Court of Appeals of Missouri, Eastern District, Second Division
JEANETTE G. POAGE, Respondent,
CRANE CO., Appellant.
from the Circuit Court of the City of St. Louis Cause No.
1322-CC00059 Honorable Rex M. Burlison
Colleen Dolan, Judge
G. Poage ("Mrs. Poage") filed a products liability
suit against Crane Co. ("Crane") alleging that her
husband, James E. Poage ("Mr. Poage") suffered
personal injuries and wrongful death from mesothelioma, which
was caused by Crane's asbestos-containing products. Mrs.
Poage's claims were based on Crane's (1) failure to
warn and (2) defective design under strict liability and
negligence theories. After a trial, the jury returned a
verdict in favor of Mrs. Poage, awarding her compensatory
damages and punitive damages. Crane now appeals arguing there
was insufficient evidence to find Crane liable, and
alternatively, that even if Crane could be found liable, the
amount of punitive damages should be reduced because the
award violates Crane's due process, goes beyond
"fair and reasonable compensation, " and exceeds
Missouri's statutory cap. Additionally, Crane argues the
trial court erred in failing to reduce the judgment by
amounts available in the asbestos trust under § 537.060
and the common law.
Factual and Procedural Background
relevant facts adduced at trial will be discussed under the
relevant points on appeal. Nonetheless, we will briefly
discuss the uncontroverted factual background and the
procedural history of this case here.
Poage joined the Navy in April of 1954. From 1954 until 1958,
Mr. Poage served as a machinist on a World War-II era ship
named the USS Haynsworth. During his service, he
helped upkeep the valves on the Haynsworth, which required
replacing gaskets and packing. Mrs. Poage alleged some of the
gaskets and packing were asbestos-laden products produced by
Crane, which caused Mr. Poage to inhale asbestos dust and
eventually develop mesothelioma. Mr. Poage died from
mesothelioma in May 2012. Mr. Poage was never deposed, as
Mrs. Poage filed the lawsuit after Mr. Poage's death.
January 10, 2013, Mrs. Poage filed her petition in the
Twenty-Second Judicial Circuit Court claiming that that Crane
was liable to her for damages under two different theories:
(1) strict liability and (2) negligence, both of which were
based on defective design and failure to warn. See
Magnuson by Mabe v. Kelsey-Hayes Co., 844 S.W.2d 448,
455 (Mo. App. W.D. 1992) (explaining that a products
liability claim can arise from (1) a design defect, (2) a
manufacturing defect, and/or (3) a failure to warn of
trial was held from June 23, 2015 to July 2, 2015. On July 2,
2015, the jury returned a verdict in favor of Mrs. Poage,
awarding her $1, 500, 000 in compensatory damages and $10,
000, 000 in punitive damages. On September 14, 2015, pursuant
to § 537.060, the trial court reduced the compensatory
award to $822, 250 based on Mrs. Poage's settlement
agreements with joint tortfeasors, and it entered judgment
against Crane for that amount, as well as $10, 000, 000 in
then filed post-trial motions for judgment notwithstanding
the verdict, a new trial, remittitur, and/or an amendment to
the judgment on October 14, 2015. Crane's motion for
judgment notwithstanding the verdict was based on its
contention that Mrs. Poage failed to make a submissible case
by failing to present sufficient evidence to support a
verdict in her favor. On January 12, 2016, all of Crane's
post-trial motions were overruled pursuant to Rule 78.06 and
deemed "final" for purposes of appeal pursuant to
Rule 81.05(a)(2)(A), because the trial court did not rule on
them within 90 days.
now appeals and is seeking (1) "reversal of the judgment
as a matter of law, or at a minimum a new trial, based upon
[Mrs. Poage's] failure to meet her burden of proving
necessary factual prerequisites of the breach-of-duty and
causation elements of her claims"; and (2) reversal, or
at least a substantial reduction, of Mrs. Poage's award
of punitive damages.
I: The trial court did not err in overruling Crane's
motion for judgment notwithstanding the verdict because Mrs.
Poage made a submissible claim.
Crane's first point on appeal, it argues that Mrs. Poage
failed to make a submissible claim because (1) she failed to
establish cause in fact, (2) she failed to establish
proximate cause, and (3) Crane owed no duty to Mr. Poage
because any gaskets or packing on the Haynsworth at
the time Mr. Poage served were not manufactured or supplied
by Crane. Accordingly, Crane contends that the trial court
erred by denying its judgment notwithstanding the verdict.
Standard of Review for Judgment Notwithstanding the
determine whether a judgment notwithstanding the verdict
should have been granted, appellate courts apply
"essentially the same standard" as a de
novo review. Ellison v. Fry, 437 S.W.3d 762,
768 (Mo. banc 2014). When reviewing a circuit court's
denial of a judgment notwithstanding the verdict, the
reviewing court must decide whether the plaintiff made a
submissible case by offering sufficient evidence to support
every element required for liability. Id. In
determining whether the plaintiff made a submissible case, we
view the evidence in the light most favorable to the
plaintiff. Smith v. Brown & Williamson Tobacco
Corp., 410 S.W.3d 623, 630 (Mo. banc 2013) (herein
"Smith II"). We will only reverse the
jury's decision if "there is a complete absence of
probative fact to support the jury's conclusion."
Id. (quoting Dhyne v. State Farm Fire & Cas.
Co., 188 S.W.3d 454, 457 (Mo. banc 2006)). "A
judgment notwithstanding the verdict is a drastic action that
can only be granted if reasonable persons cannot differ on
the disposition of the case." Delacroix v.
Doncasters, Inc., 407 S.W.3d 13, 39 (Mo. App. E.D.
Available Products Liability Claims in Missouri
Missouri products liability law, a plaintiff has three
theories of recovery available to her: strict liability,
negligence, and breach of warranty. Welsh v. Bowling
Elec. Mach., Inc., 875 S.W.2d 569, 572 (Mo. App. S.D.
1994); Linegar v. Armour of America, 909 F.2d 1150,
1152 (8th Cir. 1990). In the present case, the jury found
Crane liable to Mrs. Poage under theories of (1) strict
liability and/or (2) negligence.
Strict Products Liability Claims
determine whether a plaintiff has made a submissible case
based on a strict products liability claim, Missouri applies
the test set forth in Restatement (Second) of Torts, §
402(A), which is codified by § 537.760. Engel v.
Corrigan Co.-Mech. Contractors, Inc., a Div. of
Corrigan Bros., Inc., 148 S.W.3d 28, 30 (Mo. App.
E.D. 2004). To make a submissible case under a strict
products liability theory in Missouri, the plaintiff must
(1) the defendant sold a product in the course of its
business; (2) the product was then in a defective condition,
unreasonably dangerous when put to a reasonably anticipated
use; (3) the product was used in a manner reasonably
anticipated; and (4) the plaintiff was damaged as a direct
result of such defective condition as existed when the
product was sold.
Strong v. Am. Cyanamid Co., 261 S.W.3d 493, 506 (Mo.
App. E.D. 2007), opinion adopted and reinstated
after retransfer (Oct. 6, 2008) overruled on other grounds by
Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo. banc
2013); § 537.760; Restatement (Second) of Torts, §
402(A). Accordingly, "[t]he strict liability theory is
further divided into liability for  defective design of a
product and  liability for failure to warn of an inherent
danger in the product." Linegar, 909 F.2d at
Negligence Products Liability Claims
submit a case for negligence, a plaintiff must show that
"the defendant had a duty to protect him from injury,
the defendant failed to perform that duty, and the
defendant's failure proximately caused his injury."
Strong, 261 S.W.3d at 506. Under both strict
liability and negligence theories, the plaintiff is required
to show a causal connection between the defendant's
conduct and the plaintiff's injury. Id.
a prima facie showing of causation, a plaintiff must show
that the defendant's conduct was "more probably than
not" a cause of injury. Wagner v. Bondex Int'l,
Inc., 368 S.W.3d 340, 350-51 (Mo. App. W.D. 2012). The
plaintiff must prove (1) causation in fact (or "but
for" cause) and (2) proximate causation.
Strong, 261 S.W.3d at 506. Cause in fact is
established if "the plaintiff's injury would not
have occurred 'but for' the defendant's
conduct." Id. Whether the negligent conduct was
the cause in fact is a question for the jury.
Wagner, 368 S.W.3d at 351. Proximate cause, however,
is a question of law, which we review de novo.
Id. at 353.
Cause in Fact
claim that there was insufficient evidence to show its
conduct was the actual cause of Mr. Poage's injuries is
based on three premises: (1) there is no evidence to show Mr.
Poage was even exposed to a Crane product while on the
Haynsworth; (2) Mrs. Poage failed to present
evidence that its valves were defectively designed; and (3)
there was insufficient evidence to show that an adequate
warning would have prevented Mr. Poage's injuries.
Whether Crane's conduct was the "cause in fact"
of Mr. Poage's injuries is a factual question left for
the jury. In Missouri, "[w]e merely instruct the jury
that the defendant's conduct must 'directly
cause' or 'directly contribute to cause' [a]
plaintiff's injury" to establish cause in fact.
Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852,
863 (Mo. banc 1993).
establish actual causation in Missouri, the conduct of the
defendant must be a "substantial factor" in causing
the injury. See id. at 862-63. Generally, the
conduct complained of is a "substantial factor" in
causing an injury if the injury would not have occurred
"but for" its occurrence. Id. However, in
cases where multiple independent torts are alleged to be the
cause of the plaintiff's harm, "substantial
factor" means that the conduct at issue would be
"sufficient in and of itself to cause the injury, "
even if that injury would have occurred due to others'
independent conduct. Id. ("We now
reiterate that the 'but for' test for causation is
applicable in all cases except those involving two
independent torts, either of which is sufficient in and of
itself to cause the injury, i.e., the 'two fires'
cases."). Nonetheless, in Missouri, "we do not use
the terms 1) 'proximate cause, ' 2) 'but for
causation, ' or 3) 'substantial factor' when
instructing the jury." Id. at 863. Instead, we
instruct the jury to determine if the defendant's conduct
directly causes or directly contributes to
cause a plaintiff's injury. Id. The
"substantial factor language 'provides a standard
for the trial court in the exercise of its duty to determine
whether a submissible case has been made[.]'"
Wagner, 368 S.W.3d at 356 (quoting Hagen v.
Celotex Corp., 816 S.W.2d 667, 673)).
Poage alleged that multiple companies contributed to Mr.
Poage's mesothelioma. Accordingly, she must present
sufficient evidence that Crane's valves were at least a
"substantial factor" to submit her case to the
jury. Missouri has not expressly defined how to apply the
substantial factor test in asbestos cases. Chism v. W.R.
Grace & Co., 158 F.3d 988, 992 (8th Cir. 1998);
see also Wagner, 368 S.W.3d at 353-54. The majority
of courts apply a "frequency, regularity, and
proximity" standard to determine if a defendant's
conduct was a substantial factor in causing a plaintiff's
injury in asbestos cases. Chism, 158 F.3d at 992. In
applying this test, a court primarily looks at four factors:
(1) exposure to a particular product; (2) the frequency of
the exposure; (3) the duration of the exposure; and (4) how
closely the plaintiff worked with the asbestos-containing
product. Id. Like the Western District in
Wagner, we decline to decide if Missouri courts
should adopt the "frequency, regularity, and
proximity" test used by the majority of courts.
Wagner, 368 S.W.3d at 354. Nonetheless, common sense
tells us more frequent exposure, lengthier exposure, and
being in close proximity to asbestos dust will all increase
the likelihood of causing mesothelioma. In the present case,
the jury found Crane's valves "directly caused"
or "directly contributed to case" Mr. Poage's
mesothelioma, thus finding Crane's asbestos-laden valves
were the cause in fact of his injury. Tom Thompson, another
machinist on the Haynsworth, testified that: (1) he worked
side-by-side Mr. Poage for "almost four years of [his]
life" in the "40-by-40 foot [engine] room" on
the Haynsworth; (2) he and Mr. Poage worked on every
valve in the forward engine room, which included Crane
valves; and (3) Mr. Poage did everything on the
Haynsworth that he did. Accordingly, there was
sufficient evidence to establish Crane's valves were a
"substantial factor" in causing Mr. Poage's
to Crane Valves
acknowledges that evidence was sufficient to show that the
Haynsworth was equipped with valves that contained
asbestos, however, they assert that "the record is
silent" on which types of valves Mr. Poage may have
encountered. We disagree. There is a substantial amount of
evidence that shows Mr. Poage was exposed to asbestos-laden
Crane valves during his four year tenure on the
Poage presented evidence that Crane sold many
asbestos-containing valves and gaskets to the Navy and that
such products were installed on the Haynsworth.
Although no witness could recall a specific time they saw Mr.
Poage working with relevant Crane products, Mrs. Poage
adduced sufficient evidence for a reasonable jury to find
Crane directly caused or directly contributed to causing Mr.
Poage's injuries. As discussed in the substantial factor
analysis infra, Thompson testified that (1) he
worked side-by-side with Mr. Poage for "almost four
years of [his] life in a "40-by-40 foot [engine]
room" on the Haynsworth; (2) he worked on every
valve in that engine room, including Crane valves; and (3)
Mr. Poage would have worked on Crane valves as well, because
Mr. Poage did everything that Thompson did. Accordingly, the
evidence contradicts Crane's assertion that there was
"no evidence to show that Mr. Poage encountered
asbestos-containing materials associated with a Crane
valve." Given that there was sufficient evidence for a
jury to find Mr. Poage was exposed to asbestos from Crane
valves, there was sufficient evidence to find the exposure
directly caused or contributed to his mesothelioma. The jury
was presented with further evidence of the causal connection
when James Strauchen, M.D., Mrs. Poage's pathology and
causation expert, testified that all types of asbestos cause
mesothelioma and asbestos exposure is the only
proven cause of the disease.
the evidence "in the light most favorable to the
jury's verdict, giving the plaintiff all reasonable
inferences and disregarding all conflicting evidence and
inferences." Smith II, 410 S.W.3d at 630.
Furthermore, we will only reverse the jury's decision if
"there is a complete absence of probative fact to
support the jury's conclusion." Id.
(quoting Dhyne, 188 S.W.3d at 457). Given
Thompson's testimony and the length of time Mr. Poage
worked in the engine room on the Haynsworth, there
is sufficient evidence for a reasonable trier-of-fact to
conclude Mr. Poage was "more likely than not"
exposed to Crane asbestos-containing valves. See
Strong, 261 S.W.3d at 511 ("Generally, the fact
that only circumstantial evidence is presented on a material
issue is no bar to recovery." However, "[t]he proof
must be realistically tailored to the circumstances and the
existence of a defect may be inferred from circumstantial
evidence with or without the aid of expert evidence.").
For the foregoing reasons, there was sufficient evidence for
a jury to find Crane valves, at minimum, "directly
contributed" to Mr. Poage's mesothelioma.
of Evidence to Show a Design Defect Existed
Crane contends that Plaintiff failed to present sufficient
evidence to show their valves had a design defect, because
there was no evidence that using "asbestos-containing
gaskets or packing" was required for the valves
installed on the Haynsworth. A product is considered
to have a design defect when, "a design is itself
inadequate, rendering the product unreasonably dangerous
without regard to whether a warning is given[.]"
Moore v. Ford Motor Co., 332 S.W.3d 749, 757 (Mo.
cites Smith I to support its contention that when a
design of a piece of equipment is compatible for use with
both asbestos-containing and non-asbestos-containing
components, "there is no basis for concluding that the
equipment's design caused [Mr. Poage's] injury."
Smith v. Brown & Williamson Tobacco Corp., 275
S.W.3d 748, 792 (herein "Smith I"). This
is unpersuasive. Smith I actually supports Mrs.
Poage's position: "the defect is in the design given
that the manufacturer had deliberately added or
omitted the challenged component and has presumably made that
decision after balancing a variety of factors."
Id. (emphasis added). There is no dispute that Crane
deliberately added asbestos-containing components to its
valves before placing them in the stream of commerce.
Moreover, Dr. Anthony Pantaleoni ("Dr.
Pantaleoni"), the vice president of environment health
and safety for Crane, acknowledged that Crane specified the
use of asbestos-containing components in its valve design
drawings for some valves used on the
Haynsworth. Additionally, Mrs. Poage's expert
witness in industrial hygiene, Steven Paskal
("Paskal"), testified at trial that for the valves
to properly function for a "full range" of
applications, asbestos-containing gaskets and packing were
required, not merely available. Crane
designed and sold valves that incorporated
asbestos-containing components. Although the valves could be
used with non-asbestos containing gaskets, doing so would
limit the utility of the product. Crane even specified that
asbestos-containing gaskets should be used to replace old
gaskets. Accordingly, the jury had sufficient evidence to
conclude the relevant Crane valves were defectively designed.
of Evidence to Show Failure to Warn Was the Cause of
plaintiff to establish the cause of injury based on a failure
to warn, he must show that a plaintiff would have heeded the
warning and altered his behavior if an adequate warning
existed. Moore, 332 S.W.3d at 762. The Supreme Court
of Missouri recognized the difficulty a plaintiff would have
proving he would have acted differently if the product
contained a warning:
[The plaintiff] is correct that where, as here, no warning is
given, then evidence of what a person would have done had a
warning been given inherently is hypothetical in character.
Yet, to show causation, a plaintiff must show that the
absence of a warning was the proximate cause of the injury.
As a matter of logic, to accomplish this a plaintiff must
show that she did not have the information the warning would
have imparted already and that, if she had the information,
it would have affected her conduct. This creates a
'Catch-22' in which the plaintiff must prove what she
would have done had a warning been given to prove causation,
but evidence on this issue must be precluded as speculative.
Id. at 762-63.
courts avoid this dilemma by presuming that if a product
contained an adequate warning, "it would have been
heeded." Id. at 763. Nonetheless, this
presumption is rebuttable. Id. Crane contends that
Mrs. Poage was "required to introduce evidence that the
lack of a warning on the valves caused Mr. Poage's
harm." However, as our Supreme Court noted in
Moore, Missouri helps the plaintiff meet this
evidentiary burden by presuming that a warning will be
heeded. Id. at 762-63. A plaintiff is only required
to show he lacked adequate knowledge of the risks associated
with use of the product to receive the presumption, and this
presumption "would make a prima facie case that had [the
defendant] given [the plaintiff] an adequate warning, [the
plaintiff] would have heeded it." Id. at 762.
attempted to rebut this presumption by arguing that Mrs.
Poage presented "no evidence that Navy would have
permitted Mr. Poage to accept that warning and deviate from
his Navy-directed duties and work practices." This
contention is supported by Thompson's testimony that
"[o]ne thing [he] learned when [he] went to the Navy was
[he had to] take orders. There was no getting out of
[it]." Nonetheless, we disregard all conflicting
evidence and inferences. Smith II, 410 S.W.3d at
630. Also, the jury need not accept the testimony as true,
and a reasonable jury could believe Thompson's testimony
and still conclude the lack of warning caused Mr. Poage's
mesothelioma. Even if Mr. Poage would have had to continue
working with the asbestos gaskets per the Navy's
directions, he could have taken steps to prevent-or at least
minimize-his exposure by taking precautionary measures. For
example, he could have possibly worn protective gear to
prevent inhalation of asbestos dust, or he could have
possibly taken steps to improve ventilation.
also argued that, even if they had placed an adequate warning
on the valves, there was insufficient evidence to show that
the warning would have reached Mr. Poage. We disagree.
Thompson testified that machinists like he and Mr. Poage had
onboard access to manufacturer's equipment manuals for
"[e]very piece of machinery." If Crane had included
a warning in the manual accompanying the valves, there is a
factual basis for concluding the warning would have likely
reached Mr. Poage. Although Crane's argument that the
warnings would not have reached Mr. Poage is logical and may
be persuasive to some jurors, on review, we will only reverse
the jury's decision if "there is a complete absence
of probative fact to support the jury's conclusion."
Smith II, 410 S.W.3d at 630 (quoting Dhyne,
188 S.W.3d at 457). Although the jury could have concluded
Mr. Poage would not have heeded any warning, it could also
conclude Thompson's testimony was not persuasive enough
to rebut the presumption. We find there was sufficient
evidence for the jury to conclude Mr. Poage would have heeded
a proper warning of the valves' unreasonable danger if
Crane had included it on the product.
argues that Mrs. Poage "failed to present sufficient
evidence from which a reasonable juror could conclude that an
asbestos-containing gasket or packing associated with a Crane
valve was the proximate cause of Mr. Poage's
mesothelioma." As aforementioned, "proximate
cause" is a legal determination.
Wagner, 368 S.W.3d at 353; see also
Callahan, 863 S.W.2d at 863 (explaining that Missouri
jury instructions "do not use the terms 1)
'proximate cause, ' 2) 'but for causation, '
or 3) 'substantial factor'…[w]e merely
instruct the jury that the defendant's conduct must
'directly cause' or 'directly
contribute to cause' plaintiff's injury")
(emphasis added). Accordingly, it is the trial court's
role-not the jury's function-to determine if a
defendant's conduct is the "proximate cause" of
the plaintiff's injuries; "[w]hile causation in fact
is a question for the jury, '[p]roximate cause is a
question of law for the trial court.'"
Wagner, 368 S.W.3d at 354 (quoting Payne v. City
of St. Joseph, 135 S.W.3d 444, 451 (Mo. App. W.D. 2004)
(emphasis added)). Accordingly, whether there was
"sufficient evidence from which a reasonable juror could
conclude" Crane's valves were the proximate cause of
Mr. Poage's mesothelioma is irrelevant. However, because
"proximate cause" is a prerequisite for making a
submissible case, we will briefly address it here. See
Smith II, 410 S.W.3d at 630 (explaining that a plaintiff
must adduce sufficient evidence to support every essential
element of a claim to make a submissible case).
general test for proximate cause is whether an injury is
"a reasonable and probable consequence" of a
defendant's act or omission. Sanders v. Ahmed,
364 S.W.3d 195, 210 (Mo. banc 2012). Effectively, even if
actual causation is established, proximate cause limits a
defendant's liability to injuries that are "the
natural and probable consequences of a defendant's
actions"; damages that are "surprising, unexpected,
or freakish" cannot be recovered. See id.;
see also Wagner, 368 S.W.3d at 354. As the Western
District has noted, causing a plaintiff's mesothelioma
and eventual death after exposing him to asbestos for several
years "is not surprising, unexpected, or freakish, nor
is it an unreasonable or improbable consequence."
Wagner, 368 S.W.3d at 354. Accordingly, Mrs. Poage
presented sufficient evidence to establish that Crane's
conduct was the proximate cause of Mr. Poage's injuries.
Crane's Duties to Mr. Poage
contends that Mrs. Poage's evidence "failed to
establish that Crane owed a duty to Mr. Poage" because
they did not manufacture, sell, or otherwise place
asbestos-containing products into the stream of commerce.
Crane argues that it should not, and cannot, be held liable
under a strict liability or negligence theory for another
company's manufacturing or distribution of hazardous
products. It should be noted that the question of
"duty" is only relevant to Mrs. Poage's
contends, "In Missouri, product-liability claims lie
only against those entities that manufacture, sell, or
otherwise place into the stream of commerce the harm-causing
product, " and "[t]his is true whether the action
is based in strict liability or negligence." Crane also
argues that under § 537.760 it is categorically immune
to a products liability lawsuit because their product did not
have a design defect and it was not unreasonably dangerous at
the time it was transferred in the chain of commerce. See
Feiteira v. Clark Equip. Co., 236 S.W.3d 54, 59 (Mo.
App. E.D. 2007). Furthermore, Crane asserts that it is
undisputed that it did not manufacture any
asbestos-containing products. Rather, Crane insists that its
valves did not contain asbestos, while conceding that some
materials "available for use" in conjunction with
Crane valves, such as certain gaskets and packing seals, were
"impregnated with asbestos fibers during the time period
when Mr. Poage served aboard the Haynsworth."
Crane's assertion misleading. The record shows that
Crane's corporate witness, Dr. Pantaleoni, testified at
trial that Crane provided the Navy with valves that used
asbestos-containing gaskets and packing for use on the
Haynsworth. Dr. Pantaleoni further testified that
Crane worked with the Navy to produce the Navy department
master parts book, which identified the proper parts for
replacement with their valves. Dr. Pantaleoni confirmed that
the book called for asbestos-containing parts for the Crane
valves used by the Navy. Moreover, Mrs. Poage's expert
witness in industrial hygiene, Paskal, testified at trial
that for the valves to properly function for a "full
range" of applications, asbestos-containing gaskets and
packing were required, not merely
available. Paskal also testified that the manual
Crane packaged with its valves specified the use of
asbestos-containing gaskets. (See Matter of New York City
Asbestos Litig.27 N.Y.3d 765, 793 (2016) ("[T]he
manufacturer of a product has a duty to warn of the danger