Preview:

IN THE COURT OF APPEALS 12/17/96 OF THE STATE OF MISSISSIPPI
NO. 93-CA-01261 COA NANCY SWAN AND CHARLES SWAN APPELLANT v. CARBOLINE COMPANY APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JERRY OWEN TERRY SR. COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JUDY M. GUICE PAUL S. MINOR ATTORNEYS FOR APPELLEE: HARRY R. ALLEN RODNEY D. ROBINSON NATURE OF THE CASE: TORT: PRODUCT LIABILITY TRIAL COURT DISPOSITION: DIRECTED VERDICT FOR DEFENDANT ON CAUSATION

BEFORE FRAISER, C.J., KING, AND PAYNE, JJ. KING, J., FOR THE COURT:

The Circuit Court of Harrison County granted Carboline a directed verdict after Swan had introduced evidence relating to her product liability claim. Aggrieved, Swan appeals contending the following: I. The trial court erred in directing a verdict in favor of the Defendants on the issue of causation; II. Swan's cause of action should be reassigned to another judge upon remand because the views of the trial judge regarding the merits of Swan's claims are stalemated; III. Swan should be awarded prejudgment interest or some other suitable remedy.

In addition, Carboline has cross-appealed and assigned for our review the following issues:

I. Were Swan's treating physicians qualified to give testimony concerning polyurethane exposure?

II. Did the trial court err when it compelled Carboline to produce surveillance videotapes when Carboline did not intend to use the tapes as evidence?

III. Did the trial court err when it permitted Swan to introduce into evidence material safety data sheets and products which were not in issue?

IV. Should Swan be required to disclose the amounts received in settlement of her claim against MIRI and I.P.?

V. Did the court err in denying Carboline the opportunity to cross-examine Swan on why she refused to submit to an independent medical examination?

FACTS AND PROCEDURAL HISTORY In 1986, Swan sued MIRI Inc., I.P., Inc., and Carboline for injuries resulting from Swan's exposure to fumes and spray of polyurethane foam and coating, which were used to roof the Long Beach Junior High School where Swan was a teacher. Three years later, the court granted MIRI, I.P., and Carboline's motion for summary judgment, and Swan appealed to the supreme court. The supreme

court reversed the court's grant of summary judgment favoring each of the Defendants and remanded the case to the trial court. Swan settled her claims against MIRI and I.P. Trial of Swan's case against Carboline commenced on October 11, 1993, but the court declared a mistrial because of alleged improper voir dire by Swan's counsel. Thereafter, Swan's counsel filed a motion requesting Judge Terry's recusal. The motion was denied, and trial commenced again on October 18, 1993. Following the presentation of Swan's case in chief, Carboline moved for a directed verdict. The court granted Carboline's motion for directed verdict reasoning: (1) The Plaintiffs failed to make out a prima facie case that the Plaintiff, Nancy Swan, sustained injury as a direct proximate result of exposure to vapors, particulates or fumes from defendant, Carboline's coating product, as opposed to having sustained injury from exposure to polyurethane foam manufactured by former defendant, I.P., Inc., and (2) That MIRI Inc., previously a defendant herein was an experienced applicator of Carboline's coating product, and that the plaintiffs had failed to establish a prima facie case that applicator, MIRI, Inc., had no knowledge of any hazards associated with the coating process, or that MIRI, Inc., was not adequately warned as to any hazards associated with such coating process so as to constitute a defect which would make the Carboline coating product unreasonably dangerous for strict liability purposes. ANALYSIS OF THE ISSUES AND DISCUSSION OF THE LAW I. DID THE TRIAL COURT ERR IN GRANTING CARBOLINE'S MOTION FOR A DIRECTED VERDICT?

The trial court granted Carboline's motion for directed verdict because it was of the opinion that Swan had not adduced sufficient evidence showing that she was exposed to Carboline's product and that the exposure was a proximate cause of her injuries. When a defendant moves for a directed verdict at the close of the plaintiff's case in chief, the circuit court must consider the evidence before it at that time in the light most favorable to the plaintiff, giving the plaintiff the benefit of all favorable inferences that reasonably may be drawn from that evidence. Benjamin v. Hooper Elec. Supply Co., 568 So. 2d 1182, 1186 (Miss. 1990) (citations omitted). We too must consider the motion in the light most favorable to the party opposing the motion. Benjamin, 568 So. 2d at 1187 (citations omitted). The motion is granted only where the facts and inferences considered point so overwhelmingly in favor of the movant that reasonable men and women could not have arrived at a verdict for the nonmovant. Id. If by any reasonable interpretation, the evidence supports an inference of liability, which the non-moving party seeks to prove, the motion must be denied. Fulton v. Robinson Indus. Inc., 664 So. 2d 170, 176 (Miss. 1995). When Carboline moved for a directed verdict, the following evidence and testimony was before the court: 1. Dr. Egilman's testimony that Swan was exposed to chemicals containing toluene

diisocyanate (TDI) and methylene diphenyl isocyanate (MDI);

2. Dr. Egilman's testimony that Swan suffered conjunctivitis, sinusitis, headaches, and neurological problems as a result of being exposed to chemicals containing TDI and MDI;

3. Victor Flack's testimony that Carboline's product Chem-Elast 2819S contained TDI in its formulation;

4. Carboline's sales representative, Van Rusling's testimony that he witnessed Jim English apply Chem-Elast 2819S to the roof of the Long Beach school during school hours;

5. Van Rusling's testimony that Chem-Elast 2819S had a gray coloration;

6. Nancy Swan's testimony that she saw chemicals ranging in coloration from orange, yellow, and pale gray being sprayed during school hours;

7. Charles Swan's testimony that he saw a light gray substance in his wife's hair when he arrived home one night. When we review the aforementioned evidence in a light most favorable to Swan, giving Swan the benefit of all reasonable inferences, we find that the facts and evidence support a conclusion favoring Swan. Evidence indicated that Swan's health problems were precipitated by exposure to chemicals containing TDI and MDI, and Carboline admitted that its product, which contained TDI was applied to the roof of the school, where Swan taught during school hours. From this evidence, one may reasonably infer that Swan was exposed to TDI when Carboline's product was applied to the school's roof and that as a result of the exposure, Swan sustained injury. Moreover, the court's rationale for granting the directed verdict intimated that Swan was required to establish with absolute certainty that Carboline's product, not I.P.'s product caused the injuries. A plaintiff is not required to eliminate with certainty all other possible causes or inferences, which would mean that he must prove a civil case beyond a reasonable doubt. Read v. Southern Pine Elec. Power Ass'n, 515 So. 2d 916, 920 (Miss. 1987) (citation omitted). The burden of proof to establish causation may be met by showing sufficient facts to allow a jury to infer defective quality and that such defective quality was a substantial element in producing the injury complained of. William Cooper & Nephews, Inc. v. Pevey, 317 So. 2d 406, 408 (Miss. 1975). Thus, Carboline's liability is not affected by Swan's failure to eliminate with certainty I.P.'s product as the harm producing agent. In addition to concluding that Swan had failed to establish that Carboline's product caused her

injuries, the court reasoned that MIRI was an experienced applicator of Carboline's product, which necessitated a showing by Swan that MIRI lacked knowledge of the hazard's of Carboline product or that Carboline had failed to warn MIRI of the product's hazards. The court's rationale was premised upon its application of the learned intermediary doctrine. The learned intermediary doctrine provides that a manufacturer's duty to warn may be discharged by providing information to a third person upon whom the manufacturer can reasonably rely to communicate the information to the ultimate users of the product or those who will be exposed to its hazardous effects. Swan v. I.P., Inc. 613 So. 2d 846, 851 (Miss. 1993) (citations omitted). However, the learned intermediary doctrine does not relieve the manufacturer of its duty to warn unless the manufacturer's reliance on the intermediary is reasonable. Swan, 613 So. 2d at 856. An intermediary's education, training, knowledge, and experience should be considered in determining whether a manufacturer has reasonably relied upon the intermediary. Consideration should also be given to whether the intermediary is familiar with the product's properties and safe methods of handling and whether the intermediary is capable of passing this knowledge to the consumer or those likely to be exposed to the product's hazards. Cf. Little v. Liquid Air Corp., 952 F.2d 841, 851 (5th Cir. 1992) (discussing the bulk seller doctrine and stating that a bulk seller fulfills its duty to the ultimate consumer only if it ascertains (1) that the distributor to which it sells is adequately trained, (2) that the distributor is familiar with the properties of the product and the safe methods of handling it, and (3) that the distributor is capable of passing this knowledge to the consumer). In Wyeth Laboratories, Inc. v. Fortenberry, the Mississippi Supreme Court recognized the learned intermediary doctrine as a defense to product liability cases based on failure to warn. See Wyeth Lab., Inc. v. Fortenberry, 530 So. 2d 688, 693 (Miss. 1988). In Wyeth, a pharmaceutical manufacturer escaped liability for plaintiff's injuries because the court determined that a package insert adequately warned the prescribing physician of the risks asssociated with the pharmaceutical manufacturer's vaccine. Although the Wyeth decision concerned the application of the learned intermediary theory to manufacturers of pharmaceutical products, we find that it is appropriate to expand the decision's import to manufacturers of products other than pharmaceuticals. In the present case, the learned intermediary doctrine could eviscerate Carboline's liability if the fact finder determined that adequate warnings were given to an intermediary, and Carboline's reliance upon the intermediary was reasonable. Because Carboline sought to avoid liability for Swan's injuries by application of learned intermediary principles, it bore the burden of establishing that it had provided adequate warnings to an intermediary and that its reliance upon the intermediary was reasonable. Hinton v. McKee, 329 So. 2d 519, 520 (Miss.1976) (explaining that the burden is on a defendant to prove matters in avoidance, special or affirmative defenses, and other new matter urged by him as ground for denying a plaintiff relief). The court noted that MIRI was an experienced applicator of Chem-Elast 2819S. According to Van Rusling, Carboline determined that MIRI was qualified to apply Chem-Elast 2819S because it had previously applied Chem-Elast 2819S to the Gulf Coast Coliseum and a school in Vicksburg. Prior use and application are appropriate factors to consider when determining one's status as a learned intermediary; however prior use and application should not be viewed as conclusively establishing MIRI's status as a learned intermediary. The intermediary's awareness of the hazard and capacity to disseminate its knowledge of the hazard also factors into the consideration. See Swan, 613 So. 2d at

856. Although, Carboline had not introduced evidence establishing that it could reasonably rely upon MIRI to communicate its awareness of the product's hazards, the court recognized MIRI as a learned intermediary and required Swan to show that MIRI lacked knowledge concerning the product's hazards or alternatively, that Carboline had failed to adequately warn MIRI of the product's hazards. The court's recognition of MIRI as a learned intermediary was equivalent to the taking of judicial notice. A court may take judicial notice of facts which are generally known within the territorial jurisdiction of the trial court or which are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. M.R.E. 201; see also Ditto v. Hinds County, 665 So. 2d 878, 880 (Miss. 1995). MIRI's status as a learned intermediary was not a fact generally known within the court's jurisdiction, nor could it be verified by resort to sources of unquestionable accuracy such as public records. Indeed, the supreme court recognized MIRI as an experienced applicator of polyurethane roofing products, but it did not conclude that MIRI had acquired the status of learned intermediary. Swan v. I.P., Inc., 613 So. 2d 846, 855-56 (Miss. 1993) (noting that the facts were in dispute as to whether MIRI was knowledgeable about the hazards and also noting that the evidence was insufficient to conclude that MIRI was a sophisticated user). MIRI's status as a learned intermediary was not a fact susceptible to the taking of judicial notice; therefore, absent proof by Carboline that MIRI was a learned intermediary, the court should not have required Swan to prove that MIRI lacked knowledge of the hazard or that Carboline failed to warn MIRI of the hazards. In conclusion, we find that Swan adduced sufficient evidence from which a jury could reasonably infer that Swan's injuries were caused by exposure to Carboline's product. In addition, we find that Swan was not required to produce evidence negating MIRI's awareness of the hazard absent proof by Carboline that MIRI was a learned intermediary. Therefore, the court erred in granting the motion for directed verdict. II. SHOULD THIS CASE BE REASSIGNED TO ANOTHER TRIAL JUDGE UPON REMAND?

Swan argues that this case should be reassigned to another trial judge on remand because the trial judge is biased. Swan's argument is premised primarily on the fact that our opinion represents the second occasion upon which the trial judge's application of the learned intermediary theory has served as a predicate for reversal. We look to the Code of Judicial Conduct for guidance in resolving this issue. Cannon 3C of the Code of Judicial Conduct requires a judge to recuse himself from proceedings whenever his impartiality might reasonably be questioned. The requirements of Cannon 3C apply when the judge harbors a personal bias or prejudice concerning a party, or has personal knowledge of disputed evidentiary facts concerning the proceeding. See Code of Judicial Conduct Cannon 3C(1)(a)

(1995). We presume that a judge is qualified and unbiased. Bryan v. Holzer, 589 So. 2d 648, 654 (Miss. 1991). The presumption may only be overcome by evidence showing beyond a reasonable doubt that the judge was biased or not qualified. Holzer, 589 So. 2d at 654. Therefore, in determining whether a judge should recuse himself, we ask, "Would a reasonable person, knowing all the circumstances, harbor doubts about the judge's impartiality?" Aetna Casualty & Surety Co. v. Berry, 669 So. 2d 56, 74 (Miss. 1996) (citation omitted). In the instant case, we recognize that the judge's rulings have twice prevented the jury from deciding Swan's case; however, at present we decline to find partiality. However, upon remand, we would urge the trial court to reconsider the applicability of Cannon 3 of the Code of Judicial Conduct. III. SHOULD PREJUDGMENT INTEREST OR ADDITIONAL REMEDIES BE AWARDED?

Swan contends that final disposition of the case has been substantially delayed because Carboline and its attorneys urged the court to grant the motion for directed verdict despite the trial court's rejection of the defense as a basis for summary judgment. As a result of the delay, Swan argues that she has sustained additional injuries, which justify the awarding of pre-judgment interest. Therefore, Swan has asked this Court to direct the trial court to award pre-judgment interest on any judgment recovered against Carboline. The decision to award pre-judgment interest is within the discretion of the trial judge. Terex Corp. v. Ingalls Shipbuilding, Inc., 671 So. 2d 1316, 1324 (Miss. 1996) (citing Warwick v. Matheney, 603 So. 2d 330, 342 (Miss. 1992)). Because the trial judge may exercise discretion in deciding to award pre-judgment interest, we are without liberty to direct the court to award pre-judgment interest. In the alternative, Swan argues that attorney's fees and/or expenses under the Litigation Accountability Act should be imposed against Carboline. Before attorneys fees and/or expenses are awarded pursuant to the Litigation Accountability Act, the court must first find either of the following: (1) that Carboline or its attorney asserted a defense, which was without substantial justification, or (2) that Carboline's defense was interposed for delay or harassment, or (3) that Carboline or its attorney unnecessarily expanded the proceedings by other misconduct. Miss. Code Ann.

Download Nancy Swan vs. Carboline Co.pdf

Mississippi Law