Products Liability Law Daily New trial ordered on appellate rehearing in asbestos action due to factually impossible jury findings
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Thursday, September 24, 2020

New trial ordered on appellate rehearing in asbestos action due to factually impossible jury findings

By David Yucht, J.D.

The jury’s determination that the worker’s employer was 75 percent liable for the worker’s mesothelioma was inconsistent with the jury’s finding that no liability was attributable to the asbestos product suppliers.

A state appellate panel in Louisiana reversed itself and granted a new trial to the estate of an oil rig worker who had died from mesothelioma attributed to workplace asbestos exposure. The court found that a jury’s verdict which assessed responsibility to the decedent’s employer without assessing liability to any manufacturer or distributor of asbestos-containing products was logically inconsistent (Bagwell v. Union Carbide Corp., September 23, 2020, Lombard, E.).

An oil rig worker began working for RMC Holdings, Inc. in 1978. RMC drilled oil and gas wells in shallow bays, deltas, and marsh canals in Louisiana. During his career, he allegedly handled three asbestos-mud drilling additives that were manufactured by Union Carbide Corporation (UCC) and distributed by Montello, Inc. He asserted that he worked in dusty conditions when he was responsible for dumping these additives into a hopper. He left RMC in 1986. Prior to working for RMC, he had lived with his father who was exposed to asbestos at his place of employment. The oil rig worker later developed breathing problems and was diagnosed with mesothelioma. He died three years later.

After developing the disease, he commenced suit against RMC, UCC, Montello, and other manufacturers and distributors of asbestos products, as well as his father’s employer (an asbestos pipe company), asserting that their asbestos-containing products and/or activities caused his asbestos exposure and ultimately his mesothelioma diagnosis. His estate pursued the claims following his death. Prior to trial, the lower court verdicts in favor of all the manufacturers and distributors except for UCC and Montello. At trial, the jury instructions and interrogatories set forth causes of action for negligence, and strict products liability—including theories of unreasonably dangerous per se, unreasonably dangerous due to design defect, unreasonably dangerous due to construction or composition, and unreasonably dangerous due to failure to warn—against the defendants. At the conclusion of the trial, the jury rendered a verdict for the estate against RMC and the employer of the decedent’s father but found no liability as to UCC or Montello. The estate appealed as to UCC and Montello, asserting an inconsistent verdict. Initially, in a December 11, 2019 ruling, the appeal was denied. The estate moved for a rehearing.

Evidence—jury findings. Finding that the jury’s verdict was in direct contravention of the trial court’s directed verdicts excluding all other viable manufacturers of asbestos products, except for UCC and Montello, the appellate court granted the estate’s application for a rehearing. Under Louisiana law, when a jury’s verdict answers are inconsistent, a trial court may not enter judgment, but should either require the jury to deliberate further or order a new trial. Here, the estate argued that the appellate panel had erred in its earlier opinion by reasoning that the jury had a basis to conclude there was another source of asbestos exposure other than those attributable to UCC and Montello, even though the directed verdicts had excluded other sources of asbestos-containing product exposure from consideration. According to the estate, because RMC neither manufactured nor supplied asbestos drilling mud additives, the jury "was clearly confused" in finding that RMC "exposed" the worker to drilling mud additives, and simultaneously finding no exposure to drilling mud additives used by RMC. The estate asserted that this finding was a factual impossibility.

Consequently, the appellate court on rehearing reviewed interrogatories answered by the jury in reaching their verdict. The jury found that RMC was seventy-five per cent responsible for the decedent’s wrongful death and the father’s employer was twenty-five per cent responsible. The jury ultimately determined that no other asbestos manufacturers substantially contributed to the decedent’s contraction of mesothelioma. The appellate court found that it was illogical for the jury to find RMC almost totally at fault without also finding that the decedent was exposed to at least one asbestos-containing product used by RMC during the decedent’s employment. Because of the directed verdicts, the only asbestos products that could have caused the decedent’s mesothelioma were those of UCC and Montello. Therefore, as the verdict was factually impossible, the appellate court granted the application for rehearing, vacated its previous opinion, as well as the judgment entered by the trial court, and remanded the case for a new trial.

The case is No. 2019-CA-0414.

Attorneys: Mickey P. Landry (Landry & Swarr LLC) for Jerry R. Bagwell. Kathleen E. Jordan (Pugh, Accardo, Haas, Radecker & Carey, LLC) for Union Carbide Corp. David M. Stein (Pugh, Accardo, Haas, Radecker & Carey, LLC) for Montello, Inc. Morgan Kelley (Schouest, Bamdas, Soshea and BenMaier PLLC) for RMC Holdings, LLC.

Companies: Union Carbide Corp.; Montello, Inc.; RMC Holdings, LLC

MainStory: TopStory EvidentiaryNews JuryVerdictsNewsStory AsbestosNews LouisianaNews

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