State Public Bldg. Asbestos Litigation, In re

• Decision Date: 06 January 1995
• Docket Number: Nos. 22023-22025,s. 22023-22025
• Citation: 193 W.Va. 119,454 S.E.2d 413
• Parties: In re STATE of West Virginia PUBLIC BUILDING ASBESTOS LITIGATION. (Three Cases).
• Court: West Virginia Supreme Court

Page 413

454 S.E.2d 413

193 W.Va. 119

In re STATE of West Virginia PUBLIC BUILDING ASBESTOS LITIGATION. (Three Cases).

Nos. 22023-22025.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 2, 1994.

Decided Dec. 21, 1994.

Concurring Opinion by

Justice Cleckley Jan. 6, 1995.

Syllabus by the Court

1. " 'It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved.' Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78 W.Va. 780 [, 90 S.E. 338 (1916) ]." Syl. pt. 2, Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968).

2. "An appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and granting a new trial than when such action results in a final judgment denying a new trial." Syl. pt. 4, Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968).

3. A motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion.

4. "By virtue of the authority of Article VIII, Section 21 of the Constitution of West Virginia and of Code, 1931, 2-1-1 it is within the province of the Legislature to enact statutes which abrogate the common law." Syl., Perry v. Twentieth Street Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974).

5. W.Va.Code, 55-2-19 [1923] abrogates the common law doctrine of nullum tempus occurrit regi thereby making statutes of limitations applicable to the State.

6. " 'Where the evidence given on behalf of the defendant is clearly insufficient to support a verdict for him so that such verdict, if returned by a jury, must be set aside, and the evidence of the plaintiff is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.' Point 5 Syllabus, Sommerville v. The Pennsylvania Railroad Co., 151 W.Va. 709 [, 155 S.E.2d 865 (1967) ]." Syl. pt. 4, Jones, Inc. v. W.A. Wiedebusch Plumbing and Heating Co., 157 W.Va. 257, 201 S.E.2d 248 (1973).

7. "The defense of assumption of risk is available against a plaintiff in a product liability case where it is shown that the plaintiff had actual knowledge of the defective or dangerous condition, fully appreciated the risks involved, and continued to use the product. However, the plaintiff is not barred from recovery unless his degree of fault under assumption of risk equals or exceeds the combined fault of the other parties to the accident." Syl. pt. 3, King v. Kayak Manufacturing Corporation, 182 W.Va. 276, 387 S.E.2d 511 (1989).

8. " ' "Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so. McAllister v. Weirton Hospital Co., 173 W.Va. 75, 81, 312 S.E.2d 738, 744 (1983) (citations omitted)." Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985).' Syllabus Point 2, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987)." Syl. pt. 6, King v. Kayak Manufacturing Corporation, 182 W.Va. 276, 387 S.E.2d 511 (1989).

9. "At common law, the purchaser of all the assets of a corporation was not liable for the debts or liabilities of the corporation purchased. This rule has since been tempered by a number of exceptions and statutory provisions." Syl. pt. 2, Davis v. Celotex Corporation, 187 W.Va. 566, 420 S.E.2d 557 (1992).

10. "A successor corporation can be liable for the debts and obligations of a predecessor corporation if there was an express or implied assumption of liability, if the transaction was fraudulent, or if some element of the transaction was not made in good faith. Successor liability will also attach in a consolidation or merger under W.Va.Code, 31-1-37(a)(5) (1974). Finally, such liability will also result where the successor corporation is a mere continuation or reincarnation of its predecessor." Syl. pt. 3, Davis v. Celotex Corporation, 187 W.Va. 566, 420 S.E.2d 557 (1992).

Arthur M. Recht, Patrick S. Casey, Schrader, Recht, Byrd, Byrum & Companion, Wheeling, Frank E. Simmerman, Jr., Bowles, Rice, McDavid, Graff & Love, Clarksburg, James J. Restivo, Jr., Lawrence E. Flatley, Douglas E. Cameron, George L. Stewart II, of counsel, Reed, Smith, Shaw & McClay, for appellant W.R. Grace & Co.

Thomas R. Goodwin, Susan C. Wittemeier, Goodwin & Goodwin, Charleston, Charles R. Bruton, Richard W. Foltz, Jr., of counsel Pepper, Hamilton & Scheetz, Philadelphia, PA, for appellant Pfizer, Inc.

Diana Everett, Ruley & Everett, Parkersburg, Robert D. Brownson, of counsel, Stich, Angell, Kreidler & Muth, Minneapolis, MN, for appellant Asbestospray.

Darrell V. McGraw, Jr., Atty. Gen. Silas B. Taylor, Sr. Deputy Atty. Gen., Charleston, Thomas R. Sheran, R. Terri Mandel, Michael J. Luzum, O'Connor & Hannan, Minneapolis, MN, for appellees.

James A. Varner, Catherine D. Munster, McNeer, Highland & McMunn, Clarksburg, for amicus curiae Armstrong World Industries, Inc.

McHUGH, Justice:

The appellants, Asbestospray Corporation, Pfizer, Inc., and W.R. Grace & Co., appeal the September 14, 1993 order of the Circuit Court of Monongalia County which vacated the jury's verdict for the appellants and granted a new trial. This case arose as an asbestos property damage case in which the appellees, the State of West Virginia, the City of Spencer and the Monroe County Commission, sought monetary relief for the removal and/or management of asbestos from its public buildings.

I.

The appellants were the manufacturers of the asbestos-containing building materials that may have been installed in twenty-six buildings throughout the State between 1958 and 1973. The appellees filed an action seeking monetary relief for the removal and/or management of the asbestos from its public buildings against the appellants.

After a six-month trial, in which a tremendous amount of evidence was presented to the jury, the trial judge instructed the jury that the asbestos-containing products involved in this case are defective as a matter of law. Therefore, the jury only was to consider whether the appellants' products were present in one or more buildings, and if their products were present, the amount of damages which should be awarded to the appellees, including past and future costs for in-place management and/or removal.

The jury returned a verdict finding that the appellees were entitled to no damages. Thereafter, the trial judge vacated the jury verdict in a September 14, 1993 order stating:

The Court DIRECTED LIABILITY as a matter of law that asbestos-containing products are inherently dangerous products. This left for the jury the issue of whether the plaintiffs proved that the respective defendants had such products in the buildings at issue, and, if so, the damages resulting from their presence. Therefore, the Court did not direct liability as to any one or more specific defendants. However, during the trial, on the issue of product identification, the existence of a defendant's product was admitted to be in several of the plaintiff's [sic] buildings by more than one of the defendants. Additionally, there was more than substantial evidence that all defendants had products in one or more of the subject buildings. There was also an abundance of evidence on the cost of maintenance, removal, and/or repair relating to the products. Nevertheless, the jury returned a verdict of '0' damages. This verdict is manifestly inadequate given the proof presented in the trial of this matter.

The trial judge went on to state that the jury verdict was a "type 1" inadequate award under Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977); ¹ therefore, he vacated the jury's verdict and awarded a new trial only on the issues of product identification and damages.

The appellants have asked us to review the trial judge's September 14, 1993 order. After arguments before this Court on May 4, 1994, this Court requested the parties to provide additional information to assist it with its examination of the voluminous record. Thereafter, the parties reargued the case before this Court on November 2, 1994.

II.

The first issue is whether the trial judge improperly vacated the jury's verdict and awarded a new trial. In order to resolve this issue, it is necessary to establish the appropriate standard of review of the trial judge's decision.

A trial judge has the authority to vacate a jury verdict and award a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure which states, in relevant part: "A new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law[.]" Rule 59 merely recognizes the common law principle that a judge may vacate a verdict of the jury. 11 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2801 at 27 (1973). ²

Although the trial judge should rarely grant a new trial, the trial judge, nevertheless, has broad discretion to determine whether or not a new trial should be granted: "Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been...