Products Liability Law Daily Wrap Up, CAUSATION—ASBESTOS—Okla.App.: $8 million dollar jury verdict affirmed in Oklahoma secondhand asbestos exposure case, (May 20, 2021)

By Joshua Frumkin, Esq.

A reasonable jury could conclude from the expert testimony offered by the estate representative that the decedent’s mesothelioma was caused, at least in part, by the manufacturer defendants’ products.

A jury verdict in a bystander asbestos exposure case in favor of the decedent’s estate representative was affirmed by the Oklahoma Court of Civil Appeals which found that there was sufficient evidence for a reasonable jury to conclude that the decedent had sufficient secondhand exposure to asbestos from the three defendant manufacturers’ asbestos-containing products to support the causation requirement of the asserted claims. Also, the appellate court determined that the jury instructions given by the trial court were not in error. A concurrence and a dissent were filed with the majority opinion (Fox-Jones v. National Oilwell Varco, L.P., May 14, 2021, Mitchell, B.).

The decedent was allegedly exposed to asbestos between 1980 and 1985, while he was between two and seven years old. The asbestos allegedly came from the defendant manufacturers’ asbestos-containing products and was carried to his home on his stepfather's clothes after the stepfather was exposed to the asbestos while working as a driller and derrick-hand at his father’s drilling company. At age 38, in February 2016, the decedent was diagnosed with stage four mesothelioma. He filed suit against numerous named defendants before dying in August of that year. Prior to trial, all parties except the following three were dismissed from the case: Union Carbide Corporation (UCC), which manufactured "Super Visbestos," pure asbestos pellets used as a drilling mud additive; Montello, Inc. (Montello), which exclusively marketed and distributed Super Visbestos; and National Oilwell Varco L.P. (National), which manufactured machinery used to raise and lower the drilling assembly that included asbestos-lined brakes and clutches (collectively, the manufacturers). A federal district court in Oklahoma found that the manufacturers failed to identify alternative sources of asbestos exposure or alternative causes of the decedent's mesothelioma in response to direct interrogatories requesting that they do so. Consequently, the district court estopped the manufacturers from presenting evidence or argument at trial suggesting that another entity caused or contributed to causing the decedent's illness.

After a thirteen-day trial in May 2019, the jury returned a verdict for the estate representative under both negligence and products liability theories, assessing damages at $7,978,026. By way of a special verdict form, the jury allocated $5 million to the decedent’s daughter, $1 million to each of the decedent’s parents, $500,000 for pain and suffering, and $478,026 for financial losses. The jury also found that the representative proved by clear and convincing evidence that each defendant acted "with reckless disregard." However, the jury awarded nothing for punitive damages. The representative chose to seek judgment only on the jury's manufacturer products liability findings. A judgment for a total of $8,093,115.03 was entered, which included $115,089.03 in prejudgment interest. Each defendant appealed, although UCC and Montello filed jointly. The two appeals were consolidated.

Estoppel order was not abuse of discretion. The appeals court held that the district court's discovery sanction was not an abuse of discretion. The standard of review for a district court's grant of discovery sanctions is abuse of discretion. Judicial discretion is abused when the decision was contrary to reason, evidence, or to a governing principle of law. The appellate court determined that the claimant posed a clear question in the interrogatories, but the manufacturers chose not to answer. The manufacturers only named third parties after the close of discovery and in response to the representative’s motion to restrict contributory negligence arguments. The representative objected, arguing that she was entitled to rely on the discovery responses and would have taken different steps had the manufacturers timely responded to the interrogatory. The court further noted that National submitted a proposed verdict form which included fifteen additional third parties, the majority of which were parties that had already been voluntarily dismissed without prejudice. Consequently, the court held that there was no error in the district court's sanction restricting the manufacturers from naming third parties, due to prejudice to the representative.

Exclusion of attempts to introduce warnings evidence. The court also rejected the manufacturers' arguments that the district court improperly excluded their introduction of evidence concerning the alleged warnings they provided to the stepfather's employer, who the manufacturers contended was a sophisticated purchaser. According to the appellate court, this defense would have necessarily implicated evidence of third-party fault, which the district court had excluded in its pretrial order disallowing such evidence of "blame-shifting." The manufacturers also admitted at trial that they had no evidence indicating that warnings provided by UCC or Montello were shared with the employer, rendering that argument moot.

Causation ruling was supported by claimant's evidence. The appellate court rejected the manufacturers' argument that the evidence did not support the jury’s finding that the decedent had been exposed to their asbestos or that the quantity of the decedent's exposure was sufficient to cause his mesothelioma. Appellate courts must affirm the jury's verdict if there is any competent evidence presented that reasonably supports the verdict. The court must read all evidence in the light most favorable to the party for whom the verdict was entered. UCC and Montello argued that the representative failed to prove that the decedent had been exposed to Super Visbestos because a witness who worked with the decedent's stepfather only mentioned "Visbestos" and not "Super Visbestos" during his testimony. The court rejected their reading of the testimony as it entirely discounted the testimony of the representative’s industry expert, who testified that the witness's reference to "Visbestos" likely encompassed the similarly named product "Super Visbestos." Moreover, the court declined to consider the manufacturers' contrary evidence due to the applicable standard of review.

The court also rejected National's argument that the claimant failed to prove that the machinery in question included brakes containing asbestos during the relevant time period. There was no question that the machinery would have had replacement brakes installed at the relevant time period. The court determined that the evidence on whether the stepfather’s employer used National's asbestos-containing replacement brakes was conflicting at best. Regardless, the court stated that its "review must start and end with the plaintiff's evidence" and held that the representative’s experts convincingly supported the finding that the decedent was exposed to significant amount of second-hand asbestos. According to the appeals court, a reasonable jury could conclude from the combined testimony of the representative’s causation expert and her industrial hygienist witness that the decedent’s mesothelioma was caused, at least in part, by the defendant manufacturers’ products. The court noted that it was not permitted to determine which party's evidence was more compelling. Because it was clear that the jury found the representative’s experts more compelling, the appellate court would not disturb the jury’s judgment.

Jury instructions not unwarranted. Finally, the appeals court dismissed National's argument that the trial court erred by refusing its alternative jury instructions. Appellate courts may not reverse a judgment concerning misdirection of a jury unless the error probably resulted in a miscarriage of justice. National requested instructions concerning the duty to warn regarding replacement parts manufactured by third parties. The appellate court held that the district court was correct to refuse them because National ignored evidence that the replacement brakes were manufactured by National. Moreover, National could be liable for harm under Oklahoma law simply because it knew that its machinery would need replacement bakes and it sold replacement brakes containing asbestos despite knowing the harm caused by asbestos. The court found the extant jury instructions to have been adequate. While National additionally argued that it was error to refuse its jury instruction concerning foreseeability, the appeals court disagreed, finding that instruction was contrary to Oklahoma law.

The case is No. 118,290 (consolidated w/118,295).

Attorneys: Lisa W. Shirley (Dean Omer Branham Shirley, LLP) and George W. Braly (Braly, Braly, Speed & Morris, PLLC) for Kim Fox-Jones. Harvey D. Ellis (Crowe & Dunlevy) and James M. Hall, Jr. (Kean Miller, LLP) for National Oilwell Varco, L.P. Sharon T. Thomas (The Rupnicki Law Firm) for Union Carbide Corp. Laura S. Rahman (Wilson Elser Moskowitz Edelman & Dicker LLP) and Andrew D. Silverman (Orrick, Herrington & Sutcliffe, LLP) for Montello, Inc.

Companies: National Oilwell Varco, L.P.; Union Carbide Corp.; Montello, Inc.

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