SEATTLE (Legal Newsline) - A Washington appeals court upheld a $4 million jury verdict against ExxonMobil won by the son of a man who worked in refineries and was diagnosed with mesothelioma after he died but sent the case back to the trial court for another hearing to decide whether considering other settlements were reasonable.
The decision could affect how much of a discount ExxonMobil gets after amounts payable under other agreements are subtracted from the verdict.
Warren Wright worked for a contractor at various refineries including a Mobil facility in Ferndale, Washington from 1979 to 1988, including demolishing pipe insulation that contained asbestos. He was told about the asbestos and a coworker testified he “religiously” wore a respirator. Still, after Wright died in 2015 an autopsy revealed he had mesothelioma, a cancer of the chest lining that can be caused by asbestos.
Wright’s son Wayne sued ExxonMobil, Shell, Texaco and U.S. Oil Refining as well as 3M, which made the respirators he wore. All of the other defendants settled except for ExxonMobil, which took the case to trial and lost a $4 million jury verdict. The judge then held a hearing as required under Washington law and found that the other settlements were reasonable and reduced the judgment against ExxonMobil to $2.77 million plus attorney’s fees to reflect the setoff for other payments.
ExxonMobil appealed on several grounds, including arguments the jury instructions were incorrect and the judge allowed in hearsay evidence. The Washington Court of Appeals, in a Dec. 13 unpublished opinion, rejected most of ExxonMobil’s arguments.
The appeals court agreed it was reversible error for the jury to be told ExxonMobil exercised control over the contractor Wright worked for, simply because it required its contractors to follow state and federal safety regulations. The appeals court rejected ExxonMobil’s other arguments including a complaint the jury was told they could find the company liable because it owned a property with a hazardous condition.
ExxonMobil’s attorney in closing arguments said “Mr. Wright was not some invitee who came onto our facility and wandered into some dangerous condition that he wasn’t prepared for or aware of.”
“His company was hired to do this work,” the lawyer argued. “Yet with all of that, Mobil is the one standing here having to defend itself against a claim that we failed to exercise ordinary care for this three-month job, 40 years ago.”
The appeals court concluded ExxonMobil was permitted to make its argument but failed to convince the jury.
The appeals court gave more weight to ExxonMobil’s argument the court failed to comply with a Washington statute governing civil settlements. That law requires plaintiffs to provide “all other parties” with a copy of any settlements. If the court determines the other settlements are reasonable, a jury award is reduced by the amount of money the plaintiff got from other defendants.
In this case, Wright’s lawyers “verbally advised” ExxonMobil about the amounts of settlements and provided declarations. But they didn’t turn over the actual agreements. The judge decided that because the agreements were confidential, they could be assessed without the introduction of actual documents “unless there’s just something kind of wonky and unusual in the settlement agreements.”
Washington law doesn’t contain an exception for confidentiality, the appeals court concluded.
“Neither the trial court nor Mobil had the opportunity to examine the agreements for evidence of any `wonkiness,’” the appeals court said. “Because the trial court did not review the full terms of the settlement agreement, the determination of reasonableness and the calculation of the set-off amount was an abuse of discretion.”
The court left the jury verdict intact but vacated the judgment so the trial court could conduct another reasonableness hearing with full access to the settlement documents.