Fourth Circuit Upholds $32.7 Million Award in North Carolina Deceased Mesothelioma Case

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U.S. Court of Appeals for the Fourth Circuit, August 24, 2020

On August 24, 2020, the U.S. Court of Appeals for the Fourth Circuit issued a decision upholding a $32.7 million damage award rendered by a North Carolina jury in the matter of Finch v. Covil. The Finch matter involved a 78-year-old deceased mesothelioma claimant, who the plaintiffs allege was exposed to asbestos during his work at the Firestone Tire Plant in Wilson, North Carolina from 1975 to 1995. Specifically, the plaintiffs alleged that Mr. Finch spent the majority of his time in the plant’s curing room, which housed 120 steam-operated tire presses, each of which were connected to asbestos-insulated piping. The plaintiffs alleged that Covil supplied the asbestos-containing pipe insulation, which, according to Mr. Finch’s deposition testimony, was removed and replaced by mechanics within his vicinity, creating visible dust. During trial, the plaintiffs alleged that Covil supplied “miles of insulation” used in the construction of the Firestone plant in the early 1970s. In support of this claim, the plaintiffs offered an invoice for 711 feet of asbestos-containing material supplied to the plant by Covil, and argued that it was therefore reasonable to conclude that Covil supplied the asbestos-containing insulation present in the curing room. Covil did not dispute that it supplied some asbestos-containing insulation to the plant, but maintained that it did not supply the asbestos-containing insulation in the curing room, and that it would be impossible for the plaintiffs to prove that Mr. Finch was exposed to that particular 711 feet of insulation. Additionally, Covil argued that it supplied primarily asbestos-free insulation to Firestone, given that it stopped selling asbestos-containing insulation prior to the plant’s construction, and finally, that the asbestos within the tire presses themselves was the sole cause of Mr. Finch’s mesothelioma. The plaintiffs’ expert, Dr. Edwin Holstein, testified during trial that because Mr. Finch had “daily occasions for breathing the dust from this…[it] amounted to substantial inhalation of asbestos” over the course of time. Mr. Finch was diagnosed with mesothelioma in March 2016 and died in January 2017.

Following a five-day trial, the jury found Covil liable, and awarded $32.7 million in compensatory damages. Covil subsequently moved to renew its motion for judgment as a matter of law, or, in the alternative, for a new trial or remittitur. Following post-trial briefings, the district court held that Covil was entitled to a setoff for pre-trial settlements received by the plaintiffs, but denied all other post-trial relief. Covil appealed, arguing that the district court erred in instructing the jury as to proximate cause during trial and in refusing to reduce the damages award following the verdict.

With regard to causation, Covil argued that the Lohrmann test, which is followed by North Carolina courts when evaluating causation, should have been fully articulated in the court’s jury instruction. Specifically, Covil argued that the court’s instruction omitted the “frequency” and “regularity” components of the Lohrmann test, and as such did not instruct the jury to determine whether there was more than de minimis exposure to asbestos-containing pipe insulation sold by Covil. The Fourth Circuit disagreed with this argument, and held that because the jury instruction “embodie[d] the general principles of law’ set forth by Lohrmann,” the test did not need to be parroted in the court’s instruction. The instruction provided to the jury required a consideration of “how often Mr. Finch was around asbestos-containing insulation ‘sold by Covil,’ and how much exposure to asbestos was attributable to this insulation,” and this permitted the jury to find for the plaintiffs only if it found that there was more than de minimis exposure to the asbestos-containing pipe insulation sold by Covil.

With regard to the jury’s damage award, the Fourth Circuit relied on state law, and held that “without evidence of passion or prejudice, we cannot replace the jury’s considered judgment with our own, or with an amount that Covil would prefer,” finding that that evidence submitted at trial regarding Mr. Finch’s alleged pain and suffering was supportive of the award.