Present: All the Justices
JOHN CRANE, INC.
v. Record No. 101909 OPINION BY JUSTICE DONALD W. LEMONS March 2, 2012 MARGARET DIANE HARDICK, EXECUTOR OF THE ESTATE OF ROBERT EUGENE HARDICK, DECEASED, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Aundria D. Foster, Judge
Among the several issues we address in this appeal is
whether the Circuit Court of the City of Newport News ("trial
court") erred when it permitted the jury to award nonpecuniary
damages in a wrongful death action of a Navy sailor for
asbestos exposure that occurred both in territorial waters and
on the high seas.
I. Facts and Proceedings Below
Robert Eugene Hardick ("Hardick") filed suit under general
maritime law against John Crane, Inc. ("JCI") and 22 other
defendants seeking $20 million in compensatory damages and $5
million in punitive damages. Hardick's complaint alleged that
he was exposed to asbestos dust, fibers, and particles
contained in products manufactured by JCI, and he contracted
mesothelioma as a result of such exposure. Hardick died prior
to trial, and his action was revived as a wrongful death action
by his wife, Margaret D. Hardick ("Mrs. Hardick"), in her
capacity as executor of his estate. Mrs. Hardick settled or nonsuited the claims against all defendants except JCI and
proceeded against JCI, the sole remaining defendant.
Prior to trial, JCI filed a motion in limine to exclude
evidence of nonpecuniary damages. JCI argued that "[Mrs.
Hardick's] own theory of liability depend[ed] upon [Hardick
having] significant exposure to asbestos while onboard Navy
ships underway on the high seas and in foreign ports," and Mrs.
Hardick is only entitled to recover damages available under the
Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 30301, et
seq. (2006 & Supp. III 2010). JCI further argued that because
DOHSA "precludes recovery of nonpecuniary damages such as pain
and suffering, loss of society/consortium, or punitive damages,
. . . and in furtherance of the Constitution's requirement of
uniformity in application of federal maritime law, any recovery
by [Mrs. Hardick] under the general maritime law is likewise
limited to pecuniary damages." Additionally, JCI argued that
Hardick was a seaman as defined by the United States Supreme
Court ("Supreme Court") in McDermott Int'l, Inc. v. Wilander,
498 U.S. 337, 355-56 (1991).
In response, Mrs. Hardick claimed that she was the master
of her pleadings, and could pursue recovery either under DOHSA
for injuries sustained on the high seas or under general
maritime law for injuries sustained in territorial waters.
Mrs. Hardick elected to pursue recovery under general maritime
2 law for Hardick's asbestos exposure. Moreover, Mrs. Hardick
argued that Hardick was not a seaman, but rather a
"nonseafarer" as defined by the Supreme Court in Yamaha Motor
Corp. v. Calhoun, 516 U.S. 199, 205 n.2 (1996). The trial
court denied JCI's motion to exclude evidence of nonpecuniary
damages, stating that its ruling was based on "the reasons
stated by [Mrs. Hardick]."
JCI also filed a motion in limine to exclude Mrs.
Hardick's evidence of the removal of asbestos-containing
gaskets, arguing that Hardick's deposition testimony 1 and the
deposition testimony of Hardick's former co-workers failed to
establish that Hardick ever removed gaskets manufactured by
JCI. At a pre-trial hearing, the parties informed the trial
court that various motions had been resolved, including the
motion to exclude evidence of asbestos exposure resulting from
the removal of gaskets. Mrs. Hardick represented that JCI's
motion relating to the removal of asbestos-containing gaskets
had been "dropped." JCI agreed and withdrew its motion,
declaring "it's a jury issue." However, JCI retained the right
to move to strike such evidence at the close of Mrs. Hardick's
case if the evidence was insufficient to establish that Hardick
removed asbestos-containing gaskets manufactured by JCI.
1 Because Hardick died prior to trial, his deposition testimony was presented by video.
3 Prior to trial, Mrs. Hardick filed a motion in limine
requesting that the trial court prohibit JCI's "Navy expert,"
Wesley Hewitt ("Hewitt"), from "giving speculative and
misleading testimony" regarding the types and amounts of
insulation to which Hardick may have been exposed. The trial
court granted Mrs. Hardick's motion regarding Hewitt; however,
the trial court stated that "[t]he parties agree that Hewitt
may testify on the basis of documents that he has reviewed and
produced about other products to which Mr. Hardick may have
been exposed provided that [JCI] ties such exposure directly to
Mr. Hardick."
Mrs. Hardick presented the following evidence at trial.
Hardick served in the United States Navy from 1957 to 1976 on
several different vessels, both in domestic ports and in
foreign ports. Hardick testified that one vessel he serviced
was seldom in port; and, consequently, his duties were often
performed at sea.
From 1958 to 1962, Hardick worked as a shipfitter and
reported for duty upon the USS Newport News, the USS Tutuila,
and the USS Wrangell. As a shipfitter, Hardick repaired and
replaced valves and gaskets. The valves and gaskets Hardick
repaired contained asbestos.
Hardick testified that during his time on board the USS
Newport News, he recalled one journey to Guantanamo Bay, Cuba,
4 during which he performed his routine duties as a shipfitter.
While Hardick was on board the USS Wrangell, the vessel sailed
on a 13-month voyage to the Mediterranean and from the
Mediterranean, to Cuba. Hardick performed his duties during
these voyages while on the high seas.
James Croom, Jr. ("Croom"), Hardick's supervisor on the
USS Tutuila, testified that the USS Tutuila was stationed in
Norfolk, Virginia, and the vessel "usually stayed tied up at
Pier 2." Because the USS Tutuila was docked in Norfolk,
Hardick's performed his duties as a shipfitter in territorial
waters.
After attending school to become a machinery repairman,
Hardick worked as a machine repairman aboard the USS
Everglades, the USS Bordelon, and the USS Detroit from 1963 to
1971. As a machinery repairman, Hardick's tasks primarily
involved repairing valves, but he still occasionally worked on
the piping systems aboard the vessels.
Hardick testified that he recalled traveling to the
Mediterranean once while on board the USS Everglades. However,
the USS Everglades was based and primarily stayed in
Charleston, South Carolina during Hardick's service on the
vessel. In particular, Hardick testified that "[w]e stayed
mostly in Charleston tied up working on destroyers."
5 During his tenure on the USS Bordelon, Hardick repaired an
entire diesel generator while the vessel was at sea. Hardick
testified that he was next assigned to the USS Detroit, which
was located at the naval shipyard in Bremerton, Washington,
because the vessel was in the process of being built. After
the USS Detroit was commissioned, Hardick continued to service
the vessel as a machinery repairman.
From 1971 to 1976, Hardick served as the master of arms
aboard the USS Yellowstone and later as a race-relations
specialist aboard the USS Canopus. In these capacities,
Hardick continued to work around people using the same products
that he worked with as a shipfitter and a machinery repairman,
namely, valves and gaskets. Specifically, Hardick testified
that he was exposed to asbestos dust on board the USS Canopus
when the vessel was underway to Guantanamo Bay, Cuba.
Hardick testified that he worked with gaskets manufactured
by JCI and Garlock, and could not tell the difference between
JCI packing materials and Garlock packing materials that were
not in the original box or package because "[t]hey looked
identical." Hardick's co-worker, Frank Hoople, testified that
he was unable to identify who manufactured the gasket materials
that he removed. Moreover, Croom testified that Hardick
regularly used both JCI and Garlock gaskets and packing
materials while working on the USS Tutuila. When asked whether
6 Hardick was exposed to gaskets manufactured by companies other
than JCI and Garlock, Croom testified "I'm sure there w[ere] a
lot of others," but he could not remember the names of specific
manufacturers.
In February 2007, Hardick was diagnosed with mesothelioma,
a fatal form of cancer, and he died in March 2009. Mrs.
Hardick's expert testified that Hardick's mesothelioma was the
result of his "cumulative asbestos exposures" during his
approximately twenty-year service in the Navy and that
mesothelioma is an "indivisible disease."
At the close of Mrs. Hardick's case, JCI renewed its
objection to Mrs. Hardick's claim for nonpecuniary damages.
The trial court adhered to its pre-trial ruling. JCI also
moved to strike the portions of Mrs. Hardick's evidence that
Hardick's asbestos exposure resulted from gasket removal
because no direct evidence was presented at trial that Hardick
ever removed gaskets manufactured by JCI. The trial court
denied the motion, concluding that there was sufficient
circumstantial evidence that Hardick removed gaskets
manufactured by JCI, and the jury should decide the issue.
JCI subsequently attempted to call Hewitt as a witness and
represented that he would testify on various issues related to
the United States Navy. However, Mrs. Hardick objected to
Hewitt's testimony based, in part, upon JCI's stipulation that
7 Hewitt would "not opine about Hardick's exposure to asbestos, a
subject that more appropriately falls within other expert[s']
fields." (Emphasis in original.) Also, Mrs. Hardick argued
that Hewitt admitted at his pre-trial deposition testimony that
he could not testify about any specific repairs or job on any
of Hardick's ships, and that he had no personal knowledge
concerning any specific environment in which Hardick worked.
Granting Mrs. Hardick's motion, the trial court ruled that
because JCI "can't connect [any of Hewitt's proposed testimony]
up directly to Mr. Hardick, then it's not appropriate. It's
irrelevant."
Following the presentation of all the evidence, JCI
renewed its motions to strike Mrs. Hardick's evidence of
nonpecuniary damages and gasket removal. The trial court
denied JCI's motions, reaffirming its previous rulings.
Although JCI was the sole defendant at trial, JCI
presented evidence that Hardick was exposed to asbestos
contained in valves that had been manufactured by Crane Company 2
and gaskets that had been manufactured by Garlock. Crane
Company and Garlock are two of the manufacturers that settled
2 Crane Company is a Virginia corporation and is the "parent and/or successor in interest to Crane Environmental, Inc., Crane Valve Group and Pacific Valves, Inc."; whereas, JCI is a Delaware corporation. The record does not reveal the connection, if any, between Crane Company and JCI.
8 with Mrs. Hardick prior to trial. Mrs. Hardick and JCI agreed
to a jury instruction that permitted the jury to apportion
damages among JCI, Garlock, and Crane Company, which was given
by the trial court.
The jury returned a verdict for Mrs. Hardick in the amount
of $5,977,482, apportioning 50 percent of the fault to JCI and
50 percent to Garlock. The verdict included $2 million for
Hardick's pain and suffering; $1.15 million for Mrs. Hardick's
loss of society; $2.5 million for Mrs. Hardick's reasonably
expected loss of Hardick's income and loss of Hardick's
services; $319,650 for Hardick's medical expenses; and $7,832
for Hardick's funeral expenses. 3
Thereafter, JCI filed its motion for new trial, renewing
its objection to: (1) the trial court's admission of Mrs.
Hardick's evidence of gasket removal and (2) the trial court's
"exclusion of circumstantial evidence proffered by JCI
regarding Hardick's potential exposure to various other types
of brands of gasket and packing material." JCI also filed a
motion for partial judgment or, alternatively, for remittitur,
arguing that the nonpecuniary portion of the verdict should be
vacated. The trial court denied both motions and entered final
3 The awards for loss of income and loss of services and for medical and funeral expenses are not the subject of an assignment of error and are, therefore, not at issue in this appeal.
9 judgment requiring JCI to pay 50 percent of the damages awarded
by the jury to Mrs. Hardick, a sum of $2,988,741.
JCI timely filed its petition for appeal, and we granted
JCI's appeal on the following assignments of error:
1. The trial court committed reversible error by allowing the jury to award nonpecuniary damages for the wrongful death of a Navy sailor, who alleged an "indivisible" injury from exposure to asbestos that occurred, in part, on the high seas.
2. The trial court committed reversible error in allowing plaintiff to introduce evidence of asbestos exposure from gasket removal, where plaintiff did not prove that any gasket removed was more likely than not a gasket supplied by JCI. The trial court compounded that error by precluding JCI from introducing circumstantial evidence of Hardick's exposures to asbestos-containing products supplied by other entities.
II. Analysis
A. Standard of Review
The first assignment of error presents "a mixed question
of law and fact," which we review de novo. Westgate at
Williamsburg Condo. Ass'n v. Philip Richardson Co., 270 Va.
566, 574, 621 S.E.2d 114, 118 (2005).
The second assignment of error involves the admissibility
of evidence. It is well-settled that we "review a trial
court's decision to exclude evidence for an abuse of
discretion, and we will not disturb a trial court's evidentiary
ruling absent an abuse of discretion." Kimble v. Carey, 279
Va. 652, 662, 691 S.E.2d 790, 796 (2010). Furthermore, "[a]
10 great deal must necessarily be left to the discretion of the
[trial court], in determining whether evidence is relevant to
the issue or not. Evidence is relevant if it has any logical
tendency to prove an issue in a case." Avent v. Commonwealth,
279 Va. 175, 197-98, 688 S.E.2d 244, 257 (2010) (quoting John
Crane, Inc. v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855
(2007)).
B. Nonpecuniary Damages
Prior to trial, JCI filed a motion in limine, requesting
that the trial court exclude evidence of nonpecuniary damages
and argued, among other things, that Hardick was a "seaman" as
defined by the Supreme Court in McDermott Int'l, Inc. v.
Wilander, 498 U.S. at 355 (defining "seaman," in part, as one
who "contribute[s] to the function of the vessel"). JCI
further argued that, as a seaman, Hardick was precluded from
recovering nonpecuniary damages. Relying upon Miles v. Apex
Marine Corp., 498 U.S. 19, 31-32 (1990), JCI maintained that
"there is no recovery for loss of society in a general maritime
action for the wrongful death of a . . . seaman[,]" because
damages recoverable under a general maritime action for the
wrongful death of a seaman are limited to those that are
pecuniary in nature.
To the contrary, Mrs. Hardick argued that Hardick was not
a "seaman"; rather, he was a "nonseafarer" pursuant to Yamaha,
11 in which the Supreme Court defined "nonseafarer" as "persons
who are neither seamen covered by the Jones Act . . . nor
longshore workers covered by the Longshore and Harbor Workers'
Compensation Act [("LHWCA")]." 516 U.S. at 205 n.2. Mrs.
Hardick further argued that because Hardick was a nonseafarer
pursuant to Yamaha, 519 U.S. at 205, 216, and because she was
the master of her pleadings and her complaint was based on a
general maritime wrongful death cause of action due to
Hardick's asbestos exposure in territorial waters, she was not
precluded from recovering nonpecuniary damages.
The trial court denied JCI's motion, stating that it was
"persuaded by [Mrs. Hardick's] cases and by [her] argument and
by [her] analysis." The trial court further explained that,
"for the reasons stated by [Mrs. Hardick] and the authority
that [she has] relied on, I'm going to overrule the motion and
allow evidence for nonpecuniary damages."
In Wilander, the Supreme Court noted that the term
"seaman" is "a maritime term of art" and that "this Court
continue[s] to construe 'seaman' broadly." 4 498 U.S. at 342,
4 Mrs. Hardick argues that "[u]nder Wilander, [498 U.S. at 354,] to qualify as a seaman a worker must prove that he is a 'master or member of a crew' of a merchant 'vessel.'[] Navy sailors like Mr. Hardick do not qualify for many reasons, not the least of which is that the vessels they crew are not merchant vessels." (Emphasis in original.) However, Wilander does not require that a seaman be a master or member of a crew of a "merchant" vessel. 498 U.S. at 339-57. The term
12 346. Significantly, the Supreme Court, in defining the term
"seaman," explained in Wilander that,
the requirement that an employee's duties must 'contribute to the function of the vessel or to the accomplishment of its mission' captures well an important requirement of seaman status. It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship's work.
Id. at 355 (quoting Offshore Co. v. Robison, 266 F.2d 769, 779
(5th Cir. 1959)). 5 The Supreme Court further explained that,
"[b]y the middle of the 19th century, the leading admiralty
treatise noted the wide variety of those eligible for seamen's
benefits[, such as]: 'Masters, mates, sailors, surveyors,
carpenters, coopers, stewards, cooks, cabin boys, kitchen boys,
engineers, pilots, firemen, deck hands, [and] waiters.' " Id.
at 344 (quoting Erastus C. Benedict, American Admiralty § 278,
at 158 (1850)).
Mrs. Hardick again argues on appeal that Hardick was not a
seaman; rather, Hardick was a "nonseafarer" pursuant to Yamaha,
because he was "neither [a] seam[a]n covered by the Jones Act
"merchant" does not appear in Wilander. Id. 5 The Supreme Court subsequently expanded upon the definition of a seaman, stating that "a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).
13 . . . nor [a] longshore worker[] covered by the [LHWCA]." 516
U.S. at 205 n.2.
Yamaha involved the death of a 12-year-old girl while
riding a jet ski in the waters fronting a hotel in Puerto Rico.
The Supreme Court had no trouble observing that this 12-year-
old girl was "not a seaman, longshore worker, or person
otherwise engaged in a maritime trade." Id. at 202. The Court
held that "damages available for the jet ski death . . . are
properly governed by state law." Id. at 216. Hardick's status
is hardly comparable to that of a 12-year-old girl riding a jet
ski. We look elsewhere for definition of his status.
Here, the evidence overwhelmingly demonstrated that: (1)
Hardick was a shipfitter and a machinery repairman who
"contribute[d] to the function of the vessel[s] or to the
accomplishment of [their] mission[s]," Wilander, 498 U.S. at
355; and (2) had "a connection to [an identifiable group of]
vessel[s] in navigation . . . that [was] substantial in terms
of both its duration and its nature." Chandris, 515 U.S. at
368-69. Therefore, we hold that Hardick was a seaman as
defined by the Supreme Court in Wilander, 498 U.S. at 355, and
Chandris, 515 U.S. at 368-69.
JCI argues in its first assignment of error that the trial
court erred "by allowing the jury to award nonpecuniary damages
for the wrongful death of a Navy sailor, who alleged an
14 'indivisible' injury from exposure to asbestos that occurred,
in part, on the high seas." We agree.
"[D]amages for the intangible, noneconomic aspects of
mental and emotional injury are of a different nature. They
are inherently nonpecuniary, unliquidated and not readily
subject to precise calculation." Greater Westchester
Homeowners Ass'n v. City of Los Angeles, 603 P.2d 1329, 1338
(Cal. 1979). The Supreme Court has held that damages
compensating a plaintiff for the decedent's pre-death pain and
suffering are nonpecuniary. Dooley v. Korean Air Lines Co.,
524 U.S. 116, 118, 120 (1998) (stating that DOHSA "allows
certain relatives of the decedent to sue for their pecuniary
losses [and, as a result,] does not authorize recovery for the
decedent's pre-death pain and suffering") (emphasis added).
Additionally, the Supreme Court has held that loss of society
damages are nonpecuniary. Zicherman v. Korean Air Lines Co.,
516 U.S. 217, 230 (1996) (stating that, "DOHSA provides that
the recovery . . . 'shall be a fair and just compensation for
the pecuniary loss sustained by the persons for whose benefit
the suit is brought.' Thus, petitioners cannot recover loss-
of-society damages under DOHSA.") (internal citation omitted)
(emphasis added). The $2 million award for Hardick's pain and
suffering and the $1.15 million award for Mrs. Hardick's loss
of society are nonpecuniary damages.
15 Pecuniary damages are those that "can be measured by some
standard." Michigan Cent. R.R. Co. v. Vreeland, 227 U.S. 59,
71 (1913). In particular, the Supreme Court has stated that
damages for loss of services are a pecuniary loss. Id. Mrs.
Hardick's reasonably expected loss of Hardick's income, his
medical expenses, and his funeral expenses "can be measured by
some standard" and, as a result, are pecuniary in nature. See
Miles, 498 U.S. at 30 (observing that pecuniary damages include
damages for "losses of support, services, and funeral
expenses"). Accordingly, the $2.5 million award for Mrs.
Hardick's reasonably expected loss of Hardick's income and loss
of Hardick's services, the $319,650 award for Hardick's medical
expenses, and the $7,832 award for Hardick's funeral expenses
are pecuniary damages. In this case, the only awards of
damages that are nonpecuniary and at issue in this appeal are
the $2 million award for Hardick's pain and suffering and the
$1.15 million award for Mrs. Hardick's loss of society.
Mrs. Hardick goes to great lengths to explain the history
of the common law wrongful death cause of action and argues
that a wrongful death cause of action exists under general
maritime law apart from any statutory enactment and that such a
cause of action existed prior to the enactment of DOHSA and the
Jones Act. Specifically, Mrs. Hardick argues that the Supreme
16 Court "issued a flawed opinion" when it decided The Harrisburg,
119 U.S. 199 (1886).
In 1877, the steamer "Harrisburg" collided with a schooner
off the coast of Massachusetts in territorial waters. Id. at
199. The schooner sank, and its first officer drowned. Id.
His widow subsequently brought a wrongful death action against
the "Harrisburg," and the Supreme Court held, on appeal, "that
admiralty afforded no remedy for wrongful death in the absence
of an applicable state or federal statute." Mobil Oil Corp. v.
Higginbotham, 436 U.S. 618, 620 (1978) (citing The Harrisburg,
119 U.S. at 213-14). "Thereafter, suits arising out of
maritime fatalities were founded by necessity on state
wrongful-death statutes." Id.
Congress subsequently enacted DOHSA in 1920, 6 creating a
remedy in admiralty for wrongful deaths "[w]hen the death of an
individual is caused by wrongful act, neglect, or default
occurring on the high seas beyond 3 nautical miles from the
shore of the United States." 46 U.S.C. § 30302. DOHSA
provides that "[t]he recovery in an action under this chapter
. . . shall be a fair compensation for the pecuniary loss
sustained by the individuals for whose benefit the action is
brought." 46 U.S.C. § 30303. Additionally, Congress passed
6 See former 46 U.S.C. Appx. § 761 et seq. (2000) (superseded 2006).
17 the Jones Act that same year, 7 providing that "[a] seaman
injured in the course of employment or, if the seaman dies from
the injury, the personal representative of the seaman may elect
to bring a civil action at law . . . against the employer." 46
U.S.C. § 30104.
For the next 50 years, "deaths on the high seas gave rise
to federal suits under DOHSA, while those in territorial waters
were largely governed by state wrongful-death statutes."
Higginbotham, 436 U.S. at 621. As the Supreme Court has
stated, "DOHSA brought a measure of uniformity and
predictability to the law on the high seas, but in territorial
waters, where The Harrisburg made state law the only source of
a wrongful-death remedy, the continuing impact of that decision
produced uncertainty and incongruity." Id.
In response to this uncertainty, the Supreme Court
overruled The Harrisburg in 1970. Moragne v. States Marine
Lines, Inc., 398 U.S. 375, 409 (1970). In Moragne, the Supreme
Court "created a general maritime wrongful death cause of
action," thereby effectuating "the constitutionally based
principle that federal admiralty law should be 'a system of law
coextensive with, and operating uniformly in, the whole
7 See former 46 U.S.C. Appx. § 688 (2000) (superseded 2006).
18 country.' " Miles, 498 U.S. at 27; Moragne, 398 U.S. at 402,
409 (quoting The Lottawanna, 88 U.S. 558, 575 (1875)).
Mrs. Hardick argues that when the Supreme Court overruled
The Harrisburg, "it returned maritime wrongful death law to its
pre-Harrisburg state. And that pre-Harrisburg state . . .
recognized non-pecuniary damages at least half a century before
Congress . . . enacted DOHSA and the Jones Act." However, the
Supreme Court based its decision to overrule The Harrisburg, in
large part, upon its conclusions that the Jones Act "was
intended to achieve uniformity in the exercise of admiralty
jurisdiction," and DOHSA "was not intended to preclude the
availability of a remedy for wrongful death under general
maritime law in situations not covered by the Act." Moragne,
398 U.S. at 401-02 (internal quotation marks omitted).
Moreover, while the Supreme Court "created a general maritime
wrongful death cause of action" in Moragne, "Moragne did not
set forth the scope of the damages recoverable under the
maritime wrongful death action." Miles, 498 U.S. at 27, 30.
Four years after its decision in Moragne, the Supreme
Court, in Sea-Land Servs. v. Gaudet, 414 U.S. 573 (1974),
addressed "whether the widow of a longshoreman may maintain
such an action for the wrongful death of her husband – alleged
to have resulted from injuries suffered by him while aboard a
vessel in [territorial] waters – after the decedent recovered
19 damages in his lifetime for his injuries." 414 U.S. at 574.
The accident in Gaudet, like that in Moragne, took place in
territorial waters, where DOHSA did not apply. Id. See
Moragne, 398 U.S. at 376. However, in Gaudet, the Supreme
Court "chose not to adopt DOHSA's pecuniary-loss standard;
instead it followed the 'clear majority of States' and 'the
humanitarian policy of the maritime law,' both of which favored
recovery for loss of society." Higginbotham, 436 U.S. at 622
(quoting Gaudet, 414 U.S. at 587-88). Therefore, the Supreme
Court "made a policy determination in Gaudet which differed
from the choice made by Congress when it enacted [DOHSA]." 8 Id.
Following Gaudet, the Supreme Court, in Higginbotham,
addressed the issue "whether, in addition to the damages
authorized by federal statute, a decedent's survivors may also
recover damages under general maritime law." 436 U.S. at 618.
In Higginbotham, a helicopter crashed and the decedents died on
the high seas. Id. at 618-19. Significantly, the Supreme
Court noted that,
8 Mrs. Hardick relies heavily upon Gaudet to support her argument that she may recover nonpecuniary damages under the facts of this case. However, as the Supreme Court subsequently stated in Miles, "[t]he holding of Gaudet applies only in territorial waters, and it applies only to longshoremen." Miles, 498 U.S. at 31. Moreover, "the 1972 amendments to LHWCA [33 U.S.C. § 905(b)] have rendered Gaudet inapplicable on its facts." Id. at 31 n.1. Consequently, Gaudet is irrelevant to the resolution of this case.
20 [t]he Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace [DOHSA] entirely . . . . Its holding, however, applies only to [territorial] waters. We therefore must now decide which measure of damages to apply in a death action arising on the high seas -- the rule chosen by Congress [in DOHSA] in 1920 or the rule chosen by this Court in Gaudet.
Id. at 622-23. In considering whether Gaudet impacted the
measure of damages for wrongful death actions arising on the
high seas, the Supreme Court in Higginbotham reiterated the
importance of uniformity in maritime law, stating that "[a]s
Moragne itself implied, DOHSA should be the courts' primary
guide as they refine the nonstatutory death remedy, both
because of the interest in uniformity and because Congress'
considered judgment has great force in its own right." Id. at
624.
Moreover, the Supreme Court explained that, "[i]n Moragne,
the Court recognized a wrongful-death remedy that supplements
federal statutory remedies. But that holding depended on our
conclusion that Congress withheld a statutory remedy in
[territorial] waters" in DOHSA because such claims were then
controlled by state wrongful death statutes. Id. at 625
(citing Moragne, 398 U.S. at 397-98) (emphasis added). The
Supreme Court further noted that "[t]here is a basic difference
21 between filling a gap left by Congress' silence and rewriting
rules that Congress has affirmatively and specifically enacted"
and, consequently, "[i]n an area covered by the statute, it
would be no more appropriate to prescribe a different measure
of damages than to prescribe a different statute of limitations
or a different class of beneficiaries." Id.
Accordingly, in an effort to promote uniformity in the
availability of damages in maritime wrongful death actions, the
Supreme Court held in Higginbotham that when the decedent's
death occurs on the high seas, a decedent's survivors may not
supplement the damages available under DOSHA--damages for
pecuniary loss--with additional damages under general maritime
law for nonpecuniary losses. Id. at 620-26.
While interesting and informative, Mrs. Hardick's reliance
upon the Supreme Court's admiralty jurisprudence for the
proposition that a wrongful death cause of action has existed
under general maritime law apart from, and prior to, any
statutory enactment offers little to the resolution of this
case. Mrs. Hardick makes much of the distinction between a
wrongful death cause of action under DOHSA and a general
maritime law wrongful death cause of action. However, for the
purpose of determining what damages are available, it is
irrelevant in this case whether Mrs. Hardick's claim was
brought under DOHSA or under general maritime law. The Supreme
22 Court has made it clear that, based upon principles of
uniformity, nonpecuniary damages are not available in "actions
for the wrongful death of a seaman, whether under DOHSA, the
Jones Act, or general maritime law." Miles, 498 U.S. at 32-33. 9
In Miles, the Supreme Court addressed the issue "whether
the parent of a seaman who died from injuries incurred aboard
[a] vessel [in territorial waters] may recover under general
maritime law for loss of society." Id. at 21. In that case,
the mother of the decedent, who was also the administratrix of
the deceased seaman's estate, filed a claim under general
maritime law. Id. As in this case, the decedent's estate in
Miles sought recovery for damages for loss of society. Id. at
21-22. The Supreme Court concluded in Miles, "that there is no
recovery for loss of society in a general maritime action for
the wrongful death of a Jones Act seaman." Id. at 33.
The Supreme Court explained its holding as follows:
Unlike DOHSA, the Jones Act does not explicitly limit damages to any particular form. Enacted in 1920, the Jones Act makes applicable to seamen the substantive recovery provisions of the older [Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-59 (1908)]. See 46 U. S. C. App. § 688. FELA recites only that employers shall be liable in "damages" for the injury or death of one protected under the Act.
9 Any reference to recovery of damages for pain and suffering in a wrongful death action under general maritime law contained in footnote three of John Crane, Inc. v. Jones, 274 Va. 581, 586, 650 S.E.2d 851, 853 (2007), is dicta and is inconsistent with this opinion.
23 45 U. S. C. § 51. In Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 57[] (1913), however, the Court explained that the language of the FELA wrongful death provision is essentially identical to that of Lord Campbell's Act, 9 & 10 Vict. ch. 93 (1846), the first wrongful death statute. Lord Campbell's Act also did not limit explicitly the "damages" to be recovered, but that Act and the many state statutes that followed it consistently had been interpreted as providing recovery only for pecuniary loss. Vreeland, 227 U.S. at 69-71. The Court so construed FELA. Ibid.
When Congress passed the Jones Act, [it] must have intended to incorporate the pecuniary limitation on damages as well. We assume that Congress is aware of existing law when it passes legislation.
Id. at 32. The Supreme Court further explained:
Our decision also remedies an anomaly we created in Higginbotham. Respondents in that case warned that the elimination of loss of society damages for wrongful deaths on the high seas would create an unwarranted inconsistency between deaths in territorial waters, where loss of society was available under Gaudet, and deaths on the high seas. We recognized the value of uniformity, but concluded that a concern for consistency could not override the statute. Higginbotham, [436 U.S. at 624].
Id. at 33. Significantly, the Supreme Court concluded by
declaring: "Today we restore a uniform rule applicable to all
actions for the wrongful death of a seaman, whether under
DOHSA, the Jones Act, or general maritime law." Id. (emphasis
added).
Accordingly, because the $2 million award for Hardick's
pain and suffering and the $1.15 million award for Mrs.
24 Hardick's loss of society represent nonpecuniary damages, we
hold that the trial court erred by permitting the jury to award
Mrs. Hardick these nonpecuniary damages for the wrongful death
of Hardick, a seaman.
C. The Trial Court's Rulings Regarding the Admissibility of Certain Evidence
JCI's second assignment of error states, in part, that the
trial court erred "in allowing [Mrs. Hardick] to introduce
evidence of asbestos exposure from gasket removal, where [Mrs.
Hardick] did not prove that any gasket removed was more likely
than not a gasket supplied by JCI." However, JCI made a
different argument on appeal, which is clearly stated in its
Reply Brief as follows: "a plain reading of the entire Second
Assignment of Error, the arguments advanced in the trial court,
and JCI's Opening Brief makes clear that JCI is challenging the
sufficiency of [Mrs. Hardick's] evidence." (Emphasis added.)
Whether evidence is admissible is a separate issue from whether
that evidence is sufficient.
Rule 5:27, titled "Requirements for Opening Brief of
Appellant," requires that "[t]he opening brief of the appellant
. . . must contain . . . [t]he standard of review, the argument,
and the authorities relating to each assignment of error." The
failure to comply with the requirements of Rule 5:27 results in
waiver of the arguments the party failed to make. See Andrews
25 v. Commonwealth, 280 Va. 231, 252, 699 S.E.2d 237, 249 (2010)
(citing prior versions of Rules 5:17 and 5:27 for the
proposition that the "[l]ack of an . . . argument on brief in
support of an assignment of error constitutes a waiver of that
issue"); Jay v. Commonwealth, 275 Va. 510, 519, 659 S.E.2d 311,
316 (2008) (stating that, "[w]hen an appellant fails to comply
with Rule 5:17(c)[(6)], this Court generally treats the argument
as waived"). 10
Accordingly, we hold that JCI has violated Rule 5:27 by
failing to include any "argument" or "authorities relating to"
the trial court's "allowing [Mrs. Hardick] to introduce evidence
of asbestos exposure from gasket removal." (Emphasis added.)
Consequently, JCI has waived these arguments on appeal.
JCI's second assignment of error also complains of the
trial court's "precluding JCI from introducing circumstantial
evidence of Hardick's exposures to asbestos-containing products
supplied by other entities." Specifically, JCI argues that the
trial court improperly excluded: (1) a United States Navy
"Qualified Products List . . . displaying the names and model
numbers of the gaskets found on board Navy ships"; (2)
10 Andrews and Jay relied on prior versions of Rules 5:17 and 5:27 for the proposition stated above. 280 Va. at 252, 699 S.E.2d at 249; 275 Va. at 519, 659 S.E.2d at 316. However, former Rules 5:17 and 5:27 were amended following our opinions in Andrews and Jay, and the proposition stated above is now entirely supported by Rule 5:27(d). See also Rule 5:17(c)(6).
26 "certified ship records from the National Archives indicating
the presence, location and types of insulation and other
asbestos products aboard Hardick's ships"; (3) "the then-
existing military standards and specifications for these
products during the relevant time period"; and (4) "photographs
of the interior spaces of Hardick's ships depicting the products
. . . that Hardick had been exposed to in his career."
Prior to trial, Mrs. Hardick filed a motion in limine,
requesting that the trial court prohibit Hewitt
from giving speculative and misleading testimony and showing misleading photographs . . . or other materials regarding type and amount of insulation to which Hardick may have been exposed. . . . from offering testimony that the Navy prohibited manufacturers from warning of the hazards of their products to circumvent this Court's consistent rulings striking the government contractor defense [and] from testifying about "Navy state of the art" in an attempt to circumvent this Court's consistent rulings striking the intervening negligence defense.
Following a pretrial conference at which Mrs. Hardick's
motion in limine was argued, the trial court granted Mrs.
Hardick's motion regarding Hewitt and prohibited Hewitt from
testifying about "the knowledge and/or negligence of the Navy,
that the Navy prohibited manufacturers from warning of their
products' hazards, or about 'Navy state of the art.'" The
trial court also ruled "that the knowledge and/or negligence of
27 the Navy is irrelevant and inadmissible." The trial court
further stated:
The parties agree that Hewitt may testify on the basis of documents that he has reviewed and produced about other products to which Mr. Hardick may have been exposed provided that (i) [JCI] proffers such evidence to [Mrs. Hardick's] counsel and the Court prior to Mr. Hewitt's testimony, and (ii) that [JCI] ties such exposure directly to Mr. Hardick.
(Emphasis added.)
At trial, JCI attempted to call Hewitt as a witness and
submitted that he would testify on various issues related to the
United States Navy. Specifically, JCI submitted that Hewitt
would testify to: (1) "Hardick's Navy service generally"; (2)
"Hardick's ships," and the "types of pipes and valves that are
common to every Navy vessel of that [era or] vintage"; (3) the
"types of unions and gaskets" used on Navy vessels; (4) a United
States Navy "qualified products list for compressed sheet gasket
material"; (5) "the types of insulating materials that were
present aboard Navy vessels . . . of that era or vintage"; and
(6) the state of the art or "Navy-knowledge issue."
Mrs. Hardick objected to Hewitt's testimony based, in
part, upon JCI's stipulation that Hewitt would "not opine about
Hardick's exposure to asbestos, a subject that more
appropriately falls within other expert[s'] fields." (Emphasis
in original.) Mrs. Hardick argued that Hewitt admitted at his
28 pre-trial deposition testimony that he could not testify about
any specific repairs or job on any of Hardick's ships, and that
he had no personal knowledge concerning any specific
environment in which Hardick worked. Additionally, Mrs.
Hardick argued that,
Hewitt did not serve on any of Mr. Hardick's ships during the relevant time. He didn't do the same type of work as Mr. Hardick. He admitted he had no training whatsoever as a shipfitter/pipefitter. . . . He served not on surface ships, only on submarines. And he agreed that he can't link up anything to Mr. Hardick with his documents or with his personal experience.
Mrs. Hardick also argued that none of the photographs JCI sought
to introduce through Hewitt were of any of the ships Hardick
served or worked on.
In response to the parties' arguments, the trial court
specifically asked JCI, "can you tie any of [Hewitt's] testimony
directly to any ship that Mr. Hardick served on?" JCI responded
that it could demonstrate, through Hewitt's testimony and the
documents upon which his testimony would be based, "the types of
insulation that were on the ships when [they] were originally
constructed" and "that the preferred insulation for particular
products happened to be one thing or the other." In response to
JCI's answer, the trial court initiated the following exchange:
[Trial Court]: Do we know what it was, though, on the ship?
29 [JCI]: No.
[Trial Court]: It could be one thing or another. Do we know what the one thing or another actually is?
[JCI]: Your Honor, I don't believe there is any way on earth to be able to say that . . . that is what it is. . . . in order to tie [any] particular product to Mr. Hardick on any given occasion, if that's what the Court is asking me, that, I believe, is an impossible task.
[Trial Court]: Okay. I'm looking for Hardick- specific evidence. That's what I'm looking for.
The trial court ruled that, because JCI
can't connect [any of Hewitt's proposed testimony] up directly to Mr. Hardick, then it's not appropriate. It's irrelevant. . . . What the Navy knew, state of the art for the Navy is not proper to be interjected into this case. And . . . the reasons that . . . that you stated that you want to put Mr. Hewitt on for, unless you can tie it directly to Mr. Hardick, it's not relevant.
Specifically, the trial court ruled, with regard to the
qualified products list, that
the fact that there is a list of possible vendors that the Navy might use calls for speculation and conjecture as to whether or not they were on any of Mr. Hardick's ships.
. . . .
You can't go on speculation and conjecture. And so I think that unless you can link it up to Mr. Hardick, it's not appropriate.
30 It is well-settled that we "review a trial court's decision
to exclude evidence for an abuse of discretion, and we will not
disturb a trial court's evidentiary ruling absent an abuse of
discretion." Kimble, 279 Va. at 662, 691 S.E.2d at 796.
Furthermore, "[a] great deal must necessarily be left to the
discretion of the [trial court] in determining whether evidence
is relevant to the issue or not. Evidence is relevant if it has
any logical tendency to prove an issue in a case." Avent, 279
Va. at 197-98, 688 S.E.2d at 257 (quoting Jones, 274 Va. at 590,
650 S.E.2d at 855). In this case, the trial court found that
Hewitt's testimony and the documents upon which his testimony
would have been based were irrelevant and speculative because
Hewitt could tie neither the documents at issue nor any of his
personal experience directly to Hardick. Accordingly, we hold
that the trial court did not abuse its discretion when it
excluded Hewitt's testimony and the documents upon which his
testimony would have been based as speculative and irrelevant.
III. Conclusion
We hold that the trial court erred by allowing the jury to
award Mrs. Hardick nonpecuniary damages for the wrongful death
of Hardick, a seaman. We also hold that: (1) JCI waived part of
its second assignment of error by failing to include any
"argument" or "authorities relating to" the admissibility of
Mrs. Hardick's evidence regarding asbestos exposure from gasket
31 removal, in violation of Rule 5:27; and (2) the trial court did
not abuse its discretion when it excluded Hewitt's testimony.
Accordingly, we will affirm in part and reverse in part the
judgment of the trial court. We will vacate the $2 million
award for Hardick's pain and suffering and the $1.15 million
award for Mrs. Hardick's loss of society and remand the case to
the trial court for entry of an order consistent with this
opinion.
Affirmed in part, reversed in part, and remanded.