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Smith v. Union Carbide Corp.

Supreme Court of Mississippi, En Banc

December 12, 2013

Elsie SMITH, individually and as Representative of the estate of Larry D. Smith, Deceased, Amy Smith Rhodes, Ouida Smith Dawkins, Larry Clint Smith and Bonnie Smith Witty
UNION CARBIDE CORPORATION, Montello, Inc. and Chevron Phillips Chemical Company, LP.

Gregory Neill Jones, Wayne Milner, S. Robert Hammond, Jr., Hattiesburg, Eugene Coursey Tullos, Raleigh, Randy James Bruchmiller, attorneys for appellants.

Laura Devaughn Goodson, Marcy Bryan Croft, Jackson, Ashley Elizabeth Calhoun, Richard D. Mitchell, Canton, David CartanLoker Gibbons, Jr., Jeffrey P. Hubbard, Jackson, John Jeffrey Trotter, Holmes S. Adams, Bernard Hess Booth, IV, Ridgeland, Alex Emilio Cosculluela, Albert Christopher Derden, attorneys for appellees.

COLEMAN, Justice.

¶ 1. The instant case arises from a jury verdict awarding Mrs. Elsie Smith and

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other wrongful death beneficiaries monetary damages for the wrongful death of Elsie's husband, Larry Smith. Larry, who spent most of his life working on oil rigs, died of lung cancer, and the plaintiffs filed suit against several manufacturers of various drilling additives. She claimed that her husband's proximity to working with these products led to his lung cancer because the drilling additives contained asbestos. After a jury verdict in favor of the plaintiffs, the defendant corporations filed a joint motion for a judgment notwithstanding the verdict (JNOV), which was granted by the trial judge. Plaintiffs appeal the grant of JNOV. We hold that the trial court erred when it granted JNOV by applying the plaintiffs' proof to the frequency, regularity, and proximity test rather than to the elements of the plaintiffs' negligent design claim sounding in products liability. Accordingly, we reverse and remand.


¶ 2. Larry Smith worked on various drilling rigs from the mid-1960s until the early 1990s. At the time, it was commonplace in the industry to use various chemical drilling additives that contained asbestos. Larry indisputably was a heavy smoker, smoking roughly two to three packs a day from at least the mid-1950s through at least 1986. He was diagnosed with lung cancer in August 2002 and died three months later.

¶ 3. On March 15, 2006, Elsie Smith's and Larry's heirs filed a wrongful death action against Union Carbide Corporation (" UCC" ); Dow Chemical Company; Montello, Inc. (" Montello" ); Chevron Phillips Chemical Co. (" CPChem" ); Baker Hughes; and Mississippi Mud, Inc., alleging that the negligent actions of the defendant led to their products causing Larry's death. The claims against Dow Chemical were later dismissed as a result of a joint motion filed with the court. Mississippi Mud, Inc., later became part of Baker Hughes, and Baker Hughes settled before trial. Bringing a claim for strict liability under a products liability design defect theory, the plaintiffs asserted that Larry's exposure to asbestos while working on various oil rigs over the years caused him to develop lung cancer. The products Visbestos and Super Visbestos were made with asbestos supplied by UCC and distributed by Montello. Montello also distributed Shurlift. Flosal and Visquick were the asbestos products of CPChem. Both CPChem and UCC supplied asbestos for IMCO Best, Superbest, and Shurlift.

¶ 4. At trial, four former coworkers of Larry's testified concerning his exposure to asbestos. One of the coworkers, Howard Case, who had worked with Larry at various drill sites, could identify the appellees' products as those he had used at various rigs but admitted that he could not place a specific product with a specific rig at a given time. Case testified that he had worked with Smith at Barnwell in 1966, Reading & Bates in 1967-68, Big Chief Drilling in 1972, Helmerich & Payne in 1973-74, and Delta Drilling in 1976. He could not specify the exact extent to which Smith had used the asbestos viscosifiers, but he did state that Smith had used Flosal at Barnwell and Reading & Bates; Flosal, Visbestos, and Super Visbestos at Big Chief and Helmerich & Payne; and Visquick at Delta Drilling. A second coworker, Billy Jack Graves, identified five separate products of the appellees as being present at Rig 56, where he had worked with Larry for three months: Visbestos, Shurlift, Flosal, Superbest, and Visquick. He also stated that he had seen Larry work regularly with those products on that specific rig. A third coworker, Denver Anding, testified that Larry had worked with Flosal while they had worked different

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shifts on the same rig during a four-month period in the late 1960s. Joe Fitzhugh, another coworker of Larry's, also testified in his deposition that he had worked with Larry for about four months on a rig in the mid-to-late 1960s and had mixed Flosal, Visquick, and Visbestos with him, but Social Security records of the two men show some discrepancies in his account. He also could not identify any physical attributes of the defendants' products that he claimed to have worked with on the rig during the relevant time period.

¶ 5. After a three-week trial in May 2009, the jury returned a verdict in favor of the plaintiffs and assessed total damages of $3,856,346.17. The jury found CPChem to be 35% at fault, Montello 10%, UCC 35%, and Larry's smoking 20%. Before sending the case to the jury, the defendants moved for a directed verdict, which the trial court denied. CPChem previously had made motions for summary judgment and directed verdict, but the court had withheld judgment on the motions. CPChem later was joined in the motions by the other defendants. After the verdict, the defendants subsequently filed motions for JNOV and for a new trial. On January 26, 2010, the court granted the JNOV for the sole reason that, in the court's opinion, the plaintiffs had not meet the " burden of causation" because they had failed to establish that Larry had been exposed to a specific product on a frequent and regular basis in proximity to where he worked. Plaintiffs timely appealed.


¶ 6. A motion for JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994).

Where a motion for j.n.o.v. has been made, the trial court must consider all of the evidence— not just evidence which supports the non-movant's case— in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable [jurors] could not have arrived at a contrary verdict, granting the motion is required. On the other hand, 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. See, e.g., General Tire and Rubber Co. v. Darnell, 221 So.2d 104, 105 (Miss.1969); Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983).

3M Co. v. Johnson, 895 So.2d 151, 160-61 (¶ 31) (Miss.2005) (quoting Jesco, Inc. v. Whitehead, 451 So.2d 706, 713-14 (Miss.1984)). The Court reviews a trial court's grant of a JNOV de novo. Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 64 (¶ 24) (Miss.2004).


¶ 7. The issue presented by the plaintiffs is whether the circuit court erred by granting the appellees' motion for JNOV based on the court's determination that the plaintiffs had failed to pass the frequency, regularity, and proximity test. To answer, we must determine whether the trial court erred in analyzing the plaintiffs' claim under the de minimis " frequency, regularity, and proximity" test in determining whether or not to grant the motion for JNOV.

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I. Whether the trial court erred in analyzing the plaintiffs' claim under the de minimis " frequency, regularity, and proximity" test in determining whether or not to grant the motion for JNOV.

¶ 8. The defendant companies argue that the circuit court correctly granted JNOV because the plaintiffs failed to satisfy the " frequency, regularity, and proximity" test first established in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), and adopted by the Court in Gorman-Rupp Co. v. Hall, 908 So.2d 749 (Miss.2005). In fact, they relied upon the " frequency, regularity, and proximity" test in their motion for JNOV, and indeed we have written, " [W]e again hold that in asbestos litigation cases, the frequency, regularity, and proximity test is the proper standard in determining exposure and proximate cause" in the context of a motion for summary judgment or directed verdict. Monsanto Co. v. Hall, 912 So.2d 134, 137 (¶ 8) (Miss.2005). As stated in Gorman-Rupp Co.,

[t]he requirements [of the " frequency, regularity, and proximity" test] ... are:
" (1) [Plaintiff] was exposed to a particular asbestos-containing product made by the [Defendant],
(2) with sufficient frequency and regularity,
(3) in proximity to where [Plaintiff] actually worked,
(4) such that it is probable that the exposure to [Defendant's] products caused ...

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