Caccavale v. Raymark Industries, Inc.

533 N.E.2d 1345, 404 Mass. 93

• Court: Massachusetts Supreme Judicial Court
• Decided: February 13, 1989
• Status: Published

Opinions

Hennessey, C.J.

The plaintiff in this product liability case sued sixteen asbestos products manufacturers for damages arising from the wrongful death of her husband, Joseph N. Caccavale, from asbestos related diseases. Prior to trial, the plaintiff either dismissed or settled her claims against all of the defendants except Raymark Industries, Inc.

At trial, a Superior Court judge submitted the case to a jury on special questions. The jury found the defendant negligent, but found no breach of warranty, and awarded the plaintiff $170,000 in damages.

The plaintiff moved for a new trial on the issue of damages alone. The defendant opposed this motion and moved for a new trial on all issues. The judge granted the plaintiff’s motion. At retrial on the damages issue, the jury returned a judgment of $637,999.90 against the defendant. In light of our conclusions in this case, this retrial is a nullity.

The defendant appealed the judge’s refusal to grant a mistrial, his refusal to grant a new trial on all issues, and his refusal to send the jury back for further deliberations, as well as the interest rate the judge applied to the damages. The plaintiff cross appealed on the interest rate issue. We allowed the defendant’s application for direct appellate review.

The following synopsis chronicles the relevant trial proceedings. It also illustrates the complexity of the case, as well as the confusion under which the jury labored.

After all the evidence had been presented, the judge instructed the jury on many issues, including negligence and warranty law, and submitted the case to the jury on special questions:

I. Was the defendant negligent?

II. If you answered No. 1 in the affirmative, did defendant’s negligence contribute to causing Joseph Caccavale’s death?

III. Was there a breach of warranty by the defendant? If your answer to No. 3 is ‘No’ do not go any further. If your answer to No. 3 is ‘Yes’ go on to No. 4.

IV. If you answered No. 3 in the affirmative, did defendant’s breach of warranty contribute to Joseph Caccavale’s death?

V. Was the defendant grossly negligent?

VI. What sum do you award as compensation for the loss suffered by:

A. Mrs. Rita Caccavale, widow and administratrix:

1. Conscious pain and suffering.

2. Loss of consortium.

3. Damage to earning capacity of Joseph Caccavale during his life.

4. Reasonable medical bills and expenses;

B. Mrs. Rita Caccavale for the death of Joseph Caccavale;

C. Mary Caccavale for the death of Joseph Caccavale;

D. Carol Ferris for the death of Joseph Caccavale;

VII. If you answered Question No. 5 ‘yes’ what amount do you assess against the defendant for punitive damages? (not less than $5,000).

After deliberating for two hours, the jury asked two questions: “Could you tell, Judge, in written form, or [define] for the jury the word negligence as you read it to us in court today?” and, “Was the Massachusetts law that the Judge mentioned today regarding corporate responsibility for warnings in effect in 1939 to 1944?” The judge gave the jury a copy of his charge on negligence and instructed the jury that the law in 1939 to 1944 was the same as that at the time of trial.

Later during deliberations, the jury asked the court: “May we have the transcript re: judge’s comments on breach of warranty?” The judge reinstructed the jury on warranty liability, and gave the jury a transcript of the instruction and a written supplement. Included in the instructions was the statement that the jury had to answer “yes” to the breach of warranty questions if they answered “yes” to the negligence questions.² Approximately two hours later, the jury returned with another question: “Why did the Judge stipulate that Questions 3 & 4 [breach of warranty] must be answered ‘yes’ if Questions 1 & 2 [negligence] are answered ‘yes?’ Our ‘special question’ sheet seems to indicate that a positive response to 1 & 2 still provides room for a ‘no’ response for #3. (We are deadlocked on Question #2.)” The judge instructed the jury that the breach of warranty question was independent of the negligence question, stating that they were two different theories of liability.³

"About fifteen minutes later, the jury returned with a verdict. The jury found negligence, and a casual relationship, but not a breach of warranty. The judge explained to the jury that their verdict was incomplete, because the jury did not answer the gross negligence and damages questions. Defense counsel requested that the jury be instructed that the verdict remained open, and that all issues were open until the final decision was made. The plaintiff’s counsel offered to voluntarily dismiss the breach of warranty count, and argued that the jury did not understand the breach of warranty issue. The judge and counsel decided to write supplemental instructions to correct the jury’s confusion.

At the beginning of the next court day, defense counsel filed a motion for a mistrial on numerous grounds, including the inconsistent answers returned by the jury to special questions. Defense counsel also filed, in the alternative, a motion to return the jury for further deliberations. At a bench conference that morning, the judge and counsel discussed the jury’s incomplete verdicts and the various courses to resolve the problem. Defense counsel stated that “the jury is terribly confused,” and that “there is total confusion in that jury room.” Defense counsel stressed that “with respect to the finding of negligence and the finding of no breach of warranty,. . . they’re hopelessly inconsistent.” The judge then reinstructed the jury, stating, with reference to their answers to the special question: “It may be consistent with your view of the evidence. It may not be consistent with your view of the evidence. I’m not asking for you [to] change your verdict if everyone is on the same frequency. ”

A few hours later the jury returned with verdicts. The jury found negligence, and found that the defendant’s negligence contributed to the cause of Joseph Caccavale’s death, but found neither a breach of warranty nor gross negligence. The jury awarded $18,500 for conscious pain and suffering, $18,500 for loss of consortium, $100,000 for damage to Joseph Caecavale’s earning capacity during his lifetime, $13,000 in reasonable medical bills, $20,000 to Rita Caccavale for the death of Joseph Caccavale, no damages to the daughters of Joseph Caccavale, and no punitive damages. The judge thanked the jurors for their service and excused them. Defense counsel moved that the jury not be excused and that they return to their deliberations with instructions on the net earning capacity issue. The judge stated: “We are not going to take this hardworking jury back now to report further. I couldn’t do it if I wanted to. The verdict has been recorded. If there is to be a new trial, you may make a motion.” Defense counsel renewed the defendant’s motion for a mistrial based on the inconsistent verdicts. The judge denied the motion.

The plaintiff moved for a new trial on damages alone. The defendant opposed the motion and moved for a new trial on all the issues. The judge ordered a new trial on the issue of damages, excepting the damages sustained by Joseph Caccavale’s two daughters. Subsequently, at retrial on the damages issue, the jury awarded a total of $637,999.90 in damages. Both parties appealed. That proceeding is a nullity in light of our decision in this appeal, and therefore irrelevant.

We conclude that the judgment below must be reversed. The jury’s answers to special questions stating that Raymark was negligent, but not in breach of warranty, were inconsistent as a matter of law. Hayes v. Ariens Co., 391 Mass. 407, 410 (1984). “A defendant in a products liability case in this Commonwealth may be found to have breached its warranty of merchantability without having been negligent, but the reverse is not true. A defendant cannot be found to have been negligent without having breached the warranty of merchantability.” Id. See n.3, supra. No theory of Massachusetts law reconciles the jury’s inconsistent findings in this case. It is true that certain special circumstances in a case might permit a finding of negligence without a finding of a breach of warranty, but those circumstances are not present in this case. See id. at 413 (discussing negligent failure to give a post-sale warning).

The plaintiff argues that the defendant failed to object to jury instructions on which the inconsistent verdict was based. We disagree. Raymark made its position sufficiently clear at trial to have preserved its right on appeal. Raymark told the judge that “the finding of negligence and the finding of no breach of warranty [are]. . . hopelessly inconsistent,” and that “they can’t have no breach of warranty and negligence.” Raymark moved for a mistrial, in part because of the inconsistency in the jury’s preliminary answers to the special questions, and renewed that motion when the jury returned with an inconsistent verdict. Defense counsel argued that “the jury’s inconsistent answers indicate a fundamental misunderstanding of either negligence law or warranty law, or both.” The jury instructions and the question of inconsistent verdicts were intermingled and interdependent. The defendant’s position, reasonably clear in along and confusing dialogue among judge, counsel, and jury, applied to the jury instructions on negligence and breach of warranty.⁴

We can only speculate as to the cause of the jury’s confusion, but the inconsistent verdicts cannot stand. Although defense counsel should have more explicitly requested at the final stage that the jury be sent out for further deliberations because of the inconsistent verdicts, the record clearly shows that the defendant reiterated its position regarding the legal inconsistency of the verdicts during the continuing colloquy during the last few days of the trial. “Since the special verdicts with respect to whether the defendant was negligent and breached its warranty were inconsistent, further deliberations by the jury after appropriate instructions by the judge would have been appropriate.” Hayes, supra at 414. Because the judge did not return the jury for further deliberations, with additional instructians, he should have allowed Raymark’s motion for a mistrial or its subsequent motion for a new trial on all issues.⁵

The judgment is reversed and the case is remanded to the Superior Court for a new trial on all issues.

So ordered.

2 The defendant suggests that an additional instruction discussed at an unrecorded conference was erroneously submitted to the jury and was the source of the jury’s confusion.

3 Under Hayes v. Ariens Co., 391 Mass. 407 (1984), the jury had to conclude that there had been a breach of warranty if they concluded there had been negligence. The judge did not contradict the original correct instruction regarding the consistency of the verdicts. He answered the jury’s question, stating: “Question 3 dealing with the breach of warranty doesn’t depend at all on how you have dealt with Questions 1 and 2. It may be that the defendant was negligent and also that there was a breach of warranty by the defendant. It is also possible that the defendant was not negligent and there could still be a finding of breach of warranty because these are two different theories of liability.” See Hayes v. Ariens Co., supra at 410, and see the discussion of that case, infra, in this opinion.

4 The dissenting opinion, post 99-100 (Liacos, J., dissenting), concludes that the judge’s instructions to the jury on breach of warranty were too narrow and did not make clear that foreseeable users of the asbestos product could recover for breach of warranty if the product was unreasonably dangerous. We disagree. The judge properly instructed the jury, stating: “A product isn’t defective if it’s safe for its normal and foreseeable use ... so long as it was reasonably safe for its intended purpose . . , (emphasis added). It is unrealistic to conclude that the jury, in evaluating this case, which deals strictly with personal injury, considered the safety issue in terms of fitness for wrapping pipes.

5 The parties also dispute the proper postjudgment interest rate to be applied to the damages for the decedent’s pain and suffering, impaired earning capacity, and hospital bills. Because we order a new trial, we do not address this issue. See MacCuish v. Volkswagenwerk A.G., 400 Mass. 1003 (1987), affirming 22 Mass. App. Ct. 380 (1986).