Johnstone v. American Oil Co.

7 F.3d 1217, 1993 WL 463391
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 29, 1993
Docket92-3063
StatusPublished
Cited by21 cases

This text of 7 F.3d 1217 (Johnstone v. American Oil Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnstone v. American Oil Co., 7 F.3d 1217, 1993 WL 463391 (5th Cir. 1993).

Opinions

E. GRADY JOLLY, Circuit Judge:

Daniel Johnstone, a Jones Act seaman, died of mesothelioma caused by his exposure to asbestos. Although the jury found that the utility of Keene Corporation’s asbestos insulation outweighed its risks, the magistrate judge entered judgment notwithstanding the verdict on the ground that Keene’s evidence of the utility of its products was irrelevant. Keene appeals from the JNOV and from the allocation of proceeds from the plaintiffs’ settlements with other defendants. The plaintiffs cross-appeal from the allocation of settlement proceeds. We REVERSE the judgment notwithstanding the verdict, and REMAND the case for entry -of judgment in favor of Keene in accordance with the jury’s verdict.

I

Daniel Johnstone sailed on various vessels equipped with asbestos-containing products from 1944-1946 and from 1959-1984. He was a bricklayer from 1947 until 1959. In his deposition, Mr. Johnstone testified that he stopped being a bricklayer and went back to sea because the pay was better and he wanted to receive vacation, medical, and retirement benefits. Mr. Johnstone testified that every ship he sailed on contained asbestos, and that he was exposed to many different types of asbestos products manufactured by many different companies. Four of those vessels, on which Mr. Johnstone sailed in 1964 and from 1967 through 1978, and which were constructed during World War II, contained steam pipes and engine room boilers insulated with asbestos insulation manufactured by Keene’s predecessors.1

II

Mr. Johnstone and his wife, Leslie, filed suit against Mr. Johnstone’s shipowner employers and various manufacturers of asbestos-containing materials, including Keene, pursuant to the Jones Act and general maritime law. Mr. Johnstone died during the pendency of these proceedings, and the complaint was amended to assert a wrongful death claim by Mrs. Johnstone and her children.

The action was tried using a procedure referred to as “reverse bifurcation.” Medical causation and damages were determined in the first phase of the trial, and liability was determined in the second phase. The Phase I trial was conducted in November 1990, at which time the only remaining defendants were Keene and Owens Corning Fiberglas Corporation. At the close of the plaintiffs’ case, the magistrate judge granted a directed verdict dismissing the plaintiffs’ claims for loss of society, pursuant to Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990).

The Phase I jury found that Mr. John-stone’s death was caused by mesothelioma (an asbestos-related disease), and awarded $375,000 for the mental anguish and pain and suffering of Mr. Johnstone. Pursuant to an agreement between the parties and by court order, medical and funeral expenses of $27,-552.18 were added to the verdict, for a total verdict of $402,552.18. Thereafter, the plaintiffs settled with Owens Corning, leaving Keene as the only defendant.

The Phase II trial on liability was conducted in August 1991. The Phase II jury found that Mr. Johnstone was exposed to asbestos-containing products manufactured by Keene, and that such exposure was a substantial contributing cause of his mesothelioma. However, it found that Keene’s products were not unreasonably dangerous per se.

The district court granted the plaintiffs’ motion for judgment notwithstanding the verdict. Keene filed a motion for reconsideration of the JNOV and to amend the judgment to allow set-offs for settlements by the plaintiffs with other defendants. The district court denied Keene’s motion for reconsideration of the JNOV, but granted, in part, its motion to amend, allowing certain set-offs to the judgment. Keene appeals from the grant of JNOV and from the computation of [1219]*1219set-off amounts. The plaintiffs cross-appeal on the set-off issue.

III

A

Our review of the grant of JNOV is governed by Boeing Co. v. Shipman, 411 F.2d 385 (5th Cir.1969) (en bane):

On motions for directed verdict and for judgment notwithstanding the verdict, the Court should consider all of the evidence-not just that evidence which supports the non-mover's case-hut in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the ease submitted to the jury.... A mere scintilla is insufficient to present a question for the jury. . . . However, it is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and infereaees, and determine the credibility of witnesses.

Id., at 374-75.

At trial, the plaintiffs proceeded solely on the theory that Keene's products were unreasonably dangerous per se under Louisiana law.2 Under Louisiana law, "[a] defective product is one that is `unreasonably dangerous to normal use.'" Bloxom v. Bloxom, 494 So.2d 1297, 1302 (La.App.2d Cir.1986) (quoting Weber v. Fidelity & Casualty Ins. Co. of N. Y., 259 La. 599, 250 So.2d 754, 755 (La.1971), aff'd, 512 So.2d 839 (La.1987). "`Normal use' is a term of art that includes all intended uses, as well as all foreseeable uses and misuses of the product." Bloxom v. Bloxom, 512 So.2d 839, 849 (La.1987). "[T]he question of whether a product is defective is ordinarily one of fact." Willett v. Baxter Int'l, Inc., 929 F.2d 1094, 1097 (5th Cir.1991).

Under the unreasonably dangerous per se theory, as set forth by the Louisiana Supreme Court in Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986),3 "[a] product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product." Id. at 114.

This theory considers the product's danger-in-fact, not whether the manufacturer perceived or could have perceived the danger, because the theory's purpose is to evaluate the product itself, not the manufacturer's conduct. Likewise, the benefits are those actually found to flow from the use of the product, rather than as perceived at the time the product was designed and marketed. The fact that a risk or hazard related to the use of a product was not discoverable under existing technology or that the benefits appeared greater than they actually were are both irrelevant.... Under this theory, the plaintiff is not entitled to impugn the conduct of the manufacturer for its failure to adopt an alternative design or affix a warning or instruction to the product. A warning or other feature actually incorporated in the product when it leaves the manufacturer's control, however, may reduce the dangerinfact.

Id.

B

(1)

The jury was presented with evidence concerning both the risks and utility of Keene's [1220]*1220asbestos-containing products.

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7 F.3d 1217, 1993 WL 463391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnstone-v-american-oil-co-ca5-1993.