Bordeaux v. Celotex Corp.

• Decision Date: 29 December 1993
• Docket Number: Docket Nos. 119332-119334
• Citation: 511 N.W.2d 899,203 Mich.App. 158
• Parties: , Prod.Liab.Rep. (CCH) P 13,857 Matthew J. BORDEAUX, Personal Representative of the Estate of James L. Bordeaux, Deceased, Plaintiff-Appellee, v. The CELOTEX CORPORATION, Defendant-Appellant. James J. CONLEY and Maxine D. Conley, His Wife, Plaintiffs-Appellees, v. The CELOTEX CORPORATION, Defendant-Appellant. Margaret D. ADAMS, Personal Representative of the Estate of William J. Adams, Deceased, v. The CELOTEX CORPORATION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 899

511 N.W.2d 899

203 Mich.App. 158, Prod.Liab.Rep. (CCH) P 13,857

Matthew J. BORDEAUX, Personal Representative of the Estate

of James L. Bordeaux, Deceased, Plaintiff-Appellee, v. The CELOTEX CORPORATION, Defendant-Appellant.

James J. CONLEY and Maxine D. Conley, His Wife, Plaintiffs-Appellees, v. The CELOTEX CORPORATION, Defendant-Appellant.

Margaret D. ADAMS, Personal Representative of the Estate of William J. Adams, Deceased, v. The CELOTEX CORPORATION, Defendant-Appellant.

Docket Nos. 119332-119334.

Court of Appeals of Michigan.

Submitted Oct. 20, 1993, at Detroit.

Decided Dec. 29, 1993, at 9:10 a.m.

Released for Publication: March 4, 1994.

Henderson & Goldberg, P.C. by Joel Persky, Pittsburgh, PA, for plaintiffs-appellees.

Collins, Einhorn & Farrell, P.C. by Clayton F. Farrell and Noreen L. Slank, Southfield, for defendant-appellant.

Before CORRIGAN, P.J., and NEFF and GRIBBS, JJ.

CORRIGAN, Presiding Judge.

Defendant Celotex Corporation appeals as of right from three adverse judgments rendered after a consolidated jury trial. ¹ The verdicts were rendered in connection with plaintiffs' claims for occupational exposure to asbestos-containing products for which defendant was at least partially responsible. ² On appeal, defendant raises a number of issues, none of which warrant reversal. However, to permit defendant to challenge the awards under the remittitur standard of Palenkas v. Beaumont Hosp., 432 Mich. 527, 443 N.W.2d 354 (1989), we remand this matter.

The instant claims arise from James Bordeaux's, James Conley's, and William Adams' exposure to asbestos-containing materials during their employment in different trades. Matthew Bordeaux filed an action as personal representative of the estate of his father, James Bordeaux, who died at the age of sixty-three. James Bordeaux had been exposed to large amounts of asbestos dust during his employment as an insulator. Margaret Adams filed an action as personal representative of the estate of her husband, William Adams, who died of a heart attack at the age of seventy-two. William Adams had been exposed to asbestos products throughout his thirty-year career as a boilermaker. He contracted severe laryngeal cancer, ostensibly due, in part, to asbestos exposure. Finally, James and Maxine Conley filed their action after James Conley developed malignant tumors in his neck. James Conley, a mechanical repairman, had also been exposed to large amounts of asbestos-containing materials manufactured by Philip Carey Manufacturing Company, defendant's predecessor.

Plaintiffs filed separate claims, naming various manufacturers as defendants and alleged liability based upon the manufacturers' failure to warn of the health risks associated with prolonged exposure to asbestos-containing insulation products. All the other defendants settled their cases before trial. Trial against defendant proceeded after the circuit court sua sponte ordered consolidation of the three cases.

Following a two-week trial, the jury returned verdicts of $600,000 to the estate of James Bordeaux, to be reduced for comparative negligence of sixty percent; $1 million to the estate of William Adams, to be reduced for comparative negligence of twenty percent; and $1.5 million to James J. Conley, and $10,000 to Maxine D. Conley, to be reduced for comparative negligence of forty percent. The judgment in each case was also reduced by the settlement amounts. Thereafter, defendant moved for a new trial, judgment notwithstanding the verdict, and remittitur. After the motions were denied, defendant claimed appeals. This Court ordered the appeals consolidated.

Defendant first argues that the trial court erred in consolidating these cases for trial. Specifically, defendant contends that its right to a fair trial was denied because the jury could not separate certain testimony and evidence regarding each plaintiff from that of the others. We disagree.

At no time before trial did defendant object to the court's consolidation of the claims, nor did defendant file a motion for severance. Nothing in the court's standing pretrial order barred defendant from objecting to consolidation or from filing a motion for severance once consolidation had been ordered. Defendant's failure to raise the issue seasonably, before the motion for a new trial or the appeal, renders the issue waived. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993).

Because of the unique nature of the consolidation order and the prospect that the issue will recur, we feel compelled to comment about the consolidation order. ³ As federal courts have noted, consolidation of asbestos-related litigation is both appropriate and commonplace. Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (CA 2, 1990); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1497 (CA 11, 1985).

Consolidation in federal court is authorized under FR Civ P 42(a). Considerations of judicial economy often favor consolidation. Johnson, supra at 1285. Like the federal rule, MCR 2.505(A) permits consolidation of actions when "substantial and controlling common questions of law or fact are pending" before the court. See Cohen v. Cohen, 125 Mich.App. 206, 212, 335 N.W.2d 661 (1983); Papcum v. L.R. Jacobs Construction Co., 95 Mich.App. 746, 748-749, 291 N.W.2d 191 (1980). Decisions regarding consolidation rest in the sound discretion of the trial court. Blumenthal v. Berkley Homes, Inc., 342 Mich. 36, 40, 69 N.W.2d 183 (1955); Papcum, supra, 95 Mich.App. at 749, 291 N.W.2d 191 (quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], p 365); 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), MCR 2.505, p 80. Consolidation should not be ordered if the substantial rights of a party would be adversely affected or if juror confusion would result. Papcum, supra at 749, 291 N.W.2d 191.

Defendant points to various claimed adverse effects of consolidation. However, the record indisputably reveals the existence of substantial and controlling common issues of law and fact, justifying the consolidation of the cases. All three injured workers suffered from some form of laryngeal cancer, allegedly incited by prolonged exposure to asbestos-containing materials. All three plaintiffs premised liability upon defendant's failure to warn the injured parties of the dangers of such exposure. Each of the injured parties also had a history of smoking and alcohol use. Many of the witnesses presented testimony that was relevant to each case. Indeed, consolidation worked to some degree to the defendant's advantage because the expert testimony offered by the defendant was relevant to all three cases.

Scrutiny of the record reflects that the jury was not confused or tainted by the various instructions, the commingling of the death cases with the live plaintiff in the Conley case, and the diverse facts of the cases at hand. The trial court conscientiously insured that the jury appropriately discharged its function. As stated in the context of criminal proceedings, in order for the jury system to function, jurors are and must be presumed to understand and follow the court's instructions. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). ⁴ That principle applies equally to this case. The jury was instructed according to the law. By all appearances, it applied the law appropriately in each case. The jury was not unduly confused by the disparity in the instructions or the application of those instructions to the testimony in each case.

Defendant's claim that the court consolidated these cases to penalize it for changing its settlement posture is similarly unpersuasive. Rather, in responding to defendant's postjudgment claim that the court erred in consolidating the cases, the court explained that defendant's posture had resulted in fewer cases being settled, thereby requiring consolidation as a practical matter. Nothing in this record suggests that the court acted in a vindictive manner to punish defendant for refusing to settle the cases.

In short, defendant has not established prejudice by virtue of the consolidation order. This trial held no surprises. Nothing brought out during the trial was unknown to defendant when the cases were consolidated. Defendant cannot be excused for its failure to object or move for severance before trial. Although the circuit court acted on its own motion, a party must preserve claims of improper consolidation by moving for severance before trial.

Defendant next argues that the court erred in denying its motion for judgment notwithstanding the verdict in the Bordeaux and Adams cases because plaintiffs did not establish that the decedents would have altered their behavior in response to warnings. We disagree. In reviewing a motion for judgment notwithstanding the verdict, the trial court must review the evidence in a light most favorable to the nonmoving party. Clemens v. Lesnek, 200 Mich.App. 456, 461, 505 N.W.2d 283 (1993) (quoting Wilson v. General Motors Corp., 183 Mich.App. 21, 36, 454 N.W.2d 405 (1990)). A court should grant judgment notwithstanding the verdict where the evidence is insufficient to create a jury question; it should not do so where the evidence would permit reasonable minds to differ about issues of fact. Id. A trial court's decision on a motion for judgment notwithstanding the verdict must be affirmed absent a clear abuse of discretion. Id.

In most failure-to-warn cases, proximate cause is not established absent a showing that the plaintiff would alter his or her behavior in response to a warning. Nichols v. Clare Community Hosp., 190 Mich.App. 679, 684, 476 N.W.2d 493 (1991). However, in certain circumstances, the jury may infer this fact from the evidence presented. Schutte v. Celotex Corp., 196 Mich.App. 135, 140, 492 N.W.2d 773 (1992). In Schutte, a panel of this Court stated that

Where the consequences of the exposure are...