PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-1594
ANN FINCH, Individually and as Executrix of the Estate of Franklin Delenor Finch,
Plaintiff - Appellee,
v.
COVIL CORPORATION,
Defendant - Appellant,
and
BASF CATALYSTS LLC, Sued individually and as successor-in-interest to Engelhard, Pita Realty LTD., and Eastern Magnesia Talc Co.; DANIEL INTERNATIONAL CORPORATION, f/k/a Daniel Construction Company, Inc.; FLUOR CONSTRUCTORS INTERNATIONAL, f/k/a Fluor Corporation; FLUOR CONSTRUCTORS INTERNATIONAL, INC.; FLUOR DANIEL SERVICES CORPORATION; FLUOR ENTERPRISES, INC.; FOSTER WHEELER ENERGY CORPORATION; MCNEIL (OHIO) CORPORATION, INC.; MCNEIL & NRM, INC.; METROPOLITAN LIFE INSURANCE COMPANY; PFIZER, INC.; CRANE COMPANY; CBS CORPORATION, (a DE Corp) f/k/a Viacom Inc. (a PA Corp) (sued as successor-by-merger to CBS Corporation f/k/a Westinghouse Electric Corporation) and also as successor-in-interest to BF sturtevant; FLOWSERVE CORPORATION; FMC CORPORATION, individually and as successor in interest to Stearns Brakes; SWS SILICONES CORPORATION; WACKER CHEMICAL CORPORATION; RED SEAL ELECTRIC COMPANY; REXNORD INDUSTRIES, LLC,
Defendants.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:16-cv-01077-CCE-JEP) Argued: May 27, 2020 Decided: August 24, 2020
Before MOTZ and DIAZ, Circuit Judges, and Max O. COGBURN, Jr., United States District Judge for the Western District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Diaz and Judge Cogburn joined.
ARGUED: Allen Mattison Bogan, NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for Appellant. Lisa White Shirley, DEAN OMAR BRANHAM SHIRLEY, LLP, Dallas, Texas, for Appellee. ON BRIEF: C. Mitchell Brown, Blake T. Williams, NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, South Carolina; Elbert Lin, HUNTON ANDREWS KURTH LLP, Richmond, Virginia; Leslie C. Packer, Raleigh, North Carolina, Curtis J. Shipley, ELLIS & WINTERS LLP, Greensboro, North Carolina, for Appellant. William M. Graham, WALLACE AND GRAHAM, P.A., Salisbury, North Carolina, for Appellee.
2 DIANA GRIBBON MOTZ, Circuit Judge:
On behalf of herself and the estate of her late husband, Ann Finch brought this
wrongful death action against multiple defendants, contending they manufactured,
installed, or supplied asbestos-containing products that caused his mesothelioma and
resulting death. The jury found Covil Corporation, the only defendant that proceeded to
trial, liable and awarded Mrs. Finch $32.7 million in compensatory damages. Covil now
appeals, arguing that the district court erred in instructing the jury as to proximate cause
and in refusing to reduce the damages award. We find no fault with the district court’s
careful jury instructions or its well-reasoned rationale for refusing to reduce the award.
Accordingly, we must affirm.
I.
A.
From 1975 to 1995, Franklin Finch worked at the Firestone Tire Plant in Wilson,
North Carolina. For all but eight months of his 20 years at Firestone, Mr. Finch’s sole job
was changing tires in the tire mold presses in the plant’s curing room. The curing room
contained about 120 steam-operated tire presses, each of which was connected to multiple
steam pipes covered in asbestos-containing insulation. Mr. Finch’s work operating the tire
presses exposed him to asbestos dust from the presses themselves, which had internal
components that released asbestos dust, and from the insulation on the steam pipes
connected to the tire presses. It was undisputed that Covil did not supply the tire presses,
but Mrs. Finch alleged that Covil had supplied the asbestos-containing insulation.
3 Prior to his death, Mr. Finch explained in deposition that, in performing duties in
the curing room, he and others regularly walked on the steam pipe insulation, and that the
insulation was regularly handled by mechanics repairing the steam pipes. Dr. Edwin
Holstein, Mrs. Finch’s witness and a physician qualified as an expert in both internal
medicine and occupational and preventative medicine, testified without contradiction that
this activity released asbestos dust into the air. As a result of the daily operation of the
steam presses and the curing room operators and mechanics disturbing the insulation,
Mr. Finch described the curing room as persistently hazy and dusty, like a “sandstorm.”
Dr. Holstein explained that this “sandstorm” was attributable in large part to insulation
“being damaged or removed or replaced or being manipulated in one way or another,
releasing asbestos into the air.” Given that Mr. Finch had “daily occasions for breathing
the dust from this, and over the course of time, this amounted to a substantial inhalation of
asbestos.”
Between his retirement from Firestone in 1995 and his diagnosis in 2016, Mr. Finch
owned and operated a small landscape maintenance company, cutting grass for multiple
buildings around town. Immediately prior to his diagnosis, Mr. Finch was “an unusually
vigorous person for [a 78-year old],” and Dr. Holstein testified, again without
contradiction, that he believed Mr. Finch’s life expectancy without mesothelioma was “13
or 14 years.”
In March 2016, suffering from significant weight gain and back pain, Mr. Finch
sought medical attention. Doctors diagnosed him with mesothelioma of both the pleura
(lung lining) and peritoneum (stomach lining), cancers that have a latency period of 30 to
4 50 years. Dr. Holstein testified that pleural mesothelioma is “one of the most painful
cancers to have.” In the eight months following his diagnosis, Mr. Finch required multiple
lengthy hospitalizations and invasive surgeries in which 28 pounds of cancer and several
organs, including his colon and spleen, were removed. The pain, nausea, vomiting, and
need for a colostomy bag left Mr. Finch in agony. He died in January 2017, following
what Dr. Holstein described in unrebutted testimony as a “terrible, terrible course.”
B.
Mrs. Finch sued multiple corporate defendants; all but Covil settled before trial or
prevailed on motions to dismiss or for summary judgment. 1 At trial, Mrs. Finch maintained
that Covil negligently supplied the asbestos-containing steam pipe insulation to the
Firestone plant that caused Mr. Finch’s death. Her theory of the case was that Covil had
supplied all of the steam pipe insulation in the Firestone plant when it was built in the early
1970s, including insulation in the plant’s curing room, and that exposure to this asbestos-
laden insulation was a substantial factor causing Mr. Finch’s mesothelioma and resulting
death. Covil did not contest that Mr. Finch was exposed to asbestos, that asbestos
inhalation from occupational exposure at the Firestone plant caused his mesothelioma, or
that mesothelioma caused his death. The primary dispute centered on whether Covil had
supplied the asbestos-containing steam pipe insulation in the curing room.
To prove that Covil had done this, Mrs. Finch offered documentary evidence from
Firestone that Covil supplied all of the insulation in the Firestone plant — “miles of
1 The district court granted summary judgment to Covil as to some of the claims against it but denied summary judgment as to others. 5 insulation” used in the plant’s construction, including in the curing room where Mr. Finch
worked. When the Firestone plant was remediated for asbestos in 1990, approximately
7,000 feet of asbestos-containing insulation was removed from the curing room, and that
material had been in place since the plant’s construction in the early 1970s. Mrs. Finch
offered an invoice from Covil billing Firestone for 711 feet of asbestos-containing material
installed in the plant. And she pointed to unrefuted testimonial and documentary evidence
that, contrary to Covil’s claims, the company did not stop supplying asbestos-containing
material until well after the Firestone plant was built. Based on this evidence, Mrs. Finch
argued that it was reasonable to conclude that Covil had supplied the asbestos-containing
steam pipe insulation that Mr. Finch had worked around on a daily basis for twenty years,
and that this insulation was a proximate cause of Mr. Finch’s mesothelioma and eventual
death.
Faced with this evidence, Covil relied on a scattershot defense. The company
suggested that asbestos within the tire presses — undisputedly not supplied by Covil —
was the sole cause of Mr. Finch’s mesothelioma. Covil also maintained that it did not
supply the asbestos-containing insulation in the curing room. The company did not deny
that it supplied some asbestos-containing pipe insulation to the Firestone plant or that it
supplied significant amounts of steam pipe insulation to that plant, but maintained that it
had primarily supplied asbestos-free insulation, as it assertedly stopped selling asbestos-
containing insulation prior to that plant’s construction. Thus, according to Covil, most of
the insulation it supplied was asbestos-free, and the asbestos-containing insulation in the
curing room was attributable to another company. As to the 711 feet of asbestos-containing
6 steam pipe insulation the company had to admit it supplied to the plant, Covil argued that
it was impossible to determine where in the plant that insulation was located, and that
consequently Mrs. Finch could not prove that Mr. Finch was exposed to this particular 711
feet of insulation.
After a five-day trial, the jury found for Mrs. Finch and awarded $32.7 million in
compensatory damages. Covil subsequently moved to renew its motion for judgment as a
matter of law or, in the alternative, for a new trial or new trial nisi remittitur. Following
extensive post-trial briefing and argument, the district court ruled that Covil was entitled
to a setoff for Mrs. Finch’s pre-trial settlements with other defendants and denied all other
relief sought by Covil. Covil timely noted this appeal. The company asserts that the district
court (1) erred in its jury instruction and (2) abused its discretion in refusing to reduce the
damages award. We consider each argument in turn.
II.
Covil first contends that the district court’s jury instruction on substantial factor
causation impermissibly reduced Mrs. Finch’s evidentiary burden. We review the content
of jury instructions for abuse of discretion. United States ex rel. Drakeford v. Tuomey, 792
F.3d 364, 382 (4th Cir. 2015). In considering the language of a specific instruction, we ask
“whether the instructions construed as a whole, and in light of the whole record, adequately
informed the jury of the controlling legal principles without misleading or confusing the
jury to the prejudice of the objecting party.” Spell v. McDaniel, 824 F.2d 1380, 1395 (4th
Cir. 1987).
7 North Carolina law requires a plaintiff in a tort action prove that exposure to a
defendant’s product was a substantial factor causing the plaintiff’s injury. See, e.g., Seraj
v. Duberman, 789 S.E. 2d 551, 557–58 (N.C. App. 2016). Covil maintains that in
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986), this court
articulated a jury instruction that must be repeated verbatim in instructing a jury as to
substantial factor causation in any case concerning diseases caused by asbestos. In
Lohrmann, we explained that “[t]o support a reasonable inference of substantial causation
from circumstantial evidence, there must be evidence of exposure to a specific product on
a regular basis over some extended period of time in proximity to where the plaintiff
actually worked.” Id. at 1162–63. We elaborated that, “[i]n effect, this is a de minimis rule
since a plaintiff must prove more than a casual or minimum contact with the product.” Id.
at 1162.
Covil would turn our discussion in the Lohrmann opinion into a jury instruction that
must be supplied in all asbestos-related cases. But “[a]ppellate opinions are not jury
instructions, nor are they meant to be.” Noel v. Artson, 641 F.3d 580, 588 (4th Cir. 2011).
As we have explained:
[J]ury instructions articulate general principles of law that decide cases. Of course appellate opinions may guide a district judge’s discretion in formulating jury instructions, or even bear upon the formation of pattern instructions. But they are by no means intended to preempt a district judge’s discretion to formulate a suitable charge for a specific trial.
Id. Like the district court, we reject the notion, advanced by Covil, that Lohrmann must
be parroted in the court’s jury instruction. Rather, Lohrmann sets forth what a plaintiff has
to show to establish substantial factor causation: more than de minimis exposure to a
8 defendant’s products, by proving that the plaintiff was regularly and frequently in
proximity to the defendant’s product. The instruction must convey these principles, but it
need not do so using exactly the language articulated in Lohrmann.
Both parties and the district court agreed that the principles articulated in Lohrmann
applied in this case. Resp. Br. at 15. Thus, the parties accepted that Mrs. Finch had to
demonstrate that Mr. Finch was regularly in close contact with insulation supplied by
Covil. The parties disagreed, however, on the language necessary to explain this level of
exposure to the jury. The question before us, then, is not whether Lohrmann applies, but
whether this jury instruction adequately conveyed its principles.
The district court instructed the jury as follows:
Ms. Finch must prove, by the greater weight of the evidence, only that Covil’s negligence was a proximate cause of Mr. Finch’s mesothelioma and death. So in evaluating proximate cause, you are specifically evaluating whether Mr. Finch was exposed to asbestos-containing insulation sold by Covil to such an extent that it is reasonable to infer and find by the greater weight of the evidence that Covil’s insulation was a substantial factor in contributing to Mr. Finch’s development of mesothelioma . . . . You should consider how much Covil insulation was in the plant, what portion of that insulation contained asbestos, how closely Mr. Finch worked around the places where the Covil asbestos-containing insulation was, the amount of dust from Covil asbestos-containing insulation products, how long Mr. Finch worked in the plant, and other relevant evidence about exposure to asbestos- containing products sold by Covil.
Covil complains that this instruction omitted the frequency and regularity components
discussed in Lohrmann, and as such did not instruct the jury to determine whether there
was more than de minimis exposure to asbestos-containing pipe insulation “sold by Covil.”
In particular, Covil believes that while the charge asked the jury to consider whether
Mr. Finch worked around asbestos insulation “sold by Covil” at some point in time, it did
9 not require the jury to consider how often Mr. Finch worked near asbestos-containing
insulation “sold by Covil.”
We disagree. The detailed instruction at issue here gave proper guidance to the jury
to determine whether Covil’s insulation constituted a substantial factor in Mr. Finch’s
mesothelioma, and it embodies the “general principles of law” set forth by Lohrmann. It
required the jury to consider how much asbestos-containing insulation “sold by Covil” was
in close proximity to Mr. Finch’s daily work, whether this insulation actually created
significant amounts of asbestos dust, and how long Mr. Finch worked at the plant. In short,
the district court required the jury to consider how often Mr. Finch was around asbestos-
containing insulation “sold by Covil,” and how much exposure to asbestos was attributable
to this insulation. The challenged instruction permitted the jury to find for Mrs. Finch only
if she proved that Mr. Finch had more than de minimis exposure to asbestos-containing
insulation “sold by Covil,” and left Covil’s “counsel more than enough room to argue the
facts in light of this standard.” Noel, 641 F.3d at 587. Thus, the court did not err in
providing the challenged instruction. 2
2 As the court detailed, asbestos exposure can result in two distinct diseases: asbestosis and mesothelioma. Greater exposure to asbestos is required to contract asbestosis as compared with mesothelioma. Therefore, an evidentiary instruction on asbestosis theoretically requires proof of greater exposure than mesothelioma. The district court reasoned in the alternative that it was not required to invoke Lohrmann explicitly because, “[t]o the extent the [c]ourt did not use Lohrmann’s exact language, the differences were warranted by differences between the diseases at issue [asbestosis in Lohrmann and mesothelioma in Finch] and the evidence.” We need not reach this consideration because the instruction given in this case clearly comports with Lohrmann, regardless of the disease. 10 III.
Covil directs its only other challenge to the district court’s refusal to reduce the
amount of damages the jury awarded. We again review for abuse of discretion. See Atlas
Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 593–94 (4th Cir. 1996).
In our review, “we give the benefit of every doubt to the judgment of the trial judge.”
Fontenot v. Taser Int’l, Inc., 736 F.3d 318, 334 (4th Cir. 2014) (internal quotation marks
omitted).
Covil first asserts that “Erie principles mandate a comparative review of damages
awards in diversity cases.” Opening Br. at 31. The company insists that the district court
necessarily abused its discretion by failing to engage in this purportedly required
comparative analysis.
This argument turns on its head the Supreme Court’s unambiguous direction that
the determination of whether a jury’s award is excessive is a matter of state substantive
law. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 429–31 (1996). Recognizing
that “a statutory cap on damages would supply substantive law for Erie purposes” because
it would set the bounds of a plaintiff’s possible recovery, id. at 428–29, the Court reasoned
that a state law prohibiting jury verdicts that “deviate materially from what would be
reasonable compensation” was no different, id. at 425, 430–31. Conversely, of course, a
district court sitting in diversity must abide by a state’s choice not to impose such a
requirement. As Gasperini further explained, although an appellate court reviews the
district court’s decision for abuse of discretion, in this assessment, the appellate court, too,
11 “must be guided by the damage-control standard,” or lack thereof, that “state law supplies.”
Id. at 438; see also Fontenot, 736 F.3d at 334 (“In a diversity action, federal courts apply
state law standards in considering whether the district court abused its discretion when
ruling on a motion relating to a jury’s damages award.”).
Notwithstanding that the Supreme Court and our court have been clear that state law
provides the substantive standard, Covil maintains that our decision in Steinke v. Beach
Bungee, Inc., 105 F.3d 192 (4th Cir. 1997), created a rule of federal procedural law that
district courts sitting in diversity must engage in a verdict comparison analysis to facilitate
appellate review for abuse of discretion. This argument presumes that without such a
comparative analysis, a reviewing court cannot determine whether the district court abused
its discretion. We have grave doubts that Steinke so held. For starters, that opinion
thoroughly and correctly explained Gasperini, which seems at the very least in
considerable tension with Covil’s argument. Moreover, in Steinke we remanded the award
not because the district court failed to engage in a comparative award analysis, but because
it denied the defendant’s motion without a single word of explanation, leaving us unable
to determine the basis for the denial. 105 F.3d at 197.
In any event, we need not definitively resolve whether Steinke adopted a new federal
procedural requirement because Covil did not raise this argument before the district court.
“Absent exceptional circumstances” that Covil does not assert are present here, “we do not
consider issues raised for the first time on appeal.” Volvo Constr. Equip. N. Am., Inc. v.
CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004). Covil does not deny that it did not
argue before the district court that federal procedural law required a verdict comparison.
12 Instead, it maintains that this argument was fairly encompassed in its request that the
district court compare awards. Rep. Br. at 10. We disagree. Before the district court,
Covil consistently argued that comparison was warranted and permissible under state law.
But at no point did the company intimate that federal law mandated a verdict comparison. 3
Covil thus waived the argument.
We turn to whether the district court abused its discretion in determining that the
verdict was not excessive as a matter of law. North Carolina law provides that a trial court
may order a new trial if the verdict appears to be “given under the influence of passion or
prejudice.” N.C. R. Civ. P. 59(a)(6). Covil maintains that the size of the verdict here was
so large that it constitutes prima facie evidence of passion or prejudice. It marshals two
primary supporting arguments: that opposing counsel made an improperly prejudicial
closing argument, in effect impermissibly asking the jury to punish Covil, and that the
damages were so speculative that they were necessarily based on the jury’s passion or
prejudice.
As the district court recognized, in determining whether a damages award is due to
the influence of passion or prejudice, under North Carolina law a trial court must consider
3 It is not as though the excessiveness issue was considered only in passing. The district court put significant thought into the question of how to determine whether the verdict was excessive, and explicitly solicited the parties’ advice on how it should analyze excessiveness. Given the opportunity, both in briefing and at the hearing, to air its position, Covil persistently extolled the merits of a comparative approach, but agreed that state substantive law supplied the standard and never once mentioned federal law. Having not raised this argument below, the district court had no occasion to consider it.
13 the entirety of the evidence presented at trial. See Guox v. Satterly, 596 S.E.2d 452, 454–
55 (N.C. App. 2004). Moreover, North Carolina law is also clear that the size of the award,
standing alone, is not evidence of passion or prejudice. See Everhart v. O’Charley’s, Inc.,
683 S.E.2d 728, 742 (N.C. App. 2009). With these principles in mind, we review for abuse
of discretion the district court’s conclusion that (i) Covil did not meet its burden of proving
that opposing counsel’s statements improperly prejudiced the jury; and (ii) the trial
evidence provided a basis for the jury’s award.
Covil first argues that counsel for Mrs. Finch “gave an incendiary closing argument”
that “excoriat[ed] Covil over matters relevant only to punitive damage awards” not at issue
in this case. Opening Br. at 14, 41. In particular, Covil maintains that Mrs. Finch’s counsel
encouraged the jury to consider Covil’s motives as well as conduct unrelated to the
question of the company’s negligence, both improper bases for compensatory damages.
For example, Covil complains that Mrs. Finch’s counsel smeared the company as a
bad actor by asserting that it had destroyed records. But, as the district court explained,
this argument was not improperly prejudicial. Rather, “this was a permissible inference
from the evidence.” Finch v. Covil Corp., 388 F. Supp. 3d 593, 615 (M.D.N.C. 2019).
Covil maintained that it could not produce records related to its insulation sales to the
Firestone plant because they burned in a warehouse fire; yet Firestone’s records indicated
that sales to Firestone occurred the year following the fire and were shipped from a Covil
warehouse not impacted by that fire. The district court concluded that Mrs. Finch offered
this information not to suggest that Covil was a bad actor deserving of punishment, but “to
14 provide context for why the plaintiff had not proffered more robust documentary evidence,
and to address Covil’s contention that the absence of documentary evidence meant the
plaintiff could not prove her case.” Id. at 615. The district court similarly rejected Covil’s
assertions that other statements were unfairly prejudicial, explaining that either Covil’s
characterizations of Mrs. Finch’s argument were “inaccurate,” or the statements
themselves were “not improper” or “could not rationally have caused prejudice to Covil.”
Id. We need not recount the entirety of the district court’s opinion; suffice it to say that,
having independently reviewed the trial record, including the 100-page transcript of
Mrs. Finch’s closing argument, we see no error in the district court’s conclusions.
Covil alternatively claims that the evidence did not support the large award of
compensatory damages, raising an inference that passion or prejudice motivated the award.
The North Carolina wrongful death statute allows recovery for pain and suffering
of the decedent, as well as the “present monetary value of the decedent to the persons
entitled to receive the damages recovered” because of his death. N.C. Gen. Stat. § 28A-
18-2(b)(2), (4). The present monetary value of the decedent is not limited to “income-
focused measure[s] of damages,” but allows recovery for the services, society, and
companionship of the decedent, including decedents who may not produce an income, like
“a child, homemaker or handicapped person.” DiDonato v. Wortman, 358 S.E.2d 489, 492
(N.C. 1987).
Although a plaintiff may recover for the present value of a decedent’s services
without reference to income, the Supreme Court of North Carolina has been clear that
15 damages pursuant to section 28A-18-2(b)(4) must still be “proved to a reasonable level of
certainty” rather than being “based on pure conjecture,” lest the statute become punitive in
effect. Id. at 493. In so holding, the DiDonato Court provided some assistance to courts
struggling to ensure plaintiffs prove the non-pecuniary value of the decedent’s services,
care, and companionship provided because, by their nature, such services have no readily
ascertainable dollar value.
DiDonato held that loss of services and companionship, while permissible bases for
recovery under North Carolina law, are unavailable in a suit for the wrongful death of a
stillborn child. This is so because “we simply cannot know anything about its personality
and other traits relevant to what kind of companion it might have been and what kind of
services it might have provided. An award of damages covering these kinds of losses
would necessarily be based on speculation rather than reason.” Id. at 494. This analysis
indicates that the loss of services and companionship need not have a readily ascertainable
pecuniary value. Rather, in assessing these damages, a jury may take “personality and
other traits” into consideration. DiDonato thus teaches that there is a difference between
an unrecoverable speculative loss — that is, one without a basis in the evidence — and a
loss that is merely difficult to quantify. North Carolina law forbids speculative damages,
but damages that are difficult to quantify are squarely within the province of the jury. Thus,
as the district court recognized, North Carolina courts have directed that “the assessment
of [wrongful death] damages must, to a large extent, be left to the good sense and fair
judgment of the jury.” Brown v. Moore, 213 S.E.2d 342, 348 (N.C. 1975).
16 In this case, without a more specific jury form, we cannot know what portion of the
jury’s award was attributable to Mr. Finch’s pain and suffering (it may have constituted
the bulk of the award) and what portion was compensation for the value of Mr. Finch’s
companionship and services to his family. Regardless, Mrs. Finch offered reasonable
certainty on both.
While valuing Mr. Finch’s pain and suffering required the jury to quantify intangible
losses, there was nothing speculative about the existence or magnitude of his pain and
suffering. Mrs. Finch offered extensive, uncontroverted evidence as to her husband’s pain
and suffering, which included enduring eight months of what Dr. Holstein testified
(without rebuttal) was one of the most painful cancers that exists due to its impact on a part
of the body dense in nerve endings. Moreover, the jury heard testimony (again, unrebutted)
that, over eight months, Mr. Finch was hospitalized for multiple operations, necessitating
extended hospital stays; had several liters of fluid removed from his lungs and 28 pounds
of cancer removed from his body; and lost his spleen, his colon, most of his rectum, and
part of his intestines, requiring Mr. Finch to carry a colostomy bag that severely limited his
daily activities. In addition, the jury learned that, following his first surgery, Mr. Finch
could no longer participate in activities that gave him joy and meaning, including spending
time with his family and attending church.
Given the uncontested evidence regarding the course of Mr. Finch’s illness and
attendant complications, we cannot say that Mr. Finch’s physical and psychological
suffering from his disease was speculative. The district court further recognized that expert
opinion could not have ascertained a more determinate value for Mr. Finch’s pain and
17 suffering and that “golden rule” evidence would have been improper. Finch, 388 F. Supp.
3d at 626. The court concluded: “The fact that there was no evidence placing a dollar
amount on Mr. Finch’s pain and suffering does not undermine the compelling and
uncontradicted evidence that his pain and suffering were substantial.” Id. We agree. That
some amount of the jury’s award in this case was based on intangible pain and suffering
does not make it speculative.
The district court also rejected Covil’s suggestion that evidence of the monetary
value of Mr. Finch to his family was minimal or speculative, noting that the evidence about
Mr. Finch’s deep and loving relationship with his family was “similarly compelling and
uncontradicted.” Id. at 626. The court recounted the active role Mr. Finch played in the
lives of his adult children and his grandchildren, whom he saw on at least a weekly basis.
Id. Mrs. Finch testified that they had a very close marriage, that they were “[a]lways” in
close physical proximity, and that he left love notes for her around the house. Id. at 627.
In short, Mrs. Finch (and Mr. Finch’s daughter, who also testified) offered uncontested
evidence about the depth of the relationships he had with his family. The district court
concluded that, despite the difficulty in precisely calculating the value of Mr. Finch’s
“society, companionship, comfort, guidance, kindly offices and advice,” N.C. Gen. Stat.
§ 28A-18-2(b)(4), the evidence of the “substantial value” of Mr. Finch to his family was
“compelling.” Finch, 388 F. Supp. 3d at 628. We agree that Mrs. Finch has satisfied what
North Carolina law requires.
We do not suggest that the jury’s award was the only amount that could have
compensated Mrs. Finch and the estate for the damages proved in this case. Even
18 accounting for the uncontested evidence demonstrating the length and intensity of
Mr. Finch’s suffering and the gravity of his family’s loss, the award is undeniably
significant. But, having read and considered the entire trial record, we are struck by the
lack of any inflammatory argument by Mrs. Finch’s counsel, the absence of any contrary
evidence on many now contested issues, and the district court’s care throughout the trial
and post-trial proceedings, including its thoughtful consideration of, and ultimate rationale
for rejecting, Covil’s attack on the size of the damages award. Without evidence of passion
or prejudice, we cannot replace the jury’s considered judgment with our own, or with an
amount that Covil would prefer.
IV.
For the foregoing reasons, we conclude that the district court did not err in
instructing the jury or in upholding the damages the jury awarded. 4 The judgment of the
district court is therefore
AFFIRMED.
4 Consequently, as Covil concedes, Rep. Br. at 26 n.8, we need not reach its argument that the district court erred in denying its renewed motion for judgment as a matter of law as to Mrs. Finch’s failure-to-warn claim.