Goede v. Aerojet General Corp.

• Decision Date: 11 May 2004
• Docket Number: No. ED 82833.,ED 82833.
• Citation: 143 S.W.3d 14
• Parties: Joshua GOEDE, Joel D. Goede, Bethany J. Goede, Barbara J. Foster and Robert L. Foster, Jr., as the Surviving Heirs of Stephanie L. Foster, Deceased, Plaintiffs-Respondents, v. AEROJET GENERAL CORPORATION, and Aerojet International, Inc., Defendants-Appellants.
• Court: Missouri Court of Appeals

143 S.W.3d 14

Joshua GOEDE, Joel D. Goede, Bethany J. Goede, Barbara J. Foster and Robert L. Foster, Jr., as the Surviving Heirs of Stephanie L. Foster, Deceased, Plaintiffs-Respondents, v. AEROJET GENERAL CORPORATION, and Aerojet International, Inc., Defendants-Appellants.

No. ED 82833.

Missouri Court of Appeals, Eastern District, Division Three.

May 11, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 10, 2004.

Application for Transfer Denied September 28, 2004.

Appeal from the Circuit Court, City of St. Louis, Robert H. Dierker, Jr., J Joel D. Monson, Francis X. Duda, St. Louis, MO, for appellants.

William A. Kohlburn, Ted N. Gianaris, East Alton, IL, Michael B. Marker, East St. Louis, IL, for respondents.

LAWRENCE E. MOONEY, Judge.

The defendants, Aerojet General Corporation and Aerojet International, Inc., (collectively Aerojet) were found liable for the wrongful death of Stephanie Foster, who died from mesothelioma, a very painful cancer caused by exposure to asbestos. Aerojet appeals, alleging a host of trial-court errors in its eight points on appeal. Aerojet challenges the submissibility of the plaintiffs' claims, and alleges the trial court erred in its denial of Aerojet's motion for new trial, its removal of ultimate fact issues from the jury as a sanction for discovery violations, its exclusion of expert testimony, its choice of law to govern damages, its verdict-directing instructions, and its denial of remittitur. Lastly, Aerojet contends the cumulative effect of all these alleged errors warrants reversal and remand for a new trial. We affirm.

Factual and Procedural Background

Stephanie was born in California, in 1959. Stephanie's father, Robert Foster, worked as a machinist for a company known as Automation Progress, which machined parts for Aerojet. Aerojet at that time was a government defense contractor engaged in producing intercontinental ballistic missiles for the United States Defense Department. Over approximately a six-month period in the early 1960s, employees of Automation Progress, including Mr. Foster, machined an asbestos-containing part for Aerojet from an asbestos material provided by Aerojet. Machining these parts produced substantial quantities of asbestos-containing dust. The dust permeated Mr. Foster's clothing. As there were no changing facilities at his workplace, Mr. Foster went home daily with asbestos-laden dust on his clothes, thereby exposing Stephanie to the asbestos-containing dust. Experts at trial opined that Stephanie's exposure to asbestos via her father's work clothes during this time caused or contributed to cause her subsequent mesothelioma and her resulting death.

The Foster family moved from California to a farm in Wisconsin in 1966. Stephanie lived on this farm until she was married twelve years later. During this time period, Mr. Foster performed maintenance on several tractors, including a Massey Ferguson tractor. Maintenance on these tractors also allegedly exposed Mr. Foster and Stephanie to asbestos-containing materials. These events formed the basis of the plaintiffs' cause of action against AGCO. Defendant AGCO Corporation is the successor to the Massey Ferguson Company.

Mr. Foster and his wife moved to Missouri in 1985. Stephanie remained in Wisconsin until 1999, at which time she and her three children moved to Missouri. Stephanie started to experience chest pains and shortness of breath in September of 2000, and was subsequently diagnosed with mesothelioma in March of 2001. Mesothelioma begins by attacking the pleural lining of the lungs, and the cancer eventually spreads to encase the lungs, as well as invading the diaphragm, the lining around the heart, and the muscles and ribs of the chest wall. Due to the nature of the disease, Stephanie progressively lost lung function. Stephanie had already lost 50 percent of her ability to breathe by August of 2001, some seven months before she died. Stephanie underwent chemotherapy, which resulted in vomiting and dehydration. From the time she was diagnosed until her death, Stephanie lost a considerable amount of weight. Stephanie also experienced intractable pain, despite taking a number of narcotics to help control the pain. Stephanie died in March of 2002, at the age of 43, survived by her parents and her three children, Joshua, Joel, and Bethany Goede.

Stephanie initially filed suit in this case in September of 2001, asserting claims of strict liability, negligence, and willful and wanton misconduct against a number of defendants. Following Stephanie's death, her parents and children continued the lawsuit, filing an amended petition pursuant to Missouri's wrongful-death statute. After a contentious discovery battle between the plaintiffs and Aerojet, the plaintiffs proceeded to trial in November of 2002 against Aerojet, ACGO, and General Gasket Corporation. All other defendants settled and/or were dismissed before trial. General Gasket was dismissed before the case was submitted to the jury. The jury returned a verdict in favor of ACGO, and the plaintiffs seek no relief regarding this verdict. The jury, however, found Aerojet liable on all four submitted claims — strict liability, strict liability — failure to warn, negligent failure to warn, and negligence per se for violation of the Walsh-Healey Act. The jury assessed damages of $5,119,000. The damages included $3,000,000 for actual emotional and economic damages for the wrongful death of Stephanie, $2,000,000 for Stephanie's pre-death pain, suffering, and emotional distress, and $119,000 for lost wages and medical expenses. The award was offset by prior settlements already recovered by the plaintiffs, yielding a final judgment of $1,731,500. The trial court denied all post-trial relief, except for granting judgment notwithstanding the verdict on the Walsh-Healey claim. Aerojet now appeals.

Discussion

Submissibility of Plaintiffs' Claims

We begin our discussion by addressing Aerojet's challenge to the submissibility of the plaintiffs' claims. Aerojet, in its third point on appeal,¹ alleges the trial court erred in denying Aerojet's motion for judgment notwithstanding the verdict because the plaintiffs failed to present a submissible case on their strict liability and negligence claims. Aerojet argues that the plaintiffs did not present a submissible case on strict liability because they did not prove the required elements of causation or knowledge. Additionally, Aerojet argues the plaintiffs did not present a submissible case on negligence because Aerojet did not have a duty with regard to the decedent or her father, and because the plaintiffs did not prove causation. We find Aerojet failed to preserve the issue of submissibility for appellate review, as these grounds were not raised in Aerojet's motion for directed verdict at the close of all evidence.

To preserve the question of submissibility for appellate review in a jury-tried case, a motion for directed verdict must be filed at the close of the plaintiff's case and again at the close of all evidence. Frisella v. Reserve Life Ins. Co. of Dallas, Tex., 583 S.W.2d 728, 731 (Mo.App. E.D.1979); see also Millar v. Berg, 316 S.W.2d 499, 502 (Mo.1958). Thereafter, in the event of an adverse judgment, the defendant should assign the trial court's failure to direct the verdict as error in an after-trial motion. Id. A motion for judgment notwithstanding the verdict is a motion to have judgment entered in accordance with the motion for directed verdict. Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 137 (Mo.App. E.D.1999). Thus, a sufficient motion for directed verdict at the close of all the evidence is required to preserve the motion for judgment notwithstanding the verdict for appeal. Id.; Dierker Associates, D.C., P.C. v. Gillis, 859 S.W.2d 737, 743 (Mo.App. E.D.1993). Rule 72.01(a) requires that a motion for a directed verdict state the specific grounds for the motion. See Hatch, 990 S.W.2d at 137. A motion for directed verdict that does not include specific reasons or grounds for the motion neither presents a basis for relief in the trial court nor is sufficient to preserve the issue for appellate review. Fust v. Francois, 913 S.W.2d 38, 45 (Mo.App. E.D.1995); Dierker Associates, 859 S.W.2d at 743; see also, Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 163 (Mo.App. W.D.1997).

In this case, Aerojet filed a motion for directed verdict at the close of the plaintiffs' evidence that raised the issue of submissibility of the plaintiffs' claims and stated the above-mentioned grounds regarding the submissibility of the plaintiffs' claims. Aerojet also made an oral motion for directed verdict at the close of all the evidence. However, the only issue raised as a basis for its motion for directed verdict at the close of all the evidence was the application of California damages law. Aerojet did not raise the question of the submissibility of the plaintiffs' claims, nor did Aerojet refer to or incorporate its previously made motion. Aerojet's failure to raise the question of the submissibility of plaintiffs' claims as grounds for its motion for directed verdict at the close of all the evidence precluded Aerojet from obtaining judgment notwithstanding the verdict on these grounds, and further precludes Aerojet from obtaining appellate review of the trial court's failure to enter judgment notwithstanding the verdict on these grounds. See Hatch, 990 S.W.2d at 137-8; Letz, 975 S.W.2d at 163-4.

Motion for New Trial

In addition to its motion for judgment notwithstanding the verdict, Aerojet also moved for a new trial, on all issues. In moving for a new trial, Aerojet argued that the court had erred in instructing the jury regarding the Walsh-Healey Act,² because the plaintiffs had never pleaded a cause of action under the Act, neither decedent nor her father were within the class of persons protected by the Act, and because there is no private right of action...