United States District Court, M.D. North Carolina
ANN FINCH, Individually, and as Executrix of the Estate of Franklin Delenor Finch, Plaintiff,
COVIL CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
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
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
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.
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. There is no reason to set aside the
verdict on liability or to give Covil another bite of the
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.
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.
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.
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. Id. at 140:14-150:23; Doc. 498 at
10:9-14:24, 144:14-146:16; Doc. 499 at 13:22-14:1
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,  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.
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. A Firestone receipt showed other
insulation supplied by Covil--which the jury could have
concluded contained asbestos- -was earmarked for use in the
“curing area” where Mr. Finch worked. PTX 21 at
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.
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,
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.
Court will address other facts as needed.
Covil's Motion for Judgment as a Matter of Law under Rule
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.
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. 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).
Presence of Asbestos Provided by Covil in the Firestone
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;
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.
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.
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.
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.
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.
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.
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
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 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,  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.
Exposure to Covil's Asbestos
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.
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
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
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.
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.
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.
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.
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.
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.
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
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.
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.
Evidence on Failure to Warn Claim
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.
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.
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 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.
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.
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.
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).
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.
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. See Willis v. Raymark Indus.,
Inc., 905 F.2d 793, 796 (4th Cir. 1990).
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.
Covil's Motion for a New Trial under Rule 59(a)
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).
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
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.
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
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.
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.
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
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)
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.
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 ...