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Union Carbide Corp. v. Nix

Supreme Court of Mississippi, En Banc

June 5, 2014

UNION CARBIDE CORPORATION
v.
RUSSELL E. NIX, JR., AS EXECUTOR OF THE ESTATE OF RUSSELL E. NIX, SR

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COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/26/2012. TRIAL JUDGE: HON. BILLY JOE LANDRUM.

FOR APPELLANT: LAURA DEVAUGHN GOODSON, MARCY BRYAN CROFT, THOMAS PEYTON SMITH, ELIZABETH BARNWELL KELLY TURLEY, MICHAEL GEORGE TERRY.

FOR APPELLEE: GLENN GATES TAYLOR, CHRISTY MICHELLE SPARKS, JAMES COLLINS FERRELL, C. GRANT HEDGEPETH.

KING, JUSTICE. LAMAR, KITCHENS, AND CHANDLER, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J. WALLER, C.J., RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.

OPINION

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

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KING, JUSTICE

¶1. After receiving a diagnosis of mesothelioma, Russell Nix filed suit against Union Carbide based on his exposure to its asbestos products. The jury returned a verdict for Nix on his inadequate warning claim, awarding Nix $250,000 in compensatory damages and

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$500,000 in punitive damages. The trial court then awarded Nix nearly $500,000 in attorney's fees and costs. Aggrieved, Union Carbide appeals. This Court affirms the jury's award of compensatory damages, reverses the jury's award of punitive damages, vacates the award of attorney's fees, and remands the case for a new trial on punitive damages.

FACTS AND PROCEDURAL HISTORY

¶2. Russell Nix, Sr. worked for WellTech, a drilling company, from approximately 1980 to 1986. His job duties included maintaining the viscosity of drilling mud. Two Union Carbide products, Visbestos and Super Visbestos, were used to help maintain the viscosity of drilling mud. These two products were ninety-nine-percent asbestos. Nix used an average of ten to twelve fifty-pound bags of Super Visbestos to mix the drilling mud and also to increase viscosity during loss circulation events, and did so for several hours on most days for approximately two-and-a-half years.[1] These actions created asbestos dust.

¶3. In the late 1960s, Montello and Union Carbide combined forces to supply Visbestos and Super Visbestos as drilling mud products. Union Carbide manufactured the products, and Montello was their exclusive distributor. Correspondence between the two indicated tat Union Carbide often took it upon itself to advise Montello as to whether and what safety information to provide its customers.

¶4. In June 1968, Union Carbide began labeling its asbestos products stating

Warning: Breathing Dust May Be Harmful
Do Not Breathe Dust

In 1972, OSHA promulgated standards that companies involved with asbestos were required to follow. 29 C.F.R. § 1910.1001 (1972). OSHA considered, but rejected, placing the words " cancer" and " danger" on the warning, because they were " unwarrantedly alarming." Id. The standards mandated that products containing asbestos be labeled, and further mandated that the exact wording of the label be:

Caution
Contains Asbestos Fibers
Avoid Creating Dust
Breathing Asbestos Dust May Cause Serious Bodily Harm

Id. The label was to " be printed in letters of sufficient size and contrast as to be readily visible and legible." Id. In June 1972, when this OSHA standard was promulgated, Union Carbide changed its warnings to comply with the OSHA wording, with its label stating verbatim the words mandated by OSHA. While Montello made the bags in which Visbestos and Super Vistbestos were packaged, Union Carbide was the final decision-maker with regard to the appearance and labeling of the bags.

¶5. In 1983, a Union Carbide internal correspondence stated that " [i]t is widely recognized that the mandated [OSHA] label understates the risk associated with exposure to asbestos dust, and for this reason, it is proposed that the attached label be substituted for the OSHA label on all UCC asbestos products." The " attached label," as well as one developed a few weeks later, used stronger language than did the OSHA regulation, specifically mentioning that asbestos is a " cancer hazard" and the use of respirators. Other Union Carbide correspondence in the

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1970s and 1980s made clear that Union Carbide recognized the risk of cancer from breathing asbestos dust.

¶6. In the 1990s, Nix was involved in asbestos litigation against several defendants, Union Carbide included. Nix and Union Carbide settled, and Nix signed a " Partial Release." On December 14, 1998, Nix released Union Carbide

of and from any and all claims, causes or rights of action, demands and damages of every kind and nature whatsoever, including, without limitation, all present and future claims that [Nix] may now or hereafter have including any and all asbestos-related diseases, injuries, cancers, and/or malignancies, now or arising hereafter, including, but not limited to, loss of consortium, companionship, service, support, pain and suffering, injury and damage of any kind, including the wrongful death of [Nix], which [Nix] may now or hereafter have arising out of or being in any way related to the possible exposure of [Nix] to asbestos or asbestos-containing products mined, manufactured, sold, supplied, or distributed by [Union Carbide], which may have caused injuries or damages to them either jointly or severally, except as may be preserved . . . below.

The Partial Release expressly exempted claims for mesothelioma not diagnosed as of the date of the execution of the release.[2]

¶7. In 2010, Nix was diagnosed with mesothelioma.[3] On August 25, 2010, Nix filed suit against multiple defendants for, inter alia, negligence, design defect, and inadequate warning, relating to his exposure to asbestos. On January 20, 2011, Nix amended his complaint, including adding Union Carbide as a defendant. Eventually, all defendants were dismissed except Union Carbide. Trial in the matter began on October 3, 2011, on Nix's claims for inadequate warning and design defect under the Mississippi Products Liability Act.[4]

¶8. At trial, Edward Ziegler testified for Nix as an expert in the drilling industry, products used in the drilling industry, and warnings and safety. Ziegler is a petroleum engineer who owns a safety and petroleum consulting firm and a small oil company. He had worked in the drilling industry since he was fifteen years old. He received a Bachelor of Science degree in petroleum and natural gas engineering in 1972, and has been through numerous training programs and seminars regarding drilling. He received a master's degree in safety engineering from an unaccredited distance learning university. Ziegler has also completed the " OSHA 500" program several times, which qualified him as an OSHA instructor. Specific to warnings, Ziegler has " been through National Safety Council training and other seminars dealing with warnings and instructions." He stated that one of his courses on warnings was one week long, and that he attended " several several-day seminars" on warnings. He also had " on-the-job training" regarding warnings in working with his consulting clients. Additionally, he has written warnings for products that he sells and/or designs. Ziegler admitted that he had never written any peer-reviewed articles regarding warnings, nor had he performed

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any testing of warnings that he had written. He did, however, note that he had watched people in the field using equipment for which he had written warnings. Ziegler admitted that he had not obtained any peer-reviewed articles on warnings, the testing of warnings, or the efficacy of warnings. He further admitted that he was not trained in psychology, and the court cut off questioning regarding his training in human factors. Union Carbide ultimately objected to Ziegler being accepted as an expert on warnings. The court overruled the objection and stated that Union Carbide would be able to cross-examine Ziegler on the warnings issues.

¶9. Ziegler testified that Union Carbide's warnings on the Visbestos and Super Visbestos bags were inadequate.[5] He stated that, in his opinion, the warnings did not satisfy the OSHA standard that mandates " that warnings have to have -- the warnings have to have certain color and contrast on the bag." [6] He noted that the letters were " relatively small, some of the smallest letters on the whole bag." He continued that the warning fails to attract attention, inform of the hazard, inform how to avoid the hazard, and indicate what the results of the hazard are. He specifically criticized the warning for failing to use the word " cancer," failing to instruct the handler to wear a respirator, and failing to use the word " warning." He noted that the product inherently creates dust, and that the instruction to avoid creating dust is " a useless piece of information. It doesn't tell you how to avoid the hazards of these product [sic] because they create dust every time you use them. So you can't avoid the dust. But that also doesn't tell you how to avoid dust. It doesn't tell you how to not make dust." However, his later testimony was that he could not come up with an alternate warning, because no warning would be sufficient due to the inherent danger of the product.

¶10. Nix testified at trial and stated that he had read the warning provided. He noted that it was " impossible" to avoid creating dust,[7] and that he did not use a respirator or dust mask while using the product because " nobody told me." Regarding respirator use and whether he was apprised of the cancer risk of Super Visbestos, he testified as follows:

Q: Now, had that bag contained a warning telling you to use a respirator, what changes, if any, would you have made in the way you handled that product?
A: I would have had them out there if I'd of had to bought them out of my pocket.
Q: Would you have worn a respirator?
A: I would have.

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Q: Even if it didn't mention the need for a respirator, if it had told you that it would cause cancer or could cause cancer, what changes, if any, would you have made in the way you handled that product?
A: I would have probably tried to got out of that job where I wouldn't have had to handle it.
Q: Okay.
A: Knowing -- based on what I know about cancer and seeing my mother die with cancer and my second wife died with cancer and I'm dying with cancer.
Q: Have you ever been a smoker?
A: No. No. Didn't like cigarettes. Scared of them.

On cross-examination, he testified as follows:

Q: Okay. Now, do you remember seeing any warnings on the packages prior to 1985?
A: Oh, yeah. Yes.
Q: Have you testified on another occasion that you started seeing the warnings on the packages in 1985?
A: I probably did testify, I'd say yes.
Q: Is that true?
A: Yes.
Q: Okay. So prior to 1985 you hadn't noticed the warnings, right?
A: Well, yes, they were on there.
Q: But you hadn't noticed them or ...

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