Exxonmobil Oil Corp, V. Wayne Wright

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UNPUBLISHED OPINION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.

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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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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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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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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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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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