Jowers v. Boc Group, Inc., Case No. 1:08-CV-0036.

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Citation608 F.Supp.2d 724
Docket NumberCase No. 1:08-CV-0036.
PartiesRobert & Donna JOWERS, Plaintiffs, v. BOC GROUP, INC., Esab Group, Inc., and Lincoln Electric Co., Defendants.
Decision Date01 April 2009
608 F.Supp.2d 724
Robert & Donna JOWERS, Plaintiffs,
BOC GROUP, INC., Esab Group, Inc., and Lincoln Electric Co., Defendants.
Case No. 1:08-CV-0036.
United States District Court, S.D. Mississippi, Southern Division.
April 1, 2009.

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Scott O. Nelson, Maples & Lomax, PA, Pascagoula, MS, Christopher T. Robertson, Scruggs Law Firm, PA, David W. Shelton, Attorney at Law, Oxford, MS, Frederick G. Davis, Rhoden, Lacy & Colbert, Flowood, MS, Lisa A. Gorshe, Climaco, Lefkowitz, Peca, Wilcox & Garofoli, Cleveland, OH, Richard R. Barrett, Barrett Law Office, Lexington, MS, for Plaintiffs.

Lewis W. Bell, Watkins & Eager, R. David Kaufman, Brunini, Grantham, Grower & Hewes, Richard L. Forman, Forman, Perry, Watkins, Krutz & Tardy, Jackson, MS, Stephen J. Harburg, Jessica D. Miller, O'Melveny & Myers, Washington, DC, for Defendants.



This product liability action was brought by husband-and-wife plaintiffs Robert and Donna Jowers against the following

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three defendants, each of which manufactured welding rods that Mr. Jowers used: (1) BOC Group, Inc., (2) ESAB Group, Inc., and (3) Lincoln Electric Company. The case was assigned to the undersigned as related to the Multi-District Litigation known as In re Welding Fumes Products Liability Litigation, MDL No. 1501, case no. 03-CV-17000.1 Trial of this matter began on February 7, 2008 and culminated on March 6, 2008 with a jury verdict in favor of the plaintiffs.2 Specifically, the jury found: (1) against all three defendants on Mr. Jowers' claim for failure to warn, and awarded him $1.2 million in compensatory damages; (2) in favor of all three defendants on Mrs. Jowers' claim for loss of consortium; and (3) against all three defendants on Mr. Jowers' claim for punitive damages, and awarded him a total of $1.7 million in punitive damages. The jury further found, under comparative fault principles, that Mr. Jowers' own negligence was 40% of the cause of his injuries. On March 13, 2008, the Court entered judgment consistent with this verdict.3

Twice during the course of trial—after the close of plaintiffs' case, and then after the close of their own case—defendants moved for judgment as a matter of law, pursuant to Fed.R.Civ.P. 50(a). The Court granted the first motion in part, and denied the second motion.4 Defendants now renew their earlier motions for judgment as a matter of law, pursuant to Fed. R.Civ.P. 50(b), and also ask, in the alternative, for a new trial. The Court rules on these motions as follows:

• Defendants' Renewed Motion for Judgment as a Matter of Law on All Claims, or for New Trial (docket no. 441) is DENIED.

• Defendants' Renewed Motion for Judgment as a Matter of Law on Punitive Damages (docket no. 445) is DENIED.

In addition, the Court rules as follows on the two post-judgment motions filed by plaintiffs:

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• Plaintiffs' Motion to Amend the Judgment or for New Trial on the Loss of Consortium Claim (docket no. 442) is DENIED.

• Plaintiffs' Motion for Attorney Fees and Expenses (docket no. 447) is GRANTED. As explained in section III.B.4 of this opinion below, defendants shall, on or before the date 28 days from the date of this Order, file either a stipulation or a challenge to the amount of Fees and Expenses claimed by the Jowerses.

I. Legal Standards—Rules 50 and 59.

Federal Rule of Civil Procedure 50(a) states that, "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue," then the court may "grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." If, as did the undersigned in this case, the Court denies the Rule 50(a) motion made during trial, "the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion."5 The movant may then "renew its request for judgment as a matter of law by filing a motion no later than 10 days after the entry of judgment."6 The defendants timely filed their motions for judgment or new trial pursuant to Rules 50(b) and 59(b).

After a verdict is returned, the Court may rule on a renewed Rule 50(b) motion by: (a) allowing the judgment to stand, (b) ordering a new trial, or (c) directing entry of judgment as a matter of law.7 The Court may properly choose the third option and "grant[] a motion for judgment as a matter of law only if the facts and inferences point so strongly in favor of one party that reasonable minds could not disagree."8 When examining a Rule 50 motion based on sufficiency of the evidence, the court must "consider all of the evidence—not just that evidence which supports the non-mov[ant's] case—but in the light and with all reasonable inferences most favorable to the [non-movant]."9 The trial judge cannot re-weigh the evidence, nor assess the credibility of witnesses, nor substitute its own judgment for that of the jury.10 When the evidence would permit reasonable minds to differ on the issues decided by the jury, a motion for judgment as a matter of law must be denied.11 If there is "substantial evidence in the record raising a relevant fact issue

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for determination by the jury, the decision of that issue may neither be taken from the jury nor its decision of that issue reversed by the trial judge."12 In short, every effort must be made to uphold the verdict, if reasonably possible; the Court must "show appropriate deference for the jury's determination."13

As to Rule 59, "the rule governing new trial is less strict."14 A trial court "should not grant a new trial on evidentiary grounds unless the verdict is against the great weight of the evidence."15 "In making this determination, the district court weighs all the evidence, but need not view it in the light most favorable to the nonmoving party. While the court is to respect the jury's collective wisdom and must not simply substitute its opinion for the jury's, `[i]f the trial judge is not satisfied with the verdict of a jury, he has the right—and indeed the duty—to set the verdict aside and order a new trial.'"16

II. Defendants' Motions.

A. Causation.

With their first post-judgment motion, defendants offer a single argument supporting their contention that the jury did not have a legally sufficient evidentiary basis to find in the Jowerses' favor.17 Defendants note the evidence was undisputed that, in addition to suffering exposure to welding fumes given off by products manufactured by the three defendants in suit (Lincoln, BOC, and ESAB), Mr. Jowers was also exposed to welding fumes given off by at least two other manufacturers— Hobart and Select Arc.18 Defendants argue that "plaintiffs needed to prove that, if Mr. Jowers was overexposed, it was to fumes generated by welding consumables made by the defendants, rather than non-defendant manufacturers."19 Defendants argue that plaintiffs failed to so prove and therefore any jury verdict against them is based only on speculation.

The evidence adduced at trial pertinent to this issue is as follows. Mr. Jowers worked at Ingalls Shipbuilding in Pascagoula, Mississippi from 1972 to 2005, with the exception of about a four-year gap between 1981-85. During his roughly 30 years at Ingalls, Mr. Jowers worked as a shipfitter, shipfitter supervisor, and shipfitter foreman. One of the primary tasks

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of a shipfitter is cutting and joining steel with, respectively, a torch and a welding machine.20

The process of joining steel by welding generally involves the melting of a "welding consumable," which is used to fuse together two pieces of metal. Welding consumables come in two categories: (1) stick electrodes, which are relatively short; and (2) wire, which comes on spools in longer lengths. When using stick electrodes, the welder has to pause periodically to attach a new stick to his welding apparatus; when using wire, the welder pauses to "reload" much less frequently. Both stick and wire consumables give off fumes that contain manganese, with wire consumables generally producing more copious fumes. For the vast majority of his career, Mr. Jowers used stick electrodes. Specifically, he worked on the "fillet weld machine," which used wire, for about 14 months; during the rest of his career he used stick electrodes. Mr. Jowers inhaled fumes given off by the consumables he used, as well as the consumables (both stick and wire) used by the other shipfitters and welders with whom he worked.21

The breakdown of the welding consumable products that Ingalls purchased during Mr. Jowers' career; and the subset of those products that Mr. Jowers actually used, may be summarized as follows.22 When Mr. Jowers began welding for Ingalls in 1972, the vast majority of welding consumables Ingalls purchased were stick electrodes. Beginning in the early 1980s, Ingalls began purchasing more wire consumables, and by the mid-1980s about 70% of the welding consumables that Ingalls purchased were spools of wire, with the remaining 30% being stick electrodes. Those percentages have remained fairly constant ever since.

Of the wire consumables, during the 1980s, Hobart and ESAB each provided to Ingalls about half its total supply. Subsequently, Hobart, ESAB, and Select Arc each supplied about one third of Ingalls' total supply. Thus, during the latter part of Mr. Jowers' career, Hobart and Select Arc—who were not defendants at the time of trial—together supplied two thirds of the wire consumables purchased by Ingalls, and thus as much as half of the total amount of the welding consumables (wire and stick) purchased by Ingalls. The wire consumable that...

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3 cases
  • Cooley v. Lincoln Electric Co., Case No. 1:05–CV–17734.
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