RENDERED : DECEMBER 16, 2010 TO BE PUBLISHED
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CERTAINTEED CORPORATION APPELLANT
ON REVIEW FROM COURT OF APPEALS CASE NOS. 2006-CA-000918-MR, 2006-CA-000962-MR, 2006-CA-000988-MR AND 2006-CA-001025-MR MARSHALL CIRCUIT COURT NO . 02-CI-00310
AVA NELL DEXTER, INDIVIDUALLY ; AND JAMES M. DEXTER, EXECUTOR OF THE ESTATE OF JAMES G. DEXTER APPELLEES
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING
This case involves an asbestos-related products liability and. negligence
suit against nineteen corporate defendants . Only two defendants proceeded to
trial; the others either settled or won summary judgment motions, and thus
had become empty-chair defendants when the case went to trial. At the first
trial, the jury returned a verdict in favor of the plaintiff, but apportioned no
fault to any of the empty-chair defendants . The trial court then granted a new
trial under CR 59 .01(fl because the jury's failure to apportion fault to the
empty-chair defendants was "manifestly unsupported by the evidence and
manifestly a product of jury passion and prejudice." The Court of Appeals
reversed . This Court granted discretionary review to determine whether the
trial court erred in granting a new trial, which in turn requires us to decide what quantum of proof is necessary to justify apportionment against empty-
chair defendants. For the reasons set forth below, the Court of Appeals is
reversed .
I. Background
James G. Dexter worked as a pipefitter from 1946 until 1984. As a
result, he was exposed to asbestos-containing pipes, gaskets, and insulation at
many different jobsites . His exposure involved products made by many
different companies. Dexter was also a long-term cigarette smoker.
Dexter was diagnosed with lung cancer. His lungs were found to contain
a substantial amount of asbestos fibers . It is undisputed that his lung cancer
was caused by both his on-the-job exposure to asbestos and by his long-term
smoking habit.
On July 8, 2002, Dexter filed suit in Marshall Circuit Court against
nineteen corporate defendants, including the Appellant, CertainTeed Corp., l
based on products liability (failure to warn) and common-law negligence
theories. All the defendants either made asbestos-containing products, which
were used in Dexter's work, or owned the premises where Dexter worked and
1 The other eighteen defendants were : 4520 Corp., Inc. ; ACandS, Inc. ; Combustion Engineering, Inc. ; Garlock Sealing Technologies, LLC.; General Electric Co . ; Harman Supply Co. ; Henry A. Petter Supply Co. ; John Crane, Inc. ; Metropolitan Life Insurance Co . ; Mine Equipment and Mill Supply Co. ; North Brothers, Inc . ; Rapid- American Corp. ; Robertson-Ceco Corp . ; Motion Industries, Inc . ; Southern Manufacturing, Inc. ; Triangle Insulation and Sheetmetal Co. ; Union Carbide Corp. ; and Westinghouse Electric Corp. was exposed to asbestos-containing products. The defendants later impleaded
eleven additional corporate defendants.2
In 2004, prior to trial, Dexter died from his cancer. He was 79 years old.
His son, James M. Dexter, was substituted as a party, as executor of the
estate .
Eventually, some of the defendants were granted summary judgment,
and many others settled before trial. This left only Garlock Sealing
Technologies, LLC and CertainTeed as defendants ; the rest became empty-chair
defendants against whom Garlock and CertainTeed tried to show fault.
The trial began on May 11, 2005. As will be described in more detail
below, evidence was introduced showing that Dexter was exposed to the
products of both participating and empty-chair defendants, that any exposure
to asbestos would have caused his injuries, and that the industry had known
prior to his exposure that asbestos could cause lung disease and cancer.
Importantly, the proof showed that Dexter worked around CertainTeed's
products for a total of only one week out of his almost forty-year career as a
pipefitter . On May 25, 2005, the trial concluded and the case was submitted to
the jury, with the empty-chair defendants appearing on the verdict forms for purposes of apportionment of fault.
The jury found in favor of the plaintiffs on the products liability claims,
but in favor of the defendants on the common-law negligence claims . They
2 These additional defendants were : Air Products and Chemicals, Inc. ; Arkema, Inc. ; CC Metals and Alloys, LLC; Crawford Russel Corp. ; Federal-Mogul Corp. ; Federal- Mogul Products, Inc. ; ISP Chemical Products, Inc. ; Johns Manville Corp. ; Mead Westvaco Corp. ; Owens-Corning Corp. ; and Tennessee Valley Authority. 3 returned a verdict awarding Dexter's estate $66,376 for past medical expenses,
$5,000,000 for pain and suffering, and $6,750 for funeral expenses, for a total
award of $5,073,126. They apportioned 35% fault to Dexter, 35% fault to
Garlock, and 30% fault to CertainTeed. The jury allocated no fault to any of
the empty-chair defendants. On June 10, 2005, the trial court entered
judgment in accordance with the verdict.
Soon thereafter, Garlock and CertainTeed moved for a new trial, arguing
the jury's failure to allocate any fault to any of the empty-chair defendants
could not be "sustained by sufficient evidence" under CR 59 .010 . The trial
court agreed, and granted a new trial, stating in its order:
Garlock Sealing Technologies, LLC and CertainTeed Corporation are entitled to a new trial on the issue of apportionment because the jury's verdict finding no fault to be apportioned to any [other] defendant . . . is manifestly unsupported by the evidence and manifestly a product of jury passion and prejudice. . . . The jury's finding that [they] were alone responsible for the plaintiffs' decedent, James G. Dexter's exposure to the asbestos fibers that led to his developing an asbestos-related disease and contributed to causing his lung cancer is not supported by the evidence .
The order fails to explain exactly what evidence the trial court believed the jury
overlooked or why it believed that the jury's verdict was a result of passion and
prejudice .
The case was re-tried in January and February 2006 . The second jury
found in favor of the plaintiff on both the products liability and common-law
negligence claims, and awarded damages of $93,005 for past medical expenses,
$1,500,000 for pain and suffering, and $6,744 in funeral expenses, for a total
award of $1,599,749 in compensatory damages . This time, however, the jury
apportioned some fault against the empty-chair defendants in addition to the 4 participating parties ; specifically, the jury assigned 60% fault to Dexter, 2%
fault to CertainTeed, 17% to Garlock, and 21% to various empty-chair
defendants. (The jury also awarded $100,000 in punitive damages against
CertainTeed and $600,000 against Garlock, as well as $15,000 for loss of
consortium to Dexter's widow.) On February 22, 2006, the court entered
On appeal, the plaintiffs complained that the trial court clearly erred in
granting the new trial. CertainTeed and Garlock cross-appealed to challenge
the second judgment against them. The Court of Appeals resolved the case by
holding that "the trial judge's decision . . . to set aside the jury's verdict
constituted an abuse of discretion and was clearly in error." As a result, the
court reinstated the judgment from the first trial. Because of this resolution,
the court did not address the other issues raised by the parties .
CertainTeed sought discretionary review,3 which this Court granted to
determine whether the reversal was correct, and to explain what quantum of
proof is required before it can be proper to apportion fault to empty-chair
defendants.
II. Analysis
Before getting into the substance of the issues raised by the parties, a
prefatory note about what is not at issue here is necessary. No party has
3 Garlock also moved for and was granted discretionary review. Its case was to be heard with Certainteed's. However, Garlock filed for bankruptcy shortly before the oral argument was to be held, and the automatic stay provision of the Bankruptcy Code, 11 U.S.C . § 362, barred further consideration of the appeal. This opinion, therefore, does not directly resolve Garlock's appeal, which was stayed and remains open until the stay is lifted by the bankruptcy court. 5 challenged the scope of the trial court's grant of a new trial-only that it was
granted. Questions may exist about whether the second trial should have
included the negligence claims (as opposed to the strict liability claims), which,
in turn, would raise questions about whether the premises owning empty-chair
defendants were properly included . Nor has any party in the present appeal
challenged the appropriateness of the trial court's approach to the strict
liability and negligence claims against CertainTeed and the other defendants,
though there may be questions about whether both types of claims can be
pursued against any single defendant. These issues, and others, may have
been the subject of the appeal and cross-appeal of the second trial but were not
addressed because of the Court of Appeals' resolution of reinstating the original
judgment . Such issues are not currently before this Court.
The only issue truly here is whether the Court of Appeals erred in
reversing the trial court's grant of a new trial to CertainTeed and Garlock. That
issue requires examining certain subsidiary issues--such as the standard of
review of a new trial decision and what a defendant must prove to obtain
apportionment against an empty-chair defendant--but only to the extent
necessary to resolve the primary issue of the appropriateness of the trial
court's grant of a new trial . For the most part, this opinion addresses those
subsidiary issues as they have been framed by the parties, without further
complication by other issues that might be unresolved, either because they
have not been raised or have not yet been addressed by the Court of Appeals. With that said, we now turn to the question presented by the motion for
discretionary review: whether the Court of Appeals erred in reversing the trial
court's grant of a new trial.
A. Standard of Review for a New Trial Order
Appellate courts must give "a great deal of deference" to a trial court's
decision to grant a new trial per CR 59 .01 . Bayless v. Boyer, 180 S .W. 3d 439,
444 (Ky. 2005) . In fact, the trial court's decision whether to grant a new trial
"is presumptively correct." City ofLouisville v. Allen, 385 S .W.2d 179, 184 (Ky.
1964) (Clay, Comm'r), overruled on other grounds by Nolan v. Spears, 432
S .W.2d 425, 427 (Ky. 1968). Furthermore, an "appellate court is more
reluctant to reverse an order granting a new trial than one denying it" .
Louisville Mem'l Gardens, Inc. v. Com., Dept. ofHighways, 586 S.W .2d 716, 717
(Ky . 1979) (citing Allen, 385 S .W. 2d at 181) . This high level of deference by an
appellate court is necessary because the decision to grant a new trial "`depends
to a great extent upon factors which may not readily appear in the appellate
record .' Id. (quoting Turfway Park Racing Assn v. Griffin, 834 S .W.2d 667,
669 (Ky. 1992)) . Indeed, unlike appellate judges, the trial judge "has heard the
witnesses firsthand and observed and viewed their demeanor and . . . has
observed the jury throughout the trial." Davis v. Graviss, 672 S .W.2d 928, 932
(Ky. 1984) .
It is important to remember that the trial court's observations "cannot
[be] replicate[d] by reviewing a cold record ." Greenleaf v. Garlock, Inc., 174 F .3d
352, 366 (3d Cir. 1999) . Consequently, an appellate court is "precluded from
stepping `into the shoes' of a trial court" in reviewing decisions under CR 59 .01 . 7 Miller v. Swift, 42 S .W .3d 599, 601 (Ky. 2001) (citing Prater v. Arnett, 648
S.W .2d 82 (Ky.App . 1983)) .
This Court has previously stated that "[o]nly if the appellate court
concludes that the trial court's order was clearly erroneous may it reverse."
Mrfway Park Racing Ass'n v. Griffin, 834 S.W . 2d 667, 669 (Ky. 1992) . Yet,
that decision also states that "a CR 59.01 ruling [i]s `a discretionary function
assigned to the trial judge.' Id. (quoting Davis v. Graviss, 672 S.W.2d 928, 932
(Ky. 1984)). The Court of Appeals in this case seized on the discretionary
language in many Kentucky cases, ignoring the clear statement in Griffin and
other cases that the standard was "clearly erroneous," to hold that the
appropriate standard was abuse of discretion, which requires slightly less
deference than the clear error standard.
After reviewing Griffin and other cases addressing motions for a new trial,
it is apparent that deciding such a motion actually requires multiple decisions
by the trial court, consisting of both fact finding and discretionary judgment .
Each of these sub-decisions is entitled to a different level of deference and
standard of review . Cf. Miller v. Eldridge, 146 S .W.3d 909, 916-22 (Ky. 2004)
(separating Daubert determination into multiple questions, some of fact and
some requiring court's discretion) .
First, the trial court must decide whether one of the grounds laid out in
CR 59 .01 exists . This is a finding of fact and is thus subject to review for clear,
error. When reviewing a trial court's findings under the clear error standard,
the appellant court must determine "whether or not those findings are
supported by substantial evidence." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 8 2003) . Though "[s]ubstantial evidence is more than a scintilla, and must do
more than create a suspicion of the existence of the fact to be established," Am.
Rolling Mill Co. v. Pack, 278 Ky. 175, 128 S .W .2d 187, 190 (1939), it does not
mean the evidence must be absolutely compelling or lead inescapably to but
one conclusion . Rather, substantial evidence is "'[e]vidence that a reasonable
mind would accept as adequate to support a conclusion,' Moore, 110 S.W .3d
at 354 (quoting Black's Law Dictionary 580 (7th ed. 1999)), or evidence that
"`has sufficient probative value to induce conviction in the minds of reasonable
men;' id. (quoting City ofMonticello v. Rankin, 521 S .W .2d 79, 80 (Ky. 1975)) .
Second, upon a proper finding under CR 59 .01, the trial court must
make the discretionary decision whether to grant the motion. Even if the trial
court finds that one of the grounds exists, it is not bound in every case to grant
a new trial. The issue could be moot, or the grounds may be off-set by other factors. But we need not imagine every scenario where a court could find that
one of the CR 59 .01 grounds is technically present but still properly deny a
new trial. Suffice it to say, whether to grant the motion for a new trial is
always within the trial court's sound discretion and is entitled to a great deal of
deference by an appellate court.
Generally speaking, "[t]he test for abuse of discretion is whether the trial
judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles ." Commonwealth v. English, 993 S .W .2d 941, 945 (Ky. 1999) .
However, a court can also "`abuse[] its discretion when it relies on clearly
erroneous findings of fact.' Walters v. Moore, 121 S .W.3d 210, 215 (Ky. App.
2003) (quoting Romstadt v. Allstate Ins . Co., 59 F.3d 608, 615 (6th Cir . 1995)) . 9 Though this Court has criticized the finding of an abuse of discretion under
this latter category as improperly confusing and mixing different standards of
review, and urged a strict separation of the standards instead, see Miller v.
Eldridge, 146 S.W.3d 909, 915 (Ky. 2004), such a strict separation is not
always possible . What is certain, however, is that a court errs when it makes a
discretionary decision based on a clearly erroneous finding of fact. No
confusion arises, so long as the findings of fact are evaluated under the proper
standard (i.e ., clearly erroneous) and the reviewing court approaches the
questions in the right order, id. (suggesting review of findings of fact precede
review of discretionary decisions) .
Regardless, in most cases, a discretionary decision will be a close one, at
least from the appellate perspective, and will not be disturbed by an appellate
court unless it "`is firmly convinced that a mistake has been made .' Walters,
121 S .W.3d at 215 (quoting Romstadt v. Allstate Ins. Co., 59 F .3d 608, 615 (6th
Cir. 1995)) . An appellate court can only reverse the trial court's decision if it is
sure that the decision is incorrectany doubts must be resolved in favor of the
trial court:
If there is doubt about the correctness of his ruling, it must be upheld. If the record supports his ruling, it will not be reversed . Even if in our opinion the record would more strongly support a different conclusion, if there is substantial reason for his decision, then he has not clearly erred.
Allen, 385 S.W .2d at 184.
The trial court ordered a new trial here because it concluded that "the
jury's verdict finding no fault to be apportioned to any [empty-chair] defendant
. . is manifestly unsupported by the evidence and manifestly a product of jury 10 passion and prejudice." It concluded that this satisfied CR 59 .01(fl's
requirement that "the verdict is not sustained by sufficient evidence," which is
reviewed under the clear error standard. Applying the clear error standard to
that decision is not a simple task, in large part because it not clear what
quantum of evidence is necessary to require apportioning fault to empty-chair
B. Evidence Required for Apportionment
Ordinarily, to apportion fault among multiple tortfeasors, the plaintiff
must prove each tortfeasor's liability beyond the plaintiff's burden of proof
(usually by a preponderance of evidence in a civil case) . It would not be fair to
make a tortfeasor liable with anything less . This means sufficient evidence of
all the elements of the tort must be presented against every tortfeasor to which
fault is assigned. If there is insufficient evidence as to a tortfeasor, the jury
cannot properly apportion fault against it.
But frequently, as in this case, some of the alleged tortfeasors do not
participate in the trial. Numerous reasons exist for such a tortfeasor not
participating in the trial, but it is usually because of a prior settlement. The
question is how much proof is needed to allocate fault to such an empty-chair
defendant. The burden of proof in such a case is effectively shifted, since it is
the participating defendant, not the plaintiff, who seeks to show that the
empty-chair defendant is responsible. Rather than trying to show the actual
liability of the empty-chair defendant, as a plaintiff might do, the participating
defendant is merely seeking a reduction of its liability. CertainTeed has argued
that a participating defendant simply has to show that it was not the cause of 11 at least part of the plaintiffs injury, regardless of whether the empty-chair
defendant could be shown to have legal liability. Cf. 13 David J. Leibson,
Comparative Fault and Apportionment Under KRS 411 .182Determination of
Fault, Ky. Prac. Tort Law § 10:60 (2010) . ("[A tortfeasor] should have to pay no
more than the damage it caused, regardless of the status of other entities at
fault.") .
But such a rule would be unworkable, since it would apply a different
burden of proof to empty-chair defendants than to participating defendants,
which would lead to inconsistent results. Take, for example, two cases with
the same evidence, which establishes that one defendant was both negligent
and a cause of the plaintiffs injury, but that the other defendant, though part
of the cause of the injury, acted reasonably. In one case, the non-negligent
defendant participates at trial; in the other case, the non-negligent defendant
settles for a nuisance sum prior to trial. In the case where the non-negligent
defendant participates in the trial, all of the fault would have to be assigned to
the negligent defendant. But in the other trial, under the rule claimed by
CertainTeed, the participating defendant could avoid some of the liability and
obtain an apportionment against the empty-chair defendant because the non-
negligent defendant was part of the cause of the plaintiff's injury.
Instead, a consistent rule is needed and, indeed, is currently the law in
Kentucky . Empty-chair defendants who have settled are to be treated no
differently than participating defendants in regard to what must be proved to
apportion fault against them. Though the empty-chair defendant will not
actually be held liable in the trial, since it is literally not on trial, a participating 12 defendant must still prove liability on the part of the tortfeasor onto whom it
seeks to shift some of the blame.
Such a rule has implicitly been a part of Kentucky's law of apportioning
fault since the adoption of comparative fault. For example, this Court had held
that "[i]f there is an active assertion of a claim against joint tortfeasors, and the
evidence is sufficient to submit the issue of liability to each, an apportionment
instruction is required whether or not each of the tortfeasors is a party-
defendant at the time of trial." Floyd v. Carlisle Const. Co., Inc., 758 S .W.2d
430, 432 (Ky. 1988) (emphasis added) . Or, as the Court has stated more
explicitly in a case in which the instructions allowed the jury to apportion
damages to parties without finding them at fault:
Fault may not be properly allocated to a party, a dismissed party or settling nonparty unless the court or the jury first finds that the party was at fault; otherwise, the party has no fault to allocate . The mere fact that a party has been sued or has settled does not permit the factfinder to allocate part of the total fault to that party.
Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 482 n. 5 (Ky. 2001)
(citation omitted) ; see also Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d
815, 825 (6th Cir. 2000) (reading KRS 411 .182(2) to require a finding of fault
before apportionment is allowed) .
C. The Standards Applied
With these standards in mind, we must examine the evidence at the first
trial to confirm that the trial court had at least substantial evidence to believe
that the jury's verdict was manifestly erroneous . This question requires that
there was evidence sufficient to prove fault on the part of at least some of the
empty-chair defendants . 13 Before turning to these questions, however, a review of orders under CR
59 .01 is helpful. Reviewing decisions under 59 .01 is always difficult. But the
review in this case is needlessly difficult because the trial judge failed to
explain in his order what evidence he thought the jury overlooked. Although
our rules do not explicitly require such an explanation, this Court has
previously noted that "a proper order granting a new trial should specify the
ground or grounds sustained . Both the litigants and this Court are entitled to
know the basis of the ruling." Allen, 385 S.W. 2d at 180 n.1 . This is all the
more important in cases like this one, where the trial was long and many of the
issues were complex and technical.
The reason appellate courts defer to the trial court's decision to grant a
new trial is because the decision may depend on factors that do not readily
appear in the appellate record, such as witness demeanor and observations of
the jury. Bayless, 180 S.W.3d at 444 ; Greenleaf, 174 F .3d at 366. But that
deference does not make such decisions beyond review. Thus, it is crucial that
the factors going into the decision appear somewhere in the trial record, or else
there may be no record of them at all. Even if the record is complete, the trial
judge's evaluation of this evidence, recorded as findings of fact in support of
the decision, are just as important, at least from the appellate perspective.
Otherwise, an appellate court has to sift through a voluminous record to see
what possibly could have been the basis for the ruling, which wastes judicial
resources and begs for erroneous reversals .
In this case, for example, the trial court simply found that the jury's
verdict in the first trial was "manifestly unsupported by the evidence and 14 manifestly a product of jury passion and prejudice ." While these are findings of
fact, of a sort, they lack of any discussion of the evidence supporting them,
which makes their review difficult. Though CR 59.01 does not currently
require them, the better practice is for a trial court to include in its order at
least some specific findings regarding the evidence (or lack of evidence) that
supports the ultimate decision to grant or deny the motion for a new trial .
That being said, upon thorough review of the extensive record in this
case, this Court cannot conclude that the trial judge made a "clearly
erroneous" decision or that it abused its discretion in ordering a new trial
because of this finding. Bayless, 180 S .W.3d at 444. The trial court ordered a
new trial because it concluded that the failure of the jury to apportion fault to
the empty-chair defendants was "manifestly unsupported by the evidence and
manifestly a product of jury passion and prejudice," which it held met the
requirement in CR 59 .01(fl that the "verdict is not sustained by sufficient
evidence." This finding is subject to clear-error review.
As discussed above, the test for such a finding on appeal is whether
there is substantial evidence to support that finding . After reviewing the
record, this Court concludes that substantial evidence to support the trial
court's finding was introduced at trial.
1 . Evidence of Exposure to Asbestos
A plethora of evidence showed that Dexter was exposed to asbestos by
many of the empty-chair defendants . Although much of this evidence was
general in nature, some of it specifically identified manufacturers of asbestos
15 used at the sites where Dexter worked and the sites themselves where he was
exposed to asbestos .
For example, Billy Robertson, a pipefitter who worked at the same union
as Dexter, identified several companies who provided asbestos-containing
thermal insulation and several worksites at which Dexter would have been
exposed to their products.4 Similar testimony was heard from Herman
Mitchell, another pipefitter at Dexter's union;-5 and Ron Eades, an insulator
who did not know Dexter but had worked at the GE plant during the same time
period, testified likewise .6 Dexter's verified complaint and sworn
interrogatories, which were introduced into evidence, made similar assertions.7
And Dexter's son, who often worked alongside his father, identified certain
insulation brands and jobsites .
4 Robertson identified asbestos-filled thermal insulation as being provided by the following empty-chair defendants : Combustion Engineering, Inc. ; Federal-Mogul Corp . ; Hannah Supply Co. ; Henry A. Petter Supply Co.; John Crane, Inc. ; Johns Manville Corp . ; Owens-Corning Corp.; Rapid-American Corp. ; and Triangle Insulation and Sheet Metal Co . And he identified the sites as being operated by the following empty-chair defendants : Air Products and Chemicals, Inc.; Arkema, Inc . ; CC Metals and Alloys, LLC; ISP Chemical Products, Inc. ; Mead Westvaco Corp. ; and Tennessee Valley Authority . 5 Mitchell recalled Dexter working with asbestos-filled insulation made by empty-chair defendants Triangle Insulation and Sheet Metal Co ., as well as Westinghouse Electric Corp . He also testified that this was at the site operated by another empty-chair defendant, Tennessee Valley Authority . 6 Eades testified that asbestos-filled insulation made by North Brothers, Inc., was used at a Tennessee Valley Authority site and that Dexter would have been exposed to it if he worked there . He also testified that at other facilities, asbestos-containing covering made by Owens-Corning Corp., Johns Manville Corp., and Rapid American was used and Dexter would have been exposed to it also. 7 Dexter's verified complaint identified nineteen companies who were responsible for
exposing him to asbestos . And his sworn interrogatories claim that he worked with or around asbestos at plants run by General Electric Co., Air Products and Chemicals, Inc ., and Mead Westvaco Corp., among others . 16 Dexter himself, identified empty-chair defendants in whose employ or
from whose product he was exposed to asbestos . For example, Dexter stated in
his interrogatories that while working at the GE plant, from 1969 until 1971,
"he worked with and/or around asbestos-containing pipe and block insulation
on steam lines, asbestos-containing gasket and packing materials, asbestos
cloth, asbestos cements . . . , asbestos-containing muds, mastics," and other
materials. He also specifically identified "Kay[l]o pipe and block insulation,"
which is made by empty-chair defendant Owens-Corning, and "Careytemp pipe
covering," which is sold by empty-chair defendant Rapid American, as being
used at the GE site.
Similarly, Dexter's son testified that he worked in the "immediate
vicinity" of his father at the GE plant and that "[i]n a lot of cases" they were
both exposed to asbestos dust from insulation . He even recalled a particular
instance where this occurred. This testimony about Dexter's exposure was
corroborated by Eades, who testified that "if [Dexter] was at Mount Vernon at
the General Electric plant working as a pipefitter, he was exposed to asbestos."
Last, a defense expert, Dr. Michael Graham, established that the type of
fibers in Dexter's lungs were overwhelmingly of a type that could not have come
from either of the participating defendants' products . Specifically, he testified
that Dexter's lungs contained primarily amosite fiber, whereas CertainTeed and
Garlock products contain only crocidolite fibers. This further established that
Dexter was exposed, to a substantial extent, to other asbestos products.
The Court of Appeals opinion largely focuses on this issue . Specifically,
the court rejected CertainTeed's claim that the type of fibers found in Dexter's 17 lungs demonstrates his exposure to other products used by or manufactured
by the empty-chair defendants . The court noted that CertainTeed's and
Garlock's products also contained chrysotile asbestos fibers, which have a very
short half-life compared to other types of asbestos fibers . According to one of
Dexter's experts, this short half-life means that it was not uncommon to find
very little evidence of chrysotile asbestos fibers in the lungs of a worker
exposed even to substantial amounts of it. While the Court of Appeals was
correct that this did not necessarily demonstrate that Dexter was exposed to
very little of CertainTeed's and Garlock's products, it does not also show that
Dexter was not exposed to amosite-containing products . The proof of such
fibers in his lungs proved at least some exposure to products other than those
manufactured by CertainTeed and Garlock.
The Court of Appeals also thought that the evidence of exposure was not
sufficiently specific, explaining "there was a complete lack of proof as to the
type, length or depth of asbestos exposure by any other defendant."
Essentially, it felt that the evidence of exposure was not particularized enough
with respect to the empty-chair defendants.
It is true that the evidence of exposure to the empty-chair defendants
was not as specific as it was to the participating defendants. However, this
Court disagrees that the evidence was so general or otherwise wanting that the
trial court was "clearly erroneous" in concluding that it required some
apportionment. The evidence showed Dexter's length of exposure at the GE
plant was from 1969 to 1971 and identified several brands of asbestos
products used at that site . Dexter's son, who worked in the "immediate 18 vicinity" of his father, recalled specific incidents of exposure at that site ; and
there was evidence that the types of asbestos fibers in Dexter's lungs could not
have possibly come from the participating defendants . Although the evidence
of exposure to the participating defendants was certainly more specific, we
cannot say that the trial court was clearly wrong to conclude that the evidence
of exposure here would be enough to require apportionment.
To some extent, the Court of Appeals' concern about the duration and
intensity of Dexter's exposure goes more toward causation than mere
opportunity for exposure. But these are slightly different concepts, and as
discussed below, there was other, more specific evidence of legal causation .
2. Evidence of Causation
The Court of Appeals rejected CertainTeed's claim that causation of
Dexter's illness by the empty-chair defendant had been proven at trial, but it
did so in an unusual way. The Court stated that "the testimony Appellees
reference consists entirely of a recitation of possible sources of exposure but
not how this exposure was related to [Dexter's] illness ." This demonstrates
some confusion between exposure (i .e ., the opportunity for causation) and
evidence of causation itself (i .e ., that the exposure was the legal cause of the
plaintiffs injury) . Though evidence of exposure may be related to causation
(e .g., testimony about the length and intensity of exposure), it is not exactly
what we mean when we require a plaintiff to prove causation. Instead, the
primary evidence of causation in this case was from the medical experts, who
discussed generally how much exposure to asbestos was necessary to cause
injury and specifically whether Dexter's various exposures caused his cancer. 19 With respect to legal causation, Kentucky has adopted the standard set
forth in the Restatement (Second) of Torts § 431 (1965), which provides :
The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.
See, e.g., Deutsch v. Shein, 597 S.W .2d 141, 144 (Ky. 1980) ; Claycomb v.
Howard, 493 S .W.2d 714, 718 (Ky. 1973). No legal rule relieved the empty-
chair defendants from liability; thus, the only question here is whether there
was evidence showing that exposure to their products was "a substantial factor
in bringing about" Dexter's asbestos-related illnesses. There was ample
evidence of this element, too .
First and foremost, the plaintiff's own expert, Dr. Arthur Frank, testified
that, in his opinion, every single exposure to asbestos would have been the
legal cause of Mr. Dexter's illnesses . Specifically, he was asked on direct: "Do
you have an opinion . . . with regards to whether each and every exposure to
asbestos was a substantial contributing factor in causing these two asbestos-
related diseases?" He responded:
Yes. Each and every exposure would add to his burden. One of the things we know about asbestos-related disease is that the more exposure you have the more likely you are to get disease. Every exposure he would have had in all the years that he would have been exposed to any and all products would have added to his burden and would have contributed to the development of both of these diseases.
(Emphasis added.) Dr. Frank also testified that: "[T]he exposures he would
have had to any and all products . . . would have contributed to the overall
20 burden of asbestos which would have contributed to his asbestosis and to his
lung cancer, the lung cancer being the cause of his death." (Emphasis added.)
Dexter's treating physician, Dr. William Culbertson, agreed. He was
asked whether "each and every exposure to asbestos was a substantial
contributing factor to Mr. Dexter's resulting asbestos-related diseases ." He
responded: "Yes, I believe so." This testimony from Drs. Frank and Culbertson
was uncontroverted .
The other expert testimony was consistent with this . Another of the
plaintiffs medical experts, Dr. Sam Hammar, testified that whether an empty-
chair defendant's asbestos-containing products would have caused Dexter's
injury depended on "the intensity, the duration that they were exposed to it,
and the number of years or months or whatever they were exposed to it."
Dexter argues that this cuts against proving causation for the empty-chair
defendants, but that claim would only work if Dr. Hammar had set a minimum
cut-off of exposure . Instead, Dr. Hammar, like Dr. Frank, testified that the risk
of disease increases as exposure to asbestos increases. Given prior evidence of
these factors and the extremely high concentration of asbestos fibers in
Dexter's lungs (Dr. Hammar described it as the most he had ever seen in a pipe
fitter's lungs), this Court cannot say the trial court was clearly erroneous in
finding it to have been unreasonable for the jury to conclude that none of the
empty-chair defendants contributed at all to Mr. Dexter's disease.
Last, this Court is further compelled by the plaintiffs' admissions in their
opening statement. Their attorney stated: We're not trying to suggest that GE or Johns-Manville or some other company didn't have a role or responsibility . No, we think that there's many companies that participated in causing the death of Mr. Dexter. We think these companies are significant and the evidence will show that they caused Mr. Dexter to have significant exposure to their products . . . .
The evidence bore this out. 8
In short, there was uncontroverted evidence that each exposure to
asbestos would have been a legal cause of Dexter's injuries . Consequently, the
evidence of exposure to the empty-chair defendants' products mean's that they
must have legally caused some portion of Dexter's injuries .
3. Evidence of Knowledge of the Danger of Asbestos and Failure to Warn
Proof of exposure and causation alone, however, are insufficient to show
legal fault on the part of a defendant, participating or empty-chair, in a
products liability case. To find fault against a defendant, and thus allow
apportionment, there must also be proof that the defendant breached a duty.
In a products liability claim, this can be proven in a number of ways,
including defective design, manufacturing defects, and a failure to warn. See
Clark v. Hauck Mfg. Co., 910 S .W.2d 247, 250 (Ky. 1995), overruled on other
grounds by Martin v. Ohio County Hosp. Corp., 295 S .W.3d 104 (Ky. 2009) .
Under the latter theory, upon which this case proceeded, liability for a
8 CertainTeed cites several cases in which this Court's predecessor held that a plaintiff may be bound by unequivocal factual admissions in opening statement and that such admissions can be fatal to the plaintiff's case . See, e.g., Samuels v. Spangler, 441 S.W.2d 129, 131 (Ky. 1969) . "[Y]et the practice is a dangerous one and should be exercised with caution . `A party is not to be made the victim of some inadvertent or ambiguous or merely inconsistent statement of his counsel."' Raco Corp. v. Edwards, 272 S.W.2d 345, 347 (Ky. 1954) (quoting Hill v. Kesselring, 310 Ky. 483, 220 . S .W.2d 858, 862 (1949)) . As such, we are not inclined to affirm the trial court's ruling solely on the basis of counsel's opening statement. Such statements, however, no doubt colored the trial court's perception of the evidence, putting it on notice that the plaintiff may have been trying to have it both ways . 22 manufacturer follows only if it knew or should have known of the inherent
dangerousness of the product and failed to "accompany[] it with the quantum
of warning which would be calculated to adequately guard against the inherent
danger." Post v. Am. Cleaning Equip. Corp., 437 S .W.2d 516, 520 (Ky. 1968) . I
addition to product manufacturers, premises owners can be held to duty to
warn upon a showing of known dangerousness and a failure to warn. See
Brewster v. Colgate-Palmolive Co., 279 S .W.3d 142, 143 (Ky. 2009) . But
premises owners must have actual knowledge of a product's dangerousness for
liability to an independent contractor to be shown. Id.
Evidence was introduced at the first trial demonstrating that both the
manufacturer and premises owner empty-chair defendants knew of the danger
of the asbestos-containing products they manufactured and used. Primarily,
the plaintiffs put on evidence showing the development of the scientific link
between asbestos and lung disease in cancer. By doing so, they put on some
evidence that the whole industryincluding the empty-chair defendants-knew
of the risks .
They did this by producing various studies that showed the connection
between asbestos and lung disease and cancer was known prior to the time of
Mr. Dexter's exposure. Dr. Frank laid out the history of the knowledge about
the risks of asbestos exposure . In particular, he testified that Drs . E.R.A.
Merewether and C .W. Price wrote a paper in 1930 that "talked about how you
could get an asbestos-related disease and they simply said any exposure to
asbestos will do it." He continued: The most important thing, they wrote in 1930, that it was important to protect people from exposure to asbestos and you either had to have . . . very good ventilation that took the asbestos away from the worker or if you couldn't do that, you would have to give them respiratory protection and prevent them from inhaling the fibers so that they wouldn't get asbestosis.
Dr. Frank also testified that Dr. Wilhelm Hueper published an article in
Scientific American in 1943 concerning "the subject of hazard[s] of asbestos
with regard to lung cancer." And he testified that the first detailed
epidemiological study linking asbestos and lung cancer was published in 1955:
He [Sir Richard Doll] did the first epidemiological study that built upon prior information . . . . [H]e looked at over 100 consecutive deaths in an asbestos factory of one company [and found] that there was a great excess in terms of lung cancer in that population . And that was published in 1955 .
In short, Dr. Frank's testimony established that the link between asbestos and
disease had been known since 1930, and that the link between asbestos and
cancer had been known since 1955 .
There was also evidence that the asbestos industry, in general, was
aware of these scientific studies . It was shown at trial that various industry
experts attended the Conference on Biological Effects of Asbestos in 1964 .
According to a CertainTeed memo, this conference "was the first of its
magnitude" and covered subjects such as "medical aspects such as biological
effects, pathological and electron X-ray studies as well as means of prevention
and protection to those exposed [to asbestos] ." It also "included many papers
relating asbestos exposure to mesothelioma cancer." Although the primary
evidence of this conference carne from a CertainTeed memo, this memo discusses the knowledge within the asbestos industry generally, and thus also
shows the knowledge of the empty-chair defendants .
Indeed, this memo establishes that the U.S . asbestos industry knew (or
should have known) about the risks of exposure. In particular, it states that
the English "Board of Insurance has accepted asbestosis as a cause of lung
cancer since 1931" and that "there appears to be an accumulation of evidence
of the association of asbestos with cancer ." However, despite this evidence, the
memo notes that "the U .S . industry, in general, does not want to accept the
fact that asbestos is very hazardous and they will accept any doctor's view if he
intimated that it is not hazardous." In short, the memo suggests that the U.S.
industry knew that exposure to asbestos was risky by 1964, but decided to
ignore the mounting evidence.
Notably, Mr . Dexter worked with the CertainTeed products before he
worked with the products of at least one empty-chair defendant . Specifically,
he worked with CertainTeed pipes only from 1963-1964, but worked at the GE
plant after this time, from 1969-1971 . Yet, the jury concluded that CertainTeed
was liable, meaning that it must have found that CertainTeed knew. (or should
have known) of the risks of asbestos exposure by 1964 . If CertainTeed knew
(or should have known) of the risks by 1964, then certainly GE should have
known the same by 1969 . The testimony showed that by 1964, when Mr.
Dexter worked with CertainTeed pipes, the link to asbestos-related disease had
been known for over three decades, the link to cancer had been known for one
decade, and a conference among industry representatives about asbestos-
related injuries had just concluded. 25 As noted above, constructive knowledge alone is insufficient to prove the
liability of a premises owner like GE.9 But information about the danger of
asbestos was so ubiquitous by 1969 that a jury could conclude that GE not
only should have known but in fact did know of those dangers. That this is the
case is corroborated by Dexter's factual statements in his verified complaint
that all of the defendants, including the premises owners like GE, had in their
possession information about the dangerousness of asbestos. Similarly, in his
answers to interrogatories, Dexter stated that GE violated OSHA regulations
regarding asbestos .
Though a plaintiffs statements in his complaint and interrogatories
alone might not have sufficed to show GE's liability had it been a participating
defendant, they functioned almost as an admission by the plaintiff in this case.
In a scenario like this one, where a participating defendant is attempting to
prove the legal fault of an empty-chair defendant, a judge may rely on such
evidence in deciding a motion for a new trial.
While all this evidence, even as a whole, does not directly demonstrate
that each of the empty-chair defendants knew (or should have known) of the
danger of asbestos, it was nevertheless sufficient to support the trial court's
granting of a new trial. This evidence was, in fact, compelling as to the
manufacturers, since it was both circumstantial evidence of knowledge and
good evidence of constructive knowledge. It was also circumstantial evidence
9 CertainTeed admits in its brief that GE was a premises owner and thus actual knowledge had to be shown. However, according to Dexter's answers to interrogatories, which were read to the jury, he may also have been exposed to asbestos from products produced by GE, specifically asbestos-insulated turbines at various sites. 26 that the premises owners, who knew the products used by their independent
contractors contained asbestos, also knew of the danger; essentially, the fact
that asbestos was a serious health hazard was so widely known, it would be
unreasonable for a premises owner, like GE, to claim ignorance of the fact.
Absolute proof of knowledge is not required to create civil liability.
Evidence was also introduced showing that the empty-chair defendants
failed to adequately warn Dexter of the known danger of asbestos. Dexter's co-
workers testified that they never saw any warnings on the asbestos products
used at various job sites and that no safety equipment, such as respirators,
were given to them. At least two of Dexter's co-workers specifically testified as
to the lack of warnings . For example, Billy Robertson stated, "There was no
warnings put out whatsoever . . . There was no warning back then [referring to
the 1950s and 1960s] ." Moreover, in his own answers to interrogatories about
GE, one of the empty-chair defendants, Dexter stated that the company "fail[ed]
to provide adequate warnings to [him] regarding the health hazards associated
with working with and around asbestos-containing products" and "failed to
provide [him] with adequate respiratory protection and other breathing
apparatus to protect him from dust inhalation ."
4. Substantial Evidence Supported the Trial Court's Ruling
This Court concludes that there was substantial evidence to support the
trial court's ruling: the evidence introduced at trial established that Dexter was
exposed to asbestos manufactured by or used on the premises of other
companies, that these exposures also caused his lung cancer, and that the
companies knew or should have known about the dangers and failed to warn 2 Dexter. Much of the evidence that supported the jury's finding of liability
against CertainTeed and Garlock (e.g., that of causation) was just as applicable
to the empty-chair defendants. In addition to that evidence, other evidence
related specifically to the empty-chair defendants was also introduced . In fact,
some of that evidence was Dexter's own, or at least his own discovery
responses. No doubt, the trial court was especially troubled by the lack of
apportionment against empty-chair defendants who, over the course of Dexter's
forty-year career, caused him to have much more exposure than did
CertainTeed in the week or so in which he was exposed to its products.
Though the Justices of this Court might have reviewed the evidence
differently if they were presiding at trial, as members of an appellate court, we
cannot approach the evidence in such a way. The Court of Appeals would have
required specific and exact evidence of the duration and intensity of exposure
from each and every defendant, and that exposure's specific contribution to
Dexter's injury. Finding a lack of such specific evidence, the Court of Appeals
concluded that the trial court clearly erred.
But his Court cannot say that such precise evidence----presumably
consisting of comprehensive and exact descriptions of a plaintiffs exposure
from each defendant and expert extrapolation of that exposure to some
percentage of causation-is necessary for a trial court to conclude that the
jury's verdict was manifestly against the evidence or the product of passion and
prejudice. A trial court needs only substantial evidence, not perfect or
absolutely compelling evidence, to support its decision.
28 So long as the trial court's decision was supported by substantial
evidence and was not an abuse of discretion, an appellate court must defer to it
and affirm the decision. As discussed above, there was ample evidence from
which the trial court could conclude that it was unreasonable for the jury to fail to apportion any fault to empty-chair defendants . As such, the trial court's
finding of fact that the jury's failure to apportion fault was "manifestly
unsupported by the evidence and manifestly a product ofjury passion and
prejudice" was not clearly erroneous . Additionally, such a finding supports a
decision to grant a new trial, and we therefore cannot say that the trial court's
decision to do so was an abuse of discretion under the standard articulated
above .
Finally, before concluding, this Court must also address the Court of
Appeals' general contention at the end of its opinion that apportionment was
improper because there was no proof of distinct harms caused by the empty
chair defendants and there was no reasonable basis for determining the
contribution of each to Dexter's single harm (his cancer) . To support this
conclusion, the court cited the Restatement (Second) of Torts § 433A (1965),
and its prior "finding" of a "complete lack of proof as to the type, length or
depth of asbestos exposure by any other defendant." To some extent, this
Court has rejected the approach in Section 433A, stating that when
contribution from multiple causes cannot be readily determined, an instruction
on comparative fault is appropriate. See Owens Corning Fiberglas Corp.
Parrish, 58 S .W.3d 467, 479 (Ky. 2001) .
29 Though it is unclear whether this aspect of Panish is sound, since
Section 433A purports to lay out the grounds when a comparative fault
instruction would be appropriate, this issue is reserved for review of the second
trial because the only issue before this Court is whether trial court erred in
granting a new trial, not whether an apportionment instruction is appropriate
in the first place . Because of the deference afforded a new-trial decision, an
appellate court does not have to review the evidence with such rigor-
scrutinizing the evidence with mathematical meticulousness and parsing out
the exact percentages of fault it might establish---as suggested by the Court of
Appeals. As discussed above, evidence of all the necessary elements of liability
as to at least some of the empty-chair defendants was introduced at trial. The
trial court observed the parties, counsel, witnesses and jury first hand and
was, therefore, in the best position to evaluate what happened . The trial court
was not clearly erroneous and did not abuse its discretion in granting a new
trial.
III. Conclusion
For the foregoing reasons, the decision of the Court of Appeals is
reversed and this case is remanded to that court to consider CertainTeed's
cross-appeal of the judgment from the second trial and any other remaining
issues .
Cunningham, Schroder, Scott and Venters, JJ., concur. Minton, C.J.,
concurs in result only. Abramson, J., not sitting. COUNSEL FOR APPELLANT, CERTAINTEED CORPORATION:
Lisa Devillez Carter Owen Carter & Carter 1113 Poplar Street PO Box 259 Benton, Kentucky 42025
Elizabeth Runyan Geise William F. Sheehan Goodwin Proctor LLP 901 New York Avenue NW Washington, DC 20001
David C. Marshall Eric Allen Ludwig Hawkins 8s Parnell LLP 4000 Suntrust Plaza 303 Peachtree St. NE Atlanta, Georgia 30308
COUNSEL FOR APPELLEES, AVA NELL DEXTER, INDIVIDUALLY, AND JAMES M. DEXTER, EXECUTOR OF THE ESTATE OF JAMES G. DEXTER :
Kenneth L. Sales John Robert Shelton Joseph Donald Satterley Sales Tillman Wallbaum Catlett 8v Satterley 1900 Waterfront Plaza 325 West Main Street Louisville, Kentucky 40202-4251