Owens-Corning Fiberglass Corp. v. James
Decision Date | 26 August 1994 |
Docket Number | OWENS-CORNING |
Citation | 646 So.2d 669 |
Parties | FIBERGLASS CORPORATION v. Willie J. JAMES.FIBERGLASS CORPORATION v. James B. HENSON.FIBERGLASS CORPORATION v. Harold C. GREEN, Sr. 1930670 to 1930672. |
Court | Alabama Supreme Court |
Jack B. Hood and Peyton C. Thetford of Crosby, Saad, Beebe, & Crump, P.C., Mobile, Paul B. Shaw, Jr. of Brown, Turner & Shaw, L.L.C., Birmingham, for appellant.
Frederick T. Kuykendall III and Peter H. Burke of Cooper, Mitch, Crawford, Kuykendall & Whatley, David D. Shelby of Shelby & Cartee, Birmingham, J. Michael Papantonio of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, FL, for appellees.
The defendant, Owens-Corning Fiberglass Corporation ("Owens-Corning"), appeals from separate judgments entered on jury verdicts in favor of the plaintiffs, Harold C. Green, Sr., James B. Henson, and Willie J. James, in their actions seeking damages for exposure to asbestos. We affirm.
The plaintiffs, retired steelworkers, sued Owens-Corning under various legal theories, seeking damages based on allegations that they had contracted asbestosis, a progressive and incurable lung disease, because of prolonged on-the-job exposure to asbestos products that had been manufactured by Owens-Corning. A jury returned verdicts of $200,000, $200,000, and $133,000 in compensatory damages in favor of Green, Henson, and James respectively. Owens-Corning presents the following issues for our review:
1. Whether the trial court erred in denying Owens-Corning's motion for a partial summary judgment on the claims made by Green and Henson for future medical expenses;
2. Whether the trial court erred in allowing Green and Henson to introduce evidence of future medical expenses;
3. Whether the trial court erred in denying Owens-Corning's motion for a directed verdict on the claims made by Green and Henson for future medical expenses;
4. Whether the plaintiffs' medical experts improperly relied on a medical report that had not been admitted into evidence and whether the plaintiffs' reference to that report during the course of the trial constituted reversible error;
5. Whether the trial court erred in denying Owens-Corning's motion for a partial summary judgment with respect to the claims made by Henson and James that were based on allegations of exposure to asbestos after 1971;
6. Whether the trial court erred in denying Owens-Corning's motion in limine to exclude evidence of exposure by Henson and James to asbestos after 1971;
7. Whether the trial court erred in its oral instructions to the jury and in denying Owens-Corning's written requested jury instructions; and,
8. Whether the consolidation of these three cases for trial prejudiced Owens-Corning by confusing the jury and resulting in excessive damages awards.
Our review of the record fails to indicate that Owens-Corning moved for a partial summary judgment with respect to the claims made by Green and Henson for future medical expenses. Owens-Corning states in its brief at page 21 that it However, the cited portions of the record refer only to a motion for a partial summary judgment with respect to claims for past medical expenses. Accordingly, Owens-Corning's first issue provides no basis for relief.
As to the second issue, Owens-Corning argues that it was entitled to a new trial because, it says, the evidence of future medical expenses presented by Green and Henson was speculative and, therefore, should have been excluded from the jury's consideration. Again, our review of the record indicates no basis for granting Owens-Corning any relief in this regard. Dr. Brian Forester, a physician specializing in occupational medicine, whose qualifications are not at issue on this appeal, examined Green and Henson and testified that, within a reasonable degree of medical certainty, Henson had approximately a 10 to 15% chance of living 5 years and that he would have to be seen by a physician at least monthly at a cost of between $150 and $200 per visit. The evidence also showed that Henson depends on an oxygen unit for survival and that that unit costs $350 per month. Dr. Forester also testified that, within a reasonable degree of medical certainty, Green had approximately a 20% chance of surviving 5 years and that he would need to be seen by a physician on a monthly basis at a cost of between $150 and $200 per visit. The trial court did not abuse its discretion in allowing the plaintiffs to present this evidence of future medical expenses to the jury. See Tidwell v. Upjohn Co., 626 So.2d 1297, 1300 (Ala.1993) ().
The success of Owens-Corning's argument in connection with its third issue is inextricably tied to its success with respect to its argument on the second issue. In other words, Owens-Corning could successfully argue that it was entitled to a directed verdict on Green and Henson's claims for future medical expenses only if the evidence as to those expenses was speculative and, therefore, insufficient to justify submitting the question to the jury. The evidence of future medical expenses, as previously noted, was properly presented to the jury and was sufficient to support the trial court's denial of Owens-Corning's motion for a directed verdict.
Citing Chinevere v. Cullman County, 503 So.2d 841 (Ala.1987); Nash v. Cosby, 574 So.2d 700 (Ala.1991); and W.S. v. T.W., 585 So.2d 26 (Ala.1991), Owens-Corning contends that the plaintiffs' medical experts based their diagnoses of the plaintiffs' medical conditions, at least in part, on a report that had been prepared by a "physician/consultant for the purpose of use during litigation" and that had not been admitted into evidence. Owens-Corning also argues that the plaintiffs' reference to this report during the course of the trial constituted reversible error.
Our review of the record indicates that three physicians, none of whose qualifications are challenged on this appeal, testified on behalf of the plaintiffs--Dr. Forester; Dr. Robert Fraser, a radiologist; and Dr. Randall Young, a specialist in pulmonary and critical care medicine. Dr. Fraser testified that he had diagnosed the plaintiffs as having asbestosis after examining X-ray photographs taken of the three men and considering their general work histories. Both Dr. Forester and Dr. Young personally examined the plaintiffs and documented their medical histories. Dr. Forester diagnosed the plaintiffs as having asbestosis; Dr. Young diagnosed Green and Henson as having asbestosis and testified that James's symptoms were consistent with those of an individual with asbestosis. Owens-Corning has cited us to no part of the record that suggests that any of the plaintiffs' medical experts actually relied on the report in question in testifying with respect to the plaintiffs' medical conditions. Because of this, we find unpersuasive Owens-Corning's argument that the plaintiffs' medical experts improperly based their opinions on a medical report that had been prepared in anticipation of litigation and that had not been admitted into evidence. Furthermore, we find unpersuasive Owens-Corning's contention that the plaintiffs' reference to this report during the course of the trial constituted reversible error. The report does not appear in the record; however, as we understand it, the report in question was prepared for the...
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