Hoff v. Certainteed Corp.

316 Or.App. 129

503 P.3d 457

Patricia M. HOFF, Individually and as Personal Representative of the Estate of David P. Hoff, Plaintiff-Respondent,

v. CERTAINTEED CORPORATION, et al., Defendants,andKaiser Gypsum Company, Inc., Defendant-Appellant.

A162891

Court of Appeals of Oregon.

Argued and submitted June 9, 2020.

December 8, 2021

J. Aaron Landau, Eugene, argued the cause for appellant. Also on the briefs were Susan D. Marmaduke and Harrang Long Gary Rudnick P. C.

James S. Coon, Portland, argued the cause for respondent. Also on the brief was Thomas, Coon, Newton & Frost.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DeVORE, P. J.

Defendant Kaiser Gypsum Company appeals from a judgment for plaintiffs.¹ David Hoff (Hoff), now deceased, and Patricia Hoff brought this product liability and negligence action arising from Hoff's alleged exposure to asbestos, which resulted in mesothelioma, an asbestos-related disease. They alleged that Hoff suffered the disease as a result of exposure to drywall joint compound manufactured and sold by defendant.²

Defendant raises three assignments of error. Defendant contends that the trial court erred by (1) denying its motion for directed verdict, (2) granting plaintiffs’ post-trial motion to amend their complaint to seek a greater amount in noneconomic damages, and (3) entering a judgment against defendant that, contrary to ORCP 67 C, awarded noneconomic damages for the loss-of-consortium claim in excess of the damages that had been alleged in one of two parts of the complaint.

We conclude that (1) denial of defendant's motion for directed verdict was proper because there was sufficient evidence from which a jury could find that Hoff was exposed to defendant's product in the course of his work; (2) any arguable error in allowing plaintiffs’ motion to amend their complaint after trial is harmless because plaintiffs did not actually file a second amended complaint; and (3) the judgment complied with ORCP 67 C because, notwithstanding inconsistent figures on consortium damages in the operative complaint—an inconsistency that defendant repeatedly failed to seek to clarify—the judgment entered was not in excess of the amount that was sought in the prayer. Making those conclusions, we affirm.

"We review the denial of a motion for directed verdict for any evidence to support the verdict in favor of the nonmoving party." Lyons v. Beeman , 311 Or. App. 560, 563, 494 P.3d 358, rev. den. , 368 Or. 513, 493 P.3d 507 (2021) (internal quotation marks omitted). We view the evidence in the light most favorable to plaintiffs, "and, if the evidence supports more than one conclusion, we leave it for the jury to decide." Id . at 564, 494 P.3d 358. Unless there is no evidence from which the jury could have found the facts necessary to support plaintiffs’ claim, we will not disturb the jury's verdict. Id . ; Or Const, Art VII (Amended), § 3. We state the facts according to that standard.

FACTS

Hoff worked for R.A. Gray Company (Gray), a general contractor, from late 1973 to sometime in 1980 and then again from the early 1990s until he retired in 2013. Hoff was diagnosed with mesothelioma in August 2015. In September 2015, Hoff brought claims against ten defendants, including Kaiser Gypsum Company, that he alleged had manufactured or distributed asbestos-containing products to which he was exposed and that he alleged caused his disease. Hoff alleged that the asbestos-containing drywall products caused cancer when inhaled and that asbestos fibers were released "into the breathing zone of individuals working with or near the product, particularly during routine and anticipated use of the product." Hoff's wife brought claims against the same defendants for loss of consortium arising out of her husband's injury.

Hoff was a carpenter whose primary skills were framing and finish carpentry, jobs that were commonly done while drywall taping and finishing were underway on Gray job sites. He also frequently helped to sweep up the dust created by the sanding of drywall joint compound at job sites. Defendant's drywall joint compound contained asbestos for approximately two of the years that Hoff worked for Gray—from when he began working there in late 1973 until late 1975.³

During the trial, plaintiffs provided testimony by two witnesses, Nemeth and Croft, who worked for Gray doing drywall finishing. Each of their tenures at Gray overlapped with Hoff's for some period of time. Nemeth, who worked at Gray for a year or less in the early 1970s as a drywall finisher, testified about the drywall finishing process and explained that joint compound, which he referred to as "mud," and tape are used to cover the joints of drywall sheets (sheetrock) that are hung.⁴ Several coats of mud are applied, and each coat is sanded so that the walls and ceilings become smooth. The sanding process is extremely dusty, and the room gets foggy because the dust floats in the air. After a room is sanded, it "would be very—very foggy with dust. Foggy with dust, dust on the floor, dust everywhere." During the time he worked at Gray, Nemeth recalled using four brands of joint compound that he said were "commonplace" at Gray. Although he could not identify specific jobsites where he used specific products, one was defendant's product. When asked to explain his usage of the word "commonplace," Nemeth said, "They usually use, generally, certain brands. While they used many different brands, they generally used certain brands, and these—those are the brands I remember using." He also testified that "[t]hey would be on most every job. * * * [T]he reason I remember these brands is because that's what they mostly used."

Nemeth testified that he ran across Hoff a few times on the different jobs he worked on for Gray. Although he could not specify the names of the projects where he recalled seeing Hoff, Nemeth recalled two commercial jobs—office buildings—located in Tigard and Beaverton where he saw Hoff on site. One particular time, at an office building in Beaverton, Nemeth was at the site to do some drywall patching, and he spoke with Hoff at length. Hoff had been sweeping in a hallway at the time, as superintendents sometimes did toward the end of a job.

Croft worked at Gray in the 1970s for approximately seven years.⁵ He and two other employees had the primary responsibility for installing the drywall and finishing it on the various job sites. His duties involved sanding drywall joint compound, and he explained that there was not any way to sand without creating dust. Sanding was exhausting and messy work, and sometimes he would have to sand for four hours at a time. Similar to Nemeth's testimony, Croft explained that dust filled the atmosphere, and the people in the room would get covered in dust. In addition, the dust would be transported throughout the building by the HVAC system, and it was not confined to the room where sanding was taking place.

Some of the jobs Croft worked on were quite large—three or four-story buildings with as much as 10,000 feet per floor—and there would be a lot of trades working on the buildings at the same time. Croft worked on different jobs with Hoff as a peer and as his supervisor. He testified that he recalls projects where he was on site doing his job when Hoff was also present at the worksite. Croft named some specific projects where he recalls having seen Hoff, and he also stated that he "probably was in contact with [Hoff] on, who knows, it could have been 20 or 30 jobs. It might even be more, I don't know; but we were—we were on a lot of common work sites." He recalled working as the drywall finisher, which included sanding, at some of the same projects that Hoff also identified as projects at which Hoff worked in the 1973 to 1975 time period.

Croft named four major brands of joint compound that Gray used while Croft worked for Gray, one of which was defendant's product. Croft could not place a particular joint compound brand at a specific job site but stated that they were used "very often" on Gray's projects. He said that they used "huge quantities" of those four products:

"[T]hey would deliver the products on a pallet, and there'd be, oh, probably 20 or 30 boxes per pallet; and they'd deliver several pallets, and sometimes we'd go through a few more pallets. So we used hundreds of boxes and buckets of the materials.

"* * * * *

"* * * [F]or [each] job, probably, depending on the size of the job, from a little job, maybe 20 boxes or buckets; and for a bigger job, it could be hundreds."

When asked whether those four products were used on the same projects where he worked with Hoff, he said "yes" and explained that they "used those products on a regular basis; [he] was on numerous jobs with David Hoff; and, to draw a logical conclusion, those products were used by [him] on jobs where [Hoff] was present * * * on a regular basis." Croft also explained that the other two drywallers that he worked with used the same products; he knew this because they would share the buckets of product while working on a project.

Hoff's testimony was that, after his cancer diagnosis, he tried to figure out whether he had had exposure to asbestos during his career.⁶ He determined that drywall compounds were "probably the predominant ones." He testified about his work history at Gray, including the projects he had worked on, what his job duties as a carpenter had been, and whether drywalling had taken place at a particular project. He identified five work projects where he worked before 1976 that also involved drywall installation and finishing.⁷ One of those projects was a commercial complex that included an office building and was approximately 30,000 to 35,000 square feet in size. Another project was a house that was approximately 4,500 square feet. And another was a commercial building that was 15,000 to 18,000 square feet.

Hoff explained that it was "very common" to be doing his work as a carpenter at the same...