Heather Isringhausen Gvillo Aug. 14, 2014, 9:28am

FRANKFORT, Ky. (Legal Newsline) – A Kentucky appeals court has ruled that a jury’s $1.6 million award was proper in a former smoker’s asbestos case alleging lung cancer.

Judge Donna L. Dixon delivered the Aug. 1 opinion in the Kentucky Court of Appeals in the case, which was on remand from the Supreme Court of Kentucky. Judges Denise Clayton and Allison Jones concurred.

The court held that defendant Garlock Sealing Technologies was not entitled to a directed verdict and that punitive damages were properly awarded during a jury trial in the Marshall Circuit Court, affirming the lower court’s judgment.

Claimants Ava Nell Dexter and James M. Dexter filed the lawsuit in July 2002 on behalf of James G. “Dayton” Dexter, who worked as a pipefitter from 1946 until 1984.

He was later diagnosed with lung cancer, which was attributed to both occupational asbestos exposure as well as years of cigarette smoking. He died from his illness in March 2004.

A jury trial was held in May 2005. Garlock and CertainTeed were the only remaining defendants at the time of trial.

The jury ruled in favor of the plaintiffs, but Judge Paul W. Rosenblum granted a new trial because the jury failed to apportion any fault among the empty-chair defendants.

The second trial began in January 2006 and lasted three weeks. The second jury also found in favor of the plaintiffs.

The jury awarded $93,005 for medical expenses, $1,500,000 for pain and suffering, $6,744 in funeral expenses. The compensatory damages totaled $1,599,749.

The jury apportioned 17 percent of the liability to Garlock and awarded $600,000 in punitive damages against the defendant.

The trial court entered a judgment in accordance with the verdict and ordered Garlock to pay $874,507. Garlock appealed.

On appeal, Garlock claimed the plaintiffs failed to prove they knew or should have known its gaskets posed a risk of asbestos exposure, which would, therefore, require the defendant to provide a warning.

In regards to punitive damages, Garlock claimed the plaintiffs failed to prove it engaged in outrageous conduct.

Furthermore, Garlock argued that the plaintiffs only presented evidence regarding general dangers of asbestos exposure, rather than sufficient evidence establishing that it knew its products were hazardous.

“Although Garlock relies on evidence that was favorable to its defense, the estate produced evidence that conflicted with Garlock’s theory that it did not know or should not have known that its gaskets posed a danger of asbestos exposure,” Dixon wrote. “It was wholly within the province of the jury to weigh the evidence and assess the credibility of the witnesses.”

Therefore, the court concluded there was sufficient evidence establishing the defendant knew its products posed a risk of asbestos exposure and that it failed to warn consumers of the risk.

The court reached its decision based on its understanding that Garlock knew the “end-user” of the gasket would likely have to replace it by grinding it off, which would cause asbestos dust to become airborne and inhaled.

“After thoroughly considering the record before us, we conclude the jury’s verdict in favor of the estate was supported by the evidence, and it was not the result of passion or prejudice,” Dixon wrote. “Garlock was not entitled to a directed verdict or judgment notwithstanding the verdict.”

As for Garlock’s punitive damages claim, the defendant asserted its conduct cannot be considered outrageous because it complied with OSHA regulations for asbestos exposure, and it voluntarily added warnings to its gaskets in 1977.

The appeals court disagreed, stating that the jury was entitled to weigh the conflicting evidence and assess the credibility of the witnesses.

Because sufficient evidence was presented for the jury to conclude that Garlock’s failure to warn constituted a reckless disregard for the health and safety of employees like the decedent, punitive damages were proper, the court ruled.

“The evidence established that Dayton suffered physical harm, as he developed lung cancer and ultimately died, due in part to his exposure to asbestos,” Dixon wrote. “There was evidence that Garlock knew of the risks associated with asbestos exposure in the 1940s, yet failed to warn consumers until 1977. It was reasonable to infer that Garlock’s repeated failure to warn prior to 1977 exhibited a reckless disregard for the health and safety of the pipefitters grinding and removing the gaskets.”

Furthermore, Garlock claimed the punitive damages award was disproportionate because it was twice the compensatory damages it was allocated.

“While there is no bright line rule, a single-digit ratio between punitive damages and compensatory damages is more likely to comport with due process,” Dixon explained.

The court remained unpersuaded that the punitive damages award as it related to the decedent’s injury was improper or disproportionate.

“Dayton’s quality of life diminished, and he was ultimately bedfast. After careful review, we conclude the ratio between compensatory and punitive damages was reasonable,” Dixon wrote.

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

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