Barone v. Gatx Corp.

Citations: 857 N.E.2d 155; 167 Ohio App. 3d 744; 2006 Ohio 3221Docket: No. 2005-T-0069.

Court: Ohio Court of Appeals; June 23, 2006; Ohio; State Appellate Court

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John Crane, Inc. appeals a May 13, 2005 judgment from the Trumbull County Court of Common Pleas that denied its motion for judgment notwithstanding the verdict and granted a new trial on damages to James G. Barone, executor of Lee Barone's estate. Lee Barone died from pleural mesothelioma, attributed to asbestos exposure during his employment at GATX Corporation from 1944 to 1984. Barone's estate filed a claim for employer intentional tort and wrongful death against multiple parties, including John Crane, alleging that exposure to asbestos during his employment caused his injuries and eventual death. 

During a jury trial from November 8 to November 12, 2004, it was established that Barone worked in a temporary paint shop without adequate separation from the repair shop, where asbestos dust was present, for 18 months starting in 1961. Appellant filed a motion to exclude expert testimony regarding Barone's asbestos exposure outside this period, which the trial court denied. After the jury found in favor of Barone, awarding $32,600 in compensatory damages but no punitive damages, Barone's estate sought a new trial on damages. 

On May 13, 2005, the court denied Barone's motion for additur and John Crane's motion for judgment notwithstanding the verdict while granting Barone a new trial on damages. John Crane raised five assignments of error on appeal, challenging the trial court's decisions regarding the verdict, the admission of evidence regarding asbestos products, the granting of a new trial, and the expert testimony allowed at trial.

Appellant's first assignment of error questions whether sufficient case law and evidence were presented to support its motion for judgment notwithstanding the verdict. Three primary arguments are made: 

1. Appellee did not provide evidence that the decedent was actually exposed to appellant's products.
2. The expert testimony from appellee claiming appellant's products were a substantial factor in the decedent's harm was legally insufficient.
3. Appellee failed to demonstrate that appellant did not warn of health hazards during the decedent's exposure.

Regarding the first argument, Civ.R. 50(B) allows for a motion to set aside a verdict if the evidence is insufficient, with the appellate court reviewing the trial court's decision de novo. Such motions focus on legal sufficiency rather than factual disputes, requiring the appellate court to view evidence favorably for the nonmoving party. If reasonable minds could only conclude that the plaintiff did not meet the burden on any essential element, judgment should be granted in favor of the moving party.

The leading case on asbestos litigation in Ohio, Horton v. Harwich Chem. Corp., establishes that a plaintiff must prove exposure to the defendant's product and that it was a substantial factor in causing injury. Although the plaintiff does not need to show regular or close exposure, they still must demonstrate exposure to the defendant's products. Appellee contends that evidence of exposure to dust from John Crane's asbestos-containing products suffices. However, it is essential to establish that GATX used or purchased appellant's products during the relevant exposure time, as without this, exposure to the product dust is impossible. Appellee presented testimonies from three former GATX employees and video testimony from another individual to support claims of the decedent's exposure to appellant's products.

Appellant argues that appellee has failed to provide any evidence that the decedent was in contact with John Crane asbestos-containing products during the relevant timeframe. In contrast, appellee asserts that testimony from four former GATX workers supports the claim that John Crane products were used in the repair shop, leading to the decedent's asbestos exposure in 1961 and 1962. The court must first evaluate whether sufficient evidence exists to confirm that GATX purchased or utilized John Crane products during this period. 

Greer, the first witness for appellee, testified about his 25 years at GATX starting in 1960 and his familiarity with the decedent. He detailed his various roles at GATX, including timekeeping, and explained that asbestos was used in repairing railroad tank cars. Greer noted that the repair orders specified which gaskets were to be replaced, indicating they contained asbestos. He clarified that GATX sourced gaskets from multiple suppliers, and although he mentioned JM60 gaskets from Johns Manville, he acknowledged that the bill of materials did not specify manufacturers. Greer confirmed that similar drawings from earlier years had older nomenclature and recognized documents from 1968 describing gaskets as 'all gaskets JM60 or equal.' He stated that any gasket fitting the requirement would be used, regardless of the manufacturer. 

Additionally, Greer identified purchase orders from 1976 to 1979 that included gaskets from John Crane, among others, and asserted that the types of materials ordered in 1961 and 1962 would have been consistent with those from later years. He concluded that, to his knowledge, the suppliers remained unchanged from 1961 through 1979.

Greer became aware of John Crane products at GATX in 1965 while working in the receiving department, despite previously stating during a 2004 deposition that he first saw them in the mid-seventies. He maintained that his trial testimony reflected his accurate recollection from 1965. Leone, who worked at GATX from 1947 until its closure, did not provide information regarding the purchase or use of John Crane asbestos products. Pass, employed at GATX starting in 1962, acknowledged he was unaware of the manufacturers of asbestos materials at that time but later recalled that one material he cut, identified by a 'J' in the middle, was from John Crane, which he learned only later in his career. Candor, who worked at GATX from 1962 until its shutdown, did not testify about the presence of John Crane products at the facility. The Ohio Supreme Court noted that reviewing evidence is crucial for legal questions, and while appellee claimed there was uncontroverted testimony about the use of John Crane asbestos products, the court found insufficient evidence to submit to the jury for years prior to 1965. The court agreed with the appellant that it was speculative to conclude that John Crane was among the suppliers of asbestos gaskets, given the lack of evidence regarding the number of manufacturers at that time.

Appellee asserts that Mr. Greer's response to whether there was a John Crane 'equivalent' to the JM60 asbestos material was misrepresented. Greer's actual statement indicated that he used available gaskets without regard to the supplier. He referred to a 1968 building order estimate that specified 'All gaskets JM60 or equal,' which Greer acknowledged was similar to orders from 1960 or 1962. However, similarities in forms do not guarantee that the information would be consistent across years. Appellee claims that engineering drawings for Crane gaskets from 1971 were typical of earlier designs, but this does not imply that gaskets from those years were from the same manufacturer.

Additionally, Pass identified John Crane products after consulting a catalog, but he only worked in the repair shop starting in 1965 and lacked knowledge of different asbestos manufacturers at that time. The strongest evidence presented by appellee comes from Greer's testimony about purchase orders from 1976 to 1979, which included John Crane gaskets. When questioned about the similarity of materials from 1961 and 1962, Greer speculated that they would be the same, despite never working in purchasing and only becoming aware of John Crane products in 1965.

The conclusion drawn is that Greer's testimony regarding GATX's purchase of John Crane products in the early 1960s lacks a reliable basis and is speculative. While appellee acknowledges that plaintiffs can prove exposure through circumstantial evidence, he cites a precedent (McGee v. Goodyear Atomic Corp.) that underscores the challenge of obtaining direct evidence of exposure over extended periods, necessitating reliance on indirect evidence.

In McGee, the plaintiff successfully used circumstantial evidence to establish that TCE exposure caused the decedent's liver cancer. Similarly, in the current case, there was circumstantial evidence indicating that the decedent was exposed to asbestos fibers that caused his mesothelioma. However, there was no evidence, circumstantial or direct, linking John Crane's products to the decedent's exposure during the relevant time frame. The case of Bush v. Abex Corp. was cited for comparison; however, its facts differed significantly as there were testimonies from other employees confirming exposure to the defendant's products during the plaintiff's employment. The court clarified that while a plaintiff does not need to prove regular exposure to a specific product, some evidence must show the product's presence at the plaintiff's workplace during the time of alleged exposure. In this case, the evidence did not support the presence of appellant's products at GATX from 1961 to 1962, leading to the conclusion that the facts were unfavorable to the appellee. 

Regarding the second assignment of error, the appellant contended that the trial court incorrectly admitted evidence of the presence of its products at GATX after 1962, claiming it was irrelevant since the decedent's exposure was limited to an 18-month period starting in early 1961. The court agreed, citing the Supreme Court of Ohio's ruling on the trial court's discretion in evidence admissibility, emphasizing that relevant evidence must impact the determination of the case. The court referenced Brooks v. Mihm, which affirmed the exclusion of irrelevant evidence outside a specific time frame. Consequently, the trial court was found to have abused its discretion in admitting evidence regarding the products being used after 1962.

Evidence regarding John Crane products' presence at GATX during the decedent's alleged exposure is irrelevant. The appellant's second assignment of error is valid, while the third and fourth assignments are moot due to the resolution of the first two. In the fifth assignment, the appellant contends that the trial court improperly allowed expert William Ewing to present surprise opinions at trial that were not disclosed during discovery. The appellate court notes that the trial court has discretion in evidence admission, and unless there is an abuse of that discretion, it will not intervene. Civil Rule 26(E)(1)(b) requires parties to supplement the identity of expert witnesses and the subject matter of their testimony to avoid trial ambush. Although Ewing was identified as an expert on asbestos-containing products, he initially stated he would not provide quantitative fiber release numbers, yet he did so at trial. The court found no abuse of discretion in admitting Ewing’s trial testimony after examining both his deposition and trial statements. The court concluded that Ewing's testimony, which he had indicated he could potentially address regarding the decedent’s exposure to asbestos from air hoses, was not a surprise. Ewing acknowledged the possibility of exposure under certain circumstances during his deposition, indicating he was not entirely unprepared to address the issue at trial.

Appellant contends that Ewing's trial testimony contradicted his deposition concerning the decedent's exposure to John Crane's asbestos products. However, the court found no contradiction, as Ewing's trial hypothetical referred generically to asbestos-containing products without mentioning John Crane specifically. Consequently, the trial court acted within its discretion by allowing Ewing to testify. The court concluded that appellant's fifth assignment of error lacked merit, while the first and second assignments were meritorious. The third and fourth assignments became moot due to the resolution of the first two. The judgment of the Trumbull County Court of Common Pleas is reversed, and the case is remanded with instructions for the trial court to enter judgment notwithstanding the verdict for the appellant. Additionally, the excerpt discusses the standards for asbestos liability as outlined in prior cases, emphasizing the importance of identifying specific asbestos products and their contribution to the plaintiff's damages. The court rejected the "frequency-proximity" test from Lohrmann, supporting the idea that even brief exposure to asbestos could be harmful.