Nathan Bass Jan. 16, 2013, 7:21pm

RICHMOND, Virg. (Legal Newsline) - The Virginia Supreme Court has reversed and remanded a case in which a jury awarded over $17 million dollars to the estate of a shipyard worker who died from mesothelioma.

Justice Leroy F. Millette Jr. wrote the majority opinion and Justice Elizabeth A. McClanahan wrote an opinion, concurring in part and dissenting in part, joined by Justice Cleo E. Powell.

Rubert E. Minton was employed at the Newport News Shipbuilding and Dry Dock Company, referred to as Shipyard, from 1956 until 1993 with the exception of the two years he spent in the Army Reserves.

Minton worked in a variety of positions on the construction of new vessels but never worked aboard any Exxon vessels when he did hands on work, according to the opinion.

"He was regularly exposed to asbestos from asbestos-containing materials as well as from asbestos dust from a dusty worksite and does not claim that Exxon is liable for this asbestos exposure."

In 1966, Minton was promoted to a supervisory position and although he no longer did hands on work and therefore no longer actually handled asbestos products, "Minton spent approximately half of his day walking through vessels on which repairs were being made with each vessel's repair supervisor or port engineer, to start new jobs and to inspect the repair work that was being done or that was recently completed."

"During these inspections, Minton and the ship's port engineer viewed various rooms in which asbestos was used, including the boiler and engine rooms ... Over Minton's eleven years as repair supervisor, Exxon owned seventeen of the approximately two hundred vessels repaired by the Shipyard."

In 2009, Minton was diagnosed with malignant mesothelioma, a form of cancer caused by exposure to asbestos, and he subsequently filed suit against Exxon "for failure to warm Minton of, and protect him from, the dangers associated with asbestos."

"The jury found in favor of Minton and awarded him $12,000,000 in compensatory damages, $430,963.70 in medical expenses, plus punitive damages in the amount of $12,500,000.

"Exxon's motions to set aside the verdict, for a new trial, and for remittitur were denied, except that the punitive damage award was reduced to $5,000,000, the amount sought in Minton's ad damnum clause. Exxon timely filed its appeal."

Millette wrote, "Exxon first challenges the sufficiency of the evidence to establish that it violated the requisite duty of care. . . We disagree and conclude that the evidence was sufficient for a reasonable jury to find that both the active control duty and the duty to intervene were owed to Minton and subsequently breached."

"Exxon's second challenge is to the sufficiency of the evidence presented to establish that Exxon's breach of its duty of care caused Minton's injury."

"According to Exxon, because the experts testified that Minton's prior work in vessel construction was sufficient exposure to cause mesothelioma, any breach by Exxon could not be established as the cause of Minton's subsequently-diagnosed mesothelioma."

Millette then explained that, however, "it is established maritime law that an injured party may sue a tortfeasor for the full amount of damage for an indivisible injury that the tortfeasor's negligence was a substantial factor in causing."

"The question before the jury was therefore whether the evidence was sufficient to show that Minton's exposure to asbestos while on Exxon's vessels was a substantial contributing factor in the development of Minton's injury, mesothelioma ... we agree with Minton that there was sufficient evidence for a reasonable jury to find that Exxon's actions were a substantial contributing factor in Minton's injury."

"Exxon also assigns error to the circuit court's exclusion of evidence regarding the Shipyard's knowledge of the danger of asbestos exposure and its policies in place to protect the Shipyard workers from the hazard," Millette wrote regarding Exxon's third of four assignments of error.

"Exxon contends that, due to the court's denial of its requests to introduce evidence about the Shipyard's knowledge and safety measures, the jury was given the false impression that Exxon had unique knowledge and was therefore the only actor with the ability to protect Minton from harm.

"Exxon argues that this error was highly prejudicial and therefore warrants reversal.

"The circuit court found the Shipyard's knowledge of the danger of exposure to asbestos and its ability and intent to remedy that danger irrelevant. We hold, however, that evidence tending to show the Shipyard's knowledge of the danger and its ability and intent to remedy the danger is relevant in the determination of whether Exxon had a duty to intervene to protect Minton.

"Because we cannot determine from the record whether the jury found in favor of Minton based upon the duty to intervene without the opportunity to consider the excluded evidence, or because of Exxon's violation of the active control duty, we will reverse the judgment of the circuit court," Millette wrote.

"Finally, Exxon challenges the award of punitive damages, basing its argument on the language of [the Longshore and Harbor Workers Compensation Act] which it argues forecloses the remedy.

The Court agreed with Exxon's interpretation of the statute, holding "that the award of $12,500,000 in punitive damages was inappropriately granted because punitive damages are a remedy prohibited by the terms of LHWCA." The $12,500,000 award had been reduced by the trial court to $5 million but this had no effect on this holding as the Court declared no punitive damages are allowed.

In her opinion, concurring in part and dissenting in part, McClanahan agreed with the majority holdings that Minton presented sufficient evidence to establish Exxon's duty to intervene but disagreed with the majority conclusion that the trial court erred in excluding evidence of the Shipyard's knowledge of the dangers of asbestos and its policies toward protecting Shipyard employees.

McClanahan sided with the trial court, writing, "In light of Minton's proof that Exxon had a duty to intervene, the Shipyard's asbestos-related knowledge and policies were irrelevant to Exxon's duty to protect shipyard workers on its ships."

McClanahan also disagreed with the majority's interpretation of the LHWCA provision relied on to make its punitive damages ruling, stating that LHWCA "does not preclude as a matter of law a shipyard worker from seeking to recover punitive damages in a negligence action against a shipowner."

McClanahan and Powell would have affirmed the trial court in total. The majority holding summarized by Millette, however, did not:

"For the aforementioned reasons, we will reverse the judgment of the circuit court based on its exclusion of relevant evidence regarding the Shipyard's knowledge of the danger of asbestos exposure and its ability to remedy the danger, and remand for further proceedings consistent with this opinion. We will also reverse the circuit court's award of punitive damages and enter final judgment as to that claim."

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