Budd v. Kaiser Gypsum Co.

Decision Date22 February 2022
Docket Number81918-6-I
Citation21 Wash.App.2d 56,505 P.3d 120
Parties Raymond BUDD and Vickie Budd, Husband and Wife, Respondents, v. KAISER GYPSUM COMPANY, INC. ; Appellant, Borgwarner Morse Tec Inc.; Certainteed Corporation; DAP, Inc.; Ford Motor Company; Honeywell International Inc., Individually and as successor to Allied Signal, Inc. and The Bendix Corporation; Metropolitan Life Insurance Company; MW Custom Papers, LLC ; Pfizer Inc.; Union Carbide Corporation ; and Weyerhaeuser Company, Defendants.
CourtWashington Court of Appeals


Chun, J.

¶1 Raymond Budd developed mesothelioma

after working with a drywall product called "joint compound" from 1962 to 1972. He sued Kaiser Gypsum Company, Inc. and others for damages, contending that the company's joint compound caused his illness. A jury returned a verdict in Budd's favor and awarded him nearly $13.5 million. Kaiser appeals, claiming (1) insufficient randomness in the jury-selection process, (2) erroneous transcription of expert testimony, (3) lack of proximate causation, (4) lack of medical causation, (5) an improper jury instruction on defective design, (6) improper exclusion of sexual battery and marital discord evidence, (7) improper admission of post-exposure evidence, (8) improper exclusion of regulatory provisions, and (9) a failure to link its product to Budd's disease. For the reasons below, we affirm.


¶2 Kaiser manufactured drywall products, including joint compound, from the 1950s to the 1970s. Budd claims he worked with Kaiser's joint compound from 1962 to 1972 when he worked for his father and uncle's drywall business. During that time, Kaiser's joint compound contained Grade 7 chrysotile and Calidria chrysotile. Chrysotile is a type of asbestos. Years later, a doctor diagnosed Budd with mesothelioma


¶3 Budd and his wife sued Kaiser and others in King County Superior Court for negligence and strict liability, advancing failure to warn and defective design theories.

¶4 Jury Selection. In early 2020, the COVID-19 pandemic halted jury trials at the court. When they resumed, the court and our Supreme Court allowed for the excusal of potential jurors at higher risk from COVID-19 based on their age or health conditions. In this case, the jury services department of King County Superior Court sent summonses to potential jurors who had deferred service before. Before trial, Kaiser challenged the jury selection process, contending that it was not sufficiently random and excluded people ages 60 and older. The trial court denied Kaiser's challenge.

¶5 Evidence of Abuse and Discord. Budd moved in limine to exclude evidence that he had sexually abused his daughter and evidence of marital discord. The trial court denied Budd's motion but said that Kaiser could introduce the evidence only if Budd opened the door.1 Budd's wife voluntarily dismissed her loss of consortium claim to avoid opening the door. During trial, after Budd's wife testified, Kaiser asked to introduce the challenged evidence. The trial court denied the request, determining that Budd had not opened the door.

¶6 Post-Exposure Evidence. Kaiser moved in limine to exclude evidence about asbestos hazards—such as internal Kaiser memoranda—that post-dated Budd's exposure, contending that such evidence was irrelevant to Budd's claims. The trial court denied the motion. During trial, Budd introduced post-exposure evidence about asbestos hazards.

¶7 Transcription of Testimony. The day of closing arguments, Budd shared his argument slides with Kaiser. After reviewing the slides, Kaiser told the court that Budd was seeking to rely on a portion of Dr. Davis Weill's testimony that was erroneously transcribed. The transcript said, "Q. And, Doctor, has there been any epidemiological literature published in the peer reviewed literature demonstrating an increased risk of mesothelioma

from exposure to Calidria? A. Yes." Kaiser contended the answer was, "No." It moved to preserve the audio recording of the testimony and requested a copy. The trial court granted preservation but denied Kaiser's request for a copy. Kaiser then moved twice to correct the record and the court denied both motions.

¶8 Jury Instruction. The court instructed the jury on a negligent failure to warn claim and a strict liability failure to warn claim; it also partially instructed the jury on a design defect claim. Kaiser objected to the design defect instruction, contending that the case involved only failure to warn claims. The court gave the instruction.

¶9 Verdict. The jury found for Budd and awarded him $13,426,000 in damages.

¶10 Posttrial Motion. Kaiser moved for dismissal, new trial, and remittitur under CR 50, CR 59, and RCW 4.76.030 ("Posttrial Motion"). Under CR 50, Kaiser contended that Budd failed to prove he was exposed to a Kaiser product; and proximate causation by showing he would have heeded a warning had one been given. Kaiser said that under CR 59, the jury selection process did not conform to statutory requirements; Budd failed to prove medical causation and proximate causation; and the court erred in admitting post-exposure evidence, excluding evidence of prior asbestos regulation provisions, excluding evidence of Budd's sexual abuse of his daughter and of marital discord, and instructing the jury on the design defect claim. The court denied Kaiser's Posttrial Motion.

¶11 Kaiser appeals.

A. Jury Selection

¶12 Kaiser says the trial court erred by failing to ensure the jury pool was sufficiently random under RCW 2.36 et seq. It also says excluding jurors ages 60 and over was reversible error. Budd disagrees and says Kaiser waived its second claim. We conclude that the court substantially complied with the randomness requirement and did not exclude a cognizable class.

¶13 We review a "trial court's ruling regarding challenges to the venire process for abuse of discretion." State v. Clark, 167 Wash. App. 667, 674, 274 P.3d 1058 (2012), aff'd, 178 Wash.2d 19, 308 P.3d 590 (2013). We review a trial court's denial of a CR 59 motion also for abuse of discretion. Konicke v. Evergreen Emergency Servs., P.S., 16 Wash. App. 2d 131, 147, 480 P.3d 424 (2021). "A trial court abuses its discretion when its decision ‘is manifestly unreasonable or based upon untenable grounds or reasons.’ " Salas v. Hi-Tech Erectors, 168 Wash.2d 664, 668–69, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997) ). An "appellate court cannot hold that a trial court abused its discretion ‘simply because it would have decided the case differently.’ " Coogan v. Borg-Warner Morse Tec Inc., 197 Wash.2d 790, 804–05, 490 P.3d 200 (2021) (quoting Gilmore v. Jefferson County Pub. Transp. Benefit Area, 190 Wash.2d 483, 494, 415 P.3d 212 (2018) ).

1. Randomness

¶14 "The [jury-selection] statutes repeatedly mandate that the members of a jury panel be randomly selected." Brady v. Fibreboard Corp., 71 Wash. App. 280, 282, 857 P.2d 1094 (1993) (citing former RCW 2.36.010(6), (9), (12) (2019);2 RCW 2.36.050 ;3 .063;4 .065;5 .080(1);6 .1307 ). And the trial court must ensure random selection. Id. But "the statutory requirements for making up the jury lists are merely directory and need be only substantially complied with." City of Tukwila v. Garrett, 165 Wash.2d 152, 159, 196 P.3d 681 (2008) ; see also RCW 2.36.065 ("Nothing in this chapter shall be construed as requiring uniform equipment or method throughout the state, so long as fair and random selection of the master jury list and jury panels is achieved."). "Prejudice will be presumed only if there is a material departure from the statutory requirements. ... If there is substantial compliance with the statute, then a challenger may claim error only if he or she establishes actual prejudice." Id. at 161, 196 P.3d 681 (alteration in original) (citations omitted). Our Supreme Court has said,

The purpose of all these statutes is to provide a fair and impartial jury, and if that end has been attained and the litigant has had the benefit of such a jury, it ought not to be held that the whole proceeding must be annulled because of some slight irregularity that has had no effect upon the purpose to be effected.

W. E. Roche Fruit Co. v. N. Pac. Ry. Co., 18 Wash.2d 484, 487–88, 139 P.2d 714 (1943).

¶15 During a pretrial hearing on August 7, 2020, the trial court explained how its jury services department summoned potential jurors.8 Kaiser objected and sought a continuance of trial, contending that the summons process violated statutory randomness requirements. The trial court reserved ruling and denied the continuance.

¶16 On September 1, the trial court addressed the issue at a hearing and in a written ruling. The court explained that the jury services department mailed summonses to over 1,000 potential jurors; that the potential jurors were those who had had their service deferred before; that each summons requested that the recipient contact the court by e-mail, by phone, or in person; that of those potential jurors, about 183 responded by e-mail; that the jury services department then sent questionnaires to those 183 people by e-mail; that about 77 people responded to the questionnaire; and that those people were placed on the jury list in random order. The court then overruled Kaiser's objection. The court later denied Kaiser's Posttrial Motion, which was based in part on its contention that the jury selection process was improper.

¶17 Kaiser first contends that the jury pool was insufficiently random because the jury services department mailed summonses to those who had deferred service...

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3 cases
  • Swager v. CCM Holdings, LLC
    • United States
    • Washington Court of Appeals
    • April 27, 2023
    ...a trial court's decision to deny a motion for a judgment as a matter of law. Budd v. Kaiser Gypsum Co., Inc., 21 Wn.App. 2d 56, 72, 505 P.3d 120 (2022). A court appropriately denies a motion for judgment as a matter of law if, viewing the evidence most favorably to the nonmoving party, subs......
  • In re Pers. Restraint of: Mulamba
    • United States
    • Washington Court of Appeals
    • April 27, 2023
    ... ... departed from the statutory requirements in ... Budd v. Kaiser Gypsum Co. , 21 Wn.App. 2d 56, 505 ... P.3d 120 (2022), review denied , 199 Wn.2d ... ...
  • Landes v. Cuzdey
    • United States
    • Washington Court of Appeals
    • May 16, 2023
    ... ... against its potentially prejudicial impact." Budd v ... Kaiser Gypsum Co., Inc ., 21 Wn.App. 2d 56, 82, 505 P.3d ... (internal quotation ... ...

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