105, for Respondent.

ROY L. RICHTER, Judge

Sid Harvey Industries, Inc. ("Appellant") appeals from the trial court's judgment following a jury trial finding Appellant liable for negligent failure to warn Lawrence Foreman ("Respondent") of asbestos-related dangers contained in products Appellant delivered, which were a substantial factor in Respondent developing mesothelioma. We affirm.

I. Background

Respondent worked as a steamfitter from 1958 until 1983, primarily at industrial and commercial construction sites. He was routinely exposed to asbestos and eventually developed mesothelioma. He initiated this action on February 20, 2013, and filed a First Amended Petition on April 29, 2013.

Respondent's original suit named 57 defendants. By the time trial commenced on February 3, 2014, Appellant and Nibco, Inc. ("Nibco"), a manufacturer of valves, were the only remaining defendants, with all others previously settling or being dismissed.¹ Prior to trial Appellants moved to apply Maryland law to the substantive issues of the case because Respondent resided, worked, and received medical treatment in Maryland. On January 15, 2014, the trial court entered an order finding Maryland had the most significant relationship to the parties and issues, and thus Maryland law would apply at trial, except to the issue of contributory negligence versus comparative fault.²

Also prior to trial, Appellants moved to designate certain settlement releases as having admitted joint tortfeasor status under Maryland's Uniform Contribution Among Joint Tortfeasors Act ("UCATA"). On February 4, 2014, the trial court ordered that previously settled defendants Trane US, Inc., Ingersoll–Rand Co., and Georgia–Pacific, LLC all had admitted joint-tortfeasor status under Maryland law in their settlement releases.

Respondent testified at trial that he was exposed to asbestos during the installation and removal of boilers, pipe valves, fittings, and "[p]robably just most about anything, really, that has asbestos in it." He identified Appellant as one of the companies that would supply products containing asbestos, testifying that although he could not recall precisely how often Appellant was the company delivering the products, he believed it to be "quite often."

Respondent said that oftentimes supplies for a job were already at a work site when he arrived, and that sometimes it was hard to identify what company a product came from; sometimes the products had identifying marks or labels, and sometimes they did not. He said whenever possible he did try to identify where a product came from, whether that be from markings on the products themselves or from packing slips included with deliveries. He could not recall any specific products he could identify as being delivered by Appellants, but he said he often recognized one of their delivery drivers, although could not remember his name.

Respondent's expert witness at trial was Steven Hays ("Hays"), an industrial hygienist. He formed his opinion based solely on Respondent's deposition testimony, finding Respondent had been exposed to "one of the highest lifetime doses" of asbestos Hays had ever seen. Hays testified he had never reviewed any specific product delivered by Appellant, relying only on Respondent's deposition prior to trial in forming his opinion.

Respondent also introduced deposition testimony of Appellant's vice-president of finance, Russell TumSuden ("TumSuden"). TumSuden testified that he would review prior asbestos cases brought against Appellant as he prepared for new asbestos litigation as it arose. He also reviewed old catalogs to see which asbestos-related products Appellant had sold. He testified that the only asbestos products he could confirm were sold by Appellant included dry cement, paste, pads, and rope. He testified that he never came across any instance of Appellant selling or distributing asbestos-containing insulation, gasket material, or rope.

On February 7, 2014, Appellant moved for a directed verdict after Respondent rested his case. The trial court denied the motion after argument and recess, and then denied Appellant's renewed motion for directed verdict at the close of all evidence.

The case was submitted to the jury on February 10, 2014, on the theory of Appellant's alleged negligent failure to warn. That same day, the jury entered its verdict in favor of Respondent against Appellants, awarding Respondent $4 million in damages.³ Thirty one settled companies were found not negligent, but found Respondent's exposures to asbestos-related products of all defendants, including Appellant, were a substantial contributing factor in causing Respondent's mesothelioma. The trial court entered its judgment that day.

On March 4, 2014, Appellant filed its Combined Motion for Judgment Notwithstanding the Verdict, Or In the Alternative, Motion for New Trial and Memorandum of Law in Support ("Combined Motion"), and Request for Remittur; it also filed a Motion to Revise Judgment under the UCATA for reduction of the verdict of each party found liable at trial and each settled defendant who had previously admitted joint tortfeasor status.

On May 22, 2014, the trial court denied the Combined Motion and the Request for Remittur. The trial court granted, however, the Motion to Revise Judgment, holding that because there were three admitted joint-tortfeasors (Trane, Ingersoll–Rand, and Georgia Pacific) and two defendants found liable at trial (Appellant and Nibco), Appellant was entitled to a reduction in the verdict by five pro rata shares. This reduced the judgment against Appellant to $800,000.⁴

The Amended Final Judgment was then entered on May 22, 2014. This appeal followed.

II. Discussion

Appellant raises four points on appeal. First, Appellant alleges the trial court erred in failing to grant its Motion for Directed Verdict and its Motion for Judgment Notwithstanding the Verdict because Respondent failed to present a submissible case. Appellant claims Respondent did not provide evidence that a product delivered by Appellant was a substantial contributing factor in causing Respondent's mesothelioma.

In its second point, Appellant argues the trial court erred in overruling objections to Respondent's causation expert's testimony because he assumed facts not in evidence. Appellant claims the expert improperly based his opinion on out-of-court testimony from Respondent that was never given to the jury.

Appellant's third point alleges the trial court erred in denying Appellant a setoff for the shares and amounts paid in excess of those for the 15 identified settled defendants under Maryland's UCATA, as this setoff was required by Maryland law.

Finally, Appellant alleges the trial court erred in failing to grant Appellant's Motion for New Trial in that the verdict contained a substantive defect under Missouri law. Appellant argues the two differing personal injury damage amounts rendered the judgments impossible to enforce as written.

A. Denial of Motion for Directed Verdict

Appellant's first point on appeal alleges the trial court erred in denying Appellant's motions for a directed verdict and judgment notwithstanding the verdict because Respondent failed to present a submissible case to the jury. Before applying the proper standard of review, we must address the conflicts of law rules that govern our review.

"A fundamental principle of conflicts is that a forum state will always apply forum procedure, but it will choose the applicable substantive law according to its own conflict of law doctrines." Reis v. Peabody Coal Co., 997 S.W.2d 49, 58 (Mo.App.E.D. 1999) (quoting Ernst v. Ford Motor Co., 813 S.W.2d 910, 921 (Mo.App.W.D. 1991) ). Thus, Missouri procedural law will apply, while Maryland law will apply to substantive issues.

1. Standard of Review

When reviewing the denial of a directed verdict, our review is limited to whether Respondents presented a submissible case. Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 26 (Mo.App.E.D. 2013) (en banc). "A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence." Burns Nat'l Lock Installation Co., Inc. v. Am. Family Mut. Ins. Co., 61 S.W.3d 262, 271 (Mo.App.E.D. 2001). We must consider the evidence and the reasonable inferences from it in the light most favorable to Respondent, disregarding all contrary evidence. Delacroix, 407 S.W.3d at 26. We will reverse the jury's verdict "only if there is a complete absence of probative facts to support the jury's conclusion." Keveney v. Missouri Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010).

2. Analysis

Appellant argues Respondent failed to present a submissible case because Respondent could not prove any specific product delivered by Appellant contributed to causing Respondent's disease.

"To establish proximate causation in Maryland, the plaintiff must introduce evidence which allows the jury to reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result." Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986).

Maryland courts have adopted what is known as the "frequency, proximity, and regularity" test for asbestos-exposure cases. John Crane, Inc. v. Linkus, 190 Md.App. 217, 233–34, 988 A.2d 511 (2010). "Relevant factors include the nature...