Certainteed Corp.. v. Dexter

• Decision Date: 16 December 2010
• Docket Number: No. 2008–SC–000886–DG.,2008–SC–000886–DG.
• Citation: 330 S.W.3d 64
• Parties: CERTAINTEED CORPORATION, Appellant,v.Ava Nell DEXTER, Individually; and James M. Dexter, Executor of the Estate of James G. Dexter, Appellees.
• Court: United States State Supreme Court — District of Kentucky

330 S.W.3d 64

CERTAINTEED CORPORATION, Appellant,

v.Ava Nell DEXTER, Individually; and James M. Dexter, Executor of the Estate of James G. Dexter, Appellees.

No. 2008–SC–000886–DG.

Supreme Court of Kentucky.

Dec. 16, 2010.

Lisa Devillez Carter, Owen Carter & Carter, Benton, KY, Elizabeth Runyan Geise, William F. Sheehan, Goodwin Proctor LLP, Washington, DC, David C. Marshall, Eric Allen Ludwig, Hawkins & Parnell LLP, Atlanta, GA, Counsel for Appellant, CertainTeed Corporation.Kenneth L. Sales, John Robert Shelton, Joseph Donald Satterley, Sales Tillman Wallbaum Catlett & Satterley, Louisville, KY, Counsel for Appellees, Ava Nell Dexter, Individually, and James M. Dexter, Executor of the Estate of James G. Dexter.Opinion of the Court by Justice NOBLE.

This case involves an asbestos-related products liability and negligence suit against nineteen corporate defendants. Only two defendants proceeded to trial; the others either settled or won summary judgment motions, and thus had become empty-chair defendants when the case went to trial. At the first trial, the jury returned a verdict in favor of the plaintiff, but apportioned no fault to any of the empty-chair defendants. The trial court then granted a new trial under CR 59.01(f) because the jury's failure to apportion fault to the empty-chair defendants was “manifestly unsupported by the evidence and manifestly a product of jury passion and prejudice.” The Court of Appeals reversed. This Court granted discretionary review to determine whether the trial court erred in granting a new trial, which in turn requires us to decide what quantum of proof is necessary to justify apportionment against empty-chair defendants. For the reasons set forth below, the Court of Appeals is reversed.

I. Background

James G. Dexter worked as a pipefitter from 1946 until 1984. As a result, he was exposed to asbestos-containing pipes, gaskets, and insulation at many different jobsites. His exposure involved products made by many different companies. Dexter was also a long-term cigarette smoker.

Dexter was diagnosed with lung cancer. His lungs were found to contain a substantial amount of asbestos fibers. It is undisputed that his lung cancer was caused by both his on-the-job exposure to asbestos and by his long-term smoking habit.

On July 8, 2002, Dexter filed suit in Marshall Circuit Court against nineteen corporate defendants, including the Appellant, CertainTeed Corp.,¹ based on products liability (failure to warn) and common-law negligence theories. All the defendants either made asbestos-containing products, which were used in Dexter's work, or owned the premises where Dexter worked and was exposed to asbestos-containing products. The defendants later impleaded eleven additional corporate defendants.²

In 2004, prior to trial, Dexter died from his cancer. He was 79 years old. His son, James M. Dexter, was substituted as a party, as executor of the estate.

Eventually, some of the defendants were granted summary judgment, and many others settled before trial. This left only Garlock Sealing Technologies, LLC and CertainTeed as defendants; the rest became empty-chair defendants against whom Garlock and CertainTeed tried to show fault.

The trial began on May 11, 2005. As will be described in more detail below, evidence was introduced showing that Dexter was exposed to the products of both participating and empty-chair defendants, that any exposure to asbestos would have caused his injuries, and that the industry had known prior to his exposure that asbestos could cause lung disease and cancer. Importantly, the proof showed that Dexter worked around CertainTeed's products for a total of only one week out of his almost forty-year career as a pipefitter. On May 25, 2005, the trial concluded and the case was submitted to the jury, with the empty-chair defendants appearing on the verdict forms for purposes of apportionment of fault.

The jury found in favor of the plaintiffs on the products liability claims, but in favor of the defendants on the common-law negligence claims. They returned a verdict awarding Dexter's estate $66,376 for past medical expenses, $5,000,000 for pain and suffering, and $6,750 for funeral expenses, for a total award of $5,073,126. They apportioned 35% fault to Dexter, 35% fault to Garlock, and 30% fault to CertainTeed. The jury allocated no fault to any of the empty-chair defendants. On June 10, 2005, the trial court entered judgment in accordance with the verdict.

Soon thereafter, Garlock and CertainTeed moved for a new trial, arguing the jury's failure to allocate any fault to any of the empty-chair defendants could not be “sustained by sufficient evidence” under CR 59.01(f). The trial court agreed, and granted a new trial, stating in its order:

Garlock Sealing Technologies, LLC and CertainTeed Corporation are entitled to a new trial on the issue of apportionment because the jury's verdict finding no fault to be apportioned to any [other] defendant ... is manifestly unsupported by the evidence and manifestly a product of jury passion and prejudice.... The jury's finding that [they] were alone responsible for the plaintiffs' decedent, James G. Dexter's exposure to the asbestos fibers that led to his developing an asbestos-related disease and contributed to causing his lung cancer is not supported by the evidence.

The order fails to explain exactly what evidence the trial court believed the jury overlooked or why it believed that the jury's verdict was a result of passion and prejudice.

The case was re-tried in January and February 2006. The second jury found in favor of the plaintiff on both the products liability and common-law negligence claims, and awarded damages of $93,005 for past medical expenses, $1,500,000 for pain and suffering, and $6,744 in funeral expenses, for a total award of $1,599,749 in compensatory damages. This time, however, the jury apportioned some fault against the empty-chair defendants in addition to the participating parties; specifically, the jury assigned 60% fault to Dexter, 2% fault to CertainTeed, 17% to Garlock, and 21% to various empty-chair defendants. (The jury also awarded $100,000 in punitive damages against CertainTeed and $600,000 against Garlock, as well as $15,000 for loss of consortium to Dexter's widow.) On February 22, 2006, the court entered judgment in accordance with the verdict.

On appeal, the plaintiffs complained that the trial court clearly erred in granting the new trial. CertainTeed and Garlock cross-appealed to challenge the second judgment against them. The Court of Appeals resolved the case by holding that “the trial judge's decision ... to set aside the jury's verdict constituted an abuse of discretion and was clearly in error.” As a result, the court reinstated the judgment from the first trial. Because of this resolution, the court did not address the other issues raised by the parties.

CertainTeed sought discretionary review,³ which this Court granted to determine whether the reversal was correct, and to explain what quantum of proof is required before it can be proper to apportion fault to empty-chair defendants.

II. Analysis

Before getting into the substance of the issues raised by the parties, a prefatory note about what is not at issue here is necessary. No party has challenged the scope of the trial court's grant of a new trial—only that it was granted. Questions may exist about whether the second trial should have included the negligence claims (as opposed to the strict liability claims), which, in turn, would raise questions about whether the premises owning empty-chair defendants were properly included. Nor has any party in the present appeal challenged the appropriateness of the trial court's approach to the strict liability and negligence claims against CertainTeed and the other defendants, though there may be questions about whether both types of claims can be pursued against any single defendant. These issues, and others, may have been the subject of the appeal and cross-appeal of the second trial but were not addressed because of the Court of Appeals' resolution of reinstating the original judgment. Such issues are not currently before this Court.

The only issue truly here is whether the Court of Appeals erred in reversing the trial court's grant of a new trial to CertainTeed and Garlock. That issue requires examining certain subsidiary issues—such as the standard of review of a new trial decision and what a defendant must prove to obtain apportionment against an empty-chair defendant—but only to the extent necessary to resolve the primary issue of the appropriateness of the trial court's grant of a new trial. For the most part, this opinion addresses those subsidiary issues as they have been framed by the parties, without further complication by other issues that might be unresolved, either because they have not been raised or have not yet been addressed by the Court of Appeals.

With that said, we now turn to the question presented by the motion for discretionary review: whether the Court of Appeals erred in reversing the trial court's grant of a new trial.

A. Standard of Review for a New Trial Order

Appellate courts must give “a great deal of deference” to a trial court's decision to grant a new trial per CR 59.01. Bayless v. Boyer, 180 S.W.3d 439, 444 (Ky.2005). In fact, the trial court's decision whether to grant a new trial “is presumptively correct.” City of Louisville v. Allen, 385 S.W.2d 179, 184 (Ky.1964) (Clay, Comm'r), overruled on other grounds by Nolan v. Spears, 432 S.W.2d 425, 427 (Ky.1968). Furthermore, an “appellate court is more reluctant to reverse an order granting a new trial than one denying it”. Louisville Mem'l Gardens, Inc. v. Com., Dept. of Highways, 586 S.W.2d 716, 717 (Ky.1979) (citing Allen, 385 S.W.2d at 181). This high level of deference by an appellate court is necessary because the decision to grant a new trial “ ‘depends to a great...