In a 2013 Mississippi Supreme Court case, the Court considered a wrongful death case in which the decedent had died of lung cancer. He had worked on oil rigs most of his life. At that time, it was typical for the industry to use chemical drilling additives The plaintiff claimed that working close to these additives, which contained asbestos, ultimately led to the decedent’s lung cancer.
The decedent was also a heavy smoker. He smoked 2-3 packs of cigarettes a day for about 30 years. He was diagnosed with lung cancer in 2002 and died three months after the diagnosis. The wrongful death suit was brought against Union Carbide Corporation and a number of other manufacturers. It alleged negligence by the manufacturers.
Claims against certain manufacturers were dismissed. The plaintiffs claimed that the asbestos exposure on the oil rigs caused the death and relied on a products liability theory of design defects.
At the trial, the decedent’s former coworkers testified about the asbestos exposure. One coworker could identify the manufacturer’s products as used on different rigs, but he had admitted he couldn’t place a specific product with a specific rig at a particular time. Another coworker was able to identify five products that were present at a particular rig. Similarly, another coworker could testify about products on another rig, but there were some discrepancies when his account was checked against Social Security records.
The trial lasted three weeks. The jury assessed damages of $3,856,346.17 and apportioned liability between the three defendants and the decedent for smoking. The decedent was found 20% at fault for smoking. The defendants moved for a directed verdict, which was denied.
However, when they filed a joint motion for judgment notwithstanding the verdict (JNOV), that was granted. JNOV is a type of motion that allows the judge to grant judgment for the moving party in spite of the jury’s decision. The motion tests not the weight of the evidence in support of the verdict but its legal sufficiency. Only if facts and inferences point overwhelmingly towards the moving party, such that reasonable jurors could not have arrived at a particular verdict, is the motion to be granted. The trial court found that the plaintiffs hadn’t met the burden of proving causation because they could not establish that the decedent was exposed to specific products frequently and regularly where he worked.
The plaintiffs appealed. The issue was whether the court had erred in granting the motion for JNOV on the grounds that the plaintiffs had not met the “frequency, regularity, and proximity” test.
The test is whether (1) the plaintiff was exposed to a product containing asbestos, (2) with enough frequency and regularity, (3) in close proximity to his or her actual workplace, and (4) such that causation was probable. The appellate court explained that this test was not typically used as a basis for JNOV. Rather, it was a de minimis test that was applied to determine whether a plaintiff’s claim could proceed past summary judgment or a directed verdict.
The Mississippi Products Liability Act puts forth the elements of products liability lawsuits. The trial court was required to apply the evidence to the elements set forth in the act, not in the frequency, regularity, and proximity test.
If you or a loved one is hurt due to dangerous products, the knowledgeable Mississippi personal injury attorneys of Coxwell & Associates may be able to help pursue the damages you deserve and need.
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Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.