Court of Appeals Court

Obsolete Statute Sufficient to Support Plaintiffs’ Victory

Court of Appeals of Oregon, October 5, 2022

Plaintiffs, Donald Miller and his wife Linda Miller (hereinafter “plaintiffs”), asserted claims of negligence, strict product liability, and loss of consortium based on Donald’s exposure to an asbestos-containing construction product sold by Kaiser Gypsum Company, Inc. (hereinafter “Kaiser”) in the 1960s.  At the time of trial, Kaiser was the only defendant remaining.  The jury returned a verdict in plaintiffs’ favor on all three claims and required Kaiser to pay $5,233,618 in damages to plaintiffs.  Kaiser appealed and raised three assignments of error, on joint and several liability and jury instructions. 

First, Kaiser argued the court erred when it failed to apply the modern day several-only liability statue.  The court reasoned that the action “arose” from events in the 1960s and as such, applied the joint and several liability as it existed then.  Kaiser contended that the modern several-only law should be applied since Donald was diagnosed with mesothelioma in 2018.  The court took this issued under advisement, but was ultimately unpersuaded.  Simultaneously, the plaintiffs amended their complaint to alleged Kaiser’s negligence was “wanton and reckless” in nature, to prevent Kaiser from utilizing the defense of comparative fault.  The plaintiffs then filed their fourth amended complaint, contending that their claims were not subject to Oregon’s comparative-fault statute.  The court permitted both amendments despite Kaiser’s opposition. 

Second, Kaiser moved for directed verdict on plaintiffs’ “wanton and reckless conduct” allegation, thus prompting plaintiffs to withdraw their allegation of wanton conduct.  The plaintiffs argued that sufficient evidence existed to create a jury issue concerning whether Kaiser engaged in “reckless conduct.”  The court denied Kaiser’s motion.  At the close of evidence, the plaintiffs proposed a jury instruction that employed the same definition for “recklessness” as its earlier proposed instruction for “wanton and reckless,” despite withdrawing their wanton allegation.  The jury returned a verdict in favor of the plaintiffs, thus prompting Kaiser’s appeal. 

The Court of Appeals first examined Kaiser’s second two arguments concerning jury instructions.  Kaiser argued that plaintiffs misled the court and itself by claiming to withdraw the claim on “wanton” but then requesting a jury instruction that described wanton conduct.  The Court of Appeals determined the trial court committed no error and it was of no consequence that the instruction defined “recklessness” and that Kaiser failed to provide any argument to persuade the lower court to consider a definition of “wanton” in the alternative. 

Next, Kaiser asserted the jury instruction was legally incorrect because it described wanton, willful, and intentional conduct, instead of reckless conduct as it so claimed.  It contended the court erroneously provided the description of “intentional” misconduct instead of the “recklessness” definition it should have provided.  The Court of Appeals was again unpersuaded.  It ruled, “Although the historical cases law contains inconsistencies, the Supreme Court recently affirmed that ‘wanton’ (or reckless’) conduct is an aggravated form of negligence that differs from ‘intentional’ misconduct.  ‘Intentional’ misconduct involves not only a conscious intent to act but also a conscious intent to cause harm.”  Miller v. AgripacInc. 2022 Ore. App. LEXIS 1366, at *33 (Ct. App Oct. 5, 2022, No. A174355).  It reasoned the jury instruction was proper, determining the jury needed to find that Kaiser intended to act, but did not need to find Kaiser intended to cause harm to plaintiffs. 

After the Court of Appeals denied Kaiser’s motion for a directed verdict.  Kaiser contended the plaintiffs’ evidence was legally insufficient for a reasonable jury to find that Kaiser knew or had reason to know the use of its product would expose workers to airborne asbestos at levels sufficient to make it highly probable they would experience harm.  The court simply stated, “We do not believe that it would be particularly helpful to the bench or bar to recount the specific evidence in this case.  We have carefully reviewed the evidence, and we agree with plaintiffs that it was sufficient to go the jury.”  Miller, LEXIS 1366 at *35.   

Finally, the court examined Kaiser’s appeal concerning joint and several liability.  It determined that precedent supported plaintiffs’ argument that any wrongdoing on the trial court was harmless error.  In Shin v. Sunriver Preparatory School, Inc., the court concluded that Oregon’s several-only-liability statute and its apportionment mechanism statute limited the scope of defendants who could use the several-only statute and therefore the defense of comparative fault toward an also-negligent plaintiff.  199 Or App 352 (2005).  Moreover, any defendant not included in such group was likewise not protected by the several-only-liability statute.  The court found that Kaiser made no argument to distinguish itself from Shin or suggest any error.  Since Kaiser would not have been in this group, the court determined any potential error on the part of the trial court would be harmless and affirmed all three rulings.  

Read the full decision here