Products Liability Law Daily Third jury trial ordered to fix errors in mesothelioma case against Union Carbide
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Thursday, February 27, 2020

Third jury trial ordered to fix errors in mesothelioma case against Union Carbide

By Leah S. Poniatowski, J.D.

Exclusion of decedent’s affidavits and certain jury instruction language merited the reversal of a $6.935 million judgment. The case was remanded for a new trial.

Citing trial court errors in excluding evidence and critical jury instruction language, a Florida appellate panel reversed a wrongful death judgment against a building materials manufacturer and a $6.935 million jury award for the daughter of a deceased worker in an asbestos-related lawsuit and remanded the matter for a new trial. However, the panel found that the surviving daughter’s experts provided competent and substantial testimony to nullify the manufacturer’s motion for a judgment as a matter of law as to causation. In addition, the appeals court determined that the lower court properly denied the daughter’s motions for directed verdict and for judgment notwithstanding the verdict as to the inclusion of a non-party defendant on the verdict sheet (Union Carbide Corp. v. Font, February 26, 2020, Salter, V.).

The worker had used asbestos-containing joint compounds and other asbestos-containing building materials that allegedly exposed him to asbestos. Following his death from mesothelioma, his daughter filed a wrongful death lawsuit against several parties for damages purportedly caused by the asbestos-containing products. Union Carbide Corporation had manufactured and supplied products her father had used.

Trial court ruling. In the original trial, the court did not allow the daughter to present the standard jury instruction regarding the consumer expectations test, agreeing with Union Carbide’s argument that recent appellate court decisions meant that the risk-utility test was the only standard that could be submitted for a design defect claim. The jury subsequently found for Union Carbide, and the verdict was affirmed on appeal.

Reconsideration. In 2015, while her appeal was pending before the Florida Supreme Court, the state high court held in Union Carbide v. Aubin (Aubin II) that the consumer expectations test could apply to design defect claims [see Products Liability Law Daily’s October 30, 2015 analysis]. As a result, the court quashed its contrary decision in Aubin I. The Florida Supreme Court then remanded the daughter’s case to the appellate court to reconsider its decision in light of Aubin II. The appellate court reversed and remanded her strict liability design defect claim for a new trial to allow her to present the standard consumer expectations test jury instruction because that instruction correctly states Florida law [see Products Liability Law Daily’s July 28, 2016 analysis].

Second trial. At the end of the second trial, the jury awarded $6.935 million in total damages [see Products Liability Law Daily’s December 6, 2017 analysis]. It found that her father had used Georgia-Pacific joint compound containing Union Carbide’s Calidria asbestos, and that Union Carbide had placed it on the market containing a defect that was a legal cause of his death. Determining that negligence or a defective product supplied by Georgia-Pacific, Johns Manville Corp., and an individual (but not Philip Carey Corp., a defendant that it cleared of fault) was a contributing cause of his death, the jury assessed 40 percent of the fault to Union Carbide, 35 percent to Georgia-Pacific, 10 percent to Johns Manville Corporation, and 15 percent to the individual.

Second appeal. Following the jury verdict, Union Carbide filed the present appeal, challenging three evidentiary rulings. The daughter filed a cross-appeal, challenging the liability apportionment to Johns Manville Corporation, a non-party, as a Fabre defendant.

Causation. The appellate court did not agree with Union Carbide that the trial court erred when it denied the manufacturer’s motion for judgment as a matter of law with regard to causation. Examining the issue under the de novo standard, the daughter’s evidence was sufficiently competent and substantial to support her case.

Excluded affidavits. However, the appellate court agreed that the exclusion of seven affidavits signed by the father under oath before his death was harmful error. The affidavits supported the father’s claims that he was exposed to asbestos in products manufactured or distributed by entities not a party to the present suit that had created asbestos settlement trusts from which claims could be paid. Although they had been admitted in the first trial, they were excluded in the second trial following the daughter’s objection, which was based on a purported failure by Union Carbide to provide causation evidence, i.e. expert testimony, linking exposure to those products and her father’s death.

The appellate court determined that the affidavits represented the father’s own claim that those entities and their products exposed him to asbestos, which is directly relevant to Union Carbide’s claims that other non-parties shared in the responsibility of the father’s cumulative exposure to asbestos and his ultimate death. Under Florida’s civil harmless error standard, the exclusion of these affidavits was not harmless and, thus, the final judgment was reversed and the case remanded for a third trial.

Jury instruction. The appellate court also agreed with Union Carbide that the lower court erred when it declined to accept the manufacturer’s proposed jury instructions. The manufacturer contended that with respect to the failure to warn issue, the proper jury instruction acknowledges the learned intermediary defense—namely that the jury be presented a clear statement that a manufacturer’s duty to warn is "discharged" or "fulfilled" when the manufacturer reasonably relied on an intermediary manufacturer. The lower court’s refusal to accept the Union Carbide’s proposed instruction with the additional phrase, "Union Carbide can fulfill its duty to warn," was in error because not including this language could have misled the jury as to what comprised a complete defense. Therefore, the final judgment was reversed.

Cross appeal. The appellate court concluded that the lower court did not commit reversible error when it denied the daughter’s motions regarding the designation of Johns Manville as a non-party defendant on the verdict form because her expert’s testimony competently established that Johns Manville’s asbestos-containing material was used in the joint compound product that the decedent had used during the same time period as Union Carbide’s material was used and when the decedent was using the joint compound product at issue.

The case is No. 3D18-1529.

Attorneys: Matthew J. Conigliaro (Carlton Fields, PA) for Union Carbide Corp. Mathew D. Gutierrez (The Ferraro Law Firm, PA) for Paula Font.

Companies: Union Carbide Corp.

MainStory: TopStory EvidentiaryNews WarningsNews DefensesLiabilityNews CausationNews AsbestosNews FloridaNews

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