Larry Smith worked on various drilling rigs from the mid-1960s until the early 1990s. He was also a heavy smoker. He was diagnosed with lung cancer and died shortly thereafter. His widow and other heirs filed a wrongful death action against several defendants in 2006. At trial, only Union Carbide Corporation, Montello, Inc., and Chevron Phillips Chemical Co. remained. The plaintiffs brought a strict liability claim under a products liability design-defect theory and claimed that Mr. Smith’s exposure to the defendant’s asbestos-containing products on the oil rigs caused his lung cancer. After a three week trial in May 2009, the jury returned a verdict for the plaintiffs.
All of the defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV). The trial judge granted JNOV on the sole issue of causation, specifically, on the plaintiff’s insufficient proof regarding Mr. Smith’s exposure to the defendants’ asbestos products. The trial judge said that “taken as a whole, [the testimony of Mr. Smith’s co-workers] was insufficient to establish that Plaintiffs’ decedent was exposed to any asbestos product of any defendant on a frequent and regular basis in proximity to where Smith actually worked.”
The plaintiffs appealed and the Supreme Court of Mississippi reversed and remanded explaining that “the ‘frequency, regularity, and proximity’ test is a de minimus rule employed to determine whether a plaintiff has successfully made a prima facie case solely in the context of summary judgment or directed verdict.”
Following remand, the trial judge appointed a special master to consider the case. Following briefing and argument, the special master concluded that the JNOV should be reaffirmed, again analyzing the exposure issue only. The special master concluded that in considering “the evidence as a whole under the proper standards for JNOV, I would say it is, at best, a close question, and then only if one gives the non-movant the benefit of all reasonable inferences.” The special master went on to find that deference should be given to the trial judge’s findings because he “was in a far superior position to adjudge the sufficiency of the evidence.” The trial judge adopted the special master’s recommendation and reaffirmed JNOV in favor of the defendants.
The plaintiffs appealed again, arguing 1) that the trial court erred in adopting the special master’s recommendation and reaffirming JNOV and 2) that the trial court erred when it granted deference to the presiding judge instead of the jury which issued a verdict.
The Supreme Court of Mississippi agreed with the plaintiffs on both arguments. First, as to the deference to the trial judge, the court explained that a motion for JNOV tests the legal sufficiency of the evidence supporting the verdict, as such, on remand, the trial judge was to determine from the record whether the plaintiffs had presented legally sufficient evidence to support the verdict. The court noted, however, that the improper deference to the trial judge in and of itself does not require reversal because it reviews a trial judge’s grant of JNOV de novo, so it also considered the argument that the exposure evidence itself was sufficient to support the verdict.
The court explained that a motion for JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. The court, addressing its standard of review, said “if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury’s verdict allowed to stand.” Here, the trial judges had granted JNOV solely on the issue of causation, and specifically on the plaintiffs’ proof regarding Mr. Smith’s exposure to the defendants’ asbestos products so the court limited its analysis to the same. Reviewing the testimony of Mr. Smith’s co-workers, the court found that the plaintiffs “presented sufficient evidence from which a reasonable juror could find that Mr. Smith was actually exposed to the defendants’ products to a sufficient degree such that those particular products could have been a proximate cause of Mr. Smith’s lung cancer.” Therefore, the court reversed the trial judge’s reaffirmation of the JNOV.