Exxonmobil Oil Corp, V. Wayne Wright ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WAYNE WRIGHT, individually and as
personal representative for the estate No. 81289-1-I
of WARREN WRIGHT, deceased,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
v.
3M COMPANY, f/k/a MINNESOTA
MINING & MANUFACTURING
COMPANY; E.J. BARTELLS
SETTLEMENT TRUST; SHELL OIL
COMPANY; TEXACO, INC.; U.S. OIL
& REFINING COMPANY,
Defendants,
EXXONMOBIL OIL COMPANY,
Appellant.
APPELWICK, J. — Wright sued ExxonMobil and others for his father’s
wrongful death from mesothelioma as a result of asbestos exposure in oil refineries
while working for an independent contractor, Northwestern Industrial Maintenance.
The other companies settled, but Mobil proceeded to trial. Mobil raises several
issues on appeal pertaining to jury instructions, evidentiary issues, jury selection,
and the reasonableness of settlement agreements. We affirm the jury verdict, but
vacate the judgment and remand for a new reasonableness hearing.
No. 81289-1-I/2
FACTS
From the mid 1950’s until 1988, Mobil1 operated a refinery in Ferndale,
Washington. In 1979, Northwestern Industrial Maintenance (NWIM) was
contracting with Mobil, to perform maintenance jobs at the Mobil refinery in
Ferndale. NWIM employed Warren Wright as a working foreman on a crew at the
Ferndale facility. Wright was involved in a NWIM job that entailed demolition of
insulation from the pipes, pumps, and other equipment in an out of service unit of
the refinery. The NWIM workers were informed that the old insulation contained
asbestos. During the demolition, the employees took precautions including the
use of respirators and wet methods to minimize airborne particles. That job lasted
three months.
Wright continued working for NWIM at various refineries until 1988. Wright
died in September 2015. An autopsy performed on his lungs revealed that Wright
had suffered from mesothelioma.
In January 2018, Wright’s son, Wayne Wright, filed a wrongful death suit
individually and on behalf of Wright’s estate.2 The lawsuit named defendants
Mobil, Shell Oil Company, Texaco Inc., and U.S. Oil and Refining Company who
owned the refineries where Wright had worked while employed by NWIM. Wright
also included 3M Company, the manufacturer of the face mask worn by Wright
and his coworkers, as a defendant.
1 ExxonMobil Oil Company is the successor-in-interest to Mobil Oil
Corporation. Mobil was the name when Warren Wright worked at the refinery.
2 For the purposes of this opinion, we use “Wright” for both Warren Wright
individually as the employee and plaintiff/appellants Wayne Wright and the Estate
of Warren Wright collectively.
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No. 81289-1-I/3
Shell, Texaco, U.S. Oil, and 3M all entered settlement agreements with
Wright. Mobil proceeded to trial. The jury returned a $4 million verdict for Wright.
The trial court held a reasonableness hearing and determined the settlement
agreements with Shell, Texaco, U.S. Oil, and 3M were reasonable. The court then
calculated the set-off for the amounts of the settlement and entered a judgment of
$2,270,000.00 plus attorney fees and costs and postjudgment interest. The court
denied Mobil’s posttrial motions for a judgment as a matter of law and for a new
trial. Mobil appeals.
DISCUSSION
I. Jury Instructions
Mobil argues the trial court erred by omitting several jury instructions.
Generally, the decision to give a particular jury instruction is within the trial court’s
discretion. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517(2017). “Where substantial evidence supports a party’s theory of the case, the trial
courts are required to instruct the jury on the theory.” Id. An appellate court
reviews a trial court’s decision to give a jury instruction de novo if based on a matter
of law or for abuse of discretion if based on an issue of fact. Id.“Jury instructions (1) cannot be misleading, (2) must allow counsel to argue
their theory of the case, and (3) must properly inform the jury of the applicable law,
when read as a whole.” Spencer v. Badgley Mullins Turner, PLLC, 6 Wn. App. 2d
762, 787, 432 P.3d 821 (2018). An instruction is erroneous if it fails to satisfy these
criteria. Id. An erroneous instruction is not reversible unless it is prejudicial. Id.3
No. 81289-1-I/4
Prejudice is assumed if the instruction is a clear misstatement of the law, but must
be demonstrated if the instruction is merely misleading. Id. at 787-88.
A. Liability Instructions
Wright based his negligence claim for asbestos exposure on two discrete
theories: (1) Mobil retained control over NWIM and failed to exercise ordinary care
in overseeing its work; and (2) Mobil failed to use ordinary care for Wright’s safety
as an invitee onto its property. The jury returned a verdict for Wright on both
theories. As a result, reversal is necessary only if the court’s actions rose to the
level of prejudicial error for instructions related to both theories.
1. Retained Control
The parties do not dispute that Wright was an employee of independent
contractor NWIM, rather than an employee of Mobil. Instead, Wright argues that
Mobil had liability for his asbestos exposure because it retained control of the
workplace. The trial court instructed the jury on Wright’s proposed instruction for
the theory of retained control:
An owner and/or operator of a refinery “retains control” over the work
of a contractor when it either (1) retains the right to direct the means
and manner in which a contractor works or (2) retains the right to
require use of safety precautions or otherwise assumes
responsibility for worker safety.
Mobil argues this instruction was erroneous because it permitted the jury to find
for Wright “based solely on Mobil’s contractual requirement that NWIM follow
prevailing safety laws.”
“The scope of an employer’s liability depends on whether the worker is an
independent contractor or an employee.” Kamla v. Space Needle Corp., 147
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Wn.2d 114, 119, 52 P.3d 472 (2002). Employers are not liable for injuries incurred
by independent contractors because the employers cannot control the manner in
which independent contractors work. Id.As an exception to this rule, an employer may be liable to an independent
contractor where it has retained the right to direct the manner in which work is
performed. Id. “‘Whether a right to control has been retained depends on the
parties’ contract, the parties’ conduct, and other relevant factors.’ The proper
inquiry is whether the jobsite owner retains the right to direct the manner in which
work is performed, not whether it actually exercises that right.” Hymas v. UAP
Distrib., Inc., 167 Wn. App. 136, 154, 272 P.3d 889 (2012) (citation omitted)
(quoting Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wn. App. 741, 750, 875
P.2d 1228 (1994)).
The case law establishes the proper inquiry for whether the employer
retains control as “whether there is a retention of the right to direct the manner in
which work is performed.” Kamla, 147 Wn.2d at 121. The first part of the jury
instruction properly reflects the Kamla test. However, the second part of the
instruction that allows for a finding of retained control if Mobil “retains the right to
require use of safety precautions or otherwise assumes responsibility for worker
safety,” stems from Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330-
31, 582 P.2d 500 (1978).
Kelley involved a lawsuit against a general contractor by an injured
employee of a subcontractor. Id. at 326. In its contract with the owner of the
project, the general contractor “assumed sole responsibility for supervising and
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No. 81289-1-I/6
coordinating all aspects of the work.” Id. at 327. The general contractor agreed to
be responsible for “initiating, maintaining and supervising all safety precautions
and programs in connection with the work.” Id. It “had general supervisory and
coordinating authority under its contract with the owner, not only for the work itself,
but also for compliance with safety standards.” Id. at 331.
The court’s determination of retained control in Kelley arose because of the
general contractor’s contractual responsibility for establishing and maintaining
safety precautions for the project. See also Straw v. Esteem Constr. Co., 45 Wn.
App. 869, 875, 728 P.2d 1052 (1986) (“In Kelley the court found the contractor had
assumed contractual responsibility for initiating and maintaining a safety program,
and thus responsibility for supervising the subcontractor's work to insure it
complied with safety standards.”). The significance of actual involvement in a
safety measure is confirmed by subsequent cases: “It is one thing to retain a right
to oversee compliance with contract provisions and a different matter to so involve
oneself in the performance of the work as to undertake responsibility for the safety
of the independent contractor’s employees.” Hennig v. Crosby Grp., Inc., 116
Wn.2d 131, 134, 802 P.2d 790 (1991) (emphasis omitted). The employer must
actively involve itself with the operation of safety measures to retain control. Id.Contract language that provides for inspections to ensure compliance with relevant
laws and regulations is not enough to constitute retained control. Cano-Garcia v.
King County, 168 Wn. App. 223, 237, 277 P.3d 34 (2012).
In this case, the jury instruction allowed the jury to conclude that Mobil
retained control because it required NWIM employees to comply with its general
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No. 81289-1-I/7
safety rules and Occupational Safety and Health Administration (OSHA)
regulations. This is far below the contractual obligation for undertaking safety
procedures that Kelley identified as the reason for retained control. Moreover, it is
directly contrary to the case law establishing that the right to ensure compliance
with relevant laws and regulations does not constitute retained control. See Cano-
Garcia, 168 Wn. App. at 237. As a result, the retained control jury instruction is a
clear misstatement of the law. Such an error is presumed prejudicial and requires
reversal. See Hendrickson v. Moses Lake Sch. Dist., 192 Wn.2d 269, 281, 428
P.3d 1197 (2018).
2. Premises Liability
Mobil argues the trial court also provided an incorrect jury instruction on its
duty of care to Wright as a business invitee.
The legal duty owed by a landowner to a person entering the premises
depends on whether the entrant was a trespasser, licensee, or invitee. Kamla,
147 Wn.2d at 125. Employees of independent contractors are business invitees
on the landowner’s premises. Id. The parties do not dispute Wright’s status as an
invitee. A landowner owes an invitee the duty of care set forth in the Restatement
(Second) of Torts § 343 (Am Law Inst. 1965):
“[a] possessor of land is subject to liability for physical harm caused
to his invitees by a condition on the land if, but only if, [the possessor]
“(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
“(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against
the danger.”
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No. 81289-1-I/8
Tincani v. Inland Empire Zoological Soc.¸124 Wn.2d 121, 138, 875 P.2d 621(1994) (alterations in original) (quoting RESTATEMENT § 343). Restatement § 343A
further explains the duty owed to an invitee for known or obvious dangers on the
premises: “‘(1) A possessor of land is not liable to . . . invitees for physical harm
caused to them by any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness.” Id. at 139 (alteration in original) (quoting
RESTATEMENT § 343A). The Washington Supreme Court established that section
343A “is the appropriate standard for duties to invitees for known or obvious
dangers.” Id.
When instructing a jury on the duty owed to an invitee for known or obvious
dangers, “it is ordinarily the better practice to give both Section 343 and Section
343A(1) instructions.” Suriano v. Sears, Roebuck & Co., 117 Wn. App. 819, 831,
72 P.3d 1097 (2003). The Washington Pattern Jury Instructions reiterates this,
“[i]n cases involving invitees and known or obvious dangers, the jury should be
instructed in accordance with both sections 343 and 343A of the Restatement.” 6
WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 120.07
cmt. at 797 (7th ed. 2019).
In this case, Mobil proposed a jury instruction that included the language of
section 343A: “A possessor of land is not liable to his business invitee for physical
harm caused to him by an activity or condition on the land whose danger is known
or obvious to him, unless the possessor should anticipate the harm despite such
knowledge or obviousness.” The court declined to give this instruction, choosing
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No. 81289-1-I/9
to provide a jury instruction on only section 343. This was not legal error. While
the two instructions together provide a more complete statement of the law, no
case has explicitly required a court to issue both instructions. See Suriano, 117
Wn. App. at 831. The court’s single instruction was not an incorrect or misleading
statement of the law.
As part of its statement of the law, the given instruction included the element
of the invitee’s knowledge, allowing for liability only if Mobil “should expect that
invitees will not discover or realize the danger, or will fail to protect themselves
against it.” Even without the section 343A instruction, Mobil had the opportunity to
argue that Wright knew of the danger and knew to protect himself against it. Mobil
touched on Wright’s knowledge of the danger during closing arguments:
Mr. Wright was not some invitee who came onto our facility and
wandered into some dangerous condition that he wasn’t prepared for
or aware of. His company was hired to do this work.
Based on all the precautions that were taken, they were
prepared to do this work. The employer had that nondelegable duty
and satisfied that duty in this case. Yet with all of that, Mobil is the
one standing here having to defend itself against a claim that we
failed to exercise ordinary care for this three-month job, 40 years
ago.
Mobil was able to argue its theory of the case to the jury.
The business invitee instruction allowed Mobil to argue Wright’s knowledge
to the jury and was not incorrect or misleading. Therefore, the trial court’s
instruction was not erroneous. Additionally, because Mobil was able to argue its
theory of the case, any error in the trial court’s failure to provide the section 343A
instruction was harmless. See Blaney v. Int’l Assoc. of Machinists & Aerospace
Workers, Dist. No. 160, 151 Wn.2d 203, 211, 87 P.3d 757 (2005) (“An erroneous
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No. 81289-1-I/10
jury instruction is harmless if it is ‘not prejudicial to the substantial rights of the
part[ies] . . ., and in no way affected the final outcome of the case.’”) (alteration in
original) (quoting State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947)). The
jury verdict stands based on premises liability.
B. Contributory Negligence
Mobil claims the trial court erred by refusing to instruct the jury on the
affirmative defense of contributory negligence. Wright counters that Mobil failed
to produce evidence in support of the instruction.
In order to prove contributory negligence, the defendant must show the
plaintiff had a duty to exercise reasonable care for his own safety, failed to exercise
such care, and the failure was a cause of the injuries. Gorman v. Pierce County,
176 Wn. App. 63, 87, 307 P.3d 795 (2013). The inquiry is whether or not the
plaintiff exercised the care for his own safety that a reasonable person would have
used under the existing facts and circumstances. Dunnington v. Virginia Mason
Med. Ctr, 187 Wn.2d 629, 637, 389 P.3d 498 (2017).
The evidence presented showed that Wright took all precautions known at
the time to limit his exposure to asbestos. As the corporate representative for
Mobil noted, “Mr. Wright was the champion of wearing respirators,” and he “not
only wore one religiously himself” but also told other workers that they needed to
wear one. Wright also directed the employees to use water to wet down the
insulation, which was a precaution to minimize asbestos dust. However, the
workers could not always use the wet method. Brian Daley testified, “you couldn’t
do it all the times, you couldn’t get the hose, you couldn’t get the water to the areas
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No. 81289-1-I/11
at all the times because there wasn’t water in that unit.” As Daley said, “the
procedure we followed was to spray water to the best of everybody’s ability and as
much water as they had that was provided that we could get it on there.”
Based on the testimony, Wright personally took the known precautions
necessary to keep himself and his fellow workers safe. He wore the OSHA
approved respirator and knew how to properly fit it. He and his coworkers used
the wet method when possible. And, they bagged the insulation in plastic and
deposited in a plastic lined dumpster for safe disposal of the asbestos containing
material. Wright complied with the safety measures of the time period as a
reasonable person would. Therefore, the trial court did not err in denying Mobil’s
request for a jury instruction on contributory negligence.
C. Assumption of Risk
Mobil argues it was entitled to a jury instruction on its affirmative defense of
assumption of risk. Wright contends that Mobil did not provide evidence that
Wright had more than generalized awareness of the risks of asbestos as required
for an assumption of risk instruction.
To invoke assumption of risk, Mobil must show that Wright knowingly and
voluntarily chose to encounter the risk. Egan v. Cauble, 92 Wn. App. 372, 377,
966 P.2d 362 (1998). This means that Wright, “(1) had full subjective
understanding, (2) of the presence and nature of the specific risk, and (3)
voluntarily chose to encounter that risk.” Wagenblast v. Odessa Sch. Dist. No.
105-157-166J, 110 Wn.2d 845, 858, 758 P.2d 968 (1988). “A plaintiff has
knowledge if, ‘at the time of decision, [he or she] actually and subjectively knew all
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No. 81289-1-I/12
facts that a reasonable person . . . in the plaintiff's shoes would want to know and
consider.’” Reed-Jennings v. Baseball Club of Seattle, LP, 188 Wn. App. 320, 333,
351 P.3d 887 (2015) (alterations in original) (quoting Home v. N. Kitsap Sch. Dist.,
92 Wn. App. 709, 720, 965 P.2d 1112 (1998)). Knowledge requires more than
mere awareness of the generalized risk of the activities. Reed-Jennings, 188 Wn.
App. at 333. There must be proof the plaintiff knew of and appreciated the specific
hazard that caused the injury. Id.
Mobil failed to meet this burden. No testimony from Wright was available
to show the extent of his knowledge of the risks inherent in removing asbestos-
containing insulation. Daley testified that he and the other workers had been told
that the material they were removing was asbestos. Wright knew to wear a
respirator and advised the other workers to wear one when working with the
insulation. He, and others, took precautions when removing the insulation to avoid
breathing the asbestos dust. This is the extent of the information provided as to
Wright’s level of knowledge of the risks of removing the asbestos insulation. While
Wright was clearly aware of the “generalized risk” of asbestos exposure, Mobil did
not produce evidence that Wright knew the risk of exposure even with precautions
or evidence that he knew the risk of developing mesothelioma. Given the minimal
evidence on the extent of Wright’s knowledge of the risks of performing his job, the
trial court’s decision against instructing the jury on assumption of risk was not an
abuse of discretion.
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II. Hearsay Evidence
Mobil contends the trial court erred by admitting hearsay embedded within
an ancient document. We review admission of evidence for abuse of discretion.
Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668, 230 P.3d 583 (2010). Even if a
trial court abuses its discretion in admitting evidence, the error is harmless where
it is cumulative or of only minor significance in reference to the evidence as a
whole. Hoskins v. Reich, 142 Wn. App. 557, 570-71, 174 P.3d 1250 (2008).
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” ER 801(c). Statements in ancient documents, older than 20 years with
established authenticity, are not excluded by the hearsay rule even if the declarant
is available as a witness. ER 803(a)(16). After proper authentication as an ancient
document, Washington courts have not examined the contents for hearsay. 3 See
Allen v. Asbestos Corp., 138 Wn. App. 564, 576-77, 157 P.3d 406 (2007) (finding
collection of documents from Puget Sound Naval Shipyard admissible as an
authenticated ancient document); Bowers v. Fibreboard Corp., 66 Wn. App. 454,
563-65, 832 P.2d 523 (1992) (finding dictionary of naval fighting ships was a
compilation of data and admissible as an ancient document).
3 But, federal courts interpreting the identical language of the Federal Rule
of Evidence 803(16) have required examination of hearsay embedded within those
documents. See Langbord v. United States Dept. of Treasury, 832 F.3d 170, 190
(3rd Cir. 2016); United States. v. Hajda, 135 F.3d 439, 444 (7th Cir. 1998).
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No. 81289-1-I/14
Here, the trial court allowed Wright to introduce a photocopy of a newspaper
article entitled “Lung Cases Show Up at Mobil.” The article was included in “OSHA
Oversight Hearings on Proposed Rules on Hazards Identification” Hearings before
the subcommittee on health and safety of the committee on education and labor
for the House of Representatives in 1981. The article contains references to
information about lung disease in confidential medical reports compiled by Mobil
and statements by an unnamed medical expert. The court admitted the article,
stating it qualified under ER 901(b)(8) as authentic for the purposes of the ancient
document exception to hearsay.4 The court did not undertake an examination of
the contents for embedded hearsay. Nor did it need to since under ER 803(a)(16),
any hearsay within the ancient document was admissible. Any arguments about
the content would merely go to the weight to be given to the evidence by the jury.
Regardless of whether admission of the article was an abuse of discretion,
any error was harmless. Wright introduced the article to contradict Mobil’s claim
that its refineries did not have excess cases of respiratory disease, lung cancer or
mesothelioma. The article noted that a confidential Mobil study revealed 380
employees from the company’s Paulsboro5 refinery had lung damage associated
with asbestos exposure, and 42 of those cases were serious. The article went on
to say that an unnamed medical expert said that people with similar conditions
have a 1-in-10 or 1-in-15 chance of contracting mesothelioma. In response to
4Mobil objected to authentication of the newspaper article through the
Oversight Hearings record, stating “the mere fact that it’s attached to this document
does not authenticate it.”
5 Paulsboro is not the refinery at issue in this case.
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No. 81289-1-I/15
questions about a passage in the article, the Mobil representative highlighted the
unreliability of the article:
[W]e don’t know that medical expert, we don’t know the dose that the
person received, we don’t know the time frame, we don’t know that
these people at Paulsboro, how long they worked there. They could
have worked in a shipyard for 20 years before they got to Paulsboro.
All of that is salient information on how to assess information like
this.”
Put in context of the trial, Wright used this ancient document to question
Mobil’s corporate representative and to briefly raise the issue of asbestos exposure
at other Mobil locations during closing argument. This evidence was minimal and
shown as unreliable by the Mobil representative. Moreover, the existence of
asbestos at the Ferndale refinery was not a disputed issue. The main issue was
the duty of care that Mobil owed Wright. Admission of the document was harmless.
III. Expert Testimony
The trial court denied Mobil’s motion to exclude the testimony of expert
Industrial Hygienist Susan Raterman. Mobil contends the court erred because the
testimony was speculative as to Wrights’s potential range of exposure to asbestos.
Wright argues the testimony was based on generally accepted principles in the
field of industrial hygiene.
ER 702 governs the admission of expert testimony: “If scientific, technical,
or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise.” The expert’s testimony must be based on fact rather
than assumption. Coogan v. Borg-Warner Morse Tec Inc., 197 Wn.2d 790, 801,
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490 P.3d 200 (2021). When courts have refused to admit expert testimony as
speculative, the decision “hinge[d] on the expert’s basis for forming the opinion,
not on the expert’s conclusions. When an expert fails to ground his or her opinions
on facts in the record, courts have consistently found that the testimony is overly
speculative and inadmissible.” Volk v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d
254 (2016). We review a decision on admission of expert testimony for abuse of
discretion. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683,
15 P.3d 115 (2000).
According to Mobil, Raterman “ignored the undetectable amounts of
asbestos measured at Ferndale during the time Mr. Wright worked there” and did
not account for Wright’s use of a mask for work with insulation. This
mischaracterizes Raterman’s testimony.
Raterman opined that Wright “was exposed to significant concentrations of
asbestos . . . . They contributed to his cumulative asbestos exposure dose and
increased his risk of developing mesothelioma.” Raterman provided a range of
exposure for Wright at the Mobil refinery. She determined an exposure range,
rather than a specific amount, because “conditions change from day to day and
work activities change from day to day.” Raterman considered Wright’s various
work activities after reviewing the deposition testimony of Wright’s coworkers at
the refinery as to the tasks, protective equipment, and exposure controls they
used. She reviewed documents from the refineries themselves, detailing the type
of insulation, air samples, and exposure controls of the facilities. Raterman looked
at asbestos specific literature published in the industrial hygiene field. And, she
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considered the weather conditions of Wright’s outdoor work at the refinery. She
believed her opinions were based on a reasonable degree of scientific certainty.
During questioning by Mobil, Raterman stated that she did not use any of
the air measurements taken at the Mobil Ferndale plant where Wright worked
when she determined the exposure range. When asked whether using the data
from Mobil Ferndale would be “more reliable and scientific,” Raterman responded,
“The most reliable and scientific method is to compare work activities. So the data
from Mobil Ferndale was not presented in a way that differentiated what activities
the individuals were actually performing when the data was collected.” She
explained that she used data from a different company and refinery because
it provides the jury an example of dry removal exposure levels both
in the breathing zone and at areas a distance from the actual
breathing zone, for a bystander exposure. So it was important
because it differentiated the work activities and the locations,
whereas the Mobil Ferndale data, as a complete set, does not make
a distinction between wet methods, dry methods, it doesn’t make a
distinction between the various different activities.
Additionally, the Ferndale air sample readings were taken around the perimeter of
the refinery unit.6 It was unclear how close the Ferndale measurements were to
where the asbestos related work was being done. Based on these reasons,
Raterman did not rely on the Ferndale data but compared the numbers to her
exposure range and determined the Ferndale data “fell within the range” that she
calculated from the literature and data about other sites.
6The Mobil corporate representative testified that Mobil could not perform
personalized breathing zone samples for contractors because it was considered a
medical procedure. Mobil could only perform area sampling.
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Raterman also testified that she did not consider the use of masks or
respirators in calculating Wright’s exposure range. Raterman explained that “[t]he
effectiveness of the respirators when worn by Mr. Wright was not tested and made
available.” She also noted that literature showed that masks or respirators would
“likely hav[e] only been partially effective at completely preventing the inhalation of
airborne asbestos during the 1940s to the 1980s due to improper seal or fit.” And,
she did not include the possible reduction of exposure due to masks, because
OSHA directs “sampling in the breathing zone of employees or area samples
without respect to the use of respirators to determine the amount of asbestos
present” in order to facilitate the use of exposure controls. Raterman said that
Wright’s asbestos exposure could have been reduced by respiratory protection if
his equipment was effective, but the commonly used masks had flaws that often
allowed entry of contaminated air.
Raterman clearly explained the factual basis for her opinion, which was
grounded in accepted research in the field of industrial hygiene. As to Mobil’s
claims that Raterman’s testimony was speculative because she did not use the
Ferndale sample data or consider a reduction in the range due to mask use,
Raterman clearly explained her scientific reasons for her decision to exclude this
information. Her expert testimony was not overly speculative. Mobil may disagree
with Raterman’s method of reaching her opinion. But, that goes to the weight of
the evidence rather than its admissibility. See Lewis River Golf, Inc. v. O.M. Scott
& Sons, 120 Wn.2d 712, 723, 845 P.2d 987 (1993) (“difference of opinion is the
essence of conflicting opinions from experts,” and where the expert explained the
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opinion and method of calculation, defendant’s disagreement with the opinion is
with its weight rather than its admissibility). Therefore, the trial court did not abuse
its discretion in admitting Raterman’s expert testimony.
IV. GR 37
During jury selection, Mobil attempted to exercise a peremptory challenge
of juror 7. Wright objected to Mobil’s use of the peremptory under GR 37. The
court considered Wright’s objection and then denied Mobil’s peremptory challenge
of juror 7. We review de novo a trial court’s application of GR 37. State v. Omar,
12 Wn. App. 2d 747, 750-51, 460 P.3d 225, review denied, 196 Wn.2d 1016, 475
P.3d 164 (2020).
The purpose of GR 37 “is to eliminate the unfair exclusion of potential jurors
based on race or ethnicity.” GR 37(a). A party may object to the use of a
peremptory challenge on GR 37 grounds. GR 37(c). The trial court must then
“evaluate the reasons given to justify the peremptory challenge in light of the
totality of circumstances.” GR 37(e). The court will consider factors such as the
number and type of questions posed to the prospective juror as compared to
others, use of peremptory challenges for similar answers to jurors not challenged,
reasons disproportionately associated with race or ethnicity, and history of
discriminatory peremptory challenges. GR 37(g). The court uses these factors to
determine whether “an objective observer could view race or ethnicity as a factor
in the use of the peremptory challenge.” GR 37(e). The applicable objective
observer “is aware that implicit, institutional, and unconscious biases, in addition
to purposeful discrimination, have resulted in the unfair exclusion of potential jurors
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in Washington.” GR 37(f). If the court concludes that an objective observer could
view race or ethnicity as a factor, the peremptory challenge is denied. GR 37(e).
In its evaluation, “[t]he court need not find purposeful discrimination to deny the
peremptory challenge.” GR 37(e).
Juror 7 stated that her aunt had died of cancer and her uncle “just died from
cancer.” According to her, “one of them was dealing with lungs and one of them
was my uncle, it was his throat.” Juror 7 told the court she was “in the process of
going to [sic] going through a civil case with someone, similar to this one.” She
clarified that her uncle was the plaintiff and she was “doing paperwork for him.”
When Mobil pressed for more details later, juror 7 said “I don’t want to discuss it
because the case is still going on. It’s confidential. I would rather not speak about
it, if you don’t mind, Judge.” The court responded, “That’s fine.” Mobil did not
object or make a record of what it might have wanted to explore further about the
lawsuit. Instead, it ceased questioning juror 7 about the lawsuit and moved on to
other issues.
Mobil turned to the issue of juror 7’s experience with cancer in the family:
“We had talked a little bit about a number of people in your family who had had
experience with cancer, as well. Do you believe that perhaps your sympathies
with those individuals would affect how you viewed the issues in this case?” Juror
7 responded, “Ma’am, it’s an emotional process that I’m still dealing with, because
it just happened last year and this year. But, no, ma’am, it won’t hinder or affect
me from doing the case.”
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Mobil raised four issues to defend its use of a peremptory challenge on juror
7, who the court identified as one of four members of the venire who were likely
African American. Mobil stated that juror 7 had “indicated that she is currently
helping her uncle with an active lawsuit, he is the plaintiff” and declined to discuss
the case further. When discussing cancer, juror 7 “was visibly upset. She was
crying and she spoke about the effect of having lost family members to cancer.”
Juror 7 had a history of working as a caregiver. And, Mobil concluded by saying
that juror 7 “appeared hostile” when answering questions.
In its analysis, the trial court expressed concern about the number of
questions asked of juror 7 and that Mobil used “animus toward the defense” as a
reason for its peremptory challenge. GR 37 identifies several reasons that “have
historically been associated with improper discrimination in jury selection in
Washington State,” including that the prospective juror “exhibited a problematic
attitude, body language, or demeanor.” GR 37(i). A trial court should not accept
these reasons “unless opposing counsel or the court itself can corroborate the
allegations.” Omar, 12 Wn. App. 2d at 752. Here, the trial court disagreed with
Mobil that juror 7 was hostile, stating, “[N]othing that I observed or I heard gave
me that particular concern.” Mobil used a reason akin to a “problematic attitude,”
which “raise[d] a red flag” for the trial court.
Ultimately the trial court concluded that an objective observer aware of
implicit bias could find race to be a factor in Mobil’s use of the peremptory
challenge to juror 7. Of key importance is the low threshold established by GR 37
that an objective observer could view race or ethnicity as a factor. GR 37(e). An
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objective observer, aware of historical “implicit, institutional, and unconscious
biases,” would recognize Mobil’s objection based on “hostility” as historically
“associated with improper discrimination in jury selection” and could conclude that
race was one factor in Mobil’s exercise of its peremptory challenge. GR 37(f), (i).
“Even if the [defense]’s race-neutral justification was persuasive, under GR
37, a court's task is to determine whether an objective observer aware of implicit
bias could view race or ethnicity as a factor.” State v. Listoe, 15 Wn. App. 2d 308,
324, 475 P.3d 534 (2020). Mobil’s inclusion of “problematic attitude,” as a
justification for the peremptory challenge would allow an objective observer to view
race or ethnicity as a factor in asking to strike juror 7. Despite Mobil’s other
concerns, the trial court’s denial of the peremptory challenge on GR 37 grounds
was not an abuse of discretion.
V. Settlement Agreements
Mobil argues that Wright and the parties he settled with violated the plain
language of RCW 4.22.060 by refusing to provide their settlement agreements.
Wright contends that Mobil received the settlement agreement of each defendant
and all material terms of the settlement agreements.
RCW 4.22.060(1) requires settling parties to give all other parties five days’
notice and a copy of the proposed agreement. The court then holds a hearing “on
the issue of the reasonableness of the amount to be paid with all parties afforded
an opportunity to present evidence.” Id. The court determines whether the
settlement is reasonable and reduces the amount of the claims against the
remaining parties. RCW 4.22.060(2). The settling parties bear the burden of
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establishing reasonableness. Sykes v. Singh, 5 Wn. App.2d 721, 727, 428 P.3d
1228 (2018). A determination of reasonableness is reviewed for abuse of
discretion. Id.Statutory interpretation is a question of law reviewed de novo. HomeStreet,
Inc. v. Dept. of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009). The primary
objective of statutory construction is to ascertain and carry out the intent of the
legislature. Id. When interpreting a statute, we look first to the plain language and
end the inquiry if the plain language is subject to only one interpretation. Id.By its plain terms, RCW 4.22.060(1) requires a settling party to provide the
other parties and the court with a notice of settlement which “shall contain a copy
of the proposed agreement.” Here, the settling parties did not provide Mobil with
the actual settlement agreements. Wright “verbally advised” Mobil of the amounts
of the settlements with 3M, Texaco, Shell, and U.S. Oil. The settling parties
provided declarations as to the amounts of the settlements. However, the parties
did not provide “a copy of the proposed agreement” and therefore did not comport
with the plain language of RCW 4.22.060.
Due to issues of confidentiality,7 the court believed that it could assess the
reasonableness of the settlements without introduction of the actual documents,
“unless there’s just something kind of wonky and unusual in the settlement
7 RCW 4.22.060 does not contain an exception to full disclosure based on
the parties’ wish to keep any part of the agreement confidential. Wright has not
cited any cases that have interpreted the statute to allow the parties to provide
anything other than a copy of the settlement agreement. Wright also has not
provided any case law holding that production to the trial court for in-camera review
is authorized under RCW 4.22.060(1).
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agreements.” The court ordered the parties to “meet and confer regarding the
production of the settlement agreements to ExxonMobil under an agreed protective
order.” The court subsequently signed and entered a stipulated protective order
for the settlement agreements and accompanying documents. Despite the
protective order, the settling parties did not provide the full settlement agreements
to either Mobil or the court. Neither the trial court nor Mobil had the opportunity to
examine the agreements for evidence of any “wonkiness.”
The trial court failed to review and consider the entirety of the settlement
agreements, focusing on only the bottom line numbers provided by the settling
corporations. Because the trial court did not review the full terms of the settlement
agreement, the determination of reasonableness and the calculation of the set-off
amount was an abuse of discretion. A new reasonableness hearing is required.
We affirm the jury verdict, but vacate the judgment and remand for a new
reasonableness hearing after full access to the settlement agreements.
WE CONCUR:
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