New Trial Denied Against Boiler Manufacturer; Jury Verdict Not Against Weight of the Evidence

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Superior Court of Delaware, December 22, 2020

On December 20, 2019, following a 10-day jury trial, a jury returned a verdict in favor of Cleaver Brooks, Inc. (Cleaver Brooks), the sole defendant at trial. The jury found that this defendant nor any of the other non-party entities listed on the verdict sheet failed to meet the standard of care of providing a safe work place or defective product to the decedent, Gary Stimson.

During trial, each side presented expert testimony on the issue of whether the defendant, or other listed non-party entities, owed a duty to warn Stimson and whether exposure to these entities’ products caused his development of mesothelioma. The plaintiff’s expert, Dr. Castleman, testified that all companies knew of the dangers of asbestos back to 1898 but could not quantify any exposure to any entity’s product. The plaintiff’s expert, Dr. Spaeth, testified that every exposure to asbestos could have contributed to his exposure, but admitted that the extent of contribution from one exposure to another was not measurable. The defendant’s experts testified that Stimson’s exposure depended on tools that he would have used and opined about what products, if any, probably caused Stimson’s exposure.

On December 18, 2019, the court met with counsel to finalize the jury instructions and verdict sheet. On December 19, 2019, each side presented their closing arguments to the jury. During the defendant’s closing argument, counsel highlighted that if the jury were to accept the testimony of the plaintiff’s experts, then this would suggest that other entities besides the defendant had a duty to warn. On Friday, December 20, on the second and final day of deliberations, the jury sent two notes within 20 minutes of each other that contained three separate questions. The relevant question for purposes of this motion was “Why are companies listed other than Cleaver Brooks?” The court conferred with counsel and after reaching agreement as to the appropriate response, the court brought the jury back to the courtroom, addressed the jurors, and directed to resume deliberations. Four hours later, a jury verdict returned in favor of the defendant.

The plaintiff filed a motion for a new trial arguing that the jury’s verdict demonstrated a fundamental misunderstanding of the issues at trial because it was inconsistent with the facts, instructions, and the alleged agreed upon positions of counsel as to certain non-parties’ liability. The plaintiff also argued that the jury’s note to this court asking, “Why are companies listed other than Cleaver Brooks?” demonstrates that the jury was confused. The defendant opposed the motion maintaining that the jury’s verdict is supported by the substantial weight of the evidence and furthermore, that the plaintiff waived the ability to raise the issue of jury confusion by failing to raise the issue at trial.

Under Superior Court Civil Rule 59(a), a new trial may be granted as to all or part of the issues in an action. The court has broad discretion in considering a motion for a new trial. However, such discretion “‘should be exercised sparingly and cautiously, and . . . should be invoked only in cases in which the evidence preponderates heavily against the verdict.'” For this reason, the court will not upset a jury verdict unless it finds that “‘a reasonable juror could not have reached the result,'” or “the jury’s verdict is clearly the result of confusion.”

The plaintiff argued a new trial is warranted because “no reasonable jury could have found that no entity was negligent or strictly liable” where the defendant admitted as much in its closing argument after counsel pointed out that certain non-parties, specifically CertainTeed, caused Stimson’s mesothelioma. The defendant argued that closing arguments are not evidence, nor did it agree to concede liability as to CertainTeed or any entity. The court found that the plaintiff did not establish that any comments during oral arguments were inconsistent with the facts, the instructions, or that there was any agreement as to certain non-parties’ liability. Therefore, the plaintiff failed to establish entitlement to a new trial on this argument.

Next, the court turned to the plaintiff’s argument that jury ignored the weight of the evidence because of specific statements made by the defendants’ expert about other non-parties’ negligence and specifically, that CertainTeed was responsible for Stimson’s injuries. The court ruled that a jury is entitled to evaluate the testimony and to accept the portion it finds to be believable. While the plaintiff argued that the experts agreed that exposure to asbestos cement pipes was a substantial contributing factor to Stimson’s disease and that CertainTeed was the only entity who manufactured the pipe, Dr. Graham, did not indicate the exposure was a substantial contributing factor; rather that it was probable, therefore, the plaintiff failed to meet her burden and establish what exposures contributed to her husband’s development of mesothelioma.

Regarding the plaintiff’s argument that the jury was confused by their question regarding other parties in addition to Cleaver Brooks being on the verdict sheet, the court agreed with the defendant’s argument that the jury was not confused as reflected by the fact that after it received a response from the court, it was capable of returning a verdict.

The court therefore denied the plaintiff’s motion for a new trial and noted that the plaintiff did not meet her burden under Superior Court Rule 59 to show she is entitled to a new trial. The verdict was not against the great weight of the evidence and the plaintiff failed to preserve her right to argue jury confusion.