Phillips 66 Co., et al. v. Lofton
| Docket Number: | 2010-CA-01465-SCT Linked Case(s): 2010-CA-01465-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-07-2012 Opinion Author: Kitchens, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Statute of limitations - Section 15-1-49 - Discovery of injury - Design defect - Section 11-1-63(a) - Inherent characteristic defense - Feasible design alternative - Section 11-1-63(f) - Frequency, regularity, and proximity test - Change of venue - Admission of expert testimony - M.R.E. 702 - Introduction of exhibit - M.R.E. 401 - M.R.E. 403 - Weight of evidence Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Chandler and King, JJ. Non Participating Judge(s): Randolph and Pierce, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 05-20-2010 Appealed from: Jones County Circuit Court Judge: Billy Joe Landrum Disposition: Jury verdict in favor of Appellee awarding damages of $15,200,000.00. Case Number: 2006-106-CV03 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Phillips 66 Company, Phillips Petroleum Company, ConocoPhillips Company, Drilling Specialties Company, L.L.C. a/k/a Drilling Specialties Company, LLC and Chevron Phillips Chemical Company, LP, as a Successor In Interest to Conoco Phillips Company, f/k/a Phillips Petroleum Company |
JOHN JEFFREY TROTTER
HOLMES S. ADAMS
BERNARD HESS BOOTH, IV
TERRY L. CAVES
ALEX E. COSCULLUELA
A. CHRISTOPHER DERDEN |
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| Appellee: | Troy Lofton | GREGORY NEILL JONES S. ROBERT HAMMOND, JR. J. ROBERT SULLIVAN, SR. JAMES ROBERT SULLIVAN, JR. | ||
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| Topic: | Personal injury - Statute of limitations - Section 15-1-49 - Discovery of injury - Design defect - Section 11-1-63(a) - Inherent characteristic defense - Feasible design alternative - Section 11-1-63(f) - Frequency, regularity, and proximity test - Change of venue - Admission of expert testimony - M.R.E. 702 - Introduction of exhibit - M.R.E. 401 - M.R.E. 403 - Weight of evidence |
| Summary of the Facts: | Troy Lofton filed suit on May 19, 2004, alleging two theories of product liability (design defect and inadequate warning), as well as claims for intentional and negligent infliction of emotional distress. Lofton alleges that he suffers from asbestosis as a result of exposure to the defendant’s product, Flosal, during the course of his employment on various oil and gas drilling rigs. The jury returned a verdict in favor of Lofton on his claims of design defect and negligent infliction of emotional distress, with one hundred percent of the liability assigned to Chevron Phillips Chemical Company LP, successor-in-interest to ConocoPhillips Company, formerly known as Phillips Petroleum Company, and Phillips 66 Company, formerly doing business as Drilling Specialties Company and total damages in the amount of $15,200,000. CPChem appeals. |
| Summary of Opinion Analysis: | Issue 1: Statute of limitations The threshold issue is whether Lofton’s claims are time-barred by the three-year statute of limitations found in section 15-1-49. Section 15-1-49(2) provides that “[i]n actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” CPChem argues that, under section 15-1-49(2), the clock began running upon discovery of the injury to his lungs–when his doctors found pulmonary fibrosis in his lungs in 1995, or at the latest, 1996–not upon discovery of the injury’s cause (asbestos exposure). CPChem cites evidence from the record that Lofton’s medical records indicate that he was experiencing shortness of breath as early as 1995 and that a CT scan performed on Lofton’s lungs in 1995 exhibited evidence of fibrosis, as did a chest x-ray in 1996. Conversely, Lofton claims that he could not reasonably have known of his lung injury until he sought treatment from Dr. Stogner and was diagnosed with pulmonary fibrosis, or scarring of the lungs, in September 2003. The plain language of section 15-1-49(2) supports an interpretation that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause. Discovery of an injury is an issue of fact to be decided by a jury when there is a genuine dispute. While Lofton began experiencing shortness of breath and exhibited scarring of the lungs as early as 1995, he did not seek medical treatment for his pulmonary concerns until he began seeing Dr. Stogner, a pulmonologist, in 2003 and was diagnosed with pulmonary fibrosis. According to Dr. Stogner, fibrosis in the lungs is associated with asbestosis, though it is not always indicative of asbestosis and has many other etiologies. A definitive diagnosis of asbestosis was not made until 2010. Accordingly, Lofton could not reasonably have known about his injury until he sought treatment in September 2003 for symptoms associated with his asbestosis and was diagnosed with pulmonary fibrosis. Thus, he was well within the statute of limitations when he filed suit in 2004. Issue 2: Design defect CPChem argues that Lofton failed to prove the elements of his design-defect claim. Pursuant to section 11-1-63(a), the elements of a claim are: (1) the danger presented by the product's design was known or should have been known to the manufacturer (i.e., the danger was foreseeable); (2) the product failed to function as expected (as a result of a design characteristic); (3) an alternative design existed that would not impair the product's usefulness or desirability; and (4) the alternative design would have to a reasonable probability prevented the harm. A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community. Conflicting testimony was presented as to whether an ordinary person with ordinary knowledge common to the community was aware of the dangers of asbestos during the time Flosal was first marketed. Having found in favor of Lofton on his design-defect claim, the jury obviously found that CPChem had failed to prove its inherent characteristic defense. When evidence is conflicting, deference is accorded to the jury's determination of the credibility of witnesses and the weight of their testimony. Issue 3: Feasible design alternative CPChem argues that the product did not fail to function as expected because it was a highly effective drilling mud additive. Furthermore, CPChem’s position is that when Flosal left its control, no other asbestos viscosifier was formulated, so as to not generate breathable fibers during use, and the dangers of asbestos were well known. Lofton argues that the jury heard ample evidence that a feasible design alternative existed–namely that nonasbestos drilling mud viscosifiers were readily available in the oil and gas industry as opposed to asbestos-containing viscosifiers. Section 11-1-63(f) provides that “[i]n any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller . . . (ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.” If an alternative design could have been practically adopted at the time of sale, and if the omission of such an alternative design rendered the product not reasonably safe, then a design is defective. Admissions by CPChem at trial included the fact that nonasbestos viscosifiers existed during each year from 1964 to 1985 for use on drilling rigs. The deposition of CPChem’s expert J.C. Floyd, which was read to the jury during the trial, included testimony that, before and after Flosal was on the market, nonasbestos products existed for increasing viscosity. Given that the evidence showed that alternative vicosifiers were available which did not contain asbestos, Lofton sufficiently adduced proof of this element of his design defect claim. Issue 4: Frequency, regularity, and proximity test CPChem argues that Lofton did produce sufficient evidence to meet the threshold “frequency, regularity, and proximity” test adopted in Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757 (Miss. 2005). In asbestos litigation in Mississippi, the proper test to be used is the frequency, regularity, and proximity standard to show product identification of the defendants' actual products, exposure of the plaintiffs to those products, and proximate causation as to the injuries suffered by the plaintiffs. Lofton’s testimony is replete with references to his having had frequent contact with Flosal in the close confines of an unventilated mud room. Moreover, Dr. Edwin Holstein, an expert in internal medicine and asbestos-related disease, opined based on Lofton’s social security work records, testimony, and Holstein’s own expert knowledge of similar work environments, that Lofton had “sufficient exposure to asbestos from [F]losal to cause, or at least to contribute to the causation of his asbestosis.” Thus, there was sufficient evidence of frequency, regularity, and proximity to Flosal to establish Lofton’s claim. Issue 5: Change of venue CPChem argues that venue was improper and it was entitled to a change of venue. It is the plaintiff's prerogative to decide where, among permissible venues, to sue the defendant. Therefore, absent weighty reasons, a plaintiff's choice of forum should not be disturbed. The figures cited by CPChem of the high number of pending asbestos-related causes of action in Jones County are not supported by the exhibits in the record. The figures come solely from the motion to transfer venue filed by Union Carbide, a former defendant in the instant case, in which CPChem joined. While exhibits to the motion include similar, asbestos-related complaints that have been filed in the Second Judicial District of Jones County involving multiple plaintiffs, nothing in the record establishes whether some, all or none of these plaintiffs were Jones County residents eligible for jury duty, and thus, whether they potentially could contaminate the jury pool in the instant case. Without an evidentiary basis, the trial court did not abuse its discretion in failing to grant the motion to transfer venue. Issue 6: Exclusion of expert CPChem argues that the trial court failed to consider the factors of relevance and reliability when it allowed CPChem’s industrial hygiene expert Kenneth Cohen’s testimony from another trial to be read into evidence. Moreover, CPChem asserts that Cohen does not have the proper credentials to qualify as an expert in industrial hygiene and that his testimony was not based on any reliable methodology. CPChem claims that the testimony is not relevant in this case because Cohen’s testimony from the other trial did not concern a CPChem product, did not pertain to asbestosis, did not pertain to Lofton, and did not pertain to any of Lofton’s previous work environments. The admission of expert testimony is governed by M.R.E. 702. Reliability factors for determining the admissibility of expert witness testimony include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community. Cohen has published asbestos-related studies in peer-reviewed journals. Cohen testified regarding federal standards for monitoring asbestos fiber levels and opined that the methods utilized by CPChem were inconsistent with industry standards. He testified that, from an industrial hygiene perspective, there is a correlation between substantial asbestos exposure and disease. Accordingly, this testimony, in regard to industry safety standards, was relevant and assisted the jury in understanding the evidence. However, not all of the testimony pertained to the instant case, as Cohen was testifying in another trial and applying his expertise to another plaintiff and an altogether different set of facts. Upon remand for a new trial, all testimony that does not pertain to general industry standards, that does not pertain to a CPChem product, that does not pertain to the general causation of asbestosis, and that does not pertain to any of Lofton’s previous work environments, should be excluded, as that evidence does not meet requisite evidentiary standards. Issue 7: Exhibit CPChem argues that Lofton’s cross-examination of Dr. Robert Ross using Plaintiff’s Exhibit 950, comprised of historical drilling records on the use of asbestos viscosifiers in drilling rigs in Mississippi, was irrelevant pursuant to M.R.E. 401, as well as prejudicial to its defense, given that the drilling records did not correspond to Lofton’s work sites or the use of CPChem’s product. The introduction of this exhibit and the trial court’s having allowed the plaintiff’s counsel to read it into evidence was an abuse of discretion. First, the evidence was irrelevant under Rule 401, given that the well reports (although some were authored by Lofton’s employers) failed to identify any particular well on which Lofton had worked. At one point, the defense objected on the basis that plaintiff’s counsel was reading from a document from a time period when Lofton was not even employed by that particular drilling company, yet the trial court continued to overrule the objections. Moreover, these reports included all asbestos mud additives and were not necessarily specific to Flosal or other products manufactured by CPChem. This line of cross-examination appears to be an attempt by the plaintiff’s counsel to imply that, during Lofton’s career, he had been potentially been exposed to as much as 111,000 pounds of asbestos mud additives. In that sense, it was highly prejudicial to CPChem, and grossly overestimated, given that there was no way to identify from the evidence how many bags of Flosal Lofton specifically had used. The admission of Exhibit 950 and this manner of testifying by plaintiff’s counsel should have been excluded under M.R.E. 403. Issue 8: Weight of evidence CPChem believes that the jury’s allocation of all liability against CPChem is illogical, contradictory, and against the overwhelming weight of the evidence. Given that highly prejudicial, irrelevant evidence was before the jury, it is logical to conclude that this prejudicial evidence could have swayed the jury and resulted in the apportionment of liability falling squarely and exclusively on CPChem. Thus, a new trial is warranted. |
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