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Va. SC vacates half of $6 million award to sailor's widow

By Jessica M. Karmasek | Mar 8, 2012


RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court last week vacated awards totaling more than $3 million in a wrongful death action filed by a Navy sailor's widow over her husband's exposure to asbestos.

Robert Hardick sued, under general maritime law, John Crane Inc., or JCI, and 22 other defendants, seeking $20 million in compensatory damages and $5 million in punitive damages.

Hardick's complaint alleged he was exposed to asbestos dust, fibers and particles contained in products manufactured by JCI, and that he contracted mesothelioma as a result.

Hardick died prior to trial. His suit was then revived as a wrongful death action by his wife, Margaret Hardick, in her capacity as executor of his estate.

Margaret Hardick eventually settled or nonsuited the claims against all defendants except JCI.

Prior to trial, JCI filed a motion in limine to exclude evidence of nonpecuniary damages.

JCI argued that Margaret Hardick's own theory of liability depended on her husband having significant exposure to asbestos while on board Navy ships underway on the high seas and in foreign ports.

The company also contended that Margaret Hardick was only entitled to recover damages available under the Death on the High Seas Act, or DOHSA.

JCI argued that because DOHSA precludes recovery of nonpecuniary damages such as pain and suffering, loss of society/consortium or punitive damages, any recovery by Margaret Hardick under the general maritime law is limited to pecuniary damages.

The City of Newport News Circuit Court denied the company's motion.

Hardick and JCI eventually agreed to a jury instruction that permitted the jury to apportion damages among JCI, Garlock and Crane Company.

Garlock and Crane, two of the manufacturers that settled with Hardick prior to trial, produced the gaskets and valves that allegedly contained asbestos.

The jury returned a verdict for Hardick in the amount of $5,977,482, apportioning 50 percent of the fault to JCI and 50 percent to Garlock.

The verdict included $2 million for her husband's pain and suffering; $1.15 million for her loss of society; $2.5 million for the expected loss of her husband's income and services; $319,650 for his medical expenses; and $7,832 for his funeral expenses.

Soon after, JCI filed a motion for a new trial. The company also filed a motion for partial judgment or, alternatively, for remittitur, arguing that the nonpecuniary portion of the verdict should be vacated.

The trial court denied both motions and entered final judgment requiring JCI to pay 50 percent of the damages awarded by the jury to Margaret Hardick, a sum of $2,988,741.

JCI appealed to the state's high court.

The company argued that the trial court committed "reversible error" by allowing the jury to award nonpecuniary damages and by allowing the plaintiff to introduce evidence of asbestos exposure from gasket removal. JCI said the trial court compounded the second error by not allowing it to introduce circumstantial evidence of Hardick's exposures to asbestos-containing products supplied by other companies.

In its 32-page opinion filed Friday, the Court agreed the trial court erred by allowing the jury to award Margaret Hardick nonpecuniary damages for the death of her husband.

"The (U.S.) Supreme Court has made it clear that, based upon principles of uniformity, nonpecuniary damages are not available in 'actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law,'" Justice Donald W. Lemons wrote for the Court.

However, the Court said JCI waived part of its second assignment of error by failing to include any argument, or authorities relating to, the admissibility of Margaret Hardick's evidence regarding asbestos exposure from gasket removal.

Therefore, the trial court did not abuse its discretion when it excluded the testimony of JCI's Navy export, Wesley Hewitt, it said.

"In this case, the trial court found that Hewitt's testimony and the documents upon which his testimony would have been based were irrelevant and speculative because Hewitt could tie neither the documents at issue nor any of his personal experience directly to Hardick," Lemons wrote.

The Court vacated the $2 million award for Hardick's pain and suffering and the $1.15 million award for Margaret Hardick's loss of society, and remanded the case to the trial court for an order consistent with its opinion.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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