Glenn v. 3M Co.

440 S.C. 34

890 S.E.2d 569

Rita Joyce GLENN, individually and as personal representative of the Estate of Thomas Harold Glenn, deceased, Respondent, v. 3M COMPANY, f/k/a Minnesota Mining and Manufacturing Co.; Air & Liquid Systems Corporation, Individually and as Successor-In-Interest to Buffalo Pumps; Airgas USA, LLC; Aurora Pump; BW/IP Inc., a Subsidiary of Flowserve Corporation; CBS Corporation, a Delaware Corporation f/k/a Viacom, Inc., Successor By Merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation ; CGR Products, Inc., f/k/a Carolina Gasket and Rubber Company, Inc. ; Carboline Company ; Crane Co. d/b/a Crane Chempharma & Energy d/b/a Aloyco, n/k/a Crane Energy Flow Solutions; Crosby Valve, Inc.; Dana Companies, LLC; Daniel International Corporation; Fisher Controls International, LLC.; Flowserve Corporation, Individually and as Successor in Interest to Anchor/Darling Valve Company; Flowserve Corporation, Individually and as Successor to Byron Jackson Pump Company; Fluor Daniel, Inc., f/k/a Daniel Construction Company, Inc.; Fluor Daniel Services Corporation; Foster Wheeler Energy Corporation ; General Electric Company; Goodyear Tire & Rubber; Goulds Pumps, Inc.; Grinnell LLC, f/k/a Grinnell Corp., f/k/a ITT Grinnell Corp., Individually and as Successor to Kennedy Valve Manufacturing Co., Inc. ; Hajoca Corporation; Imo Industries, Inc., Individually and as Successor-in-Interest to De Laval Turbine, Inc. ; Ingersoll Rand Company; ITT Corporation; John Crane, LLC; Linde LLC, a Delaware Limited Liability Company, formerly known as the BOC Group, Inc. and/or Airco, Inc. ; MP Supply, Inc. f/k/a Mill Power Supply ; Metropolitan Life Insurance Company, a wholly-owned subsidiary of MetLife Inc.; Sepco Corporation ; The J.R. Clarkson Company Solely as a Successor by Merger to Anderson Greenwood & Co., f/k/a Kunkle Valve Company, Inc.; The Sherwin-Williams Company ; Trane U.S. Inc., f/k/a American Standard, Inc.; United Conveyor Corporation; United Seal & Rubber Company, Inc.; Uniroyal, Inc., f/k/a United States Rubber Company, Inc.; Velan Valve Corporation; Viking Pump, Inc.; and Weir Valves & Controls USA, Inc., Individually and as Successor in Interest to Atwood & Morrill Co., Inc., Defendants.

Of which Fisher Controls International LLC is the Appellant.

Appellate Case No. 2019-001600

Opinion No. 5975

Court of Appeals of South Carolina.

Heard October 3, 2022

Filed April 5, 2023

Rehearing Denied August 10, 2023

C. Mitchell Brown, Allen Mattison Bogan, and Nicholas Andrew Charles, all of Nelson Mullins Riley & Scarborough, LLP, of Columbia, for Appellant.

Theile Branham McVey, of Kassel McVey, of Columbia, and Lisa White Shirley, Jessica M. Dean, and Jonathan Marshall Holder, all of Dallas, TX, for Respondent.

GEATHERS, J.:

In this complex asbestos case, Appellant Fisher Controls International LLC (Fisher) seeks review of the circuit court's (1) denial of Fisher's motion for a judgment notwithstanding the verdict (JNOV), (2) denial of Fisher's new trial motion, (3) partial denial of Fisher's motion for setoff, and (4) imposition of discovery sanctions. Among a legion of arguments made in its brief, Fisher maintains that the circuit court should have granted a setoff in the full amount of the settlement proceeds obtained by Respondent Rita Joyce Glenn (Rita) prior to trial against the jury's compensatory damages award. We affirm in part and remand for reconsideration of the respective amounts to be set off against the jury's compensatory damages awards for Rita's claims for wrongful death, survival, and loss of consortium.

FACTS/PROCEDURAL HISTORY

From the mid-1970s to at least 1990, Rita's husband, Thomas Harold Glenn (Tommy), worked as an instrument technician at the Oconee Nuclear Station operated by Duke Power Company (Duke) in Seneca. His work regularly required him to be within close proximity to co-workers’ removal of gaskets and packing from valves manufactured by various companies, ¹ including control valves sold by Fisher to Duke. The gaskets and packing often included asbestos, which could stand up to extremely high temperatures and high pressure. There were numerous Fisher valves at the plant, and some of them ranged from one inch to sixteen inches in diameter at the pipe connection, while others were approximately six feet tall. When the gaskets and packing in these valves were disturbed, Tommy was exposed to large quantities of asbestos.

Fisher anticipated that the gaskets and packing in their valves would deteriorate after normal use, so it sold replacements to Duke. As these gaskets deteriorated, they became brittle. Therefore, replacing one of these gaskets involved removing it from the valve component with which it was paired using a wire brush or power grinder so that the component's surface was clean enough to prevent future leaks. This process created visible dust. The removal of worn packing from valves also created dust.

Whenever a reactor unit at the plant would shut down for refueling, Tommy was routinely working alongside a crew performing maintenance work on Fisher valves and its components, which included scraping off the internal bonnet gaskets. One of Tommy's co-workers explained that every 18 months, a reactor unit would shut down to refuel, i.e., "put new uranium in the core," which gave employees "the opportunity to do massive repairs" and maintenance. It was important to get as much work done as possible during these outages; therefore, the instrumentation crew had to work 12 hours a day, seven days a week, "because Duke was losing money if it wasn't generating."

Because the Oconee plant had three units, it had a minimum of two outages per year, and an outage would last at least sixty days. During outages, it was common for many different crews, including various instrumentation crews, to simultaneously occupy the same area while performing their respective tasks. This included Tommy's close proximity to another crew's removal of gaskets and packing from control valves, and, at times, they would even be working "on the same scaffold together."

In addition to the gaskets located inside the control valves, gaskets were used on the control valves’ external flanges connecting the valves to piping in the plant, ² and these gaskets were periodically replaced when Tommy was nearby. Although Fisher sold replacements for only those gaskets that were used inside its valves, its control valve handbook stated that gaskets made of asbestos were an option for the user to apply to its valves’ external flanges.

Ultimately, Tommy was diagnosed with asbestos-related mesothelioma. ³ He underwent extensive medical treatments and took large amounts of pain medication. After an unsuccessful surgery for his condition, Tommy died on February 17, 2015. Subsequently, Rita filed the present products liability action against Fisher and numerous co-defendants, alleging that Tommy was exposed to asbestos emanating from the defendants’ products. Rita asserted claims for wrongful death, survival, and loss of consortium based on theories of relief that included negligence, breach of implied warranty, and strict liability.

Prior to trial, the circuit court denied Fisher's motion in limine to exclude the testimony of Rita's medical experts but granted Rita's motion in limine to exclude a tissue study performed by Fisher's pathologist. Also prior to trial, the circuit court approved a settlement between Rita and some of Fisher's co-defendants. The circuit court also approved Rita's designated allocation of 90 percent of the settlement proceeds to her wrongful death claim and 10 percent to the survival claim.

In January 2019, the circuit court conducted a trial on Rita's claims against Fisher and two co-defendants. Fisher's position at trial was that the asbestos gaskets in its valves were not harmful because they were encapsulated. At the conclusion of trial, the jury returned a verdict against Fisher on the negligence and breach of warranty theories of relief and awarded Rita $1 million for Tommy's survival damages, $1 million for wrongful death damages, and $1 million for Rita's loss of consortium damages. Additionally, the jury found "by clear and convincing evidence that the conduct of [Fisher was] willful, wanton or reckless" and awarded Rita $2,125,000 for punitive damages.

Fisher submitted several post-trial motions, including a motion for a setoff of Rita's pre-trial settlement proceeds against the jury's respective compensatory damages awards on Rita's three claims. The circuit court granted this motion in part, allocating 90 percent of the proceeds to the wrongful death claim and 10 percent to the survival claim and denying a setoff against the loss of consortium claim. The circuit court denied Fisher's remaining post-trial motions and granted Rita's post-trial motion for discovery sanctions. This appeal followed.

LAW/ANALYSIS

I. Inconsistent Verdicts

Fisher argues it is entitled to a new trial because the jury's verdicts on the strict liability and negligence theories of relief were inconsistent and the circuit court failed to instruct the jury to correct the inconsistency. Fisher asserts that the jury's finding for Fisher as to strict liability and its finding for Rita as to negligence were inconsistent because the elements of strict liability are subsumed within the elements of negligence. We conclude that the circuit court acted within its discretion in denying the new trial motion. See Austin v. Stokes-Craven Holding Corp. , 387 S.C. 22, 49, 691 S.E.2d 135, 149 (2010) ("Whether to grant a new trial is a matter within the discretion of the trial judge, and this decision will not be disturbed on appeal unless it is unsupported by the evidence or is controlled by an error of law.").

While giving instructions to the jury, the circuit court stated:

Plaintiff's claims in this case are based on three theories. The first theory is negligence, the

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