R.T. Vanderbilt Co., Inc. v. Franklin

• Decision Date: 06 February 2009
• Docket Number: No. 2007-CA-002103-MR.,2007-CA-002103-MR.
• Citation: 290 S.W.3d 654
• Parties: R.T. VANDERBILT COMPANY, INC., Appellant, v. Johnny FRANKLIN, Individually; and Johnny Franklin, Administrator of the Estate of Flora Franklin, Appellee.
• Court: Kentucky Court of Appeals

290 S.W.3d 654

R.T. VANDERBILT COMPANY, INC., Appellant, v. Johnny FRANKLIN, Individually; and Johnny Franklin, Administrator of the Estate of Flora Franklin, Appellee.

No. 2007-CA-002103-MR.

Court of Appeals of Kentucky.

February 6, 2009.

Bethany A. Breetz, Michael D. Risley, Matthew W. Breetz, Jamie K. Neal, Louisville, KY, Stephan G. Amato, John N. Billings, Lexington, KY, H. Lane Young, II, Peter R. York, Eric Ludwig, Atlanta, GA, for appellant.

Joseph D. Satterley, Corey Ann Finn, Louisville, KY, for appellee.

Before STUMBO and THOMPSON, JUDGES; GUIDUGLI,¹ Senior Judge.

OPINION

THOMPSON, Judge.

R.T. Vanderbilt Company, Inc., appeals from a judgment entered against it in favor of Johnny Franklin, individually, and as administrator of the estate of Flora Franklin in the amount of $4,090,000 for the death of Flora Franklin caused by her exposure to asbestos.²

Flora Franklin was diagnosed with malignant mesothelioma in June 2004. In September 2004, Flora and her husband, Johnny Franklin, filed a complaint against thirty-one defendants alleging that Flora's mesothelioma was caused by asbestos fibers. In the initial complaint, Franklin alleged that Flora was exposed to asbestos from Mr. Franklin's clothing worn during his work at General Electric Appliance Park and her past employers, Florida Tile, where she worked from 1968 through 1973, and General Electric Plastic, where she worked from 1973 through 1999. Other defendants were entities that allegedly sold or provided asbestos-containing products to Flora's employers, companies that performed construction work at her places of employment, and companies that allegedly manufactured, sold, or placed in the stream of commerce asbestos-containing products. Although Vanderbilt supplied talc used as an ingredient in Florida Tile's products, it was not named as a party until May 31, 2006.

A three-week jury trial was held against Vanderbilt and three remaining defendants, General Motors, Ford Motor, and Pneumo Abex. General Motors and Pneumo Abex settled during the trial. The jury assessed damages of $5,200,000 and allocated seventy percent of the fault to Vanderbilt.³ The jury also awarded $450,000 in punitive damages against Vanderbilt.

The issues on appeal are: (1) whether the amended complaint filed against Vanderbilt was timely; (2) whether the trial court properly sanctioned Vanderbilt for its failure to comply with the court's discovery orders; (3) whether the trial court erroneously included a disputed essential fact in the jury instructions; (4) whether the admission of the testimony of the estate's expert, Dr. Abraham, without conducting a Daubert hearing was error and whether Dr. Abraham's testimony was relevant; (5) whether the trial court erroneously admitted documents containing hearsay and improper opinion testimony; (6) whether the trial court properly permitted the testimony of an industrial hygienist compliance officer with the Kentucky Department of Labor/OSHA to testify regarding the content of the asbestos in Vanderbilt's talc; and (7) whether the trial court erred when it did not reduce the post-judgment interest rate.

Prefatory to our discussion, we comment on the enormity of the record in this case. It contains over 15,000 pages of pleadings and three weeks of trial testimony. Because it would be futile to recite every fact, we have stated those that are significant to the issues discussed.

THE STATUTE OF LIMITATIONS

On May 31, 2006, Franklin amended the complaint to assert a cause of action against Vanderbilt, who vigorously contended that the complaint was untimely filed. Through motions to dismiss and for summary judgment, it contended that Franklin failed to use reasonable diligence to discover the source of the asbestos and sought dismissal based on the statute of limitations.

Franklin presented a different scenario. It was pointed out to the trial court that, in 2004, discovery was sought from Florida Tile regarding the use of asbestos material in its manufacturing process. On March 3, 2005, Florida Tile responded to the interrogatories, verified by plant manager Jim Jefferies, in which it denied the use of asbestos in its manufacturing process. Jefferies subsequently admitted that his response was based upon a fax that Florida Tile received from Vanderbilt. Florida Tile had inquired regarding the presence of asbestos in its talc, and Vanderbilt affirmed in that fax that its talc did not contain asbestos.

Franklin first knew of Vanderbilt's potential liability when tissue from Flora's autopsy was sent to a cellular biologist and asbestos expert, Dr. Ronald Dodson, who conducted a tissue digestion analysis. The analysis confirmed the presence of talc, tremolite asbestos, and anthophyllite asbestos. After receiving the report, Franklin's counsel contacted Florida Tile and was advised that Vanderbilt's talc was an ingredient in its tile. The trial court concluded that there was a question of fact as to whether Franklin used reasonable diligence to discover the claim.

During the trial, the jury heard testimony from Thomas Rogers (who worked for Vanderbilt's subsidiary, Gouveneur Talc Mine) that he was told by Vanderbilt's management that there was asbestos in the mine and described seeing a bag labeled "R.T. Vanderbilt, the Best Asbestos in the World." He recalled that Hugh Vanderbilt, the company president, bragged that he "had a United States Senator in his back pocket" so that the minerals in the mine would not be regulated.

Paul Vanderbilt, Vice President and Secretary of Vanderbilt, testified that although the mine workers wore respirators, Vanderbilt did not inform its customer, Florida Tile, that respirators should be worn when handling its mine products. He also acknowledged that a study conducted by the National Institute for Occupational Health and Safety concluded that there were abestiform minerals, tremolite, anthophyllite, and actinolite in Gouveneur Talc Mines. Vanderbilt further confirmed the deaths of mine workers from mesothelioma.

Further testimony included that from Dr. Barry Castleman, a public health expert on asbestos, who testified that Vanderbilt concealed that its talc contained asbestos and, that as early as 1925, scientists described tremolite asbestos in the area of the Gouveneur Talc Mine. Additional experts testified on behalf of Franklin that Flora's exposure to asbestos was the cause of her mesothelioma.

Based on the evidence, the trial court submitted the following instructions to the jury:

Are you satisfied from the evidence that R.T. Vanderbilt Company, Inc. has shown that Flora Franklin, in the exercise of reasonable diligence, knew or should have known that she sustained an injury by reason of her exposure to talc manufactured by the R.T. Vanderbilt Company, Inc. a party to this action in June 2005?

In response, the jury found that Franklin used reasonable diligence.

The jury was also instructed regarding the allegation that Vanderbilt fraudulently concealed evidence of the presence of asbestos in its talc. It unanimously agreed that Vanderbilt had concealed that its talc contained asbestos and that Franklin relied on its misrepresentation. Based on the jury's findings, the trial court held that the statute of limitations did not preclude the action against Vanderbilt.

The timely filing of the complaint against the original defendants did not toll the statute of limitations against Vanderbilt. "A new party cannot be brought into a lawsuit by amended complaint when the statute of limitations governing the claim against that party has already expired." Combs v. Albert Kahn Associates, Inc., 183 S.W.3d 190, 194 (Ky.App.2006). KRS 413.140(1) is applicable to personal injuries caused by asbestos exposure; to be timely filed, the action must be commenced within one year after the cause of action accrued. Id. at 194. The disagreement between the parties is when Franklin's cause of action accrued.

Unlike a personal injury caused by a single event, a latent disease develops gradually, often unnoticed, until reaching its final stage and without a readily identifiable cause. As in this case, the potential defendants can be numerous, and the components of any single product undeterminable until after extensive discovery and analysis. Because of the unfairness of precluding a claim filed more than one year after the date of the exposure when it was not known to exist or its cause unknown, the discovery rule is applicable to personal injuries arising from asbestos exposure.

"A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant's conduct." Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497, 501 (Ky.1979) (quoting Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 174 (1977)). Accrual of the cause of action is dependent upon the plaintiff's knowledge that not only has he suffered an injury but also who caused the injury. Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky.2000).

Whether the plaintiff's lack of knowledge within the one-year time frame will toll the statute of limitations depends upon whether the plaintiff exercised reasonable diligence in obtaining knowledge that he has a claim against the tortfeasor. "Reasonable diligence means that a plaintiff must be as diligent as the great majority of persons would [be] in the same or similar circumstances...." Blanton v. Cooper Industries, 99 F.Supp.2d 797, 802 (E.D.Ky.2000) (quoting Sawyer v. Midelfort, 227 Wis.2d 124, 595 N.W.2d 423, 439 (1999)) (internal quotations omitted).

In Combs, 183 S.W.3d at 197, the court added that the discovery rule does not toll the statute of limitations to allow an injured plaintiff to discover the identity of the wrongdoer absent fraudulent concealment or a misrepresentation by...