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Poage v. Crane Co.

Court of Appeals of Missouri, Eastern District, Second Division

May 2, 2017

JEANETTE G. POAGE, Respondent,
v.
CRANE CO., Appellant.

         Appeal from the Circuit Court of the City of St. Louis Cause No. 1322-CC00059 Honorable Rex M. Burlison

          OPINION

          Colleen Dolan, Judge

         Jeanette 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.[1]

         I. Factual and Procedural Background

         The 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.

         Mr. 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.

         On 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 danger).

         A jury 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 punitive damages.

         Crane 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.[2]

         Crane 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.

         II. Discussion

         Point I: The trial court did not err in overruling Crane's motion for judgment notwithstanding the verdict because Mrs. Poage made a submissible claim.

         In 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.

         a. Standard of Review for Judgment Notwithstanding the Verdict

         To 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").[3] 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. 2013).

         b. Available Products Liability Claims in Missouri

         Under 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.

         c. Strict Products Liability Claims

         To 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 show:

(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 [1] defective design of a product and [2] liability for failure to warn of an inherent danger in the product." Linegar, 909 F.2d at 1152.

         d. Negligence Products Liability Claims

         To 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.

         e. Causation

         To make 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.

         1. Cause in Fact

         Crane's 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).

         Substantial Factor

         To 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.[4] 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.[5] 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)).

         Mrs. 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 mesothelioma.

         Exposure to Crane Valves

         Crane 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 Haynsworth.

         Mrs. 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.

         We view 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.

         Sufficiency of Evidence to Show a Design Defect Existed

         Additionally, 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. banc 2011).

         Crane 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.[6] 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.

         Sufficiency of Evidence to Show Failure to Warn Was the Cause of Injury

         For a 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.

         Missouri 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.

         Crane 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.

         Crane 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.

         2. Proximate Cause

         Crane 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).

         The 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.

         3. Crane's Duties to Mr. Poage

         Crane 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 negligence claim.

         Crane 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."

         We find 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 ...


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