Products Liability Law Daily $32M mesothelioma verdict upheld on appeal
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Tuesday, August 25, 2020

$32M mesothelioma verdict upheld on appeal

By David Yucht, J.D.

As stated by the trial court, the fact that there was no evidence placing a dollar amount on the decedent’s pain and suffering did not undermine the compelling and uncontradicted evidence that his pain and suffering were substantial.

The U.S. Court of Appeals for the Fourth Circuit at firmed a jury verdict finding Covil Corp. liable in a mesothelioma case and awarding the estate of an employee of a tire manufacturer over $32 million in compensatory damages. The appeals court found that the trial court did not err in instructing the jury as to proximate cause or in refusing to reduce the damages award (Finch v. Covil Corp., August 24, 2020, Motz, D.).

For nearly 20 years, the job of an employee of a tire manufacturer was to change tires in the tire mold presses in the plant’s curing room. The curing room contained about 120 steam-operated tire presses, each of which was connected to multi pleste am pipes covered in asbestos-containing insulation. The employee’s work exposed him to asbestos dust from the presses themselves, which had internal components that released asbestos dust, and from the insulation on the steam pipes connected to the tire presses. Covil did not supply the tire presses, but it allegedly supplied the asbestos-containing insulation. The worker explained during a deposition that, in performing duties in the curing room, he and others regularly walked on the steam pipe insulation, and that the insulation was regularly handled by mechanics repairing the steam pipes. As a result of the daily operation of the steam presses and the curing room operators and mechanics disturbing the insulation, the curing room was persistently hazy and dusty, like a "sandstorm. "The worker died from mesothelioma in 2017.

The worker’s estate sued multiple corporate entities; all but Covil settled before trial or prevailed on dismissal or summary judgment motions. A jury found for the estate and awarded it over $32 million in compensatory damages. Covil subsequently moved for judgment as a matter of law or, in the alternative, for a new trial or remittitur. The trial court ruled that Covil was entitled to a setoff for the estate’s pre-trial settlements with other entities. The court denied all other post trial relief [see Products Liability Law Daily’s May 2, 2019 analysis]. Covil appealed.

Substantial factor causation. The appellate court ruled that the trial court properly instructed the jury concerning causation. Under North Carolina law, the estate needed to prove that exposure to Covil’s product was a substantial factor causing the decedent’s mesothelioma. To prevail, the estate had to demonstrate that the decedent was frequently and regularly in close contact with insulation supplied by Covil. Covil complained that the jury instruction omitted the frequency and regularity components and, as such, did not instruct the jury to determine whether there was more than de minimis exposure to asbestos-containing pipe insulation "sold by Covil." The appellate court disagreed, noting that the instruction here gave proper guidance to the jury to determine whether Covil’s insulation constituted a substantial factor in the decedent’s mesothelioma, and it embodied the "general principles of law" set forth by Fourth Circuit case law. The trial judge was not required to parrot language from prior appellate decisions when instructing the jury. The instructions properly required the jury to consider how much asbestos-containing insulation "sold by Covil" was in close proximity to the decedent’s daily work, whether this insulation actually created significant amounts of asbestos dust, and how long the decedent worked at the plant. The instruction permitted the jury to find for the estate only if the estate proved that the worker had more than de minimis exposure to asbestos-containing insulation "sold by Covil," and allowed Covil’s attorneys enough room to argue the facts in light of this standard.

Remittitur. The appellate court also affirmed the trial court’s decision not to reduce the jury award. The determination of whether a jury’s award is excessive is a matter of state substantive law. Covil, however, argued that a rule of federal procedural law required district courts sitting in diversity to engage in a verdict comparison analysis to facilitate appellate review for abuse of discretion. Covil did not raise this argument before the district court. Consequently, the appellate court refused to consider it.

Covil also argued that the size of the verdict was so large that it constituted prima facie evidence of passion or prejudice. Covil asserted that the estate’s attorney made an improperly prejudicial closing argument, asking the jury to punish Covil. According to Covil, the damages were so speculative that they were necessarily based on the jury’s passion or prejudice. In determining whether a damages award is due to the influence of passion or prejudice under North Carolina law, a trial court must consider the entirety of the evidence. The size of the jury award, standing alone, is not evidence of passion or prejudice. Here, both the trial judge and appellate court found no inflammatory content in the estate’s closing argument. Given the uncontested evidence regarding the course of the decedent’s illness and attendant complications, his physical and psychological suffering from his disease was not speculative. The appellate court agreed with the trial court’s assessment that "[t]he fact that there was no evidence placing a dollar amount on [the decedent’s] pain and suffering did not undermine the compelling and uncontradicted evidence that his pain and suffering were substantial."

The case is No. 19-1594.

Attorneys: Charles W. Branham, III (Dean Omar Branham Shirley, LLP) for Ann Finch. Kathryn E. Boatman (Hunton Andrews Kurth, LLP) and Allen Mattison Bogan (Nelson Mullins Riley & Scarborough, LLP) for Covil Corp.

Companies: Covil Corp.

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