Phillips v. Pneumo Abex, LLC

ERIK ROSS PHILLIPS; TINA LANDERS, Plaintiffs - Appellants,andGINA PHILLIPS, spouse, Plaintiff, v. PNEUMO ABEX, LLC, a/k/a Abex Corporation, f/k/a American Brake Shoe Company,f/k/a American Brake Shoe and Foundry Company, American Brakeblok Division, Defendant - Appellee,andALBANY INTERNATIONAL CORPORATION; ASTENJOHNSON, INC.;B E & K INC.; BEK CONSTRUCTION, INC.; BORG-WARNER CORPORATION,by its Successor in Interest BorgWarner Morse TEC Inc.; CBS CORPORATION,f/k/a Viacom, Inc., f/k/a Westinghouse Electric Corporation, a Delaware Corporation;CERTAINTEED CORPORATION; CHATTANOOGA BOILER & TANK COMPANY;CLEAVER-BROOKS COMPANY; CRANE CO.; DANIEL INTERNATIONAL CORPORATION;FLOWSERVE US, INC. as successor to Nordtrom Valves, Inc.;FLUOR DANIEL, INCORPORATED, f/k/a Daniel Construction Company, Inc.;FOSTER WHEELER ENERGY CORPORATION; GARDNER DENVER INC.;GENERAL ELECTRIC COMPANY; GENUINE PARTS COMPANY;GOULDS PUMPS, INC.; GRIZZLY INDUSTRIAL, INC.;HENRY VOGT MACHINE COMPANY; HONEYWELL INTERNATIONAL, INC.;INDUSTRIAL HOLDINGS CORPORATION, f/k/a Carborundum Company; INGERSOLL-RAND COMPANY;ITT CORPORATION, Kennedy Valve Manufacturing Company, individually,and as successor to Bell & Gossett;KORBER PAPERLINK NORTH AMERICA, LLC, Clark-Aiken Company;METROPOLITAN LIFE INSURANCE COMPANY,a wholly-owned subsidiary of MetLife, Inc.; NATIONAL AUTOMOTIVE PARTS ASSOCIATION,INC.; NATIONAL SERVICE INDUSTRIES, INC., f/k/a North Brothers Company;RAPID AMERICAN CORPORATION; RILEY POWER, INC.,f/k/a Babcock Borsig Power, Inc., f/k/a D.B. Riley, Inc., f/k/a Riley Stoker Corporation;SEPCO CORPORATION; MONTALVO COMPANY; TRANE U.S. INC.,f/k/a American Standard, Incorporated; UNION CARBIDE CORPORATION; UNIROYAL,INCORPORATED, f/k/a United States Rubber Company, Inc.; VIKING PUMP,INCORPORATED; YARWAY CORPORATION; ZURN INDUSTRIES, LLC;KORBER PAPERLINK GMBH, individually and as successor in interest to E.C.H.Will GmbH, successor in interest to Pemco, Inc., successor in interest toClark-Aiken Company; E.C.H. WILL GMBH; PEMCO, INC.,individually and as successor in interest to Clark-Aiken Company; WESTINGHOUSEAIR BRAKE TECHNOLOGIES CORPORATION, d/b/a Wabtec Corporation;RAILROAD FRICTION PRODUCTS CORPORATION;REDDAWAY MANUFACTURING COMPANY, INC., Defendants.

No. 16-1508

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: October 24, 2017

December 14, 2017

UNPUBLISHED

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:10-cv-00262-MR)

Before KING, SHEDD, and DIAZ, Circuit Judges.

Affirmed by unpublished opinon. Judge Shedd wrote the opinion in which Judge King joined. Judge Diaz wrote a dissenting opinion.

ARGUED: Mona Lisa Wallace, WALLACE & GRAHAM, PA, Salisbury, North Carolina, for Appellants. Reagan William Simpson, YETTER COLEMAN LLP, Houston, Texas, for Appellee. ON BRIEF: Michael B. Pross, John S. Hughes, WALLACE & GRAHAM, PA, Salisbury, North Carolina, for Appellants. Timothy W. Bouch, Amy Melvin DiLorenzo, Yancey A. McLeod III, LEATH, BOUCH & SEEKINGS, LLP, Charleston, South Carolina; April L. Farris, YETTER COLEMAN LLP, Houston, Texas, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

SHEDD, Circuit Judge:

Erik Ross Phillips and Tina Landers (collectively "Phillips") appeal the judgment entered in favor of Pneumo Abex, LLC ("Abex") on their negligence claim. For the following reasons, we affirm.

I

Phillips contends that he contracted mesothelioma because of occupational exposure to asbestos in brake linings used in a machine at the facilities of his employer, Champion International Paper Company ("Champion"). Reddaway Manufacturing Company ("Reddaway") made the brake linings, and Abex sold them to Champion's supplier. At trial, Phillips pursued a negligent failure-to-warn theory under North Carolina law against Reddaway and Abex. For their part, Abex and Reddaway argued (among other things) that even if they were negligent, they are not liable because of the intervening negligence of a third party - i.e., Champion. See generally Boudreau v. Baughman, 368 S.E.2d 849, 860 (N.C. 1988) ("Where both defendant and a third party are negligent but the third party's negligence is the sole proximate cause of injury, plaintiff cannot recover from defendant.").¹

The district court submitted Phillips' claims to the jury, with accompanying instructions, using a special verdict form that asked the jury to answer a series ofquestions concerning each defendant. The two questions that are most pertinent to this appeal are Questions 2 and 3, which read:

2. Was the Plaintiff Erik Ross Phillips injured as a proximate result of any negligence on the part of the Defendant(s) in providing the warnings for the brake lining product at issue?

If your answer to Issue 2 is "Yes" with regard to either or both Defendants, proceed to answer Issue 3. If your answer to Issue 2 is "No" for both Defendants, then your deliberations have come to an end. . . .

3. Did any negligence on the part of some third party serve to be a superseding or intervening cause of any injury on the part of the Plaintiff Erik Ross Phillips?

If your answer to Issue 3 is "Yes," then your deliberations have come to an end. . . .

J.A. 523-24.²

As to Reddaway, the jury answered "No" on Question 2. This answer, read in conjunction with the jury's answer to Question 1, reflects the jury's finding that although Phillips had frequent and regular exposure to an asbestos-containing brake lining product of Reddaway in his workplace, he was not injured as a proximate result of any negligence by Reddaway. Regarding Abex, the jury answered "Yes" to Questions 2 and 3. These answers reflect the jury's finding that Phillips (who had frequent and regular exposure to an asbestos-containing brake lining product of Abex in his workplace) was injured as aproximate result of Abex's negligence in providing the warnings for the brake lining product, but negligence on the part of a third party was an intervening cause of his injury that became as a legal matter the proximate cause.

Based on these answers, the district court concluded as a matter of law that neither Reddaway nor Abex are liable to Phillips for his injuries, and it entered judgment accordingly. Phillips thereafter moved for a new trial against Abex, which the court denied. Phillips now appeals the judgment as to Abex, seeking partial entry of judgment in his favor or, alternatively, a new trial.

II

Phillips primarily argues that the jury rendered a legally inconsistent verdict. In his view, the district court erroneously split the concept of intervening negligence (Question 3) from the concept of proximate cause (Question 2), and the jury's answers to these questions are irreconcilable. As he explains: "On the one hand, [the jury] found that Abex's negligence was a proximate cause of plaintiff's injury. On the other hand, it found that a third party was the sole proximate cause of his injury. . . . The jury can only find that defendant's negligence proximately caused the injury, or that an intervening cause was the sole cause, but not both." Brief of Appellant, at 13-14. Based on the specific circumstances of this case, we disagree.

When the use of a special verdict form leads to alleged conflicting jury findings, we have a duty to harmonize the jury's answers if it is possible to do so under a fair reading of them. Gosnell v. Sea-Land Serv., Inc., 782 F.2d 464, 466 (4th Cir. 1986). "Where there is a view of the case that makes the jury's answers . . . consistent, they mustbe resolved that way." Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962). In discharging our duty, we must consider the answers in light of the jury instructions, Gosnell, 782 F.2d at 467, and we must view the evidence "in the light most favorable to upholding the jury's decision by a finding of consistency," Ellis v. Weasler Eng'g Inc., 258 F.3d 326, 343 (5th Cir. 2001). Here, our task of attempting to harmonize the answers to Questions 2 and 3 is easy because there is no inconsistency.

The North Carolina Supreme Court has held that "[i]n order to insulate the negligence of one party, the intervening negligence of another must be such as to break the sequence or causal connection between the negligence of the first party and the injury, so as to exclude the negligence of the first party as one of the proximate causes of the injury. An efficient intervening cause is a new proximate cause. It must be an independent force which entirely supersedes the original action and renders its effect in the chain of causation remote." Adams v. Mills, 322 S.E.2d 164, 172-73 (N.C. 1984) (emphasis added and citations omitted). Thus, although "there may be more than one proximate cause, that which is new and entirely independent breaks the sequence of events, and insulates the original or primary negligence." McNair v. Boyette, 192 S.E.2d 457, 461 (N.C. 1972) (emphasis added and internal punctuation omitted).

The verdict is completely in accord with North Carolina law. In charging the jury regarding Question 2, the district court explained that Phillips had to prove the elements of his negligence claim, including that a defendant's failure to provide an adequate warning or instruction was a proximate cause of his injury. The court defined proximate cause as follows:

Proximate cause is a cause which in the natural and continuous sequence produces a person's injury. It is a cause which a reasonable and prudent person could have foreseen would probably produce such injury or some similar injurious result. The plaintiffs need not prove that failure to provide an adequate warning or instruction by the defendant under consideration was the sole proximate cause of the injury. The plaintiffs must prove by the greater weight of the evidence only that such failure was a proximate cause.

J.A. 488-89. Continuing, the court charged the jury that if it found each of the elements of...