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In re Asbestos Litigation

Superior Court of Delaware

January 31, 2019

IN RE: ASBESTOS LITIGATION:
v.
FORD MOTOR COMPANY, Defendant. PAULAKNECHT, Individually, and as Independent Executrix of the estate of, LARRY W. KNECHT, deceased, Plaintiff,

          Submitted: October 15, 2018

         Upon Defendant Ford Motor Company's Renewed Motion for Judgment as a Matter of Law Under Rule 50(b) or, in the Alternative, a New Trial DENIED.

         Upon Defendant Ford Motor Company's Motion for a New Trial, or in the Alternative, Remittitur DEMED.

          Adam Balick, Esquire, Michael Collins Smith, Esquire, Patrick J. Smith, Esquire, Balick & Balick, LLC, Bartholomew J. Dalton, Esquire, Ipek K. Medford, Esquire, Andrew C. Dalton, Esquire, Michael C. Dalton, Esquire, Dalton & Associates, Cool Spring Meeting House, Danny R. Kraft, Esquire, Weitz & Luxenberg, PC, Of Counsel; Attorneys for Plaintiff, Paula Knecht, Individually, and as Independent Executrix of the estate of Larry Knecht, deceased.

          Christian J. Singewald, Esquire, Rochelle L. Gumapac, Esquire, White and Williams LLP,

          Courthouse Square, Attorneys for Defendant Ford Motor Company.

          MEMORANDUM OPINION AND ORDER

          FERRIS W. WHARTON, J.

         I. INTRODUCTION

         Plaintiff Paula Knecht is the widow of Larry Knecht, who died at the age of 71 from mesothelioma, an incurable asbestos related disease. During most of his working life, Larry Knecht was an automobile mechanic, owning and operating Knecht Automotive in Los Alamos, New Mexico. In her lawsuit against Ford Motor Company, Mrs. Knecht brought claims of negligence and strict liability, alleging that Mr. Knecht was exposed to asbestos from working with Ford's asbestos-containing brakes and clutches. She sought compensatory and punitive damages. The case went to trial on May 13, 20 l 8. After l 6 days of testimony and argument and three days of deliberation, the jury returned its verdict on June 8, 2018. The jury awarded Mrs. Knecht $40, 625 million in compensatory damages, for which it found Ford 20% responsible. It also awarded her $ 1 million in punitive damages. In total Ford's liability to Mr. Knecht was $9, 125 million.

         Pending before the Court are two motions filed by Ford. The first renews Ford's Motion for Judgment as a Matter of Law Under Rule 50(b), previously denied by the Court at the end of Plaintiff's case and again at the conclusion of the evidence.[1] Ford raises six arguments in the motion, primarily focusing on issues related to causation and sufficiency of evidence. Alternatively, Ford seeks a new trial. The second motion separately moves for a new trial, or alternatively, rernittitur.[2] In this second motion, Ford argues that the jury's verdict was irreconcilably inconsistent and the amount of damages awarded shocks the conscience. Because the Court is not persuaded that its previous rulings on Ford's motions seeking judgment as a matter of law were incorrect, Ford's renewed motion is DENIED. Further, because the Court does not find the jury's verdict to be irreconcilably inconsistent, nor does it find the damages award excessive, the Motion for a New Trial, or in the Alternative, Remittitur, also is DENIED.

         H. FACTUAL AND PROCEDURAL CONTEXT

         Larry Knecht was diagnosed with mesothelioma in May of2O14.[3] He and his wife Paula brought this lawsuit on August 20, 2014.[4] On December 16, 2014, he died of that disease, just shy of his 72nd birthday.[5] After he died, Paula Knecht, as the independent executrix of his estate, was substituted as a party plaintiff for Larry Knecht in an Amended Complaint.[6]

         Larry Knecht lived the vast majority of his life in New Mexico, primarily in Los Alamos.[7] He spent most of his working life as an auto mechanic and owner of Knecht Automotive in Los Alamos.[8] The Amended Complaint alleged that as an auto mechanic Mr. Knecht was exposed to asbestos from asbestos-containing products from a substantial number of automotive products manufacturers, and, as a result of that exposure, developed mesothelioma and died.[9] The Court ordered that New Mexico law was applicable to substantive law issues.[10]

         Dr. Mark Ellis Ginsburg ("Dr. Ginsburg") served as Plaintiffs causation expert. Dr. Ginsburg authored a report dated April 15, 2015 which contained the following conclusion:

It is my opinion, to a reasonable degree of medical certainty, all of the exposures to asbestos containing products referenced in the occupational history section of my report for which respirable asbestos fibers were released into the breathing zone of plaintiff, above the background levels of asbestos, contributed to a cumulative dose of asbestos for Mr. Knecht and therefore each such product was a substantial factor in contributing to Mr. Knecht's malignant mesothelioma and death. Each such product for which exposure can be shown was a cause of said disease.[11]

         On April 18, Ford moved in limine to exclude Dr. Ginsburg's opinions on Daubert grounds, [12] which Plaintiff opposed.[13] After Dr. Ginsburg's deposition on April 25*, Ford supplemented its motion in limine on May 7th on the grounds that: (1) New Mexico law does not follow substantial factor causation; (2) Dr. Ginsburg cannot say which respirable libers were released into Mr. Knecht's breathing zone; and (3) Dr. Ginsburg does not know the background levels of asbestos, and, as a result cannot say what exposures exceeded background levels.[14] Further, Ford sought to preclude Dr. Ginsburg from testifying about epidemiology since he did not have the requisite qualifications.[15] Plaintiff responded to Ford's supplemental submission on May 9th.[16] At a pretrial motions hearing on May 10th, the Court deferred ruling on the motion until after Dr. Ginsburg was examined on voir dire.

         Prior to testifying before the jury, Dr. Ginsburg was examined on voir dire by both parties and the Court.[17] After hearing argument, the Court determined that Dr. Ginsburg's opinions satisfied New Mexico's causation standard and were admissible.[18] At the conclusion of Plaintiffs case, Ford moved for judgment as a matter of law under Rule 50(a).[19] The brief in support of the motion presented six arguments: (1) Plaintiff presented insufficient evidence that Mr. Knecht was exposed to asbestos-containing Ford products; (2) Plaintiff failed to satisfy New Mexico's causation standard; (3) even if New Mexico would apply a substantial contributing factor standard, Plaintiff failed to meet that standard; (4) Plaintiff could not show Ford's warnings were inadequate without expert testimony; (5) to the extent Plaintiff asserted a design defect theory of liability, Ford was entitled to judgment as a matter of law; and (6) Plaintiff failed to introduce sufficient evidence that Ford acted maliciously, willfully, wantonly, or fraudulently to support its punitive damages claim.[20] With the exception of Ford's design defect argument, which Plaintiff conceded, the Court denied the motion.[21] Ford renewed its motion at the conclusion of all of the evidence on the same grounds, and again, the Court denied it.[22]

         The Court's instructions to the jury titled "Causation," "Causation for Product Defect," "Causation Relating to Warnings, '' and "Duty to of Supplier to Warn," and the language of the verdict sheet consistent with those instructions all are relevant to these motions. As to "Causation"' the Court instructed the jury:

An act or omission is a "cause" of harm if it contributes to bringing about the harm, and if harm would not have occurred without it. It need not be the only explanation for the harm, nor the reason that is nearest in time and place. It is sufficient if it occurs in combination with some other cause to produce the result. To be a "cause," the act or omission, nonetheless, must be reasonably connected as a significant link to the harm.[23]

         The Court's "Causation for Product Defect" instruction stated in similar language:

A product that is defective because it lacks an adequate warning is a "cause" of harm if it contributes to bringing about the harm, and if the harm would not have occurred without it. It need not be the only explanation for the harm, nor the reason that is nearest in time or place. It is sufficient if it occurs in combination with some other cause to produce the result. To be a "cause," the defective product must be reasonably connected as a significant link to the harm.[24]

         The Court's next instruction, "Causation Related to Warnings," read:

If, in light of all the circumstances of this case, an adequate warning or adequate directions for use would have been noticed and acted upon to guard against the danger, a failure to give an adequate warning or adequate directions for use is a cause of injury.[25]

         The jury was instructed on "Duty of Supplier to Warn" in part as follows:

A supplier must use ordinary care to warn ofa risk ofinjury. However, there is no duty to warn of a risk unknown to the supplier, unless, by the use of ordinary care, the supplier should have known of the risk.
Under Plaintiffs claim of "products liability," a product presents an unreasonable risk of injury if put on the market without waning ofa risk which could be avoided by the giving of an adequate warning.
The supplier has no duty to warn of risks which it can reasonably expect to be obvious or known to foreseeable users of the product.[26]

         When the Court instructed the jury on compensatory damages, it gave the New Mexico pattern instruction proposed by Ford.[27] The jury was instructed to award a "fair and just" amount of money "for the life of Larry Knecht" including compensation for: (1) Mr. Knecht's pain and suffering from the time of his injury until his death; (2) the value of Mr. Knecht's life apart from his earning capacity; (3) mitigating and aggravating circumstances relating to the wrongful acts; (4) Paula Knecht's emotional distress caused by the loss of companionship with Mr. Knecht; and (5) any monetary loss suffered by Mr. Knecht's beneficiaries.[28] In fixing an amount of compensatory damages, the jury was told:

No fixed standard exists for determining fair and just damages. You must use your judgment to decide a reasonable amount. Your verdict must be based on evidence, not on speculation, guess, or conjecture. You must not permit the amount of damages to be influenced by sympathy or prejudice.[29]

         The Court's punitive damages instruction also tracked New Mexico's pattern instruction and Ford's proposed instruction.[30]

         A nine question verdict sheet was submitted to the jury. When it returned its verdict, on the liability questions the jury found that: (1) Larry Knecht was exposed to Ford's asbestos-containing products (Question 1); (2) Ford negligently failed to warn Mr. Knecht of risks inherent in the use of its products (Question 2); (3) Ford's negligent failure to warn was not a cause of Mr. Knecht's mesothelioma in the Mr. Knecht would have noticed and acted upon an adequate warning (Question 3); (4) a Ford friction product was defective because it lacked a warning of a risk which could be avoided by the giving of an adequate warning (Question 4); and (5) the defect in Ford's friction product caused Mr. Knecht's mesothelioma (Question 5).[31] The jury awards a total of $40, 625 million in compensatory damages (Question 6), for which Ford was 20% responsible (Question 7).[32] Finally, the jury found that Ford was responsible for $1 million in punitive damages (Questions 8 and 9).[33]

         After trial, Ford filed four motions - the two the Court addresses here - and two others which were unopposed. The two unopposed motions sought to amend the judgment to conform to the verdict, [34] and to stay execution of the judgment pending resolution of the other post-verdict motions.[35] The former sought to reduce the judgment against Ford to reflect the jury's determination that Ford was liable for 20% of the compensatory damages. The latter is self-explanatory. The Court granted both motions.[36]

         III. FORD'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW UNDER RULE 50(B) OR, TN THE ALTERNATIVE A NEW TRIAL

         A. The Parties'Contentions

         Ford's motion raises six arguments that closely track those raised in its previously denied motions, but does not exactly replicate them. Ford's first argument is a variation on its original argument on causation in that it focuses on the sufficiency of Plaintiffs evidence as it relates to the jury instruction given by the Court on causation. Ford argues that although Plaintiff agreed to the New Mexico causation instruction given by the Court, which required the Plaintiff to prove "but for" causation, it failed to meet that standard. The remaining arguments mirror Ford's initial arguments that: (1) even if New Mexico applied a substantial factor causation standard, Ford failed to meet that standard; (2) the Court should have excluded Dr. Ginsburg's testimony; (3) there was insufficient evidence that Larry Knecht was exposed to Ford's asbestos-containing products; (4) expert testimony was required to show that Ford's warnings were inadequate; and (5) Plaintiff was not entitled to punitive damages.

         The Court discusses only the first question presented here - whether the Plaintiff failed to present sufficient evidence to meet the New Mexico causation standard as instnicted by the Court. The remaining arguments have been presented to the Court twice before. After careful consideration, the Court has twice rejected them. The Court adheres to those decisions for the same reasons it articulated previously.[37]

         B. Standard and Scope of Review

         Although motions for a new trial under Superior Court Civil Rule 59 may be joined with renewed motions for judgment as a matter of law under Rule 50(b), different standards apply. Motions for judgment as a matter oflaw are governed by Superior Court Civil Rule 50. Ifthere is no legally sufficient evidentiary basis for a jury to find for a party on an issue, the Court may determine that issue against that party and may grant judgment as a matter of law against that party on that issue.[38] Whenever such a motion is made and denied at the close of the evidence, it may be renewed after trial.[39] When determining a motion for judgment as a matter of law, the Court does not weigh the evidence, but rather views the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the non-moving party and determines if a verdict may be found for the party having the burden of proof.[40] In contrast, when considering a motion for a new trial, the Court weighs the evidence in order to determine if the verdict is one which a reasonably prudent jury would have reached.[41]

         C. Discussion

         Ford does not challenge the Court's causation instruction.[42] Rather, Ford argues that the causation instruction, to which Plaintiff agreed, contained a "but for" element that Plaintiff failed to prove through Dr. Ginsburg, her only causation expert.[43] Thus, the question before the Court on Ford's Renewed Motion for Judgment as a Matter of Law Under Rule 50(b) is whether, when viewing the evidence and all reasonable inferences drawn from the evidence in the light most favorable to Plaintiff, she satisfied New Mexico's causation standard as the jury was instructed by the Court. As to the alternative Motion for a New Trial, the Court must determine whether, when weighing the evidence on causation, that evidence was sufficient that a reasonably prudent jury would have would found causation under the New Mexico standard as the jury was instructed. After carefully considering these questions, the Court finds that the motions must be denied.

         When Ford first moved for judgment as a matter of law at the close of Plaintiffs case, the Court had not finalized its causation instruction. Argument on the causation portion of the motion followed voir dire of Dr. Ginsburg and incorporated an extended discussion on Ford's attempt to exclude Dr. Ginsburg's testimony.[44] That discussion included discussion of New Mexico's pattern causation instruction, and when the Court ruled initially that Dr. Ginsburg's testimony was admissible, it considered the New Mexico pattern instruction in its ruling.[45] The Court also considered New Mexico's instruction when it denied Ford's Motion for Judgment as a Matter of Law.[46] When Ford briefly renewed its motion at the conclusion of all of the evidence, and the Court affirmed its previous ruling.[47] Ultimately, the Court gave the New Mexico instruction. So, although the renewed motion is fashioned as one asserting that Plaintiff's proof was insufficient to meet the requirements of the instruction as given, when the Court denied the motions it did so in the context of the instruction that actually was given. What that means is that the renewed motion is not different from the previous motions, and the Court denies it for the same reasons it denied the earlier iterations.

         When considering and weighing the testimony of Larry Knecht on the question of exposure, of Dr. Ginsburg on the question of causation, and of Dr. Barry Castleman, Plaintiffs state of the art expert, and Ford's corporate representative Matthew Fyie on the question of notice, it is clear to the Court that a reasonable jury would have returned the verdict this jury returned. Accordingly, the Court denies the Motion for a New Trial.

         IV. FORD'S MOTION FOR A NEW TRIAL, OR, IN THE ALTERNATIVE, REMITTUR

         A. The Parties'Contentions

         Ford's position in support of its entitlement to a new trial is straightforward. It argues that the jury's causation findings are inconsistent and irreconcilable in that the jury found in answering Questions 3 and 5 that Ford's failure to provide an adequate warning both did and did not cause Mr. Knecht's mesothelioma.[48] Ford also argues that it is entitled to a new trial, or alternatively, remittitur on the grounds that the amount of the verdict was objectively excessive, Plaintiffs counsel improperly incited bias, passion, or prejudice throughout his closing argument, and the admission of cumulative evidence of notice inflamed the jury and likely impacted the verdict.[49]

         For her part, Plaintiff argues that by agreeing to the form of the verdict sheet Ford has waived the right to complain about allegedly inconsistent findings by the jury, the verdict is in fact consistent, and Plaintiffwould be disproportionately prejudiced should the Court grant a new trial.[50] She further argues that rernittitur is not warranted and that her counsel's closing argument was entirely proper.[51]

         B. Standard and Scope of Review

         In considering a motion for a new trial based on an allegation that the jury returned inconsistent answers to interrogatories, the court first looks to determine if there is a logical explanation that avoids the alleged inconsistency. If the court cannot reconcile the answers, a new trial is necessary.[52]

         In considering a motion for a new trial under Superior Court Civil Rule 59, the Court "weighs the evidence in order to determine if the verdict is one which a reasonably prudent jury would have reached."[53] The Court should only set aside a verdict if it is clear that the "verdict was the result of passion, prejudice, partiality, corruption, or if it is clear that the jury disregarded the evidence or law."[54] A jury's verdict with respect to damages is presumed to be correct, "unless it is so grossly disproportionate to the injuries suffered so as to shock the Court's conscience and sense of justice."[55] Where a verdict that "is so grossly excessive as to shock the Court's sense of justice and the impropriety of allowing it to stand is manifest" it must be set aside.[56]

         C. Discussion

         1. The answers to the interrogatories were not inconsistent.

         The appropriate starting point for determining whether answers to interrogatories are inconsistent is the interrogatories themselves.[57] If, after parsing the questions, it appears that the questions ask the same thing, but have produced different answers, then the Court must deal with the resulting inconsistency. But, if the questions do not ask the same thing, then there is not necessarily an inconsistency, and the jury's verdict may be upheld.

         The relevant pairs of questions and answers are Questions 2 and 3, which deal with the negligent failure to warn claim, and Questions 4 and 5, which deal with the failure to warn product liability claim. They read as follows:

2. Do you find by a preponderance of the evidence that Ford Motor Company negligently failed to warn Mr. Knecht of risks inherent in the use of its products?
Yes.
3. Do you find by a preponderance of the evidence that Ford Motor Company's negligent failure to warn was a cause of Mr. Knecht's development of mesothelioma, in that Mr. Knecht would have noticed and acted upon an adequate warning had it been present?
No.
4. Do you find by a preponderance of the evidence that a friction product manufactured, sold, or otherwise placed into the stream of commerce by Ford Motor Company was defective because it lacked a warning of a risk which could have been avoided by the giving of an adequate warning?
Yes.
5. Do you find by a preponderance of the evidence that the defect in a friction product manufactured, sold, or otherwise placed in the stream of commerce by Ford Motor Company caused Mr. Knecht's mesothelioma?
Yes.

         The claimed inconsistency lies in the answers to Questions 3 and 5, but it is really Question 4 which explains the answer to Question 5. A close reading of those Questions 3 and 4 reveals that, while they both deal with Ford's failure to warn, the phrasing and call of each question is different. Question 3 focuses on Mr. Knecht and asks whether he wouldhave noticed and acted on an adequate warning had one been present. Question 4, on the other hand, does not focus on Mr. Knecht, but asks more generally, without specific reference to Mr. Knecht, if a risk could have been avoided by an adequate warning. Recognizing that "would" is the past tense of "will" and "could" is the past tense of "can" helps demonstrate how the expressions "would have" and "could have" address different concepts. It is the difference between something that "will" happen and something that "can" ...


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