Riggs v. Asbestos Corp.

• Decision Date: 04 April 2013
• Docket Number: No. 20110544–CA.,20110544–CA.
• Citation: 731 Utah Adv. Rep. 40,304 P.3d 61
• Parties: Micah RIGGS, Plaintiff, Appellant, and Cross-appellee v. ASBESTOS CORPORATION LIMITED; Georgia–Pacific, LLP; and Union Carbide Corporation, Defendants, Appellees, and Cross-appellants.
• Court: Utah Court of Appeals

304 P.3d 61

731 Utah Adv. Rep. 40

Micah RIGGS, Plaintiff, Appellant, and Cross-appellee

v.ASBESTOS CORPORATION LIMITED; Georgia–Pacific, LLP; and Union Carbide Corporation, Defendants, Appellees, and Cross-appellants.

No. 20110544–CA.

Court of Appeals of Utah.

April 4, 2013.

Alan R. Brayton, Gilbert L. Purcell, and Robert G. Gilchrist, Salt Lake City, for Appellant.

Karra J. Porter, Sarah E. Spencer, and Katherine E. Venti, Salt Lake City, for Appellee Georgia–Pacific, LLP.

E. Joshua Rosenkranz, Peter A. Bicks, Morton D. Dubin, Rachel M. McKenzie, and Patricia W. Christensen, Salt Lake City, for Appellee Union Carbide Corporation.

Julianne P. Blanch, Salt Lake City, Mark A. Behrens, and Cary Silverman, for Amici Curiae.

Judge JAMES Z. DAVIS authored this Opinion, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.

Opinion

DAVIS, Judge:

¶ 1 Micah Riggs, on behalf of his mother-in-law, the decedent Vickie Warren,¹ appeals the trial court's decision that the Comparative Negligence Act (CNA), and therefore joint and several liability, did not apply in this case. Defendant Union Carbide Corporation cross-appeals, arguing that its motion for judgment notwithstanding the verdict was wrongly denied because the raw material supplier rule shields Union Carbide from liability under the facts of this case. Alternatively, Union Carbide argues in its cross-appeal that there was insufficient evidence to support the jury's verdict that the unique type of asbestos it supplied medically caused Warren's illness. Defendant Georgia–Pacific, LLP also cross-appeals, challenging the sufficiency of the evidence identifying a particular Georgia–Pacific product at the various construction sites where Warren was exposed to asbestos. We affirm.

BACKGROUND

¶ 2 “On appeal, we recite the facts from the record in the light most favorable to the jury's verdict.” Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 3, 82 P.3d 1064 (citation and internal quotation marks omitted). Warren was diagnosed with malignant peritoneal mesothelioma² in July 2007 and died as a result of the illness on May 25, 2010. Mesothelioma is a rare type of cancer that is closely linked to exposure to at least some types of asbestos. See WebMD, Mesothelioma: Causes and Symptoms, http:// www. webmd. com/ lung/ mesothelioma- causes- and- symptoms (last visited March 29, 2013) (“Mesothelioma is a relatively rare form of cancer.... The main risk factor for mesothelioma is working with asbestos.”). Shortly after Warren was diagnosed, she filed suit on theories of strict liability and negligence against thirty-two defendants who manufactured, sold, distributed, or installed asbestos or asbestos-containing products. By the time of trial, however, only three defendants remained: Union Carbide, Georgia–Pacific, and Hamilton Materials.³

¶ 3 Georgia–Pacific's involvement in this case arises from its role as a manufacturer and consumer-side supplier of asbestos-containing tape joint compound that was used at various residential construction sites where Warren helped her father from 1958 through 1977 and in the construction of Warren's own home in 1977.⁴ Union Carbide intermittently supplied the raw asbestos, a unique variety called Calidria,⁵ that was used by Georgia–Pacific in the manufacturing of its tape joint compound between 1970 and 1977.

¶ 4 “On the eve of trial,” during a pretrial conference with all of the parties, Warren argued for the first time that the CNA, rather than the Liability Reform Act (LRA) that the parties had been proceeding under for the entire three years since the filing of the case, ought to apply because it was in effect at the time of Warren's exposure to Defendants' asbestos and asbestos-containing products. The trial court rejected Warren's argument, determining that the LRA applies both because Warren did not have a cause of action until she was diagnosed with mesothelioma and because her argument was untimely.

¶ 5 A jury trial was held in April and May 2010, at the conclusion of which both Georgia–Pacific and Union Carbide moved for a directed verdict, arguing, among other things, that Warren failed to prove that her illness was medically caused by their products. The trial court denied the directed verdict motions, noting, “[T]his is the most fact-intensive and expert-intensive trial that I've ever presided upon, and the issues will remain for jury determination....”

¶ 6 The jury reached its verdict on May 12, 2010, awarding Warren $5,256,818.61 in economic and non-economic damages. The jury, having been instructed to apportion fault in accordance with the LRA, determined that Georgia–Pacific was 5% at fault and Union Carbide 20% at fault.⁶

¶ 7 Almost one year later, Union Carbide moved for judgment notwithstanding the verdict (the JNOV motion), reasserting an argument that it first made in its pretrial motion for summary judgment—that it could not be held liable for Warren's illness because it is a bulk supplier of raw materials, as described in the Third Restatement of Torts. SeeRestatement (Third) of Torts: Products Liability § 5 & cmt. c (1998). The trial court had rejected this argument when it denied Union Carbide's motion for summary judgment, reasoning that “Utah has not considered the issue of adopting the Restatement (Third) of Torts: Products Liability § 5 and, indeed, recent Utah case law supports the conclusion that with respect to the specific provision at issue ..., the Restatement (Second) of Torts should act as the guide,” and the court ultimatelydeclined to walk through the application of either restatement because doing so involved disputed issues of material fact. Despite this ruling, and without any objections, Union Carbide referenced bulk-supplier principles in a manner that implied it was a defense against liability several times in its opening statement at trial, stating,

Union Carbide is a raw materials supplier. They mined and milled asbestos and they put it in bags.... And they sold this asbestos to manufacturers.

The manufacturers then decided what to do with the asbestos, whether to use it, how much to use, what to mix it with, how to package it, and what to put on those packages.

....

... Union Carbide didn't sell a bag of asbestos to Ms. Warren....

Once that asbestos is packaged, ... [and sent] to a distributor[,] Union Carbide is no[ longer] involved.... That's not Union Carbide's area of responsibility. It's almost like taking a baton in a relay race[ in that] Union Carbide starts out with the raw fiber, ... [and] passes [it] on ... [to] a distributor, [who mixes and repackages it and has its own] ... areas of responsibility.

... Union Carbide takes responsibility for where it fits into this whole process.

The issue was raised again at a hearing on jury instructions, during which Union Carbide noted, “[W]e would concede that [the court] has ruled on the [bulk supplier argument] and we are asserting it simply for the record....” Union Carbide raised this argument a final time during trial in closing argument, by asking the jury to “[r]emember [it was] a raw supplier” and, as such, had the ability to warn only its direct customers about the dangers of asbestos because “when [it] put a warning on a bag, that bag goes to a manufacturer and that bag is gone.”

¶ 8 Union Carbide's JNOV motion renewed this argument, relying on the Utah Supreme Court's explicit adoption of most of section 5 of the Third Restatement of Torts in a case that was issued two days after the jury reached its verdict in Warren's case. See Gudmundson v. Del Ozone, 2010 UT 33, ¶¶ 55–61, 232 P.3d 1059 (“Because we find [section 5's] policy-based rationale persuasive, we adopt this section of the Third Restatement.”). The trial court, however, denied the JNOV motion without explicitly addressing the raw material supplier argument, noting simply that there was sufficient evidence to support the jury's verdict. All three parties—Warren, Union Carbide, and Georgia–Pacific—now appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Warren asserts that the trial court erroneously applied the LRA instead of the CNA. This presents a question of law, which we review for correctness. Jedrziewski v. Smith, 2005 UT 85, ¶¶ 3–4, 128 P.3d 1146 (considering, as a matter of law, whether the LRA or CNA should apply).

¶ 10 Union Carbide argues on cross-appeal that the bulk supplier rule exempts it from liability. We interpret this as an appeal from the denial of its JNOV motion. Union Carbide also asserts that its directed verdict and JNOV motions were wrongly denied because Warren presented insufficient evidence of medical causation to support the jury's verdict.⁷ A motion for judgment notwithstanding the verdict or a motion for a directed verdict should be granted when the moving party is entitled to judgment as a matter of law. See Merino v. Albertsons, Inc., 1999 UT 14, ¶ 3, 975 P.2d 467 (directed verdict standard); Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988) (judgment notwithstanding the verdict standard). Thus, we review a trial court's denial of either motion for correctness. See Lyon v. Burton, 2000 UT 19, ¶ 11, 5 P.3d 616 (judgment notwithstanding the verdict); Rose v. Provo City, 2003 UT App 77, ¶ 7, 67 P.3d 1017 (directed verdict).

¶ 11 Georgia–Pacific also cross-appeals, arguing that its directed verdict motion was wrongly denied because the jury's verdict was not supported by sufficient evidence as to the identification of its tape joint compound at any of the locations where Warren was exposed to asbestos-containing tape joint compound. We review the trial court's denial of a motion for directed verdict considering “the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the party moved against, and will sustain the denial if reasonable minds could disagree with the ground asserted for directing a verdict.” Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (citation and internal quotation...