Johns-Manville Sales Corp. v. Janssens

• Decision Date: 26 September 1984
• Docket Number: JOHNS-MANVILLE,No. AJ-109,AJ-109
• Parties: SALES CORP., Appellant, v. Edward J. JANSSENS and Patsy A. Janssens, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 242

463 So.2d 242

JOHNS-MANVILLE SALES CORP., Appellant, v. Edward J. JANSSENS and Patsy A. Janssens, his wife, Appellees.

No. AJ-109.

District Court of Appeal of Florida,

First District.

Sept. 26, 1984.

Rehearing Denied Nov. 28, 1984.

H. Franklin Perritt, Jr., and Nick V. Pulignano, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.

Wayne Hogan, of Brown, Terrell & Hogan, P.A., Jacksonville, for appellees.

ZEHMER, Judge.

Johns-Manville Sales Corporation appeals a final judgment entered on a jury verdict awarding Edward Janssens $707,600 compensatory and $750,000 punitive damages and awarding his wife $400,000 for loss of consortium. The jury found Johns-Manville liable for asbestosis Mr. Janssens developed through prolonged exposure to asbestos products, manufactured and sold by Johns-Manville, while serving on board ships with the Navy between 1942 and 1951. Asbestosis is a slowly developing, progressive disease that causes serious lung disabilities. ¹ In 1978, he first learned he was suffering from the disease, and shortly thereafter he and his wife sued Johns-Manville on theories of negligence, strict liability, and loss of consortium.

Janssens primarily contend that Johns-Manville knew for many years that prolonged exposure to asbestos dust and fibres was dangerous to a person's health but failed to give any warning thereof. They claim punitive damages because Johns-Manville not only knew of the danger but, they argue, engaged in a deliberate course of conduct intended to cover up and prevent users such as Mr. Janssens from being fully informed of the potential dangers revealed by research data coming into Johns-Manville's possession during the 1930s, 40s, 50s, and 60s. The trial lasted one and one-half weeks. Following the jury verdict, Johns-Manville moved for judgment notwithstanding the verdict on the issue of punitive damages, for entry of a remittitur, and for a new trial. All motions were denied.

Johns-Manville does not question its liability for compensatory damages. It has conceded, for purposes of this appeal, that Mr. Janssens had no prior knowledge of the harmful effects of prolonged exposure to asbestos dust and fibres, that Janssens' condition was caused by exposure to Johns-Manville asbestos products, and that such products did not contain any warning label. ² Johns-Manville concentrates its arguments on the propriety of submitting the issue of punitive damages to the jury, the excessiveness of the damage award (both compensatory and punitive), and several evidentiary rulings said to constitute reversible error. Johns-Manville argues the following specific points:

I. Whether the court erred in submitting the issue of punitive damages to the jury because:

(a) the evidence is insufficient to support any award of punitive damages, or (b) the rationale for punitive damages, i.e., punishment and deterrence, are both absent, or (c) punitive damages are not proper in mass marketed II. Whether admission of evidence of Johns-Manville's knowledge of asbestos hazards beyond the date of plaintiff's exposure to defendant's products was harmful error.

product litigation when their effect will be to bankrupt the defendant.

III. Whether a new trial is required because excessive and unwarranted damages awarded and inflammatory statements by plaintiff's counsel indicate the jury violated the court's instructions and acted solely out of sympathy, passion, and prejudice.

IV. Whether the admission of Dr. Smith's and Mr. Ruff's deposition testimony taken in other litigation in other states was harmful error.

After careful consideration of the voluminous record, the parties' arguments, and the numerous authorities cited, we affirm.

I PUNITIVE DAMAGES

(a)

In passing on the legal sufficiency of the evidence to warrant submitting the issue of punitive damages to the jury, the following principles must be kept in mind. Punitive damages may be awarded by the jury when tortious injuries to another are committed with fraud, actual malice, or deliberate violence or oppression, or when the defendant acts willfully or with such gross negligence as to indicate a wanton disregard for the rights of others. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). Such damages function as a punishment to the defendant and as a warning and example to deter him and others from committing offenses in the future. St. Regis Paper Co. v. Watson, 409 So.2d 75 (Fla. 1st DCA 1982), rev'd on other grounds, St. Regis Paper Co. v. Watson, 428 So.2d 243 (Fla.1983). As Justice Ervin stated for the Court in Campbell v. Government Employees Insurance Co., 306 So.2d 525, 531 (Fla.1975):

In nearly all states punitive damages are recognized to be recoverable. They are no longer looked upon as monstrous but are awarded to vindicate wrongs arising from antisocial behavior. The incentive to bring actions for punitive damages is favored because it has been determined to be the most satisfactory way to correct evil-doing in areas not covered by the criminal law.

The standard for determining whether the evidence provides a legal basis for punitive damages in negligence cases is set forth in Carraway v. Revell, 116 So.2d 16, 20, n. 12 (Fla.1959):

The character of negligence necessary to sustain an award of punitive damages must be of 'a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.'

This long-recognized standard was recently reaffirmed in White Construction Co. v. DuPont, 455 So.2d 1026 (Fla.1984) (petition for rehearing pending).

It is not necessary to prove actual malice or intent to cause the particular injury sustained; the requisite malice or evil intent may be inferred from the defendant's having willfully pursued a course of action in wanton disregard of the potential harm likely to result as a consequence of that wrongful conduct. Adams v. Whitfield, 290 So.2d 49 (Fla.1974); Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950).

Johns-Manville argues that, in passing on the propriety of awarding punitive damages in products liability cases, we should consider the following factors described in Judge Robert P. Smith's dissenting opinion in Wackenhut Corp. v. Canty (1) The amount of the plaintiff's litigation expenses; (2) the seriousness of the hazard to the public, (3) the profitability of the marketing misconduct (increased by an appropriate multiple); (4) the attitude and conduct of the enterprise upon discovery of the misconduct; (5) the degree of the manufacturer's awareness of the hazard and of its excessiveness; (6) the number and level of employees involved in causing or covering up the marketing misconduct; (7) the duration of both the improper marketing behavior and its cover-up; (8) the financial condition of the enterprise and the probable effect thereon of a particular judgment; and (9) the total punishment the enterprise will probably receive from other sources.

359 So.2d 430, 441 (Fla.1978), which were taken from a leading law review article, Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257, 1319, n. 5 (1976):

Id. at 445, n. 14. ³ These factors appear to be reasonable considerations in aggravation or mitigation of punitive damages and, in most respects, are consistent with existing Florida decisions on punitive damages. The Supreme Court stated some years ago that matters in aggravation or mitigation of punitive damages are relevant and admissible in evidence, Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975), and evidence relevant to the foregoing factors would appear to be admissible under that decision.

The respective province of the trial court and jury in dealing with punitive damages has been well defined in past decisions. E.g., Arab Termite & Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982); Walsh v. Alfidi, 448 So.2d 1084 (Fla. 1st DCA 1984); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981); Toyota Motor Co., Ltd. v. Moll, 438 So.2d 192 (Fla. 4th DCA 1983); Piper Aircraft Corp. v. Coulter, 426 So.2d 1108 (Fla. 4th DCA 1983). In Wackenhut, the Supreme Court summarized these respective duties in the following language:

The court is to decide at the close of evidence whether there is a legal basis for recovery of punitive damages shown by any interpretation of the evidence favorable to the plaintiff. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222 (Fla.1936). A legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression. Id. at 221. Once the court permits the issue of punitive damages to go to the jury, the jury has the discretion whether or not to award punitive damages and the amount which should be awarded. Punitive damages 'are peculiarly left to the discretion of the jury as the degree of punishment to be inflicted must always be dependent on the circumstances of each case, as well as upon the demonstrated degree of malice, wantonness, oppression, or outrage found by the jury from the evidence.'

359 So.2d at 435-36. Therefore, if an award of punitive damages may be supported under any view of the evidence taking all inferences most favorable to the plaintiff, a jury issue is made and whether to award such damages is rightly decided by the jury and not by the court. Once a legal basis for punitive damages is established, evidence in mitigation thereof is not properly considered by the court in passing...