WASHINGTON – The plaintiff filed suit against the defendants including Scapa Dryer Fabrics (Scapa) alleging her husband, Mr. Barabin, developed mesothelioma as a result of his work at Crown-Zellerbach paper mill in Camas, Washington. Mr. Barabin worked as a spare hand, which included working directly on the paper machines at the mill. Part of his work including using high pressure hoses to blow dust out of the dryers. Suit was brought against the defendants on theories of product liability design, failure to warn, and negligence. Trial was held in 2009 with an award of $700,000 for economic damages and $9,500,000 in non-economic damages. On appeal, the Ninth Circuit remanded the case holding that the District Court erred in determining expert issues under Daubert. A second trial was held. A verdict of $750,000 for economic damages an $306,000 in non-economic damages was found by the jury. The plaintiff moved for a partial new trial on the issues of non-economic damages. Specifically, the plaintiff claimed that the jury “assessed grossly inadequate non-economic damages” which were a result of improper statements made Scapa during trial. The court disagreed. According to the court, a new trial may be undertaken pursuant to Federal Rule 59(a) when the verdict is “clearly not supported by the evidence.” Relying on the Holzhauer decision, the court was unconvinced that the plaintiff’s evidence was anything other than an intangible concept with regard to “enjoyment of life, affection and companionship.” Moreover, the court was satisfied that the deliberation process was proper since the plaintiff agreed that the jury instructions were not improper. As for the plaintiff’s claims that Scapa’s counsel made improper statements to the jury concerning the plaintiff’s exposure to asbestos from other entities, the court was unpersuaded. Here, the plaintiff was the first to offer or discuss the status of the other entities by alerting the court that although others were sued, Scapa was the last remaining defendant. And more importantly, statements made by counsel do not constitute as evidence. Therefore, the plaintiff’s motion was denied.
The court then turned toward Scapa’s motion for judgment as a matter of law. Scapa maintained that the plaintiff failed to present evidence to find negligence, prove causation and that Mr. Barabin was exposed to Scapa’s dryer felts. At the outset, the court noted that the standard for a renewed motion for judgment requires the movant to show that the plaintiff “failed to support her claims with substantial evidence.” the plaintiff took the position that Scapa had not previously raised the argument as to negligence and should not be permitted to do so now. The court agreed but also noted that the argument failed even if it had been previously raised. Scapa took the position that the jury couldn’t have found Scapa negligent since it did not find Scapa liable on the product defect claims. From that premise, Scapa argued that the only negligence finding the jury could have made was on a failure to warn issue with respect to Mr. Barabin’s unintended use of the dryer felts. Therefore, Scapa contended that it had no duty to warn under those circumstances. The court rejected that premise as the court’s instructions stated that negligence was the “failure to exercise ordinary care” as opposed to just designing a reasonably safe product. Finally, Scapa argued that causation was not proven by the plaintiff. Specifically, Scapa argued that the plaintiff’s exposure to its dryer felts was nothing more than theory or speculation. For example, during 1974 and 1975 the evidence showed that 41 out of 83 sheets were provided by Scapa and that the plaintiff’s work on the numbers 5 and 6 machines were “occasional” at best. Although the court understood Scapa’s position it noted that the jury could have chosen either conclusion on causation. Therefore, Scapa’s argument as to causation was denied. Scapa made a last attempt on its motion by arguing that expert testimony from Drs. Compton and Brodkin were inadmissible. The court noted that Scapa’s arguments were very similar to its arguments made at the previous Daubert hearing. And although the court conceded that Dr. Compton’s testimony may have not met the rule’s standard for “fit” requirement”, Scapa failed to show that Dr. Compton’s testimony should have been excluded. Consequently, Scapa’s motion for judgment was denied.