WR Grace & Co.—Conn. v. Dougherty (1994)

Our plain-English summary of WR Grace & Co.—Conn. v. Dougherty (Florida District Court of Appeal, January 19, 1994).

Arthur Dougherty, an electrician who worked on construction sites for over forty years, and his wife Joan sued forty-eight makers of asbestos-containing products. Mr. Dougherty died of mesothelioma shortly after trial. Other defendants settled for $87,400, leaving W.R. Grace and Owens-Corning at trial. The jury awarded $3,000,000 in noneconomic damages and assigned fault 45% to Grace, 35% to Owens-Corning and 20% to Mr. Dougherty. The two companies appealed. They argued the trial court should have let the jury assign fault to other asbestos product makers who were not parties. The appeals court disagreed because there was no evidence on the specifics of those products, how often they were used, or their toxicity as used. Grace also challenged the use of depositions from two former employees, but the court held the argument was not preserved because Grace did not raise it at trial. The court also found enough evidence of Grace's negligence for the jury. It affirmed the judgment.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Florida District Court of Appeal, 2nd District
• Decided: January 19, 1994
• Citation: 636 So.2d 746
• Docket: Nos. 92-04290, 92-04328
• Stage: Appeal from judgment after trial
• State: Florida

Outcome. The appeals court affirmed the final judgment for the Dougherty plaintiffs against W.R. Grace and Owens-Corning, rejecting their challenges to the jury instructions, the deposition evidence and the sufficiency of the evidence of Grace's negligence.

What the court held. A jury may be instructed on, and asked to apportion fault to, nonparties under Fabre and section 768.81 only if there is evidence of the nonparties' fault. In asbestos cases that evidence must cover the specifics of the products, how often they were used and their toxicity as used. Evidentiary objections not raised at trial are not preserved for appeal.

Issues decided: Fault, Apportionment and Settlement Credits, Compensatory Damages, Trial Procedure and Discovery.

The people and their exposure

• Arthur J. Dougherty: mesothelioma; died

Who	Work	Where	When	Products
Arthur J. Dougherty	electrician on various construction sites (construction)		over forty years	pipe and block insulation, Grace products; Owens-Corning products; Johns-Manville pipe

The defendants

• W.R. Grace & Co. — Conn. (manufacturer) · its asbestos trust
• Owens-Corning Fiberglass Corp. (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Celotex Corp. v. Copeland (Florida Supreme Court, 1985). The Florida Supreme Court quashed the Third District's approval of market share liability (reinstating dismissal of that theory but allowing Copeland to amend his complaint), and approved the Third District's ruling that the statute of limitations could not be decided by summary judgment, so the Copelands may proceed against the asbestos manufacturers.

Later decisions citing this one

5 later decisions in our library cite this one:

• Honeywell International, Inc. v. Guilder (Florida District Court of Appeal, 3rd District, 2009). Reversed the $24,170,000 judgment for Guilder and his children against Honeywell and remanded for a new trial, finding errors in the letter evidence, the verdict form, the consortium award and the setoff.
• Honeywell International, Inc. v. Guilder (Florida District Court of Appeal, 3rd District, 2009). The appeals court reversed the $24.17 million judgment for Guilder and his children against Honeywell and remanded for a new trial, finding errors in the evidence ruling, the verdict form, the consortium award and the settlement setoff.
• Snoozy v. US Gypsum Co. (Florida District Court of Appeal, 3rd District, 1997). The appeals court reversed the denial of a new trial on the children's damages, ordering a new trial on that issue only, and affirmed the directed verdict removing the 75% fault the jury had assigned to unnamed "others", ruling against U.S. Gypsum on its cross-appeal.
• Chesterton v. Fisher (Florida District Court of Appeal, 3rd District, 1995). The appeals court reversed the judgment for the plaintiffs (the Fisher estate and survivor) against A.W. Chesterton and The Anchor Packing Company and remanded for a new trial, ruling for the defendants on the cross-examination issue.
• Ciletti v. Raymark Indus. (In re Asbestos Litigation) (U.S. District Court, Southern District of New York, 1997). The court denied Raymark's motions for judgment as a matter of law, new trial and amendment of the judgment, and denied the plaintiffs' cross-motions, except that it set aside the McPadden award for loss of parental consortium.

Amounts in the opinion

• $3,000,000 (compensatory)
• $87,400 (settlement)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

636 So.2d 746 (1994)

W.R. GRACE & CO. — Conn., Appellant,

v.

Joan DOUGHERTY, individually and as personal representative of the estate of Arthur J.

Dougherty, Appellee.

OWENS-CORNING FIBERGLASS CORP., Appellant,

v.

Joan DOUGHERTY, individually and as personal representative of the estate of Arthur J.

Dougherty, Appellee.

Nos. 92-04290, 92-04328.

January 19, 1994.

Rehearing Denied March 31, 1994.

District Court of Appeal of Florida, Second District.

[*747] Jonathan C. Hollingshead and Lora A. Dunlap of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for appellant/W.R. Grace & Co. — Conn.

Richard M. Crump of Crosby, Saad, Beebe, Cavender & Crump, Mobile, AL, Larry L. Simms, Jerry S. Fowler, Jr., and Mark Snyderman of Gibson, Dunn & Crutcher, Washington, DC, for appellant/Owens-Corning Fiberglass Corp.

Robles & Gonzalez, P.A., Sam Daniels of Paul Landy, Beiley & Harper, P.A., Miami, for appellee.

PARKER, Judge.

W.R. Grace & Co. — Conn. (Grace) and Owens-Corning Fiberglass Corporation (Owens-Corning) appeal a final judgment which awarded damages to Arthur and Jean Dougherty in a negligence action involving asbestos. The Doughertys initiated litigation against forty-eight parties who manufactured asbestos-containing products. The Doughertys introduced expert medical evidence at trial which indicated that asbestos exposure over a short period of time could create a condition leading to mesothelioma years after the initial exposure. Mr. Dougherty died of mesothelioma shortly after this trial. For reasons not available in this record, the Doughertys received $87,400 in settlement from other defendants, and only Grace and Owens-Corning remained as defendants at the time of trial. The jury awarded noneconomic damages of $3,000,000 and apportioned negligence at forty-five percent for Grace, thirty-five percent for Owens-Corning, and twenty percent for Mr. Dougherty.

Grace and Owens-Corning argue that the trial court erred by denying Grace's request for jury instructions and a verdict form allocating liability among all negligent parties. Further, Grace contends that the trial court erred by admitting two depositions of former employees and by submitting the issue of Grace's negligence to the jury when there was insufficient evidence of negligence. We affirm on all issues raised in this appeal.

The first issue that Grace and Owens-Corning raise is the trial court's failure to permit the jury to have instructions and a verdict form pursuant to section 768.81, Florida Statutes (1991) and Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). We conclude that the trial court did not err because there was insufficient evidence to permit the jury to consider the liability of other nonparties. Mr. Dougherty testified to working as an [*748] electrician on various construction sites for over forty years. In his answers to interrogatories, which were read into evidence, Mr. Dougherty named several companies which produced twenty-five asbestos-containing products used on his job sites, in addition to the products of Grace and Owens-Corning. A coworker of Mr. Dougherty testified that a type of pipe manufactured by Johns-Mansville was present on a job site where Mr. Dougherty was employed.

We recognize that the trial court must fully instruct the jury on the issues in the case, and where the theory of the case is supported by competent evidence, a party is entitled to an instruction on that theory when the instruction is properly requested. Simmons v. Roorda, 601 So.2d 609, 610 (Fla. 2d DCA 1992). However, the evidence in this case was not

sufficient to have permitted the jury to have received instructions and a verdict form pursuant to Fabre. Fabre permits a jury to determine each party's and each nonparty's percentage of fault and how much that fault contributed to a plaintiff's injury. We conclude that the only way to determine fault in a trial is from the evidence presented to the jury. Therefore, there must be evidence of fault of a nonparty before a jury can determine the fault of that nonparty.

In applying the principles of Fabre to asbestos litigation, we take note of what the supreme court said in Celotex Corp. v. Copeland, 471 So.2d 533 (Fla. 1985) regarding the different types of asbestos products.

Asbestos products ... have widely divergent toxicities, with some asbestos products presenting a much greater risk than others. This divergence is caused by a combination of factors, including: the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product. There are six different asbestos silicates used in industrial applications and each presents a distinct degree of toxicity in accordance with the shape and aerodynamics of the individual fibers. Further, it has been established that the geographical origin of the mineral can affect the substance's harmful effects. A product's toxicity is also related to whether the product is in the form of a solid block or a loosely packed insulating blanket and to the amount of dust a product generates. The product's form

determines the ability of the asbestos fibers to become airborne and, hence, to be inhaled or ingested. The greater the product's susceptibility to produce airborne fibers, the greater the product's potential to produce disease. Finally, those products with high concentrations of asbestos fibers have corresponding high

potentials for inducing asbestos-related injuries.

Celotex Corp., 471 So.2d at 538 (citations omitted). If Grace and Owens-Corning wanted the benefit of jury instructions and a verdict form which included other entities that manufactured asbestos products used on the job sites where Mr. Dougherty worked, then Grace and Owens-Corning needed to produce evidence establishing the specifics of different products, how often the products were used on the job sites, and the toxicity of those products as they were used. This evidence would permit the jury to assess more accurately each of the asbestos products of both parties and nonparties on a job site and the likelihood of injury from each of the products. Without that evidence, Grace and Owens-Corning have not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre.

The second issue involves the introduction of the depositions of Earl Lovick and Thomas Egan, former employees of Grace. The trial court allowed the introduction of Lovick's deposition taken in 1983 and Egan's deposition taken in 1988. Lovick and Egan gave these depositions in cases pending in the federal district courts in South Carolina and Nebraska. At trial, Grace made the following objections to the admission of these depositions: (1) There was no showing that Dougherty could not depose Lovick and Egan in this case; (2) There was no relationship to the type of exposure Dougherty may have received from Grace's product and Lovick's testimony of exposures of workers at Grace's Libby, Montana, vermiculite mine in [*749] the 1950's and 1960's; and (3) That Lovick's testimony was irrelevant to this case. If there were more detailed objections to this evidence, we have been unable to find them in the record.

On appeal, Grace argues that the admission of these depositions violates Florida Rule of Civil Procedure 1.330 and section 90.804(2)(a), Florida Statutes (1991) because they are hearsay. Grace presents a compelling argument supported by the rule, the statute, case law, and the commentary in Charles W. Ehrnhardt, Florida Evidence section 804.1 (1992), that the trial court should have admitted these depositions into evidence only after Dougherty's counsel satisfied the trial court that these witnesses were unavailable to testify and to give a deposition in this case. However, Grace did not make this objection to the trial court. "An appellate court will not consider arguments of legal error not raised before the trial court." Steinhorst v. Wainwright, 477 So.2d 537, 539 (Fla. 1985). As recognized by other appellate courts in this state, an appellate court may consider objections to admissibility of evidence only on grounds specifically stated at trial, and when the appellant raises a different ground on appeal, the point is not preserved. See Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. 1st DCA 1991); Johnson v. Canteen Corp., 528 So.2d 1364 (Fla. 3d DCA 1988); Palm Beach Aviation, Inc. v. Kibildis, 423 So.2d 1011 (Fla. 4th DCA 1982).

Finally, Grace argues that the trial court erred by submitting the issue of Grace's negligence to the jury. After reviewing the record, we conclude that the trial court did not err because there was sufficient evidence to permit the jury to decide whether Grace was negligent. Accordingly, we affirm.

FRANK, C.J., and HALL, J., concur.

Sources

• The opinion on Google Scholar
• Florida asbestos laws
• Florida asbestos exposure sites