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Ky. Court Reverses Order for New Trial, Reinstates $5 Million Verdict

August 20, 2008 – Media Coverage
HarrisMartin

LOUISVILLE, Ky. -- The Kentucky Court of Appeals has reversed a trial court's decision to hold a new trial in an asbestos case, finding that the moving defendants failed to prove that products manufactured by other defendants were a contributing factor in the alleged injuries. Garlock Sealing Technologies v. Dexter, et al., No. 2006-CA-000918-MR; Dexter v. Certainteed Corp., et al., No. 2006-CA-000962-MR; Certainteed Corp. v. Dexter, No. 2006-CA-000988-MR; Garlock Sealing Technologies v. Dexter, et al., No. 2006-CA-001025-MR (Ky. Ct. App.).

In the Aug. 8 decision, the appellate court reversed the order for new trial and remanded with instructions for the court to enter judgment on the jury's original $5 million verdict in favor of the plaintiff.

The claims were asserted on behalf of Dayton Dexter, whose employment as a pipefitter required him to work with asbestos-containing gaskets and sealants manufactured by Garlock Sealing Technologies and waterpipe manufactured by CertainTeed.

The appellate court noted that Dexter is also a long-term smoker.

Garlock and CertainTeed proceed to trial with the plaintiffs, at the end of which a $5 million verdict was entered. Garlock and CertainTeed were assessed 35 and 30 percent liability, respectively.

Those defendants, however, moved for a new trial, saying that the jury failed to allocate fault to empty-chair defendants. The trial court agreed and granted the motion.

After the second trial, during which the defendants presented evidence pertaining to the empty-chair defendants as well as additional evidence of Dexter's smoking habits, the jury entered a $2.3 million verdict. In the second trial, the decedent was assessed 60 percent liability, while CertainTeed and Garlock were assessed 2 and 17 percent liability, respectively.

On appeal, however, the plaintiffs claim that the trial court should never have allowed the second trial to take place.

In addressing the plaintiff's contention, the appellate court noted, "significant proof of causation was necessary to support a finding against any defendant in this litigation."

The court continued, saying that "little evidence was presented against any other defendant by either side during the [first trial]. While CertainTeed and Garlock contend that there was 'substantial, uncontested evidence that [the plaintiff] had significant exposure to asbestos fiber from products and at premises of several defendants listed on the verdict sheet,' they have failed to provide us with sufficient evidence from which a jury verdict against any of these other defendants could have been supported. It is not enough that general asbestos exposure has been established."

The appellate court also found that the defendants had stated possible sources of exposure but had not presented any evidence on how this exposure caused Dexter's injuries.

"[T]here is little wonder why the jury failed to allocate fault beyond CertainTeed and Garlock," the court opined. "This evidence is a mere recitation of defendants without any proof of legal causation on their part."

Counsel for the plaintiffs are Kenneth L. Sales, Joseph D. Satterley and John R. Shelton of Sales, Tillman, Wallbaum, Catlett & Satterley in Louisville, Ky.

The defendants are represented by John K. Gordinier and Stanley W. Whetzel Jr. of Pedley & Gordinier in Louisville, Ky.; Kerry B. Harvey of Owen, Harvey & Carter in Benton, Ky.; David C. Marshall of Hawkins Parnell & Young in Atlanta; and Elizabeth Geise of Goodwin Procter in Washington, D.C.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-0808-16

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