In this wrongful death case, the plaintiff alleged that the decedent was exposed to asbestos by working in shipyards, as an appliance repairman, on diesel trucks, as an insulator, and as an automobile mechanic. After most defendants were dismissed or settled, the case went to trial against Ford for brake work and Sud-Chemie (formerly known as Southern Talc Company) for asbestos in fill that composed his driveway, which he mowed and raked. The jury found for the plaintiff and awarded substantial damages.
On appeal, the court found that the jury verdict was irreconcilably inconsistent: “We agree with the defendants that the jury’s responses on the special verdict form are irreconcilably inconsistent. The first problem is that the jury made conflicting findings as to the liability of Southern Talc. The jury responded to Interrogatory No. 3 that Mr. Oddo’s exposure to asbestos-containing products from Southern Talc was not a substantial contributing cause of his mesothelioma, but found in response to Interrogatory No. 8 that Southern Talc’s negligence was a substantial contributing cause of his mesothelioma. The jury then assigned 35% liability to Southern Talc.”
The appellate court also found the verdict with respect to the empty-chair defendants to be inconsistent: “The second inconsistency on the special verdict form is that the jury found the ‘negligence’ of six of the nine ‘empty-chair’ defendants to be a substantial contributing cause of Mr. Oddo’s mesothelioma (Interrogatory No. 8), but assigned zero percentage of fault to each of these six (Interrogatory No. 10). The jury’s responses to Interrogatory Nos. 8 and 10 pose an irreconcilable conflict and violate the law.” The court ultimately concluded the lower court should not have entered judgment given these inconsistencies: “There is no question that these inconsistencies made it impossible for the trial court to ‘enter judgment in conformity with the jury’s answers to these special questions and according to applicable law.’”
Rather than remand for a new trial, however, the appellate court exercised its right to consider the issues de novo on a full record before it. On review, the court concluded the plaintiffs had not met their burden with respect to Southern Talc: “Reviewing all the evidence, we conclude that the plaintiffs did not meet their initial burden of showing that Mr. Oddo was substantially exposed [to] an asbestos-containing product from Southern Talc during the one year he lived on Marion Avenue. There is no expert testimony that talc contained in the driveway resulted in Mr. Oddo’s above-background exposure to asbestos. There is no direct evidence Southern Talc’s product was even present in the driveway on Marion Avenue, and the circumstantial evidence is slight.”
However, the court, applying a different review standard, concluded that Ford was not entitled to judgment notwithstanding the verdict: “Reviewing the totality of the evidence, we find no manifest error in the trial court’s denial of the motion for judgment notwithstanding the verdict. Ford’s argument as to why the motion should have been granted relies upon a misstatement of the law. The plaintiffs had the burden to show that exposure to Ford products was a substantial contributing cause of Mr. Oddo’s mesothelioma, not that exposure to Ford products alone was a cause. Moreover, the plaintiffs were not required to meet this burden solely on the basis of expert testimony; the circumstantial evidence presented must also be considered. Because there was circumstantial evidence indicating that a substantial portion of Mr. Oddo’s brake work was done on Ford vehicles using Ford parts, the trial court’s denial of Ford’s motion for judgment notwithstanding the verdict was not clearly wrong.”
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