E-Alert Case Updates

New Trial required where asbestos manufacturer’s request for instruction on employer’s duty to employee not given

R.T. Vanderbilt Co. Inc. v. Galliher
___ A.3d___ (July 24, 2014) (not yet published)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://courts.delaware.gov/opinions/download.aspx?ID=209160

Plaintiff’s decedent, Michael Galliher, contracted and died from mesothelioma as a result of exposure to asbestos while employed with Borg Warner (“BW”) at a bathroom fixtures facility. Plaintiff alleged that the materials used at BW were manufactured by the Defendant, R.T. Vanderbilt Co. Inc. (“Vanderbilt”). Vanderbilt denied causation and claimed that BW was solely responsible because it did not operate the facility in a manner that was safe for employees. BW was not a party to the suit.

At the trial, Vanderbilt put on evidence that BW had breached the relevant standard of care as to its employees, including Plaintiff’s decedent. Vanderbilt then requested that the jury be instructed on the duty of care that an employer owes to its employees in accordance with the applicable Ohio law, which the judge refused. Additionally, during testimony Plaintiff’s experts made various highly prejudicial comments including that Vanderbilt liars, alleging that Vanderbilt had paid millions of dollars to affect studies to avoid governmental sanction. After judgment was entered for the Plaintiffs in the amount of $2,864,583.33, Vanderbilt filed a motion for new trial, which was denied. Vanderbilt appealed.

The Delaware Supreme Court first addressed the Court’s failure to give a jury instruction on the employer’s duty to its employee. The court noted that Ohio law governs the substantive issues of the case, and that Ohio had developed pattern jury instructions that applied to the defenses raised by Vanderbilt. The Court held that the trial court’s instruction requiring the jury to determine if BW was “at fault” without further guidance on what established fault failed to properly inform the jury.

Further, the Court acknowledged that the statements made by Plaintiff’s experts were so highly inflammatory that even the trial court had acknowledged the limited value of a curative instruction. The Supreme Court noted that in “gauging the effect of admission of improper evidence, this Court … considers (1) the closeness of the case, (2) the centrality of the issue affected by the error and (3) the steps taken in mitigation.” Id. The issue of Vanderbilt’s liability was heavily contested, as it contested that there was asbestos in its products. Because the inappropriate comments impacted Vanderbilt’s credibility on that issue, and the curative instruction provided by the court was insufficient, the Delaware Supreme Court held the trial court had abused its discretion in denying Vanderbilt a new trial. The verdict was reversed, and remanded for a new trial.