Mason v. Texaco, Inc.

Decision Date06 July 1990
Docket NumberCiv. A. No. 78-1337.
Citation741 F. Supp. 1472
PartiesDiana L. MASON, Individually and as Administrator of the Estate of Otis W. Mason, Plaintiff, v. TEXACO, INC., Defendant.
CourtU.S. District Court — District of Kansas





THEIS, District Judge.

This matter is before the court on the motion of defendant Texaco for judgment notwithstanding the verdict, or alternatively, for a new trial. After the reversal and remand by the Tenth Circuit, 862 F.2d 242, the second trial in this case commenced on September 27, 1989 and lasted through closing arguments on January 3, 1990. The jury returned a verdict for plaintiff, finding defendant 100% liable for compensatory damages totaling $9,025,000 and punitive damages in the amount of $25,000,000.

Although the facts of this case have been reported in the Tenth Circuit's remand order and in a Kansas Supreme Court opinion upon certified question, Mason v. Gerin Corp., 231 Kan. 718, 647 P.2d 1340 (1982), the court provides a brief background here. In September, 1977 Otis Mason was diagnosed with acute myelocytic leukemia while serving in the United States Coast Guard at Yorktown, Virginia. In an attempt to ascertain the cause of Mason's leukemia, his treating and diagnosing physician learned that Mason had possibly been exposed to the chemical benzene while instructing students in the use of a motor oil test kit. Mason filed suit in 1978 against the immediate supplier of the test kit, alleging, inter alia, failure to warn of the carcinogenic danger of benzene. Otis Mason died from leukemia on December 10, 1979, and his widow Diana was substituted as plaintiff in the survival action. By two amended complaints filed in 1980, Mason added various other distributors and two manufacturers of the product, including Texaco, Inc. At this second trial, only Texaco remains as a named defendant.

Defendant raises a number of factual and procedural challenges that are claimed to require a judgment notwithstanding the verdict or a new trial. It is well settled that the "district court has broad discretion in deciding whether to grant a motion for a new trial." Patty Precision Prods. Co. v. Brown & Sharpe Mfg., 846 F.2d 1247, 1251 (10th Cir.1988); Royal College Shop v. Northern Ins. Co. of New York, 895 F.2d 670, 677 (10th Cir.1990). In reviewing a motion for judgment notwithstanding a verdict, the court applies the same standard governing directed verdicts. Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 498 (10th Cir.1984). It is not the function of the court to weigh the evidence or make credibility determinations. Id. at 499. Rather, "the trial court must view the evidence most favorably to the party against whom the motion is made, and give that party the benefit of all reasonable inferences." Id. at 498. Thus, the court may grant a JNOV motion "only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir.1989).

The court will first address those issues raised by defendant which, if meritorious, would entitle it to a grant of JNOV, and will then address the procedural challenges going to the propriety of a new trial.

I. Causation in Fact
A. Cause of Leukemia

As a threshold question, the special verdict form asked the jury to determine whether Mason's leukemia had been caused by exposure to benzene. Defendant challenges the jury's affirmative answer on this issue, arguing that Mason's exposures to benzene and his clinical diagnosis by the treating physicians did not support an inference of causation.

The court would be able to accept defendant's contentions only by ignoring the testimony both of Mason's treating physicians and of the expert epidemiologists called by plaintiff. Basing their opinions largely on the dose and duration of dose of benzene to which Mason had been exposed while at Yorktown, these witnesses concluded that Mason's leukemia had been caused by benzene. Because no clinical test can directly and conclusively establish a link between a given case of leukemia and benzene, Mason's medical diagnosis provided only limited evidence of benzene-induced leukemia. However, Dr. Reid — the Coast Guard physician who first diagnosed Mason's leukemia —testified that acute myelocytic leukemia is one of the most common forms of leukemia associated with benzene, and that this fact aided his swift identification of the causative agent in Mason's case. Tr. Vol. 6, at 513.1

The court is unaware of any authority that would authorize it to reject out of hand the opinions of Mason's treating physicians and of plaintiff's experts. As a basis for rejecting the conclusions of these witnesses, defendant refers the court only to the contrary interpretation of the evidence given by defendant's experts. The proper deference to be given the jury's resolution of these conflicting opinions, however, was aptly stated by the court in Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C.Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984):

Judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease. On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.

Id. at 1554; see also Wilson v. Merrell Dow Pharmaceuticals, Inc., 893 F.2d 1149, 1155 (10th Cir.1990) (jury alone has the power to weigh and assess credibility of expert testimony on causation and judges will not retry facts); Graham v. Wyeth Laboratories, 906 F.2d 1399, 1404 (10th Cir.1990); McMahon v. Eli Lilly & Co., 774 F.2d 830, 834-35 (7th Cir.1985). It must also be borne in mind that the jury's finding, and this court's review, is governed by a standard of legal sufficiency, rather than scientific certainty. Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741, 745 (11th Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986). Considering the substantial expert testimony based upon the evidence, the court finds defendant's argument to be meritless. Defendant had ample opportunity to develop its own experts' testimony and to test the conclusions of plaintiff's witnesses through cross examination. The jury's finding will not be disturbed.

B. Exposure to Texaco's Benzene

Defendant also challenges the jury's finding that the benzene causing Mason's leukemia was manufactured by Texaco. In a civil case such as this, product identification need only be proven by a preponderance of the evidence. McMahon, 774 F.2d at 834. Additionally, under Kansas law, a defendant who seeks to reduce his fault by comparing it to the fault of an absent party has the burden of proving the other party's fault by a preponderance of the evidence. McGraw v. Sanders Co. Plumbing & Heating, 233 Kan. 766, 667 P.2d 289, syl. ¶ 7 (1983).2 The procedural history of this complex factual issue is relevant to the present discussion.

Plaintiff originally sued two manufacturers of benzene whose products could have ultimately found their way to the Coast Guard facility at Yorktown: Texaco, Inc. and Ashland Chemical Company. After the close of the evidence in the first trial, this court determined that there was insufficient evidence to support a finding of exposure to Ashland's benzene, and the court granted Ashland's motion for a directed verdict. Order filed Dec. 16, 1983 (Dkt. No. 228). Accordingly, the issue of Ashland's comparative fault was not submitted to the jury in the first trial. Although Texaco raised this issue in its appeal, the Tenth Circuit did not review this court's decision, finding that new factual issues might be presented on retrial. 862 F.2d at 245.

Before and during this second trial defendant contended that it had discovered "new" evidence upon which to submit the issue of Ashland's comparative fault to the jury. Although more appropriately described as a new construction of old evidence, this court agreed with defendant and determined that Ashland, as well as a third manufacturer of benzene, should be considered by the jury as phantom defendants. Nonetheless, the jury rejected defendant's arguments and found Ashland and Union Amsco — the third manufacturer — to be zero percent at fault in causing Mason's death. With this background, the court turns to an examination of the facts relevant to defendant's present challenge.

The complex chain of distribution in this case can be summarized best by schematic representation:

It is unnecessary to canvass all the evidence of invoices, purchase orders, and testimony that established the flow of benzene in this distribution scheme. Although some minor disputes exist regarding the source of benzene sold by the Gerin Corporation to the Coast Guard, Texaco's argument focuses on the Coast Guard usage. Therefore, for purposes of the present motion, and viewing the evidence in a light most favorable to plaintiff, the court deems the following facts to have been established.

1. The Coast Guard at Yorktown purchased solvent for the water and sediment test kit only from the Gerin Corporation.

2. The Coast Guard purchased 6 gallons of benzene from Gerin in April 1972, and the benzene used to fill this order was manufactured by Union Amsco.

3. The Coast Guard next purchased 3 gallons of benzene in February 1973 and 4 gallons in September 1973. The benzene used to fill these orders was manufactured by Ashland.

4. The next sale of benzene to the Coast Guard was on April 4, 1974 for 4 gallons, and this benzene had been manufactured by Texaco.3

5. The Coast Guard next purchased 5 gallons...

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