Miller v. Agripac, Inc., A174355

• Docket Number: A174355
• Decision Date: 05 October 2022
• Citation: Miller v. Agripac, Inc., 322 Or.App. 202, 518 P.3d 957 (Or. App. 2022)
• Parties: Donald E. MILLER and Linda S. Miller, Plaintiffs-Respondents, v. AGRIPAC, INC. et al., Defendants, and Kaiser Gypsum Company, Inc., Defendant-Appellant.
• Court: Oregon Court of Appeals

322 Or.App. 202

518 P.3d 957

Donald E. MILLER and Linda S. Miller, Plaintiffs-Respondents,

v. AGRIPAC, INC. et al., Defendants,andKaiser Gypsum Company, Inc., Defendant-Appellant.

A174355

Court of Appeals of Oregon.

Argued and Submitted March 30, 2022.

October 5, 2022

J. Aaron Landau, Eugene, argued the cause for appellant. Also on the briefs was Harrang Long Gary Rudnick P.C.

Nadia H. Dahab, Portland, argued the cause for respondents. Also on the brief were Sugerman Law Office; and Jennifer Green and Maune Raichle Hartley French & Mudd LLC.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

AOYAGI, J.

In this personal injury action, plaintiffs Donald Miller (Miller) and his wife Linda Miller have asserted claims of negligence, strict product liability, and loss of consortium against defendant Kaiser Gypsum Company, Inc., based on Miller's exposure to an asbestos-containing construction product sold by defendant in the 1960s. Plaintiffs also alleged similar claims against other defendants, based on Miller's exposure to other asbestos-containing products over several decades of his life; however, by the time of trial, defendant was the only remaining defendant. The jury returned a verdict in plaintiffs’ favor on all three claims. Based on that verdict, the trial court entered a judgment requiring defendant to pay $5,233,618 in damages to plaintiffs.

Defendant appeals, raising three assignments of error. First, defendant challenges the trial court's ruling that defendant is jointly and severally liable for plaintiffs’ damages, based on the court's conclusion that plaintiffs’ action "arose" in the 1960s and therefore is not subject to the modern several-only liability statute. Second, defendant argues that the court's jury instruction on "recklessness," as relevant to the defense of comparative fault, was inconsistent with plaintiffs’ claims and contrary to Oregon law. Third, defendant argues that, even if the "recklessness" instruction was not erroneous, the court should have granted a directed verdict for defendant on that issue, because the evidence was legally insufficient to prove that defendant acted recklessly.

For the reasons explained below, we conclude that the "recklessness" instruction was properly given and legally correct. We further conclude that the evidence was legally sufficient to go to the jury on whether defendant was "recklessly" negligent. We therefore reject the second and third assignments of error. As for the first assignment of error, given our disposition of the other assignments, and the relationship between the comparative-fault defense and several-only liability under existing case law, we conclude that any error in applying joint and several liability based on when the action "arose" was harmless. Accordingly, we affirm.

I. FACTS

Miller, who was born in 1948, was exposed to asbestos on numerous occasions for the first 36 years of his life. He comes from a family of asbestos workers. He grew up going to job sites with family members, played in asbestos boxes as a child, shook out his father's work clothes while doing laundry, and worked as a teen in asbestos product fabrication. He began his own career in insulation after high school.

Between October 1966 and April 1969, Miller worked as a mechanical insulator in various commercial and industrial buildings in the Portland area. He personally worked mainly with fiberglass materials, but drywall workers were also present at the jobsites. Drywall workers use "joint compound" to fill the seams between sheets of drywall (also called sheetrock or wallboard) after mounting. Joint compound usually comes as a powder. It is mixed with water, applied as a paste, and then sanded after it dries. Multiple coats of joint compound are applied to achieve a smooth finish before painting. On a daily basis, as he worked, Miller would breathe in drywall dust produced by drywall workers’ mixing and sanding of joint compound. Some of that joint compound was defendant's product, which contained asbestos.

Miller changed jobs in April 1969. His exposure to asbestos-containing products continued until 1984. There is no evidence that Miller was exposed to defendant's asbestos-containing products after 1969, however, so any exposures after 1969 would be attributable to other companies’ products. Miller retired in 2003.

Because of his known exposure to asbestos, Miller's health was regularly checked by his doctor. In June 2018, a CT scan showed something suspicious. In January 2019, at age 70, Miller was diagnosed with mesothelioma, a cancer closely associated with asbestos exposure. Miller and his wife brought this action against more than 50 defendants, based on their alleged involvement in Miller's exposure to asbestos. Only the claims against defendant went to trial. All of the other defendants were dismissed before trial as a result of bankruptcy, settlement, or otherwise.

Before trial, plaintiffs moved for a ruling that defendant would be subject to joint and several liability for all of plaintiffs’ damages. Historically, defendants have been jointly and severally liable in personal injury actions, either as a matter of common law, e.g., Hansen v. The Bedell Co. et al. , 126 Or. 155, 157, 268 P. 1020 (1928), or, after 1975, as a matter of statute, Or. Laws 1975, ch. 599, § 3; former ORS 18.485 (1975), renumbered as ORS 31.610 (2003). In 1995, however, the legislature largely eliminated joint and several liability for personal injury actions "arising on or after" September 1, 1995. Or. Laws 1995, ch. 696, §§ 5, 7; see former ORS 18.485 (1995), renumbered as ORS 31.610 (2003). In their pretrial motion, plaintiffs argued that their claims against defendant "arose" in the 1960s when Miller was exposed to defendant's product, such that joint and several liability should apply. Defendant countered that the action arose in 2018, when Miller developed mesothelioma symptoms, such that defendant's liability should be several only, i.e. , limited to the damages that defendant's own product caused. The court took the issue under advisement and, after trial began, ruled that the action arose in the 1960s and that joint and several liability therefore applied.

Meanwhile, plaintiffs sought leave to amend their complaint to allege that defendant's negligence was "wanton and reckless" in nature, such that defendant could not use the defense of comparative fault. Defendant opposed the amendment, arguing, among other things, that plaintiffs had not brought a claim for wanton or reckless conduct and were trying to "squeeze an intentional tort into a negligence or strict liability claim." The court allowed the amendment. Plaintiffs then filed their Fourth Amended Complaint, which included an allegation that plaintiffs’ claims are not subject to ORS 31.600, the comparative-fault statute, because defendant "engaged in the alleged conduct wantonly and recklessly in that [defendant's] actions and omissions presented an unreasonable and highly probable risk of substantial bodily harm and [defendant] consciously disregarded said risk or reasonably should have been aware of said risk."

At the close of plaintiffs’ evidence, defendant moved for directed verdict on plaintiffs’ "wanton and reckless conduct" allegation. In response, plaintiffs noted "preliminarily" that they were "withdrawing their allegation of wanton conduct" and would "instead proceed as to reckless conduct only." They then proceeded to argue that there was sufficient evidence to create a jury issue as to whether defendant engaged in "reckless conduct." In making that argument, plaintiffs defined "reckless conduct" as "the intentional doing or failing to do an act when one knows or has reason to know of facts which would lead a reasonable person to realize that their conduct not only creates an unreasonable risk of harm to others but also involves a high degree of probability that substantial harm will result"—which was the same definition that plaintiffs had previously used for "wanton and reckless" conduct. The court denied defendant's directed verdict motion. It also denied a renewed motion at the close of all evidence.

After the close of all evidence, the court instructed the jury. As relevant to the defense of comparative fault, plaintiffs proposed an instruction on "recklessness," which used the same definition as plaintiffs’ previously proposed instruction on "wanton and reckless." The court gave that instruction over defendant's objection. The jury was therefore instructed:

"Plaintiffs charge that Kaiser Gypsum's conduct in this case was reckless. Recklessness means an intentional doing or failing to do an act when one knows or has reason to know of facts which would lead a reasonable person to realize that their conduct not only creates unreasonable risk of harm to others but also involves a high degree of probability that substantial harm will result."

So instructed, the jury was asked on the verdict form whether defendant's conduct was "reckless in its negligence."

The jury returned a verdict for plaintiffs on all three claims—negligence, strict product liability, and loss of consortium. The jury found that Miller was exposed to defendant's asbestos-containing product, that the product was unreasonably dangerous, that the product's unreasonably dangerous characteristic was a substantial contributing factor in causing Miller's mesothelioma, that defendant was negligent, that defendant was "reckless in its negligence," that defendant's negligence was a substantial contributing factor in causing Miller's mesothelioma, and that Miller was not negligent. Given the trial court's ruling that defendant was subject to joint and several liability for plaintiffs’ damages, the jury was not asked to apportion liability among the defendants.

The court entered a general judgment in plaintiffs’ favor, which included a money award requiring defendant to pay $5,233,618 in damages. To arrive at that amount, the court...