R.T. VANDERBILT COMPANY INC., Defendant Below-Appellant, Cross-Appellee,
DARCEL GALLIHER, individually and as special administrator for the ESTATE OF MICHAEL GALLIHER, deceased, Plaintiff Below-Appellee, Cross-Appellant
Submitted May 14, 2014
Case Closed August 12, 2014.
Court Below: Superior Court of the State of Delaware in and for New Castle County. C.A. No. N10C-10-315.
Nicholas E. Skiles, Esquire, Joseph Naylor, Esquire, Swartz Campbell LLC, Wilmington, Delaware for Appellant / Cross-Appellee.
Of Pratik A. Shah, Esquire (argued), Patricia A Millet, Esquire, Ruthanne M. Deutsch, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., for Appellant / Cross-Appellee.
David W. deBruin, Esquire, The deBruin Firm LLC, Wilmington, Delaware for Appellee / Cross-Appellant.
Of William A. Kohlburn, Esquire (argued), of Simmons Browder Gianaris Angelides & Barnerd LLC, Alton, Illinois for Appellee / Cross-Appellant.
Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.
In this personal injury and wrongful death case, Defendant-Below/Appellant/Cross-Appellee R.T. Vanderbilt Company, Inc. (" Vanderbilt" ) appeals from a Superior Court judgment on a jury verdict of $2,864,583.33 plus interest to Plaintiff-Below/Appellees/Cross-Appellant Darcel Galliher (" Galliher" ), individually and on behalf of the Estate of Michael Galliher. The decedent, Michael Galliher (" Michael" ), contracted and died from mesothelioma as a result of exposure to asbestos or asbestiform material while employed by Borg Warner at a bathroom fixtures facility. Vanderbilt provided industrial talc to
Borg Warner, which is alleged to be the source of the substance that caused Michael's mesothelioma. At trial, Vanderbilt denied causation and claimed that Borg Warner was responsible because it did not operate the facility in a manner that was safe for employees like Michael.
Vanderbilt raises two claims on appeal. First, Vanderbilt contends that the trial court erred when it failed to instruct the jury on the duty of care required of Borg Warner, as Michael's employer. Second, Vanderbilt argues that the trial court erred when it failed to grant a new trial based on the admission of unreliable and inflammatory evidence that previously was ruled inadmissible. Among other things, a witness for Galliher introduced hearsay, not subject to cross-examination, that Vanderbilt employees were " liars" and that Vanderbilt had spent millions of dollars " buying senators."
Galliher raises one claim on cross-appeal. Galliher contends that the trial court erred as a matter of law when it disallowed post-judgment interest for a certain period of months.
Vanderbilt introduced evidence at trial to show that Borg Warner breached the relevant standard of care. The trial court erred when it failed to provide any instruction to the jury on Borg Warner's duty of care to Michael, despite Vanderbilt's request that it do so. The trial court also abused its discretion when it denied Vanderbilt's motion for a new trial based upon the substantial prejudice resulting from the admission of evidence, not subject to cross-examination, that it had engaged in criminal conduct. Accordingly, we must reverse the judgment and remand for a new trial. Because there will be a new trial, it is not necessary for us to address Galliher's cross-appeal concerning post-judgment interest.
Facts and Procedural History
From 1966 to 1968 and 1970 to 2005, Michael was employed primarily in the cast shop filling ceramic molds at Borg Warner, a plant that manufactured bathroom fixtures in Mansfield, Ohio. Borg Warner used the NYTAL brand industrial talc--which Vanderbilt mined, sold, and distributed to Borg Warner--to dust molds for the ceramics that were manufactured in the cast shop where Michael worked. Borg Warner used NYTAL talc in the cast shop until the late 1970s. The cast shop was described as " dirty" and " hot."  A former Borg Warner employee testified that when he left the cast shop at the end of the work day his arms and clothes would be white from the dust. That former employee also testified that Borg Warner did not require its employees to wear masks in the cast shop until the mid- to late-1980s.
Michael was diagnosed with malignant mesothelioma in August 2010 and died from that condition in February 2011. In 2011, Galliher filed a wrongful death suit against Vanderbilt, alleging that Michael contracted mesothelioma as a result of exposure to Vanderbilt's NYTAL industrial talc, which contained asbestiform fibrous materials. Vanderbilt conceded that the
industrial talc contained asbestiform minerals but denied that the talc contained actual asbestos or caused mesothelioma. Instead, Vanderbilt alleged that Borg Warner and a third party, CertainTeed Corporation, were responsible for Michael's death. Vanderbilt further alleged that Michael was negligent for failing to protect himself.
At trial, three different witnesses for Galliher made statements that previously were ruled inadmissible. Vanderbilt moved for a mistrial based on these statements and also moved for a judgment as a matter of law. Both motions were deferred until after the jury's verdict. In a prayer conference, Vanderbilt provided proposed jury instructions on Borg Warner's duty of care as ...