John Crane, Inc. v. Hardick

• Decision Date: 02 March 2012
• Docket Number: Record No. 101909.
• Citation: 2012 A.M.C. 1027,283 Va. 358,722 S.E.2d 610
• Parties: JOHN CRANE, INC. v. Margaret Diane HARDICK, Executor of The Estate of Robert Eugene Hardick, Deceased, et al.
• Court: Virginia Supreme Court

2012 A.M.C. 1027

283 Va. 358

722 S.E.2d 610

JOHN CRANE, INC.

v.Margaret Diane HARDICK, Executor of The Estate of Robert Eugene Hardick, Deceased, et al.

Record No. 101909.

Supreme Court of Virginia.

March 2, 2012.

Michael A. Pollard; C. Stinson Mundy (Eric G. Reeves; Brian J. Schneider; Michael C. McCutcheon; Thomas J. Burns; Moran Reeves & Conn; Baker & McKenzie; O'Connell, Tivin, Miller & Burns, on briefs) for appellant.

William W.C. Harty (Robert R. Hatten; Donald N. Patten; Hugh McCormick; Erin H. Hieronimus; Patten, Wornom, Hatten & Diamonstein, on brief) for appellee.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

Among the several issues we address in this appeal is whether the Circuit Court of the City of Newport News (“trial court”) erred when it permitted the jury to award nonpecuniary damages in a wrongful death action of a Navy sailor for asbestos exposure that occurred both in territorial waters and on the high seas.

I. Facts and Proceedings Below

Robert Eugene Hardick (“Hardick”) filed suit under general maritime law against John Crane, Inc. (“JCI”) and 22 other defendants seeking $20 million in compensatory damages and $5 million in punitive damages. Hardick's complaint alleged that he was exposed to asbestos dust, fibers, and particles contained in products manufactured by JCI, and he contracted mesothelioma as a result of such exposure. Hardick died prior to trial, and his action was revived as a wrongful death action by his wife, Margaret D. Hardick (“Mrs. Hardick”), in her capacity as executor of his estate. Mrs. Hardick settled or nonsuited the claims against all defendants except JCI and proceeded against JCI, the sole remaining defendant.

Prior to trial, JCI filed a motion in limine to exclude evidence of nonpecuniary damages. JCI argued that “[Mrs. Hardick's] own theory of liability depend[ed] upon [Hardick having] significant exposure to asbestos while onboard Navy ships underway on the high seas and in foreign ports,” and Mrs. Hardick is only entitled to recover damages available under the Death on the High Seas Act (“DOHSA”), 46 U.S.C. § 30301, et seq. (2006 & Supp. III 2010). JCI further argued that because DOHSA “precludes recovery of nonpecuniary damages such as pain and suffering, loss of society/consortium, or punitive damages, ... and in furtherance of the Constitution's requirement of uniformity in application of federal maritime law, any recovery by [Mrs. Hardick] under the general maritime law is likewise limited to pecuniary damages.” Additionally, JCI argued that Hardick was a seaman as defined by the United States Supreme Court (“Supreme Court”) in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 355–56, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991).

In response, Mrs. Hardick claimed that she was the master of her pleadings, and could pursue recovery either under DOHSA for injuries sustained on the high seas or under general maritime law for injuries sustained in territorial waters. Mrs. Hardick elected to pursue recovery under general maritime law for Hardick's asbestos exposure. Moreover, Mrs. Hardick argued that Hardick was not a seaman, but rather a “nonseafarer” as defined by the Supreme Court in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 n. 2, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). The trial court denied JCI's motion to exclude evidence of nonpecuniary damages, stating that its ruling was based on “the reasons stated by [Mrs. Hardick].”

JCI also filed a motion in limine to exclude Mrs. Hardick's evidence of the removal of asbestos-containing gaskets, arguing that Hardick's deposition testimony ¹ and the deposition testimony of Hardick's former co-workers failed to establish that Hardick ever removed gaskets manufactured by JCI. At a pre-trial hearing, the parties informed the trial court that various motions had been resolved, including the motion to exclude evidence of asbestos exposure resulting from the removal of gaskets. Mrs. Hardick represented that JCI's motion relating to the removal of asbestos-containing gaskets had been “dropped.” JCI agreed and withdrew its motion, declaring “it's a jury issue.” However, JCI retained the right to move to strike such evidence at the close of Mrs. Hardick's case if the evidence was insufficient to establish that Hardick removed asbestos-containing gaskets manufactured by JCI.

Prior to trial, Mrs. Hardick filed a motion in limine requesting that the trial court prohibit JCI's “Navy expert,” Wesley Hewitt (“Hewitt”), from “giving speculative and misleading testimony” regarding the types and amounts of insulation to which Hardick may have been exposed. The trial court granted Mrs. Hardick's motion regarding Hewitt; however, the trial court stated that “[t]he parties agree that Hewitt may testify on the basis of documents that he has reviewed and produced about other products to which Mr. Hardick may have been exposed provided that [JCI] ties such exposure directly to Mr. Hardick.”

Mrs. Hardick presented the following evidence at trial. Hardick served in the United States Navy from 1957 to 1976 on several different vessels, both in domestic ports and in foreign ports. Hardick testified that one vessel he serviced was seldom in port; and, consequently, his duties were often performed at sea.

From 1958 to 1962, Hardick worked as a shipfitter and reported for duty upon the USS Newport News, the USS Tutuila, and the USS Wrangell. As a shipfitter, Hardick repaired and replaced valves and gaskets. The valves and gaskets Hardick repaired contained asbestos.

Hardick testified that during his time on board the USS Newport News, he recalled one journey to Guantanamo Bay, Cuba, during which he performed his routine duties as a shipfitter. While Hardick was on board the USS Wrangell, the vessel sailed on a 13–month voyage to the Mediterranean and from the Mediterranean, to Cuba. Hardick performed his duties during these voyages while on the high seas.

James Croom, Jr. (“Croom”), Hardick's supervisor on the USS Tutuila, testified that the USS Tutuila was stationed in Norfolk, Virginia, and the vessel “usually stayed tied up at Pier 2.” Because the USS Tutuila was docked in Norfolk, Hardick performed his duties as a shipfitter in territorial waters.

After attending school to become a machinery repairman, Hardick worked as a machine repairman aboard the USS Everglades, the USS Bordelon, and the USS Detroit from 1963 to 1971. As a machinery repairman, Hardick's tasks primarily involved repairing valves, but he still occasionally worked on the piping systems aboard the vessels.

Hardick testified that he recalled traveling to the Mediterranean once while on board the USS Everglades. However, the USS Everglades was based and primarily stayed in Charleston, South Carolina during Hardick's service on the vessel. In particular, Hardick testified that “[w]e stayed mostly in Charleston tied up working on destroyers.”

During his tenure on the USS Bordelon, Hardick repaired an entire diesel generator while the vessel was at sea. Hardick testified that he was next assigned to the USS Detroit, which was located at the naval shipyard in Bremerton, Washington, because the vessel was in the process of being built. After the USS Detroit was commissioned, Hardick continued to service the vessel as a machinery repairman.

From 1971 to 1976, Hardick served as the master of arms aboard the USS Yellowstone and later as a race-relations specialist aboard the USS Canopus. In these capacities, Hardick continued to work around people using the same products that he worked with as a shipfitter and a machinery repairman, namely, valves and gaskets. Specifically, Hardick testified that he was exposed to asbestos dust on board the USS Canopus when the vessel was underway to Guantanamo Bay, Cuba.

Hardick testified that he worked with gaskets manufactured by JCI and Garlock, and could not tell the difference between JCI packing materials and Garlock packing materials that were not in the original box or package because “[t]hey looked identical.” Hardick's co-worker, Frank Hoople, testified that he was unable to identify who manufactured the gasket materials that he removed. Moreover, Croom testified that Hardick regularly used both JCI and Garlock gaskets and packing materials while working on the USS Tutuila. When asked whether Hardick was exposed to gaskets manufactured by companies other than JCI and Garlock, Croom testified “I'm sure there w[ere] a lot of others,” but he could not remember the names of specific manufacturers.

In February 2007, Hardick was diagnosed with mesothelioma, a fatal form of cancer, and he died in March 2009. Mrs. Hardick's expert testified that Hardick's mesothelioma was the result of his “cumulative asbestos exposures” during his approximately twenty-year service in the Navy and that mesothelioma is an “indivisible disease.”

At the close of Mrs. Hardick's case, JCI renewed its objection to Mrs. Hardick's claim for nonpecuniary damages. The trial court adhered to its pre-trial ruling. JCI also moved to strike the portions of Mrs. Hardick's evidence that Hardick's asbestos exposure resulted from gasket removal because no direct evidence was presented at trial that Hardick ever removed gaskets manufactured by JCI. The trial court denied the motion, concluding that there was sufficient circumstantial evidence that Hardick removed gaskets manufactured by JCI, and the jury should decide the issue.

JCI subsequently attempted to call Hewitt as a witness and represented that he would testify on various issues related to the United States Navy. However, Mrs. Hardick objected to Hewitt's testimony based, in part, upon JCI's stipulation that Hewitt would “not opine about Hardick's exposure to asbestos, a subject that more appropriately falls within other expert[s'] fields.” (Emphasis in original.) Also, Mrs. Hardick argued that Hewitt admitted at his pre-trial deposition testimony that he could not testify about...