3M Co. v. Johnson

• Citation: 895 So.2d 151
• Decision Date: 20 January 2005
• Docket Number: No. 2002-CA-01651-SCT.,2002-CA-01651-SCT.
• Parties: 3M COMPANY f/k/a Minnesota Mining and Manufacturing Company v. Simeon JOHNSON, James Curry, Bobby Joe Lawrence and Phillip Pate.
• Court: United States State Supreme Court of Mississippi

895 So.2d 151

3M COMPANY f/k/a Minnesota Mining and Manufacturing Company v. Simeon JOHNSON, James Curry, Bobby Joe Lawrence and Phillip Pate.

No. 2002-CA-01651-SCT.

Supreme Court of Mississippi.

January 20, 2005.

Rehearing Denied March 24, 2005.

Donna Brown Jacobs, John C. Henegan, Jackson, W. Wayne Drinkwater, Jr., Margaret Oertling Cupples, attorneys for appellant.

Suzanne Griggins Keys, Precious Tyrone Martin, Isaac K. Byrd, Jr., Jackson, Patrick C. Malouf, Timothy W. Porter, Ridgeland, attorneys for appellees.

Before COBB, P.J., CARLSON and DICKINSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. This asbestos-related case was filed on April 28, 2000, in the Circuit Court of Holmes County by over 150 plaintiffs, including James Curry, Bobby Joe Lawrence, Phillip Pate and Simeon Johnson ("Plaintiffs") against approximately 62 defendants¹, one of which was Minnesota Mining and Manufacturing Company ("3M"), a manufacturer of protective masks. On September 28, 2000, Judge Jannie M. Lewis entered a Case Management Order which provided that the plaintiffs' counsel were to designate ten plaintiffs among their initial group to be tried jointly against all defendants against whom those plaintiffs in the trial group alleged claims. The defendants moved for a separate trial for each plaintiff, arguing that a joint trial of unrelated claims would be unduly prejudicial; however, the trial court denied the motion. Trial commenced on October 1, 2001, and after three weeks of testimony, the jury returned six separate verdicts based on special interrogatories in favor of each plaintiff for $25 million in compensatory damages.² The jury denied the plaintiffs' claims for punitive damages. The trial court denied 3M's post-trial motions including a motion for a judgment notwithstanding the verdict. Therefore, 3M obtained entry of a Miss. R. Civ. P. 54(b) judgment and timely filed this appeal.

FACTS AND THE PROCEEDINGS IN THE TRIAL COURT

3M Products:

¶ 2. The 3M products at issue in the case sub judice are the 8500 dust mask and the 8710 disposable respirator. Neither product contains asbestos; however, only the 8710 mask was designed to reduce exposure to respirable fibers, including asbestos. The 8500 mask, first manufactured in 1962, was designed to keep nontoxic nuisance dusts out of the wearer's nose and mouth. 3M claims that it never represented the 8500 mask as suitable for protection from asbestos. 3M's packaging for the 8500 mask stated that the mask was suitable only for non-toxic substances. For toxic dusts and vapors, the packaging directed the user to "use NIOSH/USBM approved masks."³ However, in 1978, 3M added warnings to the box containing the 8500 mask, cautioning the user not to use the mask around asbestos. 3M later placed this warning on the mask itself.

¶ 3. In 1972, 3M introduced the 8710 disposable respirator for protection against pneumoconiosis-producing and fibrosis-producing dusts, including asbestos. The United States Occupational Safety and Health Administration ("OSHA") approved the 8710 respirator for use in environments where exposures to certain substances, including asbestos, did not exceed ten times the permissible exposure limit ("PEL"). Federal regulations required that 3M submit the 8710's packaging, including the instructions and other data, to NIOSH for approval. In 1986, 3M voluntarily withdrew the 8710 respirator for use with asbestos after OSHA reduced the PEL for asbestos from 2 fibers/cc of air to .2 fibers/cc.

The Plaintiffs:

¶ 4. James Curry, 65 at the time of trial, had worked for various railroad companies for approximately 31 years, beginning in 1957 and ending in 1989. Curry testified that he worked as a laborer, a car helper and a car man, all without wearing a mask or a respirator. For five years, Curry did drywall repair also without respiratory protection. In the late 1960s, Curry began working as a welder. While welding, he wore a mask to protect against welding fumes. Curry testified that he was instructed to wear a mask by his foreman. He also testified that he did not wear any type of mask between the years of 1982 until 1989.

¶ 5. Curry was examined, at the request of his attorney, by Dr. Obie McNair, a board certified pulmonologist. Dr. McNair diagnosed Curry with pleural thickening⁴ and asbestosis caused by exposure to asbestos. However, Dr. McNair placed no restrictions on Curry's activities. Dr. McNair noted in his records that Curry informed him that he did not wear a respirator while working. Curry now performs grounds and building maintenance work. Curry is also able to walk three to four miles per day. Based on the evidence presented at trial, the jury allocated twenty percent of Curry's damage award, or $5 million, to 3M.

¶ 6. Simeon Johnson, 53 at the time of trial, testified that he worked for twenty-four years before he became disabled from a knee injury. For fifteen of those years, Johnson worked in environments where he claimed he was exposed to asbestos without respiratory protection. Johnson testified that he only wore a 3M mask during the one year that he worked at Superior Coach. Although Johnson did not work with asbestos products at Superior Coach, he testified that during approximately ten 30-minute periods, he was in the same large building as other workers who used pipe covering and insulating cement.

¶ 7. Johnson was also examined by Dr. McNair, who testified that Johnson told him during their visit that he did not use respiratory protection while he worked. Dr. McNair diagnosed Johnson with mild asbestosis and placed no restrictions on his activities. The jury allocated 25 percent of Johnson's damages to 3M — an award of more than $6 million.

¶ 8. Bobby Joe Lawrence, 56 at the time of trial, testified that he only wore a mask or respirator while he was working at Ingalls Shipbuilding and Halter Marine. However, Lawrence also worked on automobile brakes for approximately 28 years, but he never wore any respiratory protection. Lawrence's primary job at Halter Marine and Ingalls was sandblasting, for which he wore a full suit and airfed hood.

¶ 9. Lawrence was examined by Dr. McNair and was diagnosed with mild pleural thickening. Dr. McNair placed no restrictions on Lawrence's activities. The jury found 3M twenty percent liable for Lawrence's claimed injuries and awarded him $5 million.

¶ 10. Phillip Pate, 49 at the time of trial, worked for 23 years until he became disabled by Guillain-Barre syndrome,⁵ a neurological condition unrelated to asbestos exposure. Pate testified that during the three years he worked at Medart Lockers he wore a mask or respirator three or four times a year while replacing insulation bricks, and three or four times a month while replacing pipe insulation. Pate also testified that he wore protective masks and respirators while he was employed at Colonial Homes.

¶ 11. Pate was examined by Dr. McNair, who diagnosed Pate with asbestosis. Dr. McNair placed no restrictions on Pate's activities based on this diagnosis. The jury allocated 25 percent of Pate's damage award, or more than $6 million, to 3M.

Jury Selection:

¶ 12. During voir dire, prospective jurors revealed that a widespread asbestos campaign had been waged in Holmes County. Venire members disclosed that "informational sessions" had occurred at which attendees were encouraged to bring asbestos claims. Some of the sessions took place in the same courtroom where the trial was being held. These sessions were intended to both recruit asbestos plaintiffs and educate the county about the dangers of asbestos.

¶ 13. During these informational sessions, potential plaintiffs were screened for asbestos-related diseases, which usually consisted of a chest x-ray taken by a technician. Sixty percent of the venire admitted to having worked for employers whose employees had been screened. More than ten percent of the venire had been screened. Venire members also testified that they believed "most" of Holmes County had been touched by this campaign. The trial court denied the defendants' motion to strike the venire, grant a mistrial or change venue. The trial court also denied the defendants' request for discovery to determine the scope and effects of the asbestos campaign.

¶ 14. Two different venires were required before a jury with alternates could be seated.⁶ The trial court initially refused to sustain for-cause challenges based on the first venire members' relationships to the plaintiffs or their counsel or venire members' potential exposure to asbestos. The trial court later sustained such challenges as to the second venire, but did not disqualify some previously-seated jurors on like grounds. However, before voir dire of the second panel, the trial court did reverse its position on challenges for cause and struck those jurors chosen from the first venire who had been unsuccessfully challenged for cause based on their having taken part in any asbestos screening.

The Trial:

¶ 15. Pursuant to the case management order, a ten-plaintiff trial group was selected for trial. Each plaintiff claimed unprotected asbestos exposure in the workplace, and the four plaintiffs at issue in this appeal also claimed protected asbestos exposure which allegedly occurred while wearing respiratory protection. All defendants at trial either made or distributed asbestos-containing products except for 3M, which manufactured respiratory protection equipment. Four plaintiffs claimed that 3M published misleading or insufficient advertisements and product literature about its respiratory products and that the products were defectively designed.

¶ 16. At trial each plaintiff testified regarding working in "dusty" working conditions, often without respiratory protection. Although plaintiffs admitted that they did not know that they were working around asbestos and had no knowledge of what products contained asbestos, some mentioned names of manufacturers or products that they...