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Finch v. Covil Corp.

United States District Court, M.D. North Carolina

May 1, 2019

ANN FINCH, Individually, and as Executrix of the Estate of Franklin Delenor Finch, Plaintiff,
v.
COVIL CORPORATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          Catherine C. Eagles, District Judge.

         Ann Finch sued Covil Corporation and others for the wrongful death of her late husband, Franklin Finch, who died from mesothelioma caused by exposure to asbestos. She resolved or dismissed her claims against all defendants but Covil, and the case was tried from October 1 through October 5, 2018. The Court charged the jury on North Carolina state law negligence and failure to warn claims. The jury found Covil liable on both counts and returned an award of $32.7 million in damages.

         Covil asks the Court to set aside the jury verdict and grant it judgment as a matter of law, contending the plaintiff failed to present evidence sufficient to support the verdict on liability. In the alternative, Covil asks for a new trial based on the “cumulative effect” of purportedly erroneous evidentiary rulings and jury instructions, improper arguments by plaintiff's counsel to the jury, and the excessiveness of the jury's verdict. To the extent the Court denies its motion for a new trial on damages, Covil seeks remittitur.

         The plaintiff presented a persuasive case on liability, proffering extensive direct and circumstantial evidence that Covil sold asbestos-containing products to the Firestone tire factory where Mr. Finch worked, at a time when it knew or should have known the products were dangerous to human health; that Covil did not provide pre- or post-sale warnings on or about its asbestos products; and that exposure to asbestos products sold by Covil was a proximate cause of Mr. Finch's fatal mesothelioma.

         Covil's arguments about insufficiency of the evidence ignore evidence favorable to the plaintiff, and its assertions about evidentiary rulings mischaracterize the record. It contends the jury instructions failed to address the frequency, regularity, and proximity of Mr. Finch's exposure to Covil's asbestos, but the instructions covered those factors as tailored to the evidence at trial. The plaintiff's closing arguments were grounded in the evidence, relevant, and not unfairly prejudicial, and nothing suggests that the jury's decision on liability was based on improper factors rather than a rational assessment of the strength of the plaintiff's evidence and the weakness of Covil's defense.[1] There is no reason to set aside the verdict on liability or to give Covil another bite of the apple.

         As to damages, the plaintiff presented an equally compelling case. Her evidence was uncontroverted that mesothelioma is incurable and is one of the most painful forms of cancer; that after his diagnosis, Mr. Finch experienced eight months of debilitating pain, suffering, and embarrassment; and that Mr. Finch went through hospitalizations, surgeries, complications, a colostomy, and time in a nursing home before he died. Covil made no effort to undermine the plaintiff's evidence of the close relationships between Mr. Finch and his family, and the jury had plenary evidence to conclude that the loss of companionship to Mr. Finch's wife and adult children had substantial value.

         Though Covil did not emerge from this trial looking like a model corporate citizen and plaintiff's counsel did not pull any punches in her arguments that Covil should be held responsible for the harm caused by its negligence, the law does not require a plaintiff with the burden of proof to downplay the strength of her evidence or to sugarcoat the conduct of the defendant. The plaintiff's arguments were supported by the evidence, and Covil had a full and fair opportunity to challenge those arguments on the merits. The fact that Covil lost and the jury returned a large verdict is explained by the evidence, not by passion or prejudice.

         The Court declines to substitute its judgment about an appropriate amount of damages for Mr. Finch's pain and suffering and the value of his companionship to his widow and three adult children for the reasoned judgment of the jury, as reflected in their unanimous verdict. Covil's motions will be denied.

         I. Background

         Firestone built a tire manufacturing plant in Wilson, North Carolina, from 1973 to 1974. PTX 13 at 566-1; Doc. 499 at 124:7-10. Mr. Finch worked in the plant from 1975 until 1995, nearly all of which time he spent as a mold changer in the curing room. Doc. 497 at 131:4-132:4. On a daily basis, Mr. Finch worked on and around the tire presses in the curing room and the insulated steam pipes leading to and from the presses.[2] Id. at 140:14-150:23; Doc. 498 at 10:9-14:24, 144:14-146:16; Doc. 499 at 13:22-14:1

         It was undisputed at trial that Covil sold virtually all of the insulation, including pipe insulation, used during construction of the Firestone plant, Doc. 499 at 124:7-10, 125:7-18; PTX 13 at 566-6, and Covil's Rule 30(b)(6) witness, [3] James Covil, testified via deposition that at least some of this insulation contained asbestos. Doc. 499 at 110:13-17, 126:17-127:4. In 1975, the EPA banned installation of asbestos-containing pipe insulation, so that any insulation installed or replaced after that date would not likely have contained asbestos. Doc. 498 at 126:13-127:7, 155:13-21. Over 7, 000 feet of asbestos-containing pipe insulation remained in the plant 15 years after construction, when it was removed during an abatement project. Id. at 156:10-14; PTX 5.

         Covil did not produce any sales records showing how much, if any, of the pipe insulation it sold to Firestone was asbestos-free, contending the records were destroyed in a fire at its warehouse in 1973. Doc. 499 at 117:4-16. However, records obtained from Firestone included one 1974 invoice from Covil for 711 feet of “Thermobestos, ” PTX 4, an asbestos-containing pipe insulation product.[4] A Firestone receipt showed other insulation supplied by Covil--which the jury could have concluded contained asbestos[5]- -was earmarked for use in the “curing area” where Mr. Finch worked. PTX 21 at 593.

         Mr. Finch was healthy when he retired in 1996, and he ran a small lawn care business for many years thereafter. Doc. 498 at 193:11-194:15, 198: 7-11. He had three adult children who lived nearby, and he was actively present in their lives. Doc. 497 at 128:24-129:21. After his first wife died in 2009, Doc. 500 at 32:13-18, Mr. Finch remarried the plaintiff here, Ann Finch, in 2013, Doc. 497 at 128:1-4, and the evidence is undisputed that he was a loving and caring husband. See, e.g., Doc. 500 at 40:24-41:3, 45:11-14. He was 78 years old when he was diagnosed with mesothelioma, and Mr. Finch was “unusually healthy” for his age up to that point. Doc. 498 at 157:20-25.

         Mesothelioma is a cancer that starts out in the layer of cells lining the lung or abdomen, id. at 93:18-94:1, 97:1-18, 100:20-101:12, and there is no dispute the disease is caused by inhaling asbestos fibers, which over time can result in cancerous tumors. See, e.g., Doc. 499 at 33:4-15, 50:24-51:10, 59:20-62:17. This process typically takes several decades, meaning a tumor does not develop until many years after a person is exposed. Id. at 50:18-23, 59:20-24, 63:5-15.

         Mesothelioma is one of the most painful cancers because of the number of nerve endings in the lining around the lungs, Doc. 498 at 98:2-17, and there is no cure for the disease. Id. at 83:3-8. Mr. Finch died approximately 10 months after his diagnosis. Id. at 35:3-12, 165:5-6.

         The Court will address other facts as needed.

         II. Covil's Motion for Judgment as a Matter of Law under Rule 50(b)

         Covil asks the Court to set aside the jury's verdict and enter judgment as a matter of law in its favor. Covil makes three arguments in support of its request. First, Covil contends Ms. Finch “failed to produce evidence that asbestos-containing pipe insulation provided by Covil was actually present in the Firestone plant.” Doc. 505 at 5. Second, Covil asserts there was insufficient evidence that Mr. Finch was exposed to asbestos-containing products supplied by Covil, or of the “actual amount” of his exposure. Id. at 6-7. Finally, Covil maintains the evidence at trial shows that “any insulation products supplied by Covil that contained asbestos would have contained a warning as mandated by law, ” and that “there was no evidence presented that an alternate warning would have had any effect.” Id. at 5.

         After the jury has returned a verdict for the plaintiff, a court may only grant judgment as a matter of law for the defendant “if, viewing the evidence in a light most favorable to the [plaintiff] (and in support of the jury's verdict) and drawing every legitimate inference in that party's favor, the only conclusion a reasonable jury could have reached is one in favor of the moving party.” Int'l Ground Transp., 475 F.3d at 218-19.[6] Here, Covil's assertions go to the strength of the evidence, not its sufficiency. Those contentions were rejected by the jury, and judgment as matter of law is not appropriate. See Cline, 144 F.3d 294, 301 (4th Cir. 1998) (noting that, unlike a motion for a new trial, it is not proper to weigh the evidence in resolving a motion for judgment as a matter of law, and the inquiry is limited to assessing legal sufficiency).

         A. Presence of Asbestos Provided by Covil in the Firestone Plant

         Ms. Finch presented more than sufficient evidence from which the jury could conclude that Covil supplied thousands of feet of asbestos-containing pipe insulation used in constructing the Firestone plant. Indeed, it was virtually undisputed that Covil sold all of the insulation used during the construction of the plant, Doc. 499 at 124:7-10, 125:7-21, that it was unlikely any asbestos-containing insulation had been added to the plant after its construction, Doc. 498 at 126:20-127:7, 155:13-21, and that, nearly 15 years later, over 7, 000 feet of asbestos-containing pipe insulation was removed during an abatement project at the plant. Id. at 156:10-14; PTX 5.

         Specifically, the plaintiff presented deposition testimony from Covil's Rule 30(b)(6) witness that Covil was the exclusive supplier of insulation to the Firestone plant during construction between 1973 and 1974 and that Covil supplied “miles of insulation, ” including pipe insulation, to Firestone. See, e.g., Doc. 499 at 110:13-17, 124:7-10, 125:7-21. This witness also testified that Covil “supplied material for the plant, but everything did not have asbestos on it, ” id. at 126:17-127:14, thus admitting that at least some of this insulation contained asbestos. A Covil invoice showed the company shipped 711 feet of Thermobestos to the plant on a specific occasion in 1974, PTX 4; Doc. 499 at 124:12-125:4, and a Covil shipping order form listed other asbestos-containing insulation products as purchase options as late as 1982. PTX 1.

         There were over 100 tire presses in the curing room of the Firestone plant. Doc. 497 at 136:23-137:15; Doc. 498 at 143:16-144:4. Each press had eight to ten external pipes, and most were wrapped with asbestos-containing insulation. See, e.g., Doc. 498 at 15:7-15, 144:14-147:12, 232:16-24; Doc. 499 at 13:22-14:1. Evidence from Firestone established that “all of the asbestos insulation” used in the plant during construction was supplied by Covil, with the exceptions of insulation material sold with equipment like a tire press and “a single job involving only six tire presses.” Doc. 498 at 153:18-154:6; PTX 13 at 566-6.

         In 1990, 7437 feet of asbestos-containing material or pipe insulation was removed from the press area. Doc. 498 at 156:10-14; PTX 5. When asked “why there could be so much asbestos-containing insulation was removed if Covil only installed asbestos-free insulation, ” Covil's 30(b)(6) witness testified “I have no idea.”. Doc. 499 at 130:23 -131:1.

         Nor did Covil present any sales records to rebut the inference that the insulation it sold to Firestone contained asbestos. See Doc. 499 at 111:1-11, 115:4. Its 30(b)(6) witness testified that Covil's sales records “relating to Firestone” were “pretty much wiped out” in a fire at Covil's Greenville warehouse in May 1974, id. at 115:2-9, though after being shown some documents by plaintiff's counsel, he corrected the date of the fire to May 1973. Id. at 116:23-117:16. However, the plaintiff produced receipts showing that Covil supplied insulation to Firestone in 1974, see PTX 4, 20, and the witness confirmed that the company continued supplying insulation to Firestone into 1974. Doc. 499 at 124:7-10. Neither this witness nor any other evidence explained how a fire in May of 1973 destroyed documents from sales made after that date, see, e.g., id. at 117:19-24, or why documents from other Covil warehouses in Wilson and Greensboro, which also supplied materials to Firestone, id. at 120:21-121:1, were not available.

         Dr. Holstein testified that the EPA banned the installation of asbestos-containing pipe covering in 1975. Doc. 498 at 126:20-127:7, 155:13-21. Another witness, Charles Ay, testified that repairs or replacements to insulation after the asbestos ban went into effect would have likely used asbestos-free alternatives. Doc. 499 at 178:5-24.

         Over the years, mechanics and mold changers removed old pipe insulation as part of repairs and maintenance. Id. at 6:2-17, 167:12-168:1; Doc. 498 at 20:18-21:1, 150:6- 152:12. Despite this removal and replacement, 7, 437 feet of asbestos-containing pipe insulation connected to 67 tire presses remained in 1990, when it was removed during an asbestos-abatement project. PTX 5; Doc. 498 at 156:10-14; Doc. 499 at 126:17-22.

         This evidence was easily sufficient to allow the jury to conclude that during construction of the Firestone plant, Covil sold asbestos-containing pipe insulation for use in the tire curing area. The evidence is also sufficient to support the inference that all or most of the asbestos-containing pipe insulation removed in 1990, plus much that had been removed during repairs and maintenance before that date, came from Covil.

         Covil highlights several composition tests conducted on insulation from the plant that showed asbestos concentrations inconsistent with the asbestos-containing pipe covering products allegedly supplied by Covil--Kaylo[7] and Thermobestos. See Doc. 505 at 5-6 (citing Doc. 499 at 201:21-204:14, 204:25-206:9, 206:17-207:8, 211:9-215:4 (noting the tested materials were taken from curing presses, curing press “platens” and curing press “trenches”)). However, there was a dispute as to whether these tests used insulation from inside the tire presses, see Doc. 497 at 143:2-144:3; Doc. 498 at 170:19- 171:7, 225:12-19 (noting the platens were part of the presses), which Ms. Finch never contended was supplied by Covil, [8] Doc. 507 at 15, or insulation from outside the presses. See, e.g., PTX 13 at 566-6 (Firestone's confirmation that Covil supplied virtually all insulation that was not sold with equipment). Even assuming it came from outside the presses, Covil sold several types of insulation to the plant other than Thermobestos and Kaylo. See, e.g., DTX 13. Based on this and other evidence, see PTX 1, the jury could have reasonably concluded that the tested asbestos was supplied by Covil.

         B. Exposure to Covil's Asbestos

         Ms. Finch also presented sufficient evidence that Mr. Finch was exposed to asbestos in products sold by Covil to a sufficient degree to cause his mesothelioma.

         Mr. Finch worked at the Firestone factory for about 20 years beginning in 1975, and he spent nearly all of his time as a mold changer in the curing room. Doc. 497 at 131:4-132:4. His primary responsibility was to place molds into tire presses and remove them after they had been cured into the shape of a tire. Id. at 140:14-150:21. As noted supra, there was plenary evidence to prove that the external pipes connected to almost all of the presses were covered with asbestos-containing insulation supplied by Covil when the plant was built, and Mr. Finch began working there barely a year later.

         Mr. Finch worked in close proximity to the insulated pipes connected to the tire presses. He often walked on or bumped into the pipe insulation, causing it to release dust. Doc. 498 at 147:23-148:7, 149:14-150:1; Doc. 500 at 9:9-10:6; see also Doc. 498 at 147:13-22. Steam leaks or other problems with the pipes were common, Doc. 499 at 6:2-12, 167:12-168:1; Doc. 500 at 57:21-58:1, and mechanics or mold changers would fix these issues by removing the insulation, performing repairs, and reinsulating the pipes, then cleaning up any debris around the tire molds using compressed air.[9] Doc. 498 at 19:23-23:12, 150:4-151:24; Doc. 500 at 59:12-60:25. This was a “very dusty process” that caused “air concentrations of asbestos” to rise “very high.” Doc. 498 at 151:7-24; see also Doc. 499 at 168:9-13, 174:7-20. “Daily” for almost 20 years, Mr. Finch worked within ten feet of one of these mechanics, for minutes to hours each day. Doc. 498 at 22:10-17; 150:4-17.

         The plaintiff's medical expert, Dr. Holstein, testified without contradiction that Mr. Finch's mesothelioma was caused by asbestos exposure “beyond any reasonable doubt.” Id. at 107:18-23. He also testified that Mr. Finch's exposure to asbestos in the pipe insulation--which the evidence shows was sold by Covil--was a “substantial factor” in causing his mesothelioma. Id. at 153:5-17.

         Specifically, Dr. Holstein testified that Mr. Finch had “daily occasions for breathing the dust from [the pipe insulation], and over the course of time, this amounted to a substantial inhalation of asbestos.” Id. at 152:10-12. Assuming Mr. Finch's sole exposure to asbestos was to the pipe covering on steam lines leading to the tire presses, Dr. Holstein testified that this would be “sufficient to cause malignant mesothelioma in human beings.” Id. at 152:18-153:4. Assuming Mr. Finch's exposure to the pipe covering external to the tire presses was one of multiple exposures, including exposure to asbestos inside the tire presses not provided by Covil, id. at 153:18-154:17, 157:6-13, Dr. Holstein concluded that exposure to the external pipe insulation would nonetheless be a “substantial factor” in the development of Mr. Finch's mesothelioma. Id. at 153:5-17. Dr. Holstein highlighted several epidemiological studies on workplace exposure to asbestos that informed his opinion about the cause of Mr. Finch's mesothelioma, id. at 59:16-61:12, including studies specifically on tire factory workers. Id. at 61:13-16.

         This evidence was more than sufficient to support the jury's finding that Mr. Finch was exposed to asbestos-containing products supplied by Covil to a sufficient degree to cause his mesothelioma, and that this exposure was a proximate cause of his disease.

         Covil next asserts that “[t]here was no evidence regarding where in the gigantic Firestone plant this pipe insulation was installed.” Doc. 505 at 6. This is inaccurate. Covil's 30(b)(6) witness admitted that Covil was the exclusive supplier of insulation to Firestone, Doc. 499 at 125:7-21, and the evidence was undisputed that Mr. Finch worked close to and frequently came into contact with pipe insulation outside the tire presses. As discussed in Section II.A, supra, there was substantial evidence that this pipe insulation contained asbestos. Moreover, Ms. Finch introduced into evidence a receipt showing that hundreds of feet of Kaylo insulation supplied by Covil were earmarked for use in the “curing area” where Mr. Finch worked. See supra Section I. The jury could reasonably conclude that this and other insulation contained asbestos, was supplied by Covil, and was present on or around the presses, in Mr. Finch's immediate work area.

         Finally, Covil maintains Ms. Finch “failed to produce any evidence of any actual amount of decedent's exposure to asbestos from products supplied by Covil, ” and specifically, that her “experts failed to present any individualized analysis of the level of exposure to decedent from products attributable to Covil.” Doc. 505 at 6-7. As such, Covil contends she failed to adduce sufficient evidence of causation. Id. at 7.[10]

         First, Covil misstates the applicable test. Although Ms. Finch was required to show that Mr. Finch's “actual level of exposure” to Covil's asbestos was sufficient to cause his mesothelioma, she was not required to quantify the “actual amount” of his exposure through an “individualized analysis, ” as Covil contends.

[O]nly rarely are humans exposed to chemicals in a manner that permits a quantitative determination of adverse outcomes. . . . [I]t is usually difficult, if not impossible, to quantify the amount of exposure. Consequently, while precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert's opinion on causation.

Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263-64 (4th Cir. 1999) (failure to warn claim under South Carolina law); see also Zellars, 895 F.Supp.2d at 739-42 (applying same standard to claim under Virginia law); Yates v. Ford Motor Co., 5:12-CV-752-FL, 2015 WL 3463559, at *2 (E.D. N.C. May 30, 2015) (same under North Carolina law).

         Second, Covil inaccurately characterizes the record. As previously discussed in this section, the evidence showed Mr. Finch was exposed to asbestos-containing pipe insulation provided by Covil on a regular basis for many years, both as a bystander and through direct contact. Dr. Holstein testified that Mr. Finch's exposure to Covil's asbestos pipe insulation was at a level sufficient to cause his mesothelioma and was a substantial factor regardless of whether it was his sole exposure to asbestos or one of multiple exposures to different sources. Doc. 498 at 152:18-157:13. Dr. Arnold Brody, Ms. Finch's expert on cell biology and the experimental pathology of asbestos-related diseases, Doc. 499 at 30:24-31:5, testified that exposure of the degree and duration that Mr. Finch was likely exposed to Covil's asbestos was sufficient to cause his mesothelioma. Id. at 64:4-12.

         There is no dispute in this case that Mr. Finch's mesothelioma was caused by exposure to asbestos; Ms. Finch's experts so testified, and Covil neither introduced evidence to the contrary nor argued to the contrary at trial. Moreover, Covil did not proffer expert testimony at trial on the issue of causation or otherwise. Covil presented its contentions about the plaintiff's evidence of exposure and causation to the jury, see, e.g., Doc. 501 at 80-81, which was not required to accept Covil's inferences or arguments in the face of contrary evidence from the plaintiff.

         C. Evidence on Failure to Warn Claim

         Ms. Finch proffered more than sufficient evidence to allow the jury to find that Covil unreasonably failed to provide a warning on its asbestos-containing products and that this failure proximately caused Mr. Finch's mesothelioma.

         Covil's 30(b)(6) witness testified that the company had information by the mid- to late-1960's that asbestos was hazardous and caused mesothelioma. Doc. 497 at 106:22- 107:4, 118:4-8. Federal regulations were issued in 1971 explicitly stating that workplace asbestos exposure endangered the lives of employees. Id. at 119:5-24; Doc. 498 at 141:10-13. By 1972, the Occupational Safety and Health Administration required that companies selling asbestos-containing products, including asbestos pipe-covering like that Covil sold to Firestone, provide a warning label stating that the product was hazardous to health. Doc. 498 at 141:14-142:18. The president of Covil had copies of these regulations. Doc. 497 at 119:25-120:2. This evidence was sufficient for the jury to find that Covil knew asbestos was dangerous by 1973, when it started selling asbestos-containing pipe insulation to Firestone. See supra Section II.A.

         Of the Firestone workers whose testimony was offered at trial, the earliest any could remember being warned of the dangers of asbestos was the mid- to late-1980's, and those who were warned received their warning from Firestone, not from Covil. Doc. 498 at 138:6-17; Doc. 500 at 16:10-22, 61:3-23. Mr. Finch testified via deposition[11] that he was not informed of the dangers of asbestos until 2010 at the earliest, Doc. 498 at 192:17-24, years after his retirement from Firestone in 1995. Doc. 497 at 131:4-6. He also told the jury that he noticed warnings on several pieces of equipment in the Firestone plant, including a warning on the tire presses to “beware of moving parts, ” but that he did not see any warnings about “dangerous chemicals or solvents or material, ” or about asbestos specifically. Doc. 498 at 227:10-228:2; Doc. 499 at 10:17-25.

         Covil's 30(b)(6) witness testified that he never saw any documents suggesting that Covil had developed a safety protocol for working with asbestos-containing insulation. Doc. 497 at 111:14-17. He also stated that the earliest document indicating any warnings were being given to anyone was from 1989, id. at 112:23-113:7, some fourteen years after Mr. Finch began working around the asbestos products Covil sold to Firestone.

         Covil has pointed to no direct evidence in the record that it provided asbestos warnings with any of the insulating products it sold to Firestone. Rather, it points to circumstantial evidence it contends shows that “the products supplied by Covil, if they contained asbestos, would have included a statutorily required warning.” Doc. 505 at 2 (emphasis added). Covil highlights the testimony of Ms. Finch's expert, Mr. Ay, that OSHA regulations from the early 1970's required asbestos manufacturers to put a warning on the packaging of asbestos-containing materials. Id. at 5 (citing Doc. 499 at 187:4-9). This evidence is not strong enough to require a verdict in Covil's favor, especially since there was other evidence supporting a contrary inference.

         Covil presented no witness or documentary evidence to show that Covil sold insulation packaged in compliance with these regulations. Covil's 30(b)(6) witness testified that the earliest document indicating any warnings were being given to anyone was from 1989. Doc. 497 at 112:23-113:7. Mr. Finch testified that Firestone conveyed warnings on other products in the plant, Doc. 498 at 227:13-228:2; Doc. 499 at 10:17- 25, but neither he nor any other witness ever saw warnings on insulation. Because Firestone conveyed other warnings, the lack of any warning on insulation supports the inference that Covil never provided any warnings at the time of sale. Nor did Covil produce any evidence that it took any steps to convey appropriate warnings to Firestone, Mr. Finch, or other Firestone workers after the sale. See Yates v. Ford Motor Co., No. 5:12-CV-752-FL, 2015 WL 2189774, at *4 (E.D. N.C. May 11, 2015) (collecting cases and suggesting North Carolina courts would likely impose a continuing, post-sale duty to warn on asbestos suppliers).

         Covil next asserts that “there was no evidence presented that an alternative warning would have had any effect.” Doc. 505 at 5. However, Covil ignores Mr. Finch's testimony that he followed the safety regulations at Firestone “as best as . . . it was possible for [him] to do, ” Doc. 498 at 190:3-9, and his recollection of specific warnings on equipment at the plant tends to support this. Id. at 227:10-228:2. The medical evidence was that “the more a person is exposed to [asbestos], the more likely it is that” it will cause mesothelioma. Doc. 499 at 63:21-25. This evidence was sufficient for the jury to conclude that Mr. Finch would have heeded warnings about the dangers of asbestos if Covil had provided them, and that a pre- or post-sale warning “could have been effective in preventing or alleviating” Mr. Finch's mesothelioma. See Yates, 2015 WL 2189774, at *4. Covil does not point to any countervailing evidence on this point in its briefing, and even if there was such evidence, the jury was not required to accept it.

         Relatedly, Covil also appears to contend that alternate warnings (or any warnings at all) on its products would not have had any effect because “Firestone knew it had asbestos-containing materials in its plant and did nothing to warn its employees of any danger.” Doc. 505 at 5; see also Doc. 510 at 2 (“The fact that the manufacturer's warning did not reach Mr. Finch was beyond Covil's control.”). Covil seems to assume that Firestone's failure to convey warnings it received from others to Firestone employees would relieve Covil of liability. However, in North Carolina, the seller of a product generally does not discharge its duty to directly warn a reasonably foreseeable user or claimant by warning an intermediary such as Firestone, with one specific statutory exception that does not apply here. See N.C. Gen. Stat. § 99B-5(a), (c). North Carolina does not appear to have adopted the “sophisticated user” defense, whereby a manufacturer is absolved of any duty to warn employees directly when a product is sold to an employer who is aware of its dangers.[12] See Willis v. Raymark Indus., Inc., 905 F.2d 793, 796 (4th Cir. 1990).

         The evidence was more than sufficient to support the jury's finding of liability on both Ms. Finch's negligence and failure to warn claims. Covil's counsel zealously advocated his client's position at trial, but Covil's evidence and inferences were not compelling, and a defense verdict was far from “the only conclusion a reasonable jury could reach.” Int'l Ground Transp., 475 F.3d at 218-19. Covil's motion for judgment as a matter of law under Rule 50(b) will be denied.

         III. Covil's Motion for a New Trial under Rule 59(a)

         A court should grant a motion for a new trial only if the verdict is against the clear weight of the evidence, is based on evidence which is false, or will result in a miscarriage of justice. Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003). Unlike a motion for judgment as a matter of law, the district court may weigh evidence, assess credibility, and exercise its discretion in ruling on a motion for a new trial. See, e.g., Cline, 144 F.3d at 301; Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994); Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir. 1985).

         Covil does not contend there was any false evidence presented. It most directly appears to assert that upholding the verdict would result in a miscarriage of justice. See Doc. 505 at 8-19; Wilhelm, 773 F.2d at 1433 (quoting 11 Wright & Miller, Federal Practice & Procedure § 2805 at 38 (1973), for the proposition that the district court has a duty to order a new trial if required to prevent injustice).

         Covil asks for a new trial on both liability and damages. In the alternative, it asks for a new trial on damages only, and to the extent the Court does not grant that request, Covil contends remittitur is appropriate.

         A. Liability

         1. Evidentiary Rulings

         If a court errs in admitting or excluding evidence and that error affects the “substantial rights” of a party, a new trial is appropriate. Fed.R.Civ.P. 61; see also Phillips v. Morbark, Inc., 519 F.Supp.2d 591, 594 (D.S.C. 2007) (noting a motion for a new trial should be denied “unless there were substantial errors in evidentiary rulings”). Covil challenges several of the Court's rulings.

         The plaintiff offered into evidence deposition testimony from Covil's 30(b)(6) witness that he believed the company stopped selling asbestos-containing products in 1973. See Doc. 497 at 113:16-24, 115:20-24. Covil contends this evidence was irrelevant and impermissible character evidence and that the prejudice to Covil substantially outweighed its probative value.

         However, this evidence was relevant to show that Covil sold asbestos-containing products at some point in 1973, when construction on the Firestone plant began. That is, by testifying that Covil stopped selling asbestos products at some point in 1973, the witness implicitly admitted that Covil sold asbestos products up to that point. This was particularly relevant because Covil's counsel had asserted in his opening statement that the manufacturer of Kaylo stopped including asbestos in that product in 1972, supporting his contention that the Kaylo that Covil supplied to Firestone from the manufacturer did not contain asbestos. Id. at 94:25-95:18. The plaintiff had the burden to prove that Covil sold asbestos-containing products used at the Firestone plant where Mr. Finch worked, and the 30(b)(6) testimony helped prove that Covil sold such products in 1973.

         Evidence that Covil claimed to stop selling asbestos products around the time that asbestos became heavily regulated, see supra Section II.C, was also relevant to show that Covil had knowledge of the dangerousness of asbestos when it sold products to Firestone and was probative of whether Covil should have provided warnings then and later. Covil denied that it was negligent and denied it had a duty to warn, and this evidence was relevant to assessing Covil's duty of care and whether it breached that duty by selling asbestos at all or selling it without a warning--central elements of the plaintiff's case.

         Covil contends the plaintiff used this testimony as improper character evidence because the plaintiff also introduced evidence that Covil continued to sell asbestos-containing products after 1973, and she highlighted the inconsistency to the jury. Doc. 505 at 9; see also, e.g., PTX 4; Doc. 497 at 114:11-16; Doc. 501 at 32:2-15. But by offering testimony from Covil's Rule 30(b)(6) witness that Covil stopped selling asbestos in 1973, the plaintiff was not bound by that evidence. She was entitled to show that this testimony was inconsistent with other evidence that Covil did, in fact, sell asbestos-containing products to Firestone after 1973, which was highly relevant to her case. It was not improper for the plaintiff to point out this inconsistency to convince the jury not to find this aspect of the 30(b)(6) testimony credible.

         Such contrary evidence was particularly relevant in light of Covil's defense. The plaintiff presented an invoice showing Covil sold 711 feet of asbestos-containing insulation to the plant. See supra Section I. Covil conceded this sale at trial, Doc. 497 at 94:1-6, but it otherwise denied the insulation it sold contained asbestos, id. at 93:20- 94:18, 94:25-95:18, contended there was no evidence of where the small amount of asbestos it supplied was installed, and asserted Mr. Finch's mesothelioma was solely caused by asbestos from other sources. Id. at 98:6-23. The plaintiff was allowed to rebut these contentions with other admissible evidence showing Covil sold more asbestos-containing pipe insulation than it was admitting and to attempt to persuade the jury in closing argument that Mr. Covil's testimony that Covil stopped selling asbestos products in 1973 was inaccurate. Plaintiff's counsel gave Mr. Covil an opportunity to address the contrary documentary evidence, which was substantial, and he failed to do so in any convincing way. See, e.g., id. at 116:7-117:15; Doc. 499 at 130:23 -131:1. The fact that this evidence also made Covil “look bad” in some general sense does not make it inadmissible character evidence or unfairly prejudicial under Rule 403. It was highly relevant and its probative value outweighed the minimal possibility of unfair prejudice.

         Covil also asserts that the “Court improperly forced [it] to stipulate to portions of Dwaine Waters' testimony.” Doc. 505 at 10. This is not an accurate characterization of the record, which shows that the Court consistently deferred a final ruling so that it could make an appropriate Rule 403 evaluation and that Covil made a tactical decision ...


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