court of appeals

Judgment Against Joint Compound Defendant Upheld on Appeal

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Court of Appeals of Oregon, October 5, 2022

Plaintiffs Donald Miller and Linda Miller filed a lawsuit to recover damages for injuries Donald allegedly sustained as a result of exposure to asbestos-containing products during his lifetime.  At the time of trial, Kaiser Gypsum Company was the only remaining defendant.  As to Kaiser Gypsum, Plaintiffs alleged that Donald was exposed to asbestos-containing joint compound while employed as a mechanical insulator between October 1966 and April 1969.   

At the conclusion of trial, the jury returned a verdict in favor of Plaintiffs.  The trial court entered a judgment requiring Kaiser Gypsum to pay $5,233,618 in damages.  Kaiser Gypsum appealed, raising the following three allegations of error: (1) the trial court improperly concluded that Plaintiffs’ action “arose” in the 1960s and Kaiser Gypsum was therefore jointly and severally liable for Plaintiffs’ damages, (2) the trial court’s jury instruction on “recklessness,” with respect to the defense of comparative fault, was erroneous, and (3) even if not erroneous, the trial court should have granted a directed verdict for Kaiser Gypsum on that issue because there was insufficient evidence to establish that Kaiser Gypsum acted recklessly.  

The Court of Appeals began by addressing Kaiser Gypsum’s second and third allegations of error.  

As to the trial court’s instruction on “recklessness,” Kaiser Gypsum argued, in part, that the instruction “does not describe reckless conduct but, instead, what [Kaiser Gypsum] calls wanton, willful, and intentional conduct.”  Although the Court acknowledged that the case law contained inconsistencies, it noted that “wanton” or “reckless” conduct is an “aggravated form of negligence” that is distinguishable from “intentional misconduct.” The trial court’s instruction that in order to find Kaiser Gypsum reckless, the jury must find an intent to act but need not find an intent to harm was a correct recitation of the legal standard for “wanton” or “reckless” conduct rather than “intentional misconduct.”  

As to the trial court’s denial of Kaiser Gypsum’s motion for a directed verdict on the “recklessness” issue, the Court concluded that, viewing the evidence in the light most favorable to Plaintiffs, it could not say that there was “no evidence to support a finding that [Kaiser Gypsum] acted ‘recklessly’ as that term was defined.”  

As a result of its determination that Kaiser Gypsum’s second and third allegations of error lacked merit, the Court found that the defense of comparative fault was unavailable to Kaiser Gypsum.  Finally, as to the first allegation of error, the Court noted that, even if the trial court improperly found that the action “arose” in the 1960s rather than 2018, when Donald developed mesothelioma symptoms, “it would have no effect on [Kaiser Gypsum’s] liability, because the jury’s ‘recklessness’ finding would independently take [Kaiser Gypsum] outside the scope of the several-only liability statute, such that [Kaiser Gypsum] would still be subject to common-law joint and several liability.”   

In rejecting Kaiser Gypsum’s second and third allegations of error, and in concluding that any error in applying joint and several liability based on when the action “arose” was harmless, the Court of Appeals affirmed the judgment.   

Read the full decision here