Riggs v. Asbestos Corporation Limited

2013 UT App 86_________________________________________________________
THE UTAH COURT OF APPEALS
MICAH RIGGS,
Plaintiff, Appellant, and Cross‐appellee
v.
ASBESTOS CORPORATION LIMITED; GEORGIA–PACIFIC, LLP; AND
UNION CARBIDE CORPORATION,
Defendants, Appellees, and Cross‐appellants.
Opinion
No. 20110544‐CA
Filed April 4, 2013
Third District, Salt Lake Department
The Honorable Glenn K. Iwasaki
No. 070911933
Alan R. Brayton, Gilbert L. Purcell, and Robert G. Gilchrist,
Attorneys for Appellant
Karra J. Porter, Sarah E. Spencer, and Katherine E. Venti,
Attorneys for Appellee Georgia–Pacific, LLP
E. Joshua Rosenkranz, Peter A. Bicks, Morton D. Dubin,
Rachel M. McKenzie, and Patricia W. Christensen,
Attorneys for Appellee Union Carbide Corporation
Julianne P. Blanch, Mark A. Behrens, and Cary Silverman,
Attorneys for Amici Curiae
JUDGE JAMES Z. DAVIS authored this Opinion,
in which JUDGES GREGORY K. ORME
and STEPHEN L. ROTH concurred.
DAVIS, Judge:
Riggs v. Asbestos Corporation
¶1 Micah Riggs, on behalf of his mother‐in‐law, the decedent
Vickie Warren,1 appeals the trial court’s decision that the
Comparative Negligence Act (CNA), and therefore joint and
several liability, did not apply in this case. Defendant Union
Carbide Corporation cross‐appeals, arguing that its motion for
judgment notwithstanding the verdict was wrongly denied because
the raw material supplier rule shields Union Carbide from liability
under the facts of this case. Alternatively, Union Carbide argues in
its cross‐appeal that there was insufficient evidence to support the
jury’s verdict that the unique type of asbestos it supplied medically
caused Warren’s illness. Defendant Georgia–Pacific, LLP also cross‐
appeals, challenging the sufficiency of the evidence identifying a
particular Georgia–Pacific product at the various construction sites
where Warren was exposed to asbestos. We affirm.
BACKGROUND
¶2 “On appeal, we recite the facts from the record in the
light most favorable to the jury’s verdict.” Smith v. Fairfax Realty,
Inc., 2003 UT 41, ¶ 3, 82 P.3d 1064 (citation and internal
quotation marks omitted). Warren was diagnosed with
malignant peritoneal mesothelioma2 in July 2007 and died as
a result of the illness on May 25, 2010. Mesothelioma is a rare
type of cancer that is closely linked to exposure to at least some
types of asbestos. See WebMD, Mesothelioma: Causes and
Symptoms, http://www.webmd.com/lung/mesothelioma‐causes‐
and‐symptoms (last visited March 29, 2013) (“Mesothelioma is a
relatively rare form of cancer. . . . The main risk factor for
mesothelioma is working with asbestos.”). Shortly after Warren
1. For simplicity, we refer to the Appellant/Cross‐Appellee as
Warren, rather than Riggs.
2. Peritoneal mesothelioma affects the peritoneum, which is the
membrane that lines the walls of the abdominal cavity. See Web
MD, Mesothelioma, http://www.webmd.com/cancer/mesothelioma‐
11211 (last visited March 29, 2013).
20110544‐CA 2 2013 UT App 86Riggs v. Asbestos Corporation
was diagnosed, she filed suit on theories of strict liability and
negligence against thirty‐two defendants who manufactured, sold,
distributed, or installed asbestos or asbestos‐containing products.
By the time of trial, however, only three defendants remained:
Union Carbide, Georgia–Pacific, and Hamilton Materials.3
¶3 Georgia–Pacific’s involvement in this case arises from its
role as a manufacturer and consumer‐side supplier of asbestos‐
containing tape joint compound that was used at various
residential construction sites where Warren helped her father from
1958 through 1977 and in the construction of Warren’s own home
in 1977.4 Union Carbide intermittently supplied the raw asbestos,
a unique variety called Calidria,5 that was used by Georgia–Pacific
in the manufacturing of its tape joint compound between 1970 and
1977.
¶4 “On the eve of trial,” during a pretrial conference with all of
the parties, Warren argued for the first time that the CNA, rather
than the Liability Reform Act (LRA) that the parties had been
proceeding under for the entire three years since the filing of the
case, ought to apply because it was in effect at the time of Warren’s
3. Hamilton Materials is not a party to this appeal.
4. As the Defendants explain, “[j]oint compound is an adhesive that
performs several functions in construction work, including
attaching the joint tape placed over seams between sheets of
drywall and concealing nail heads.” If joint compound is applied
to surfaces that are “to be ‘finished’ (in the construction sense), it
is sanded so that the area will present a smooth surface for
painting.” As concerns these defendants, Warren was exposed to
asbestos when she inhaled the dust produced from sanding tape
joint compound at the various construction sites where she was
present from 1958 to 1977.
5. Union Carbide explains in its appellate brief that the term
“‘asbestos’ covers a family of naturally occurring silicate minerals
with a fibrous structure.”
20110544‐CA 3 2013 UT App 86Riggs v. Asbestos Corporation
exposure to Defendants’ asbestos and asbestos‐containing
products. The trial court rejected Warren’s argument, determining
that the LRA applies both because Warren did not have a cause of
action until she was diagnosed with mesothelioma and because her
argument was untimely.
¶5 A jury trial was held in April and May 2010, at the
conclusion of which both Georgia–Pacific and Union Carbide
moved for a directed verdict, arguing, among other things, that
Warren failed to prove that her illness was medically caused by
their products. The trial court denied the directed verdict motions,
noting, “[T]his is the most fact‐intensive and expert‐intensive trial
that I’ve ever presided upon, and the issues will remain for jury
determination . . . .”
¶6 The jury reached its verdict on May 12, 2010, awarding
Warren $5,256,818.61 in economic and non‐economic damages. The
jury, having been instructed to apportion fault in accordance with
the LRA, determined that Georgia–Pacific was 5% at fault and
Union Carbide 20% at fault.6
¶7 Almost one year later, Union Carbide moved for judgment
notwithstanding the verdict (the JNOV motion), reasserting an
argument that it first made in its pretrial motion for summary
judgment—that it could not be held liable for Warren’s illness
because it is a bulk supplier of raw materials, as described in the
Third Restatement of Torts. See Restatement (Third) of Torts:
Products Liability § 5 & cmt. c (1998). The trial court had rejected
this argument when it denied Union Carbide’s motion for
summary judgment, reasoning that “Utah has not considered the
issue of adopting the Restatement (Third) of Torts: Products
Liability § 5 and, indeed, recent Utah case law supports the
conclusion that with respect to the specific provision at issue . . . ,
the Restatement (Second) of Torts should act as the guide,” and the
court ultimately declined to walk through the application of either
6. Hamilton Materials and other parties not relevant to this appeal
were apportioned 12% and 63% of the fault respectively.
20110544‐CA 4 2013 UT App 86Riggs v. Asbestos Corporation
restatement because doing so involved disputed issues of material
fact. Despite this ruling, and without any objections, Union Carbide
referenced bulk‐supplier principles in a manner that implied it was
a defense against liability several times in its opening statement at
trial, stating,
Union Carbide is a raw materials supplier.
They mined and milled asbestos and they put it in
bags. . . . And they sold this asbestos to
manufacturers.
The manufacturers then decided what to do
with the asbestos, whether to use it, how much to
use, what to mix it with, how to package it, and what
to put on those packages.
....
. . . Union Carbide didn’t sell a bag of asbestos
to Ms. Warren. . . .
Once that asbestos is packaged, . . . [and sent]
to a distributor[,] Union Carbide is no[ longer]
involved. . . . That’s not Union Carbide’s area of
responsibility. It’s almost like taking a baton in a
relay race[ in that] Union Carbide starts out with the
raw fiber, . . . [and] passes [it] on . . . [to] a
distributor, [who mixes and repackages it and has its
own] . . . areas of responsibility.
. . . Union Carbide takes responsibility for
where it fits into this whole process.
The issue was raised again at a hearing on jury instructions, during
which Union Carbide noted, “[W]e would concede that [the court]
has ruled on the [bulk supplier argument] and we are asserting it
simply for the record . . . .” Union Carbide raised this argument a
final time during trial in closing argument, by asking the jury to
“[r]emember [it was] a raw supplier” and, as such, had the ability
20110544‐CA 5 2013 UT App 86Riggs v. Asbestos Corporation
to warn only its direct customers about the dangers of asbestos
because “when [it] put a warning on a bag, that bag goes to a
manufacturer and that bag is gone.”
¶8 Union Carbide’s JNOV motion renewed this argument,
relying on the Utah Supreme Court’s explicit adoption of most of
section 5 of the Third Restatement of Torts in a case that was issued
two days after the jury reached its verdict in Warren’s case. See
Gudmundson v. Del Ozone, 2010 UT 33, ¶¶ 55–61, 232 P.3d 1059(“Because we find [section 5’s] policy‐based rationale persuasive,
we adopt this section of the Third Restatement.”). The trial court,
however, denied the JNOV motion without explicitly addressing
the raw material supplier argument, noting simply that there was
sufficient evidence to support the jury’s verdict. All three
parties—Warren, Union Carbide, and Georgia–Pacific—now
appeal.
ISSUES AND STANDARDS OF REVIEW
¶9 Warren asserts that the trial court erroneously applied the
LRA instead of the CNA. This presents a question of law, which we
review for correctness. Jedrziewski v. Smith, 2005 UT 85, ¶¶ 3–4, 128
P.3d 1146 (considering, as a matter of law, whether the LRA or
CNA should apply).
¶10 Union Carbide argues on cross‐appeal that the bulk supplier
rule exempts it from liability. We interpret this as an appeal from
the denial of its JNOV motion. Union Carbide also asserts that its
directed verdict and JNOV motions were wrongly denied because
Warren presented insufficient evidence of medical causation to
support the jury’s verdict.7 A motion for judgment notwithstanding
7. We assume Union Carbide raises the bulk supplier issue as an
appeal from the denial of its JNOV motion, as it does for its
causation argument. In laying out its bulk supplier argument on
appeal, Union Carbide references its summary judgment, directed
(continued...)
20110544‐CA 6 2013 UT App 86Riggs v. Asbestos Corporation
the verdict or a motion for a directed verdict should be granted
when the moving party is entitled to judgment as a matter of law.
See Merino v. Albertsons, Inc., 1999 UT 14, ¶ 3, 975 P.2d 467 (directed
verdict standard); Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988)
(judgment notwithstanding the verdict standard). Thus, we review
a trial court’s denial of either motion for correctness. See Lyon v.
Burton, 2000 UT 19, ¶ 11, 5 P.3d 616 (judgment notwithstanding the
verdict); Rose v. Provo City, 2003 UT App 77, ¶ 7, 67 P.3d 1017(directed verdict).
¶11 Georgia–Pacific also cross‐appeals, arguing that its directed
verdict motion was wrongly denied because the jury’s verdict was
not supported by sufficient evidence as to the identification of its
tape joint compound at any of the locations where Warren was
exposed to asbestos‐containing tape joint compound. We review
the trial court’s denial of a motion for directed verdict considering
“the evidence and all reasonable inferences that may fairly be
7. (...continued)
verdict, and JNOV motions to demonstrate that the argument was
preserved, without stating from which denial it is appealing.
Because Union Carbide’s summary judgment motion was denied
on November 9, 2009, and its directed verdict motion was denied
on May 7, 2010—both before Gudmundson was issued on May 14,
2010—it does not appear that Union Carbide intended to
nonetheless appeal the denial of these two motions based on the
applicability of the bulk supplier rule when this rule was not
explicitly part of Utah law at the time those motions were denied.
See generally Gudmundson v. Del Ozone, 2010 UT 33, ¶¶ 53–61, 232
P.3d 1059. To the extent that Union Carbide may have intended to
appeal the denial of those two motions, in addition to those
motions predating Gudmundson, there remained material issues of
fact in dispute to justify the trial court’s rulings. Likewise, to the
extent Union Carbide seeks review of the trial court’s denial of its
proposed “sophisticated user” jury instruction, we decline to
address the matter for lack of adequate briefing. See generally Utah
R. App. P. 24(a)(9) (describing the components of an adequately
briefed argument).
20110544‐CA 7 2013 UT App 86Riggs v. Asbestos Corporation
drawn therefrom in the light most favorable to the party moved
against, and will sustain the denial if reasonable minds could
disagree with the ground asserted for directing a verdict.”
Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (citation and
internal quotation marks omitted). In other words, “[t]his Court’s
standard of review of a directed verdict is the same as that imposed
upon the trial court”: “we review the trial court’s decision to
determine if the evidence at trial raised a question of material fact
which precluded judgment as a matter of law.” Id. (alteration in
original) (citation and internal quotation marks omitted).
ANALYSIS
I. Applicability of the LRA
¶12 Warren argues that the LRA was wrongly applied because
her cause of action arose when she was exposed to asbestos, not
when she was diagnosed with mesothelioma.8 The trial court
disagreed, concluding that Warren’s claim did not accrue until she
was diagnosed with mesothelioma and that the LRA applies
because it was the law in effect at that time. We agree with the trial
court.
¶13 “The general rule is that the law establishing substantive
rights and liabilities when a cause of action arises, and not a
subsequently enacted statute, governs the resolution of the
dispute.” Carlucci v. Utah State Indus. Commʹn, 725 P.2d 1335, 1336
(Utah 1986). Likewise, “[t]he courts of this state operate under a
statutory bar against the retroactive application of newly codified
laws,” unless the newly enacted statute indicates that it is to be
retroactive, State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829; see also
Utah Code Ann. § 68‐3‐3 (LexisNexis 2011) (“A provision of the
Utah Code is not retroactive, unless the provision is expressly
8. Warren also argues that the trial court erroneously rejected her
motion as untimely. Because of the manner in which we resolve
this issue, we need not address the question of timeliness.
20110544‐CA 8 2013 UT App 86Riggs v. Asbestos Corporation
declared to be retroactive.”), or the “statutory amendments are
procedural, rather than substantive,” State v. Burgess, 870 P.2d 276,
280 n.6 (Utah Ct. App. 1994). The issue before us is not one of
statutory interpretation, as Warren asserts, but a question of when
Warren’s claim arose.9
¶14 “A tort cause of action accrues when it becomes remediable
in the courts, that is, when all elements of a cause of action come
into being.” Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794
P.2d 11, 19 (Utah 1990); cf. Sevy v. Security Title Co. of S. Utah, 902
P.2d 629, 634 (Utah 1995) (“The general rule regarding statutes of
limitations is that the limitation period begins to run when the last
event necessary to complete the cause of action occurs.”). In other
words, “the law does not recognize an inchoate wrong, and . . .
until there is actual loss or damage resulting to the interests of
another, a claim for negligence is not actionable.” Seale v. Gowans,
923 P.2d 1361, 1364 (Utah 1996) (citation and internal quotation
marks omitted). The injury necessary to pursue any tort action
must be a “legal injury” in that there needs to be a remediable
injury and “the injury [must have been] caused by negligent
action.” Id. at 1363 (citation and internal quotation marks omitted).
Accordingly, “even though there exists a possibility, even a
probability, of future harm, it is not enough to sustain a claim, and
a plaintiff must wait until some harm manifests itself.” Id. at
1364–65 (holding “that damages in the form of an enhanced risk”
are insufficient to sustain a cause of action); see also Johnson v.
9. We note that the determination of which statute applies has a
major impact on all parties in that the CNA permitted joint and
several liability, while the LRA renders a defendant liable for only
the proportion of the damages that is commensurate with the
proportion of its fault. See Stephens v. Henderson, 741 P.2d 952, 953
(Utah 1987) (explaining that the CNA “provided for joint and
several liability, that is, each defendant was liable to the plaintiff
for the full amount of the plaintiff’s damages,” but that it was
repealed and replaced with the LRA in 1986). Compare Utah Code
Ann. §§ 78B‐5‐817 to ‐820 (LexisNexis 2012), with id. §§ 78‐27‐37 to
‐43 (Michie 1985).
20110544‐CA 9 2013 UT App 86Riggs v. Asbestos Corporation
Mullee, 385 So. 2d 1038, 1040 (Fla. Dist. Ct. App. 1980) (holding that
a patient’s malpractice cause of action did not accrue “when the
patient first learned of the misdiagnosis, [because] there was no
evidence that the alleged negligence ‘had resulted in any harm to
her’” and treatment for her cancer could still be successful despite
the misdiagnosis, leaving her where she would have been if the
misdiagnosis did not occur and the cancer had been detected
during the previous year’s mammogram (cited by Seale, 923 P.2d
at 1365)).
¶15 Here, Warren argues that her claim accrued “long before”
the LRA became effective because her “initial injury” was the cell
damage and scarring that resulted from inhaling Defendants’
asbestos. We disagree. Regardless of whether the replication of
those damaged cells over time produced Warren’s cancer, see infra
¶¶ 27‐28, she nonetheless did not have an actionable claim until
she was diagnosed with mesothelioma. Until then, Warren’s
development of mesothelioma was only a possibility in light of her
exposure to asbestos. Indeed, it is the same possibility that any of
her family members, who also worked alongside Warren at the
same construction sites during the same period of time, could have
developed an asbestos‐related illness. See Hansen v. Mountain Fuel
Supply Co., 858 P.2d 970, 978–79 (Utah 1993) (determining in an
asbestos case that “[m]ere exposure to an allegedly harmful
substance . . . is not enough for recovery” because “the plaintiff is
not harmed until the onset of the actual illness”). Accordingly,
because Warren’s cause of action did not accrue until her diagnosis
in July 2007, long after the repeal of the CNA and enactment of the
LRA, we affirm the trial court’s application of the LRA.
II. The Raw Materials Supplier Rule
¶16 Union Carbide argues on cross‐appeal that its JNOV motion
was incorrectly denied because under the Third Restatement of
Torts, “a raw material supplier . . . cannot be held liable for injuries
to end users of tape joint compound.” The trial court denied the
JNOV motion without explicitly addressing this argument, noting
simply that there was sufficient evidence to support the jury’s
verdict.
20110544‐CA 10 2013 UT App 86Riggs v. Asbestos Corporation
¶17 Generally, “[t]rial courts may grant a j.n.o.v. only when the
losing party is entitled to judgment as a matter of law. Accordingly,
we will affirm a j.n.o.v. only when the evidence is insufficient as a
matter of law to support the jury’s verdict.” Walker v. Parish Chem.
Co., 914 P.2d 1157, 1160 (Utah Ct. App. 1996) (citation omitted).
¶18 Two days after the jury reached its verdict in this case, our
supreme court, in Gudmundson v. Del Ozone, 2010 UT 33, 232 P.3d
1059, adopted the rule in the Third Restatement of Torts on which
Union Carbide now relies.10 See id. ¶¶ 55–56. Gudmundson adopted
the rule as follows:
“One engaged in the business of selling or otherwise
distributing product components who sells or
distributes a component is subject to liability for
harm to persons or property caused by a product
into which the component is integrated if:
...
(b)(1) the seller or distributor of the
component substantially participates in the
10. Although Gudmundson is discussed extensively in their briefs,
the parties have not addressed whether this decision ought to be
applied retroactively in this case. See generally Merrill v. Utah Labor
Commʹn, 2009 UT 74, ¶ 5, 223 P.3d 1099 (“The general rule from
time immemorial is that the ruling of a court is deemed to state the
true nature of the law both retrospectively and prospectively. In
civil cases, however, the court may, in its equitable discretion,
prohibit or limit retroactive operation of its ruling where the
overruled law has been justifiably relied upon or where retroactive
operation creates a burden.” (citations and internal quotation
marks omitted)); Van Dyke v. Chappell, 818 P.2d 1023, 1024–26 (Utah
1991) (applying retroactively a case decided one year after the
trial). Accordingly, we assume that the parties have no objection to
the retroactive application of Gudmundson.
20110544‐CA 11 2013 UT App 86Riggs v. Asbestos Corporation
integration of the component into the design of the
product; and
(2) the integration of the component causes the
product to be defective, as defined in [the
Restatement]; and
(3) the defect in the product causes the harm.”
Id. ¶ 55 (quoting Restatement (Third) of Torts: Products Liability
§ 5 (1998)); see also id. ¶ 55 n.14 (declining to adopt subsection (a) of
the Restatement provision at issue because “it only addresses
situations in which the component part itself is defective” and
those situations are already “adequately addressed in our case
law”). The supreme court explained that this new rule “embraces
the policy‐based rationale that although manufacturers of
nondefective component parts at the time of sale should not bear
the risk of ensuring the integrated product’s safety, a component
manufacturer who participates in the design of the product should
bear some liability risk.” Id. ¶ 56; accord Restatement (Third) of
Torts: Products Liability § 5 cmt. a.
¶19 The rule defines “[p]roduct components” as “raw materials,
bulk products, and other constituent products sold for integration
into other products.” Restatement (Third) of Torts: Products
Liability § 5 cmt. a. Liability for a nondefective product under the
rule “requires two findings. First, the participation [by the
component supplier in integrating the component into the final
product] must be substantial. Second, the integration of the
nondefective component must cause the integrated product to be
defective.” Gudmundson, 2010 UT 33, ¶ 57. The first requirement
“ensures that ‘[m]ere suppliers [will not be] expected to guarantee
the safety of other manufacturers’ [products],’” id. ¶ 59 (first
alteration in original) (quoting Crossfield v. Quality Control Equip.
Co., 1 F.3d 701, 704 (8th Cir. 1993)), and also “prevents the
imposition [on uninvolved component parts suppliers] of a duty to
‘foresee all the dangers that may result from the use of a final
product which contains its component part or materials,’” id. ¶ 58
(quoting Bond v. E.I. Du Pont De Nemours & Co., 868 P.2d 1114, 1119
(Colo. Ct. App. 1993)). See House v. Armour of Am., Inc., 886 P.2d
542, 553 (Utah Ct. App. 1994) (“‘[I]f the component part
20110544‐CA 12 2013 UT App 86Riggs v. Asbestos Corporation
manufacturer does not take part in the design or assembly of the
final system or product, he is not liable for defects in the final
product if the component part itself is not defective.’” (quoting
Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 715 (5th Cir.
1986))), aff’d, 929 P.2d 340 (Utah 1996); accord Buonanno v. Colmar
Belting Co., Inc., 733 A.2d 712, 719 (R.I. 1999).
¶20 In applying the Gudmundson rule to this case, the first step
is to determine whether Union Carbide’s product, Calidria, was
defective; the bulk supplier defense is available only to supplier’s
of nondefective products. “Utah law recognizes three types of
product defects: design defects, manufacturing flaws, and
inadequate warnings regarding use.” House, 886 P.2d at 547. For
liability to be imposed, the defect identified must be shown to have
made “the product . . . unreasonably dangerous to the user or
consumer at the time it was sold by the manufacturer or other
initial seller.” Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 9,
263 P.3d 1191 (citing Utah Code Ann. § 78B‐6‐703 (2008) (current
version at Utah Code Ann. § 78B‐6‐703 (LexisNexis 2012)) (Utah
Product Liability Act)). “[U]nreasonably dangerous” is defined in
terms of what would be “‘beyond [the danger] . . . contemplated by
the ordinary and prudent buyer, consumer, or user of that
product.’” Id. (quoting Utah Code Ann. § 78B‐6‐702 (2008) (current
version at Utah Code Ann. § 78B‐6‐702 (LexisNexis 2012)).
¶21 Here, Warren argues that the hazards posed by raw
asbestos, in general, render asbestos innately defective. We
disagree with this “dangerous equals defective” argument and
determine that, regardless of its dangerousness, Union Carbide’s
product could not be defectively designed or manufactured
because it is a raw, unadulterated material.11 See Restatement
11. Warren insists that Calidria was “manufactured” based on one
Union Carbide witness whose testimony stated that the company
“manufactured different grades of asbestos fiber” by essentially
cleaning the raw fibers to varying levels of purity. (Emphasis
omitted.) However, Warren has not asserted that this process was
(continued...)
20110544‐CA 13 2013 UT App 86Riggs v. Asbestos Corporation
(Third) of Torts: Products Liability § 5 cmt. c (“[A] basic raw
material . . . cannot be defectively designed.”); see also Cimino v.
Raymark Indus., Inc., 151 F.3d 297, 331 (5th Cir. 1998) (noting that
raw, unadulterated, chrysotile asbestos, of which Calidria is a type,
is not itself defective); Kurrack v. American Dist. Tel. Co., 625 N.E.2d
675, 681 (Ill. App. Ct. 1993) (rejecting the plaintiff’s request that the
jury be instructed “that the insulating material was unreasonably
unsafe merely because it contained asbestos”).
¶22 Thus, the question boils down to whether Calidria was
defective based on the adequacy of the warnings provided. Implicit
in evaluating whether a warning was defective is the need to
identify “the ordinary and prudent buyer, consumer, or user of that
product” to whom the notice was due. See Niemela, 2011 UT App
333, ¶ 9 (citation and internal quotation marks omitted). Here, there
are two products—raw Calidria and tape joint compound—and
two different types of users—companies like Georgia–Pacific using
the raw asbestos, and consumers like Warren using the tape joint
compound. Additionally, Gudmundson, and even before
Gudmundson, House v. Armour of America, Inc., 886 P.2d 542 (Utah
Ct. App. 1994), aff’d, 929 P.2d 340 (Utah 1996), explain that the mere
presence of a nondefective component in a final product does not
impose upon the component supplier the duty to warn end users
of the final product’s potential dangers. See Gudmundson, 2010 UT
33, ¶¶ 58–59; House, 886 P.2d at 553; see also Hoffman v. Houghton
Chem. Corp., 751 N.E.2d 848, 854, 856–57 (Mass. 2001) (recognizing
that because “any label warnings provided to the intermediary [by
the bulk supplier] would be unlikely to reach the end user” and
“the bulk product [often] has multitudinous commercial uses,” the
imposition “on bulk suppliers [of] a duty to warn all foreseeable
11. (...continued)
conducted defectively or that it somehow made the raw asbestos
“unreasonably dangerous” beyond its inherent qualities. Cf. Bishop
v. GenTec Inc., 2002 UT 36, ¶ 25, 48 P.3d 218 (“[P]roof of a defect
under a negligent manufacture theory will necessitate proof that
the defective condition of the product was the result of negligence
in the manufacturing process . . . .”).
20110544‐CA 14 2013 UT App 86Riggs v. Asbestos Corporation
end users directly . . . would be unduly, indeed crushingly,
burdensome,” and ultimately contrary to “[t]he goal of products
liability law[, which] is to induce conduct that is capable of being
performed”; concluding that the best way to advance this goal and
equitably “balance[] the realities of [a bulk supplier’s] business
with the need for consumer safety” is to “permit[] a bulk supplier
to satisfy its duty to warn by reasonable reliance on an
intermediary who understands the product’s risks and is able to
pass on to end users warnings about the product’s hazards”; and
noting that the bulk supplier rule is “separate[ and] conceptually
discrete” from the sophisticated user doctrine (citation and internal
quotation marks omitted)); cf. In re Silicone Gel Breast Implants Prods.
Liab. Litig., 887 F. Supp. 1463, 1467–68 (N.D. Ala. 1995) (citing House
favorably and noting that “those selecting the [integrated] product
for their specific application,” have a “more direct responsibility”
to warn the product’s end users); Coffey v. Chemical Specialties, Inc.,
4 F.3d 984, 1993 WL 318886, at *3 (4th Cir. 1993) (interpreting the
Restatement (Second) of Torts’ bulk supplier rule as recognizing
“that in certain circumstances, a bulk supplier of a dangerous
product may satisfy its reasonable care requirements by notifying
the purchaser . . . of the dangers of the product rather than directly
notifying the ultimate users . . . of the product”).
¶23 Which individuals Union Carbide owed a duty to warn, and
whether its warnings to Georgia–Pacific satisfied that duty, are
questions that were not addressed or developed at trial in such a
way as to permit our review, especially under the constraints of the
JNOV framework. Union Carbide presented testimonial and
documentary evidence regarding the warnings it provided to
Georgia–Pacific,12 but the jury was not specifically instructed to
12. Union Carbide’s evidence indicates that it began placing
warnings on the packaging for Calidria starting in June 1968, which
was four years before such warnings were federally mandated. The
1968 warning read, “WARNING: BREATHING DUST MAY BE
HARMFUL DO NOT BREATHE DUST.” After the warnings were
mandated, Union Carbide updated the language of the warning to
(continued...)
20110544‐CA 15 2013 UT App 86Riggs v. Asbestos Corporation
review Union Carbide’s duty to warn in a manner that identified,
or asked the jury to identify, the individuals to whom Union
Carbide owed its duty to warn—Georgia–Pacific as a user of raw
asbestos, Warren as a user of tape joint compound, or both. Rather,
the warning instructions are worded in terms of “foreseeable” uses:
as to the products liability claims, the jury was instructed to review
the adequacy of the warning from the perspective of the “members
of the community who use a product” and, as to the negligence
claims, to evaluate the warning from the perspective of what “a
reasonable user would not expect” in terms of the product’s
dangers. The jury was also instructed that “[i]f the event that
produced the injury would have occurred regardless of the
defendant’s conduct, then the failure to provide a warning is not
the proximate cause of the harm and the plaintiff’s claim must fail.”
Likewise, Union Carbide proposed jury instructions that seemed
to obscure the issue of who might be owed any warning, framing
the warning analysis in terms of the “knowledge common to
members of the community who use the product.”
12. (...continued)
read, “CAUTION Contains Asbestos Fibers Avoid Creating Dust
Breathing Asbestos Dust May Cause Serious Bodily Harm,” and
also provided an “Asbestos Toxicology Report” to customers that
explained the potential health risks of asbestos inhalation and
recommended different control methods to make working with
asbestos safer. The report was revised regularly to stay current
with developments in the understanding of asbestos’s effect on the
body. The revised reports pointed out the association between
asbestos and mesothelioma and recommended that people “wear
respirators where dusting occurs in finishing products such as
sanding taped joints.” (Internal quotation marks omitted.) Union
Carbide also offered its assistance to its customers to conduct dust
counts in their facilities to determine “what the level of airborne
asbestos was,” and provided its customers with an index of
asbestos regulations and scientific and medical literature regarding
the potential health risks associated with asbestos.
20110544‐CA 16 2013 UT App 86Riggs v. Asbestos Corporation
¶24 Additionally, Warren did not address at trial whether Union
Carbide’s duty to warn applied exclusively to Georgia–Pacific or
extended to Warren and, to an extent, had little reason to do so in
light of the trial court’s earlier ruling rejecting the application of the
bulk supplier rule and the generalities used by Union Carbide in its
pretrial proposed jury instructions. Thus, we find ourselves in the
peculiar procedural position of reviewing a denial of a judgment
notwithstanding the jury’s verdict, when the issue at hand, while
persuasive at an abstract level, was not presented to the jury and
therefore not a part of its verdict. Because we are constrained by
the JNOV standard, we must affirm the trial court’s determination.
Thus, Union Carbide has demonstrated that the bulk supplier rule
generally applies in cases like this one but has failed to show that
the evidence before the jury requires a conclusion, as a matter of
law, that it had fulfilled whatever duty to warn it had under the
circumstances, even if that duty extended only to Georgia–Pacific
and not to Warren.13
III. Sufficiency of the Evidence
¶25 Last, we address Union Carbide’s and Georgia–Pacific’s
cross‐appeals, challenging the sufficiency of the evidence
supporting the jury’s verdict. We address each party’s arguments
in turn.
13. Had Union Carbide filed a motion for a new trial and appealed
from the denial of that, we would have been able to apply a
broader standard of review. See supra ¶ 10 n.7. Compare Walker v.
Parish Chem. Co., 914 P.2d 1157, 1160 (Utah Ct. App. 1996) (“Trial
courts may grant a j.n.o.v. only when the losing party is entitled to
judgment as a matter of law. Accordingly, we will affirm a j.n.o.v.
only when the evidence is insufficient as a matter of law to support
the jury’s verdict.”(citation omitted)), with Utah R. Civ. P. 59(a)
(including insufficient evidence to support the verdict as just one
of several grounds on which a motion for a new trial can be
granted).
20110544‐CA 17 2013 UT App 86Riggs v. Asbestos Corporation
A. Union Carbide’s Challenge to the Sufficiency of the Evidence
¶26 Union Carbide’s insufficiency argument is framed as an
appeal from the trial court’s denial of its directed verdict and JNOV
motions. We review both denials for correctness and will reverse
“when the evidence is insufficient as a matter of law to support” a
verdict against the moving party. See Walker v. Parish Chem. Co., 914
P.2d 1157, 1160 (Utah Ct. App. 1996) (judgment notwithstanding
the verdict standard); accord Merino v. Albertsons, Inc., 1999 UT 14,
¶ 3, 975 P.2d 467 (directed verdict standard). Additionally, to the
extent the analysis involves conflicting testimony and evidence,
“[w]e give deference to the [jury] . . . because it stands in a superior
position from which to evaluate and weigh the evidence and assess
the credibility and accuracy of witnesses’ recollections.” Drake v.
Industrial Commʹn, 939 P.2d 177, 181 (Utah 1997).
¶27 Union Carbide argues that Warren failed to prove that
“Calidria . . . causes peritoneal mesothelioma” in general and that
Calidria “more probably than not . . . was a substantial factor in
causing her peritoneal mesothelioma.” In support of this argument,
Union Carbide claims that Warren’s lead medical expert, Dr.
Samuel Hammar, admitted that his causation testimony was based
on an “‘unproven hypothesis.’” This argument revolves around Dr.
Hammar’s testimony that mesothelioma is a dose‐response
disease—meaning the more exposures a person has to asbestos, the
more likely they are to develop mesothelioma. Union Carbide’s
description of Dr. Hammar’s conclusion, however, is taken out of
context; Dr. Hammar’s answer to Union Carbide’s question at trial
as to whether this dose‐response theory was an unproven
hypothesis is more nuanced than Union Carbide acknowledges. Dr.
Hammar actually stated, “[W]ith respect to [Union Carbide’s]
question about [whether] ‘that’s an unproven hypothesis,’ I think,
in a way, it is proven.” Dr. Hammar further explained that
although the dose‐response hypothesis itself may not be the subject
of a research paper, textbook, or study, it is nonetheless a
fundamental understanding in the medical community as to how
cancer develops. He testified that Union Carbide’s framing of the
question misrepresented the issue in that the dose‐response
hypothesis may never be definitively “proven” because to do so
20110544‐CA 18 2013 UT App 86Riggs v. Asbestos Corporation
would require “actually look[ing] inside of a person’s pleura . . .
[to] see what kind of changes are happening at a given time . . .
[and] get[ting] multiple biopsies” to run genetic tests over a period
of “many years” before seeing “the development of a single cancer
cell.” That it cannot be proven either way, Dr. Hammar testified, is
not evidence that the theory is incorrect.
¶28 Union Carbide also claims that Dr. Hammar stated that he
did not know whether there was any evidence that Calidria could
have caused Warren’s disease and that he agreed there was no
evidence that Calidria could cause mesothelioma in general. This
summary of Dr. Hammar’s testimony is also taken out of context.
Although Dr. Hammar testified that he believed there was not yet
“a documented case that Calidria has caused mesothelioma,” he
qualified his answer by explaining “that [there are no documented
cases in which] . . . the only asbestos [mesothelioma patients] were
exposed to was the Calidria chrysotile asbestos.” In addition, Dr.
Hammar testified that because mesothelioma is a dose‐response
disease, there is no way “to go back in a specific person’s work
history who gets mesothelioma” and pinpoint a particular
exposure as the cause, especially because “[a]ll types of asbestos
can cause mesothelioma” and “most of the people that have been
exposed to asbestos have been exposed to more than one type,”
with the “combination of chrysotile and amphiboles . . .
produc[ing] the most cases of mesothelioma.” This concept is well
documented in the medical literature, according to Dr. Hammar,
and supported by Warren’s other expert medical witness as well as
at least one of Union Carbide’s expert medical witnesses, who also
was involved in publishing a study that claimed that all types of
asbestos cause mesothelioma, i.e. “every fiber hurts.”14 Thus, Union
14. Union Carbide directs our attention to other jurisdictions that
have rejected various applications of this “every fiber hurts”
theory. What occurred in these cases, however, was not blanket
rejections of the “every fiber hurts” theory. See, e.g., Boyd v. Celotex
Corp., 951 F.2d 348, 1991 WL 278967, at *3–4 (6th Cir. 1991)
(rejecting the defendant’s contention “that the overwhelming
(continued...)
20110544‐CA 19 2013 UT App 86Riggs v. Asbestos Corporation
Carbide’s own expert witness refutes its assertion on appeal that no
evidence was presented at trial that chrysotile asbestos, in general,
can cause mesothelioma. Further, Union Carbide’s evidence of the
warnings it gave to its employees and customers about the hazards
and carcinogenic properties of its asbestos seemingly contradict its
claim that there was no basis to determine that Calidria,
specifically, was dangerous. Thus, Warren presented sufficient
evidence that Calidria, in general, can cause peritoneal
mesothelioma.
¶29 Last, Dr. Hammar’s testimony that he could not say that
Calidria alone caused Warren’s mesothelioma was given in the
context of his explanation that because Warren, like most people,
was exposed to more than one type of asbestos, it is impossible to
single out any one type of asbestos as the stand‐alone cause of her
disease. And here, Warren did not need to provide evidence that
Calidria was the sole cause of her illness but only that it was a
substantial factor. Dr. Hammar testified that chrysotile asbestos,
and, more specifically, Warren’s exposures to tape joint compound
dust, caused Warren’s mesothelioma, necessarily leading to the
14. (...continued)
weight of evidence . . . [demonstrates] that exposure to chrysotile
asbestos does not cause peritoneal mesothelioma” and that “[t]he
jury verdict was therefore based on bad science,” because the
“defendant fail[ed] . . . to demonstrate why the evidence presented
on this issue was beyond the purview of the jury” or explain how
the defendant’s expert witness’s contrary testimony invalidated the
plaintiff’s evidence (internal quotation marks omitted)); Bartel v.
John Crane, Inc., 316 F. Supp. 2d 603, 604–05, 610–11 (N.D. Ohio
2004) (rejecting the plaintiff’s negligent failure to warn claim
because the plaintiff demonstrated only infrequent and
background level exposures to asbestos, and as a result, also
rejecting plaintiff’s “every fiber hurts” evidence as too general in
light of the plaintiff’s failure to prove exposure and because it
amounted to a strict liability standard not applicable in this case
under Sixth Circuit precedent), aff’d sub nom., Lindstrom v. A‐C Prod.
Liab. Trust, 424 F.3d 488 (6th Cir. 2005).
20110544‐CA 20 2013 UT App 86Riggs v. Asbestos Corporation
conclusion that Calidria contributed to her illness because Calidria
is the type of chrysotile asbestos contained in the tape joint
compound at issue. Dr. Hammar based that conclusion on his
research demonstrating that chrysotile asbestos has “a tendency to
damage . . . cells and make changes in . . . cells more than the other
types of asbestos” as well as a greater likelihood of “translocat[ing]
from the lung . . . to the [peritoneum].” Warren’s other medical
expert witness agreed, explaining that Calidria, specifically, can
cause the cell damage that leads to mesothelioma. Accordingly,
Warren presented sufficient evidence for the jury to determine that
Calidria was a substantial factor in causing her illness. Though
Union Carbide presented evidence to the contrary and attempted
to discredit and refute Warren’s evidence, “this criticism does not
conclusively prove the invalidity of” Warren’s evidence, see Boyd
v. Celotex Corp., 951 F.2d 348, 1991 WL 278967, at *3 (6th Cir. 1991);
a determination of what weight to assign conflicting evidence is the
responsibility of the jury, not the judge.15 Accordingly, the trial
court did not err when it denied Union Carbide’s directed verdict
and JNOV motions.
B. Georgia–Pacific’s Challenge to the Sufficiency of the Evidence
¶30 On cross‐appeal, Georgia–Pacific challenges the trial court’s
denial of its motion for directed verdict, arguing that Warren
produced insufficient evidence to prove that she was actually
exposed to its brand of tape joint compound. Georgia–Pacific
15. Because we determine that Dr. Hammar’s testimony and the
evidence regarding Warren’s exposures to tape joint compound
dust containing Calidria are sufficient to support the jury’s verdict,
we do not address Union Carbide’s challenges to Warren’s other
causation evidence. Additionally, Union Carbide’s causation
challenges are arguably not properly marshaled. See generally
Hansen v. Stewart, 761 P.2d 14, 17–18 (Utah 1988) (explaining that
a party challenging the sufficiency of the evidence “must marshal
all the evidence supporting the verdict and then show that the
evidence cannot support the verdict” (citation and internal
quotation marks omitted)).
20110544‐CA 21 2013 UT App 86Riggs v. Asbestos Corporation
claims that the evidence Warren presented was “speculation” and
“showed nothing more than the occasional presence of
Georgia–Pacific joint compound at unspecified times at unspecified
work sites.” The trial court denied Georgia–Pacific’s directed
verdict motion, stating, “[T]his is the most fact‐intensive and
expert‐intensive trial that I’ve ever presided upon, and the issues
will remain for jury determination . . . .”
¶31 “This [c]ourt’s standard of review of a directed verdict is the
same as that imposed upon the trial court.” Mahmood v. Ross, 1999
UT 104, ¶ 16, 990 P.2d 933 (citation and internal quotation marks
omitted). “A trial court is justified in granting a directed verdict
only if, examining all evidence in a light most favorable to the non‐
moving party, there is no competent evidence that would support
a verdict in the non‐moving party’s favor.” Merino v. Albertsons,
Inc., 1999 UT 14, ¶ 3, 975 P.2d 467. Accordingly, “[t]o demonstrate
that the evidence is insufficient to support the jury verdict, the one
challenging the verdict must marshal the evidence in support of the
verdict and then demonstrate that the evidence is insufficient when
viewed in the light most favorable to the verdict.” Crookston v. Fire
Ins. Exch., 817 P.2d 789, 799 (Utah 1991).
¶32 Here, Georgia–Pacific contends that Warren’s evidence
failed to sufficiently identify its tape joint compound as being used,
not just present, at any particular work site where Warren was
exposed to asbestos from tape joint compound dust and that, as a
result, she failed to show that Georgia–Pacific’s product was a
cause of her illness. The jury instructions explained that for the
different claims Warren alleged, causation hinged on determining
whether Warren’s “exposure to a particular defendant’s asbestos
or asbestos‐containing product,” a defect in the design of a
defendant’s product, or a defendant’s lack of adequate warning
were, individually, substantial factors behind Warren’s having
developed peritoneal mesothelioma. Georgia–Pacific marshals the
evidence16 as follows: Warren’s brother‐in‐law testified that he
16. We disagree with Warren’s argument that Georgia–Pacific
(continued...)
20110544‐CA 22 2013 UT App 86Riggs v. Asbestos Corporation
remembered carrying boxes of tape joint compound into a duplex
project that Warren’s family was working on and into Warren’s
home while it was being built and that he believed those boxes of
tape joint compound were probably from Georgia–Pacific.
Warren’s younger brother, who also started helping at their father’s
construction sites as a child, testified that Georgia–Pacific’s tape
joint compound was used at approximately 20% of his father’s
construction projects; he described the packaging for
Georgia–Pacific tape joint compound as a white cardboard box
with “GP” printed on it and “Georgia–Pacific” written below that
in smaller letters; he identified two specific duplex projects where
he recalled Georgia–Pacific tape joint compound being used; and
he testified that Warren visited the duplex sites during construction
from time to time and was there to help with cleanup after the
drywall work was finished.
¶33 Although not reflected in the quoted record excerpts in
Georgia–Pacific’s brief, the record pages that Georgia–Pacific cites
also indicate that the descriptions Warren’s brother and brother‐in‐
law gave of Georgia–Pacific’s tape joint compound packaging were
nearly identical—both described the packaging as twelve‐inch‐by‐
twelve‐inch white boxes with plastic lining on the inside—which
lends credence to both of their testimonies. Additionally, both
witnesses indicated that Georgia–Pacific’s tape joint compound
was used during the construction of at least one of the duplex
projects, and both testified that Warren helped with cleanup work
at the duplex projects. Warren’s brother specifically remembered
16. (...continued)
failed to meet its marshaling burden. See generally West Valley City
v. Majestic Inv. Co, 818 P.2d 1311, 1315 (Utah Ct. App. 1991)
(explaining the marshaling requirement). The favorable evidence
that Warren cites as omitted by Georgia–Pacific primarily
demonstrates her exposure to dust from tape joint compound in
general. She otherwise cites the same testimony as Georgia–Pacific
regarding the identification of the brands of tape joint compound
used at the work sites where Warren was exposed to tape joint
compound dust.
20110544‐CA 23 2013 UT App 86Riggs v. Asbestos Corporation
Warren helping clean up at the duplex project after the drywall
work was finished, i.e., cleaning up tape joint compound dust.
Further, while only one of these two witnesses recalled
Georgia–Pacific tape joint compound being used in the
construction of Warren’s house, they both remembered Warren
being at that work site often and doing a lot of the work herself,
including cleaning up dust from the tape joint compound.
Warren’s brother and mother both testified that Warren regularly
helped with the cleanup work at her father’s projects.17 Warren
testified that each cleanup session took between three and four
hours and that she did cleanup work an average of three times per
week until she went to college, during which time she helped
between two and three days per week. Warren’s mother recalled
Warren occasionally sanding tape joint compound at some of those
work sites, and Warren testified that she sanded roughly 50% of the
tape joint compound in her own home.
¶34 Construing this evidence, which amounts to only a snapshot
of what was presented at trial, in a light most favorable to Warren,
Warren has demonstrated that she did cleanup work that most
often involved sweeping asbestos‐containing dust from tape joint
compound at her father’s work sites, which 20% of the time used
Georgia–Pacific tape joint compound, and that she did this for an
average of nine to twelve hours per week for nineteen years in
addition to the time she spent at her own home cleaning up tape
joint compound dust and sanding 50% of the tape joint compound
herself, some of which was also Georgia–Pacific’s tape joint
compound. In addition, at all relevant times, Georgia–Pacific’s tape
joint compound contained asbestos.
¶35 Next, we consider this evidence under the predominant
view of the medical community, as simplified (immensely) by
Georgia–Pacific at oral arguments, that a person does not develop
asbestos‐caused peritoneal mesothelioma without having frequent,
17. Warren helped at various construction sites from 1958 to 1977.
Her brother testified that he started helping sometime around 1966
or 1969, when he was between five and eight years old.
20110544‐CA 24 2013 UT App 86Riggs v. Asbestos Corporation
regular, and proximate exposures to asbestos. Here, the evidence
is sufficient to demonstrate just that. Whether Warren’s evidence
is to be believed over conflicting evidence that was also presented
at trial is not relevant for our analysis where the standard requires
a showing of no competent evidence. See Nixdorf v. Hicken, 612 P.2d
348, 354 n.16 (Utah 1980) (“While the defendant may introduce
conflicting . . . testimony on the cause of the accident this should
not be relied upon by the trial judge to remove the case from the
jury’s consideration. Rather, this establishes a conflict in the
evidence which it is the jury’s duty to resolve.”). Accordingly, we
affirm the trial court’s denial of Georgia–Pacific’s directed verdict
motion. See generally Mahmood, 1999 UT 104, ¶ 16 (explaining that
a directed verdict should be denied “if the evidence at trial raised
a question of material fact” that “preclude[s] judgment as a matter
of law”).
CONCLUSION
¶36 The trial court was correct in determining that the LRA,
rather than the CNA, applied in this case. We affirm the trial
court’s denials of Union Carbide’s JNOV motion and
Georgia–Pacific’s directed verdict motion.18
18. We deny Warren’s request for costs on appeal because she did
not prevail on the issue she appealed. See generally Utah R. App. P.
34(a).
20110544‐CA 25 2013 UT App 86