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Va. SC reinstates $2M pre-death suffering award in asbestos case

By John O'Brien | Sep 25, 2012


RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court has reinstated a $2 million award it struck down earlier this year in an asbestos lawsuit against John Crane, Inc.

In March, the court vacated awards totaling more than $3 million in a lawsuit filed by Robert Hardick, who alleged exposure to asbestos while a Navy seaman, before he passed away. One portion struck down was a $2 million pain and suffering award.

Hardick's widow Margaret asked for a rehearing of the decision, and on Sept. 14 the court reinstated the award.

"(W)e hold that in a general maritime survival action based upon the death of a seaman, we look to the Jones Act for guidance," Justice Donald Lemons wrote.

"Because the Jones Act permits recovery for the losses suffered during a decedent seaman's lifetime in a survival action, including pre-death pain and suffering, Hardick's estate may recover for his pre-death pain and suffering under general maritime law."

The court stuck with its earlier decision to vacate a $1.15 million award for Margaret's loss of society.

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.

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