Heather Isringhausen Gvillo Aug. 13, 2014, 10:12am

DOVER, Del. (Legal Newsline) – The Delaware Supreme Court has found in favor of a talc manufacturer in an asbestos case, concluding that the lower court erred when it failed to grant a new trial after witnesses made derogatory statements during testimony.

Justice Henry duPont Ridgely delivered the July 24 opinion with justices Leo E. Strine and Randy J. Holland concurring.

Ridgely concluded that defendant RT Vanderbilt Company Inc. should have been granted a new trial and reversed the Superior Court’s judgment.

Vanderbilt appealed after a jury in the lower court found the defendant 100 percent liable and entered a verdict in favor of plaintiff Darcel Galliher, individually and on behalf of the estate of Michael Galliher, awarding her $2,864,583 plus interest.

Galliher filed the lawsuit in 2011. According to her complaint, the decedent was employed by Borg Warner in Mannsfield, Ohio, at a bathroom fixtures facility where he worked in the cast shop filling ceramic molds from 1966 to 1968 and 1970 to 2005.

The decedent’s employer’s used talc mined, sold and distributed by Vanderbilt to dust molds for the ceramics.

The claimants allege Galliher developed mesothelioma as a result of exposure to the asbestos-containing talc provided by Vanderbilt.

The decedent was diagnosed with mesothelioma in August 2010 and died in February 2011.

“Because the trial court erred in instructing the jury and abused its discretion in denying Vanderbilt a new trial, we reverse the judgment of the Superior Court and remand the case for a new trial,” the court concluded.

On appeal, Vanderbilt claimed the trial court erred when it failed to instruct the jury on the duty of care required of Borg Warner, as the decedent’ employer.

Prior to trial, the court held that Vanderbilt’s proposed jury instructions relating to Borg Warner’s duty of care was too lengthy. Instead of asking the counsel to rewrite it, the judge said, “I’ll think of something for you.”

However, the court never rewrote the jury instructions, and, instead, decided to drop the duty of care instruction altogether.

When Vanderbilt pointed out that it was missing, the court said “I deliberately have removed those from the charge.”

“Because the trial court refused to provide any instruction to guide the jury in its deliberations on the responsibility of Borg Warner as a premise owner and employer, Vanderbilt argues that the trial court committed reversible error. We agree,” Ridgely concluded.

He explained that if the trial court wanted the proposed jury instruction shortened, it should have either done as it promised and rewrote the section, or it could have simply asked Vanderbilt’s counsel to submit a “more tailored” instruction themselves.

As a result of the omitted section, the jury instructions asked the jury to determine if Borg Warner was "at fault," but failed to give the jury any guidance on what acts or omissions would establish fault on the part of an employer.

“This material omission regarding the substance of Ohio law left the jury without a correct statement of the applicable law and requires a new trial,” Ridgely wrote.

Vanderbilt also argued that the trial court erred when it failed to grant a new trial after witnesses provided “unreliable” and “inflammatory” evidence during testimony that was ultimately ruled inadmissible.

Vanderbilt provided four separate statements involving three witnesses that required a new trial.

The appeals court addressed two statements made by plaintiff witness Dr. Barry Castleman, who introduced hearsay that Vanderbilt employees were “liars” and that the defendant had spent millions of dollars “buying senators.”

“Dr. Castleman’s statement about Vanderbilt engaging in bribery is especially egregious and requires a new trial. Even the trial court openly worried whether ‘any amount of curative instructions’ would ‘erase from the minds of the jury’ the statements made by Dr. Castleman,” Ridgely wrote.

“That worry was fully justified because the inadmissible testimony was so derogatory that a simple admonishment to ignore that aspect of Dr. Castleman’s testimony, while leaving the jury to accept the rest of his views as an expert witness, was clearly insufficient,” he wrote. “Further, there was no curative instruction regarding the hearsay statements alleging that Vanderbilt spent sixteen million dollars on studies to undermine government regulatory action. Thus, the trial court’s corrective action was insufficient to mitigate the prejudice caused by the admission of the evidence.”

Because Castleman’s statements were enough to warrant a new trial, the appeals court concluded that it didn’t need to examine testimony beyond Castleman’s to conclude that the trial court abused its discretion when it denied Vanderbilt’s motion for a mistrial.

The two other witnesses who provided questionable statements were Sean Fitzgerald, expert for Galliher, and Thomas Rogers, a Vanderbilt employee.

Galliher also raised an issue, claiming the trial court erred when it disallowed post-judgment interest for a certain period of months.

Ridgely stated the court would not address the claim because a new trial has been ordered.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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