Evidence surrounding an earlier sale of equipment is relevant to a later purchaser's claim for punitive damages in a product liability actionJanuary 15, 2021 | Richard Woolf and Gregorio Silva
Missouri manufacturers, distributors, sellers, and resellers of equipment have scored an important victory in the Missouri Court of Appeals. In Ormsby v. Central Mine Equipment Co, the Missouri Court of Appeals, Southern District, affirmed admission of evidence regarding the design, manufacture, and first sale of a commercial drilling rig as relevant to the defense of a strict liability claim arising from a subsequent sale when punitive damages are claimed.
Generally, a plaintiff can recover under a strict product liability claim if he can prove the product was inherently defective when sold and that the defect in the product caused the injury or damage, regardless of whether the defendant did everything possible to prevent the defect. In Ormsby, the Plaintiff sought to preclude evidence of the initial design, manufacture, and sale of a commercial drilling rig as irrelevant to whether the rig had an inherent defect when the second sale occurred. The trial court admitted the evidence as relevant to the defense, primarily because Plaintiff sought punitive damages on the strict liability claim.
Plaintiff lost fingers and mangled his hand after reaching into a running drill rig. The incident occurred, and the underlying lawsuit arose, after a subsequent second sale of the mining drill by the CME.
Central Mine Equipment Company (“CME”) built and sold a commercial drilling rig to the U.S. Army Corp of Engineers in 1976. CME built the drill to design specifications provided by the Corps, and the Corps inspected and accepted the drilling rig pursuant to the Corps’ quality-assurance procedures. After using the drill for 25 years, the Corps traded the drilling rig back to CME for a credit on a replacement. CME then sold it to Plaintiff’s employer, who inspected, purchased and relocated the pre-owned unit in 2001, without CME ever seeing, inspecting, or taking possession of the used unit.
In 2013, Plaintiff and a helper picked up the drill rig from a mechanic who had repaired the rig’s throttle cable. After starting the engine to check the mechanic’s work, Plaintiff could not shut the rig off. Plaintiff reached into the motor compartment in an attempt to maneuver the throttle linkage and governor to idle the engine to a stop. Before Plaintiff’s helper could get the motor shut down, Plaintiff caught his hand in the mechanism causing the loss of multiple fingers.
Plaintiff filed a lawsuit against CME alleging claims for negligence and strict liability, and requesting a punitive damages award under both theories. On the eve of trial, hoping to preclude evidence regarding design, manufacture and first sale of the drill, Plaintiff dismissed his negligence claim, but did not withdraw his request for punitive damages. Nevertheless, Plaintiff sought to preclude evidence that CME designed the drill pursuant to specifications provided by the Corps, and that the Corps inspected the drill to ensure it passed quality assurance standards before taking possession.
Plaintiff sought to preclude the evidence as irrelevant to the litigation, claiming that because strict liability claims do not require proof of knowledge as an element to recovery. But the trial court allowed CME to present evidence of the original design, manufacture, and sale because compliance with an industry standard evidences that a party did not act with a culpable state of mind, which is required to support punitive damages.
The Missouri Court of Appeals affirmed the trial court’s decision to admit the disputed evidence, finding Plaintiff did not meet his burden in demonstrating the trial court ruled incorrectly. The Court found that so long as punitive damages were alleged, compliance with industry standard and custom goes to prove whether defendant acted with a nonculpable state of mind, hence, to negate an inference of complete indifference and conscious disregard for the safety of others – proof punitive damages requires.
The Court’s decision is a positive development for Missouri manufacturers, designers, sellers, and resellers in defending against claims for punitive damages in product liability cases.
Recently, the Illinois Fourth District Appellate Court issued an opinion reversing the Circuit Court of McLean County in an asbestos lawsuit. In Krumwiede v. Tremco, Inc., the court determined that the plaintiffs failed to establish at trial that the decedent’s work with the defendant’s products was a substantial factor in the cause of the decedent’s illness. This is yet another instance in which the Fourth District has reversed the Circuit Court of McLean County in an asbestos lawsuit. The opinion should give defendants wary of trying an asbestos lawsuit in McLean County optimism about the potential for appellate relief.
In Krumwiede, the plaintiffs alleged that the decedent was exposed, in part, through his work with Tremco caulk and tape. The decedent worked as a window glazier from the mid-1950’s to the early 1990’s. At trial, two of the decedent’s former co-workers testified that they and the decedent used Tremco caulk and glaze in their roles as glaziers. The witnesses, however, could not recall seeing dust emanate from the Tremco products or anything on the products’ packaging indicating that they contained asbestos.
Plaintiff’s medical expert, Dr. Arthur Frank, testified that a person’s cumulative dose to asbestos contributes to the development of mesothelioma. In elaborating on this opinion, Dr. Frank testified that there is no scientific way to determine what exposure to asbestos caused a person’s illness, but rather, a person’s total exposure is considered the cause of the illness. Dr. Michael Graham, a pathologist, testified for Tremco, opining that there were amosite asbestos fibers found in the decedent’s lung tissue, but that those fibers had nothing to do with the decedent’s work with Tremco products, as those products only contained chrysotile asbestos fibers. Dr. William Longo also testified for Tremco. He explained that he previously tested the Tremco products and found no detectable asbestos fibers, which was because the products were thermoplastic materials. Dr. Longo admitted, however, that he could not rule out that Tremco products released respirable asbestos fibers. Ultimately, the jury returned a verdict for the plaintiffs.
But the appellate court concluded that the plaintiffs failed to establish that the decedent's work with Tremco products was a substantial factor in the cause of his mesothelioma. According to the court, simply working around Tremco products did not establish that the decedent had frequent, regular, and proximate contact with respirable asbestos fibers from the products. The court believed that there was an absence of evidence explaining under what circumstances Tremco's products released respirable asbestos fibers. In other words, just because the products were capable of releasing asbestos fibers did not mean they actually did so when the decedent worked with the products. The court also determined that the plaintiff failed to present evidence showing that Tremco's products released more than a de minimis amount of asbestos fibers when the decedent encountered the products. And while the court found that Dr. Frank's "cumulative exposure" testimony was proper under Illinois law, the court concluded that his testimony did nothing to aid the plaintiffs in meeting the “substantial factor” test under Illinois law because he did not opine that exposure from Tremco products was a substantial factor in bringing about the decedent's illness.This is a positive development for Illinois defendants in asbestos litigation. Specifically, defendants should consider relying on this opinion to argue that a plaintiff cannot satisfy his or her burden of proving causation simply by establishing that a defendant’s products can release asbestos fibers.
Much to the defense bar’s dismay, in late 2019, the First District Appellate Court affirmed and upheld a $4.6 million verdict against John Crane Inc. in Daniels v. John Crane, Inc., 2019 IL App (1st) 190170.
In that case, the decedent’s estate filed suit, alleging that the decedent developed pleural mesothelioma due to asbestos exposure. The decedent worked as a union pipefitter from 1957 to 1985. Prior to his death, the decedent testified to significant asbestos exposure from valves and gaskets, including gaskets manufactured by John Crane.
At trial, plaintiff's expert, Dr. Jerrold Abraham, testified that the decedent's asbestos exposure through his work with John Crane products was a substantial contributing factor in his development of mesothelioma. Dr. Abraham did not quantify the decedent's exposure through John Crane products, and he testified that exposure to all types of asbestos fibers can cause mesothelioma. Moreover, according to Dr. Abraham, while mesothelioma is a dose-response disease – meaning the more exposure an individual has the more likely they are to contract the disease – once someone sustains an asbestos-related disease, it does not matter whether they have had a high or low exposure to asbestos. Dr. Abraham conceded that all of the decedent’s exposures, including through friable insulation, were substantial contributing factors to the development of his illness. Essentially, Dr. Abraham opined that if the decedent was exposed to asbestos through John Crane products, such exposure was a substantial factor to the development of his illness, regardless of the dose of the exposure or the dose of the decedent’s exposures through other sources.
Plaintiff also presented William Ewing, a Certified Industrial Hygienist. Ewing testified that the decedent was exposed to asbestos by using picks, chisels, and hammers to remove John Crane packing, and by using brushes and sanders to dislodge or reshape John Crane gaskets. Ewing quantified the duration of the decedent’s exposure (1957 to 1985) and his alleged dosage amount (.05 to 1 fibers per cubic centimeter when removing and installing gaskets; .05 to 2 fibers per cubic centimeter when removing packing).
At the close of evidence, during the jury instruction conference, the plaintiff presented the standard Illinois Pattern Jury Instruction for proximate causation. John Crane objected and presented its own instruction regarding proximate cause. John Crane argued that the jury instruction should have included language requiring the jury to find that John Crane’s products were a “substantial factor” in the development of the decedent’s illness in order for proximate cause to exist. John Crane further submitted an instruction defining substantial factor as if, absent John Crane’s conduct, the injury would not have occurred. John Crane further also submitted a “state of the art” instruction, which would have required the plaintiff to prove that John Crane and those in the asbestos products manufacturing industry knew of the alleged dangerous nature of John Crane’s packing and gaskets. John Crane argued that such knowledge was required to establish a duty to warn. The trial court rejected these instructions submitted by John Crane.
Ultimately, a Cook County jury found for the plaintiff and entered a $6 million verdict. The trial court reduced the verdict to $4.8 million to account for pre-trial settlements.
In a posttrial motion, John Crane argued that Dr. Abraham should not have been allowed to testify because he essentially testified that the decedent’s cumulative dose (or "each and every exposure") to all asbestos products caused his injuries. In other words, John Crane claimed that Dr. Abraham failed to differentiate the decedent’s exposure through John Crane products from his exposure through other sources. In addition to arguing that the court erred in rejecting the previously discussed jury instructions, John Crane also argued that the trial court erred by failing to properly analyze settlements the plaintiff entered into with certain defendants. The trial court denied John Crane’s motion.
On appeal, the First District first determined that the trial court properly allowed Dr. Abraham to testify. The court determined that Dr. Abraham did not testify that even a “de minimis” exposure to asbestos can cause illness. Rather, the court characterized Dr. Abraham’s testimony as emphasizing the importance of understanding the dose of asbestos fibers to which a person was exposed when determining causation. Moreover, the court believed the plaintiff established the dose of the decedent’s exposure through William Ewing’s testimony, who quantified the decedent’s exposure range and opined that the dosage level exceeded the background rate of asbestos exposure one would experience from the ambient environment. Overall, the court concluded that Dr. Abraham’s testimony provided the background knowledge the jury required to interpret Ewing’s opinions regarding the dose of the decedent’s asbestos exposure through John Crane products.
John Crane also argued that the trial court erred in excluding proposed jury instructions that included language regarding Illinois' substantial factor causation test. On this point, John Crane appeared to argue that the jury should have been instructed on the Illinois frequency, regularity, and proximity causation standard used in asbestos cases. The court found that the Illinois pattern instructions on causation (which do not use the terms substantial factor or frequency, regularity, proximity) sufficiently instructed the jury. The court also determined that using these terms in instructions would have improperly suggested that the plaintiff had to prove a specific dosage amount, when, under Illinois law, a plaintiff need only prove that exposure by a defendant was legally significant. The appellate court seemed to take the position that the frequency, regularity, proximity test is relevant when the court is making a legal determination on whether or not the plaintiff has met her burden of proof in an asbestos case, but the jury should not be given instructions using this language because it suggests that the plaintiff must quantify her exposure levels.
As to John Crane’s proposed “state of the art” jury instruction, John Crane argued that the jury should have been instructed that the plaintiff was required to prove either that John Crane specifically knew of the hazards of asbestos or, if not, that members of John Crane's industry had such knowledge. The court rejected this argument because there was evidence in the case that John Crane itself had knowledge regarding the dangers of asbestos when the decedent used its products. Moreover, the court believed that John Crane’s proposed instruction would have required the jury to find both that John Crane and those in its industry knew of the dangerous nature of John Crane’s products. According to the court, industry knowledge can be used to support a failure to warn claim, but it is not necessary evidence. Rather, the defendant's knowledge is at issue in such a claim.
Finally, the court rejected John Crane's argument that certain settled defendants should have appeared on the jury form and that the court should have compelled the plaintiff to disclose the amounts of certain pre-trial settlements. The court reasoned that it is well settled Illinois law that a party defendant cannot include former co-defendants or non-parties on the verdict form. As to the settlement amount issue, John Crane argued that the trial court erred in finding that the plaintiff reached good faith settlements with certain defendants without requiring the parties to disclose the settlement amounts. In rejecting this argument, the court determined that the trial court had sufficient evidence – including the plaintiff’s theory of liability, that plaintiff sought in excess of $50,000, and that John Crane was asserting a sole proximate cause defense – to make its good faith findings without the need to determine the amounts of the settlements.
Overall, while there have been recent positive rulings favoring defendants from the First District and the Circuit Court of Cook County in asbestos litigation, those rulings have largely been limited to the issue of personal jurisdiction. Unfortunately for defendants, the court’s opinion in this case is largely consistent with the trial court’s rulings on these issues. However, a possible silver lining is that defendants might be able to rely on this opinion to argue that, at trial, plaintiffs cannot simply argue that all exposures to asbestos cause or contribute to the development of mesothelioma, but rather, must present some evidence establishing the dosage level of a plaintiff’s asbestos exposure.
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