Adams v. Consolidated Rail Corp.

• Citation: 591 S.E.2d 269,214 W.Va. 711
• Decision Date: 04 December 2003
• Docket Number: No. 31271.,31271.
• Parties: Duane ADAMS, et al., Plaintiffs Below, Appellees, v. CONSOLIDATED RAIL CORPORATION, t/d/b/a Conrail, et al., Defendants Below, Appellants.
• Court: Supreme Court of West Virginia

591 S.E.2d 269

214 W.Va. 711

Duane ADAMS, et al., Plaintiffs Below, Appellees, v. CONSOLIDATED RAIL CORPORATION, t/d/b/a Conrail, et al., Defendants Below, Appellants.

No. 31271.

Supreme Court of Appeals of West Virginia.

Submitted October 8, 2003.

Decided December 4, 2003.

Concurring and Dissenting Opinion of Justice McGraw December 4, 2003.

Michael G. Gallaway, Esq., Burns, White & Hickton, Wheeling, West Virginia and David A. Damico, Esq., Daniel B. Donahoe, Esq., Kendra Fredericks Smith, Esq., Burns, White & Hickton, Pittsburgh, Pennsylvania, Attorneys for the Appellants.

Carl Frankovitch, Esq., Mark Colantonio, Esq., Frankovitch, Anetakis, Colantonio & Simon, Weirton, West Virginia and Mark T. Coulter, Esq., Peirce, Raimond and Coulter, Pittsburgh, Pennsylvania, Attorneys for the Appellees.

PER CURIAM:

This action concerns damage claims for injuries or death resulting from the alleged exposure of a number of railroad employees to asbestos at the workplace. Now before this Court is the appeal of Consolidated Rail Corporation, et al., defendants below, from the March 27, 2002, order of the Circuit Court of Brooke County denying their motion for a new trial. The order was entered following a jury verdict returned in favor of former employees, John Robinson, Ronald Shaffer and Walter Knight, appellees and plaintiffs below, in the combined amount of $3,500,000. The focus of this appeal is whether the Circuit Court committed error in excluding from the jury's consideration evidence of the appellee-plaintiffs' histories of cigarette smoking.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, this Court is of the opinion that the Circuit Court committed error in excluding the histories of cigarette smoking as to appellees John Robinson and Ronald Shaffer but not as to appellee Walter Knight. Moreover, this Court is of the opinion that the remaining issues raised by appellants Consolidated Rail Corporation, et al., which concern whether the Circuit Court committed error in excluding evidence of the appellee-plaintiffs' alleged safety rule violations and in excluding evidence of the appellants' air monitoring results, are without merit.

Accordingly, the March 27, 2002, order of the Circuit Court of Brooke County denying the motion of appellants Consolidated Rail Corporation, et al., for a new trial is reversed as to appellees John Robinson and Ronald Shaffer and affirmed as to appellee Walter Knight. As a result, this action is remanded to the Circuit Court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 1998, 219 current and former railroad employees filed an action in the Circuit Court of Brooke County against the appellants, Consolidated Rail Corporation; et al., pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. The defendant-appellants, and their predecessors-in-interest, were common carriers by rail and had employed the plaintiffs at various times. The complaint alleged that the appellants negligently exposed the plaintiffs to asbestos fibers at the workplace, resulting in injuries or death. The asbestos-related diseases for which the plaintiffs sought recovery included asbestosis, lung cancer and malignant mesothelioma.

The defendant-appellants, Consolidated Rail Corporation, et al., filed an answer denying the allegations of the complaint and alleging that the plaintiffs were guilty of contributory or comparative negligence within the meaning of the Federal Employers' Liability Act. 45 U.S.C. § 53

As the result of various amendments to the complaint, approximately 900 plaintiffs ultimately became involved in the litigation. Many of those cases settled, however, and, of the remaining cases selected for trial, only those of appellees Robinson, Shaffer and Knight reached a jury verdict. According to the appellee-plaintiffs, as the result of exposure to asbestos fibers at the workplace, John Robinson contracted asbestosis, Ronald Shaffer developed terminal lung cancer and Walter Knight developed malignant mesothelioma.

Prior to trial, the appellee-plaintiffs filed a motion in limine seeking to exclude from jury consideration any evidence of the appellees' smoking habits. The appellants, Consolidated Rail Corporation, et al., filed a response stating as follows:

Both defendants' and plaintiffs' experts agree that cigarette smoking, obesity and other various lifestyle factors can contribute both to plaintiffs' symptoms and to their alleged injuries. In fact, in the case of Ronald Shaffer, plaintiff's expert, Dr. Laman, concluded in his report that the plaintiff's lung cancer was caused in part by his cigarette smoking [.] * * * In the present cases, each of the plaintiffs testified at his deposition and admitted in his Answers to Interrogatories that he smoked cigarettes for a substantial period of time. Therefore, it is proper in these cases for the defendant[s] to receive a jury instruction of contributive/comparative negligence and apportionment of damages[.]

On September 25, 2000, the Circuit Court entered an order granting the motion in limine, thus, excluding evidence of the appellees' histories of cigarette smoking and refusing the request of appellants Consolidated Rail Corporation, et al., for a contributory or comparative negligence instruction upon the smoking issue. Specifically, the Circuit Court concluded that there was no competent evidence that smoking played any role in connection with the appellee-plaintiffs' conditions. The appellants objected to the ruling of the Circuit Court.

Trial began in October 2000, during which the Circuit Court noted the objection of appellants Consolidated Rail Corporation, et al., to the exclusion of the appellees' histories of smoking. At the conclusion of the trial, the jury returned a $3,500,000 verdict for the appellees. The verdict consisted of $1,250,000 in favor of John Robinson, $1,250,000 in favor of Ronald Shaffer and $1,000,000 in favor of Walter Knight.

On July 6, 2001, appellants Consolidated Rail Corporation, et al., filed a motion for a new trial. The motion alleged, inter alia, that the Circuit Court committed error in granting the motion in limine which prevented the appellants from introducing evidence concerning the appellees' smoking histories. Pursuant to the final order of March 27, 2002, the motion was denied.

II. STANDARDS OF REVIEW

The authority of a circuit court to rule upon a motion for a new trial is recognized in Rule 59 of the West Virginia Rules of Civil Procedure. See generally, 13B M.J. New Trials sec. 1, et seq. (Michie—2002). However, as stated in syllabus point 4 of Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976):

Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syl. pt. 1, Matheny v. Fairmont General Hospital, 212 W.Va. 740, 575 S.E.2d 350 (2002); Lamphere v. Consolidated Rail Corporation, 210 W.Va. 303, 306, 557 S.E.2d 357, 360 (2001); syl. pt. 1, Andrews v. Reynolds Memorial Hospital, 201 W.Va. 624, 499 S.E.2d 846 (1997); syl. pt. 1, Brooks v. Harris, 201 W.Va. 184, 495 S.E.2d 555 (1997); syl. pt. 2, Witt v. Sleeth, 198 W.Va. 398, 481 S.E.2d 189 (1996).

In Lamphere, supra, a railroad worker sought recovery under the Federal Employers' Liability Act for malignant mesothelioma allegedly caused by asbestos exposure. The jury returned a verdict in favor of the railroad. Concluding, however, that the verdict was against the clear weight of the evidence, the trial court granted a new trial. In affirming the trial court's ruling, this Court, in Lamphere, noted that an appellate court is more disposed to affirm the action of a trial court in granting a new trial "than when such action results in a final judgment denying a new trial." 210 W.Va. at 306, 557 S.E.2d at 360.

Here, the motion of appellants Consolidated Rail Corporation, et al., for a new trial, which was denied below, was based upon the Circuit Court's pre-trial ruling granting the motion in limine to exclude the evidence of the appellee-plaintiffs' histories of cigarette smoking. As indicated in Rule 103(c) of the West Virginia Rules of Evidence, motions in limine provide a mechanism for preventing inadmissible evidence from being suggested to a jury. As Rule 103(c) states:

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. Where practicable, these matters should be determined upon a pretrial motion in limine.

The utility of a motion in limine in avoiding the inadvertent placement of inadmissible evidence before the jury, and in avoiding interrupting the trial with complex evidentiary objections, was recognized by this Court in Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 459 S.E.2d 374 (1995). As also recognized in Tennant, however, that utility is somewhat mitigated by the caution necessary to be exercised by a circuit court in making evidentiary rulings outside the context of an ongoing trial. The opinion, in Tennant, observes:

In most cases, judges are hesitant to rule finally on evidentiary questions in advance of trial. The role and importance of the disputed evidence, its fit with the other evidence in the case, and even the precise nature of the evidence may all be affected by ... the context of the trial itself. * * * [J]udges in ongoing proceedings normally have some latitude to revisit their own earlier rulings.

194 W.Va. at 112, 113, 459 S.E.2d at 389, 390.

Thus, syllabus point 4 of Tennant holds: "Once a...