McGuire v. Lorillard Tobacco Co.
| Decision Date | 14 February 2014 |
| Docket Number | NO. 2012-CA-000845-MR,2012-CA-000845-MR |
| Parties | WANDA MCGUIRE, EXECUTRIX OF THE ESTATE OF WILLIAM MCGUIRE APPELLANT v. LORILLARD TOBACCO COMPANY and HOLLINGSWORTH & VOSE COMPANY APPELLEES |
| Court | Kentucky Court of Appeals |
WANDA MCGUIRE, EXECUTRIX
OF THE ESTATE OF WILLIAM MCGUIRE APPELLANT
v.
LORILLARD TOBACCO COMPANY
and HOLLINGSWORTH & VOSE COMPANY APPELLEES
NO. 2012-CA-000845-MR
Commonwealth of Kentucky Court of Appeals
RENDERED: FEBRUARY 14, 2014
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: Wanda McGuire, executrix of the estate of William "Bill" McGuire, filed claims of negligence and products liability in Jefferson Circuit Court against appellees, Lorillard Tobacco Company ("Lorillard") and
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Hollingsworth & Vose Company ("H & V"). Following a defense verdict on those claims, she now appeals. Upon a careful review, we affirm.
In March of 2010, Bill McGuire was diagnosed with mesothelioma. Shortly thereafter, he and his wife, Wanda, filed suit in Jefferson Circuit Court asserting claims of products liability and negligence against 33 separate entities, alleging that each entity had exposed him to asbestos and that each exposure was a substantial factor in causing his disease. Bill alleged that many of these entities had exposed him to asbestos over the course of his employment as an ironworker. However, as it related to two of these entities—Lorillard and H & V—Bill alleged that he had been exposed to asbestos by virtue of the "Original Kent" cigarette. To explain, between 1952 and 1956, Lorillard's Louisville plant manufactured Original Kents, a type of cigarette featuring what Lorillard dubbed the "micronite filter." This filter media was manufactured by H & V and it contained a type of asbestos called "crocidolite," which is a known cause of mesothelioma. And, not only did Bill smoke Original Kent cigarettes during that period of time, he also worked at Lorillard's plant from August, 1953, to August, 1954.
Bill died from mesothelioma on March 15, 2011. Wanda filed an amended complaint on her behalf and on behalf of Bill's estate. This matter only proceeded to trial against Lorillard and H & V. After a four-week trial, a jury returned a verdict in favor of Lorillard and H & V, and the circuit court entered
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judgment in conformity with these verdicts and dismissed Wanda's claims. Wanda now appeals.
We will discuss additional facts and procedural history relating to this matter as they become relevant to our analysis of the issues Wanda has presented in this appeal. The issues raised by Wanda fall into two general categories: 1) jury instruction issues; and 2) evidentiary issues.
Initially, Wanda asserted that Bill's mesothelioma was caused by either 1) his alleged exposure to asbestos in the air he breathed at Lorillard's plant in Louisville while employed there for a year beginning in August, 1953; or 2) his alleged exposure to asbestos in the smoke he breathed through Lorillard's Original Kent cigarettes between 1953 and 1956.1 On these bases, Wanda brought suit against both Lorillard and H & V on theories of negligence and strict liability. When this matter was eventually submitted to the jury, however, Wanda's claims were pared down somewhat. As it related to H & V's liability, the jury instructions provided:
INSTRUCTION NO. 2 - DUTY OF
HOLLINGSWORTH & VOSE CO.
You will find for the Plaintiff, Wanda McGuire, against the Defendant, Hollingsworth & Vose Company
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(hereinafter, "H & V"), if you are satisfied from the evidence as follows:
a) the filter media it manufactured was unreasonably dangerous to persons whom H & V should have expected to use or be exposed to it, either in its design or by the failure of H & V to reasonably warn of said danger, such that an ordinarily prudent company engaged in the manufacture of filter media, had it been aware of the risk, would not have placed them in the market;
AND
b) his exposure, if any, to asbestos from the filter media while working at the Defendant Lorillard's Louisville factory was a substantial factor in causing William McGuire's mesothelioma.
Otherwise you will find for H &V.
As it related to Lorillard's liability, the jury instructions similarly provided:
INSTRUCTION NO. 3 - DUTY OF LORILLARD TOBACCO COMPANY
You will find for the Plaintiff, Wanda McGuire, against the Defendant, Lorillard Tobacco Company (hereinafter, "LTC"), if you are satisfied from the evidence as follows:
a) the Kent cigarettes it manufactured and which contained asbestos in the filter were unreasonably dangerous to persons smoking them, either in their design or by the failure of LTC to reasonably warn of the danger, such that an ordinarily prudent company engaged in the manufacture of cigarettes, had it been aware of the risk, would not have placed them in the market;
AND
b) his exposure to asbestos, if any, by smoking Kent cigarettes after leaving his employment with LTC was a substantial factor in causing William McGuire's mesothelioma.
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Otherwise you will find for LTC.
To summarize, the submitted jury instructions: 1) omitted any potential for liability on the part of H & V based upon Bill's alleged exposure to asbestos in the smoke he breathed through the Original Kent cigarettes; 2) omitted any potential for liability on the part of Lorillard based upon Bill's alleged exposure to asbestos in the air he breathed at Lorillard's plant in Louisville while employed there for a year beginning in August, 1953; 3) omitted any potential for liability on the part of Lorillard based upon Bill's alleged exposure to asbestos through smoking Original Kent cigarettes, unless Wanda proved that Bill's mesothelioma was proximately caused by exposure to asbestos through smoking Original Kent cigarettes after August, 1954, rather than sometime between August, 1953 (when he began smoking them), and August, 1954 (when he quit working for Lorillard); and 4) condensed Wanda's two claims of negligence and strict liability against H & V and Lorillard into only one claim of strict liability against each entity.
Wanda takes issue with each of these four points. We will address them in turn below.
A. Omission of liability on the part of H & V based upon Bill's alleged exposure to asbestos in the smoke he breathed through the Original Kent cigarettes.
Wanda's only argument in this regard appears on the ninth page of her ten-page reply brief:
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Wanda alleged H & V was responsible for causing Bill's disease from the asbestos in the Kent filter and from the asbestos filter material, which he breathed at Lorillard's plant. Over Wanda's objection, the Trial Court's strict liability instruction led the jury to believe it could only hold H & V responsible for Bill's exposure to H & V's asbestos from his plant exposure, but not from smoking Kent cigarettes. It is highly prejudicial to preclude the jury from considering an entire theory of a plaintiff's case.
By way of background, the circuit court drafted the jury instructions in this matter, but extensively discussed the jury instructions with the parties over the course of a number of hearings and the jury instructions went through several revisions to incorporate the parties' suggestions. On January 25, 2012, after the circuit court had read the finalized instructions to the jury, after Lorillard had completed its closing argument, and after the jury had briefly retired while H & V prepared to give its closing argument, Wanda raised an objection and the following discussion ensued:
COUNSEL: Your honor, I noticed the, as your honor read the instructions and I didn't want to bring it up at the time, but your honor's instruction number two as it relates to Hollingsworth and Vose's duty, I'm sure this was an oversight on your honor. If, you limit it to their liability only to Lorillard's Louisville factory. Uh, and this would be part "b" of instruction 2(b), if any exposure to the asbestos filter media while working at the defendant, Louisville, Lorillard's Louisville factory. And it should be, it's not limited to just that. I think your honor said on the record, oh, and, uh, on the component parts issue that it relates to either the factory exposure or the smoking exposure.
THE COURT: Well, actually, what I had thought I had said with respect to component manufacturing was that
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as I read that, um, Worldwide case, both things go to the jury as to strict liability for the product that they made and when they try to go beyond that, with that component manufacturer for what I would perceive would be this finished product kind of exposure they said factually that didn't apply. Here, if the jury believes that the, um, smoking was a factor, I think that they're there through Lorillard. I was just trying to find out very clearly where they draw the line. Now, that's the way I have had it from the get-go in the instructions since draft one, so there's really nothing I can do about it now. So it's, I understand what you're saying, but—...
COUNSEL: But here's the problem. You denied directed verdict as it relates to H & V's liability for the smoking component of it. And so, this instruction doesn't cover that at all, so, uh, the jury could be confused or
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