Petition for Writ of Certiorari — Murco Wall Products, Inc., Petitioner v. Michael D. Galier

APPENDICES

1a

APPENDIX A

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

MONDAY, JUNE 19, 2017

THE CLERK IS DIRECTED TO ENTER THE

FOLLOWING ORDERS OF THE COURT:

***

114,175

(cons.w/114,183)

Michael D. Galier v. Murco Wall Products, Inc. And Welco Manufacturing

Company et al

Both petitions for certiorari are

denied.

CONCUR: Gurich, V.C.J., Watt, Winchester, Edmondson, Colbert and Reif, JJ.

DISSENT: Wyrick, J.

NOT PARTICIPATING: Kauger, J.

DISQUALIFIED: Combs, C.J.

_______________________

CHIEF JUSTICE

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APPENDIX B

FILED

COURT OF CIVIL APPEALS

STATE OF OKLAHOMA

FEB 3 2017

MICHAEL S. RICHIE

CLERK

NOT FOR OFFICIAL PUBLICATION

IN THE COURT OF CIVIL APPEALS OF THE

STATE OF OKLAHOMA

DIVISION I

MICHAEL D. GALIER,

Plaintiff/Appellee,

vs.

MURCO WALL PRODUCTS, INC., and

WELCO MANUFACTURING COMPANY,

Defendants/Appellants,

and

Red Devil Corporation,

Defendant.

Case No. 114,175

(Cons.w/114,183)

APPEAL FROM THE DISTRICT COURT OF

OKLAHOMA COUNTY, OKLAHOMA

HONORABLE BRYAN C. DIXON,

TRIAL JUDGE

AFFIRMED

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Steven T. Horton,

HORTON LAW FIRM,

Oklahoma City, Oklahoma,

and

Jessica M. Dean,

Charles W. Branham, III,

DEAN, OMAR & BRANHAM, LLP,

Dallas, Texas,

For Plaintiff/Appellee,

Clyde A. Muchmore,

Harvey D. Ellis, Jr.,

Cullen D. Sweeney,

CROWE & DUNLEVY,

Oklahoma City, Oklahoma,

and

Gregory L. Deans,

Katherine H. Stepp,

DEANS & LYONS, L.L.P.,

Dallas, Texas

For Defendant/Appellant,

Murco Wall Products, Inc.

Monty B. Bottom,

FOLIART, HUFF, OTTAWAY & BOTTOM,

Oklahoma City, Oklahoma,

and

Michael C. Carter,

Catherine L. Campbell,

PHILLIPS MURRAH P.C.,

Oklahoma City, Oklahoma,

For Defendant/Appellant

Welco Mfg. Co.

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OPINION BY BRIAN JACK GOREE, PRESIDING JUDGE:

¶1 In this consolidated appeal, Defendants/Appellants, Murco Wall Products, Inc. (Murco)

and Welco Manufacturing Company (Welco), seek

review of the trial court’s judgment based on a jury

verdict in favor of Plaintiff/Appellee, Michael D.

Galier. We find no error in the conduct of the trial,

and the jury’s verdict is supported by competent evidence. The judgment is affirmed.

I.

Background

¶2 Galier commenced an action against numerous manufacturers of asbestos products, alleging

they caused him to contract asbestos-related mesothelioma. He sued under the theories of negligence

and manufacturers’ products liability. At trial he

pursued only three of the defendants: Murco, Welco,

and Red Devil Corporation. The jury reached a verdict and nine of its members signed a six-page verdict form. The principal issue before this court is

whether the trial court erroneously accepted the

written verdict after the foreman asked a question

that suggested the verdict did not express the jury’s

intent.

¶3 The jury found Galier failed to prove his

claims against Red Devil but succeeded in proving

his claims against Murco and Welco. It found Galier

sustained actual damages totaling $6 million, comprising $1.5 million in economic damages and $4.5

million in noneconomic damages. It apportioned 40%

of Gailer’s damages to Murco and 60% to Welco.

Thirteen non-parties were identified on the verdict

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form and the jury apportioned zero percent liability

to each of them.

¶4 Because the jury trial was in a civil action

claiming bodily injury, the verdict form included answers to interrogatories pursuant to 23 O.S. 2011

§61.2. Section 61.2 limits compensation for noneconomic loss to $350,000 unless the finder of fact concludes a defendant’s actions met a specified degree of

culpability. The jury found Galier proved by clear

and convincing evidence that Murco and Welco acted

with gross negligence, in reckless disregard of the

rights of others, and intentionally and with malice.

These findings authorized the trial court to enter

judgment for noneconomic compensatory damages in

excess of the $350,000 limit. §61.2(E). The same findings also served as the predicate for the jury to consider punitive damages in a second stage of the trial.

23 O.S. 2011 §9.1.1

¶5 After the verdict was announced, the jury’s

foreman asked the judge a question about the damages awarded and the judge polled the jury:

Foreman Jacobs:

We understood we had awarded

punitive damages and medical

damages. Is that not correct?

1 A portion of Instruction No. 24 advised the jury, “If you find

that any Defendant or Defendants whom you found liable and

responsible for damages acted either with reckless disregard for

the rights of others or intentionally and with malice, you have

determined that Plaintiff may be entitled to an award of punitive damages. The amount of any award for punitive damages is

not presently before you for decision but would be determined

in a later stage of the trial if you indicate by your finding that

such an award is warranted.”

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The Court:

Sir, you found by clear and convincing evidence that there was.

So, yes, that puts you into the

punitive damages stage. So we’re

going to a Stage II.

Foreman Jacobs:

Well, maybe it wasn’t written up

correctly. We intended to award

1.5 million for medical and 4.5 for

punitive. Did we not put that

down right?

The Court:

You cannot award punitive damages at this stage, sir. That’s

what the jury instructions told

you.

Mr. Moore:

[Counsel for Welco] Your Honor?

The Court:

Maybe we’d better poll the jury.

Mr. Moore:

‘Counsel for Welco] Yes. My motion, Your Honor.

The judge then summarized the findings as stated on

the verdict form and continued:

The Court:

So I’m going to ask each and every juror who has signed this if

that is your verdict in this case.

Mr. Jacobs, you have signed the

verdict as Foreman of the Jury. Is

that your verdict in this case?

Foreman Jacobs:

Yes, it is, with the exception of

the wording we didn’t understand

correctly.

The Court:

Okay. It either is or - -

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Foreman Jacobs:

How do we correct that?

The Court:

- - it is not. Okay.

Foreman Jacobs:

Well, that was my vote, yes. But .

..

The Court:

Okay.2

The judge then proceeded to ask the same question of

the other eight jurors who signed the verdict form

and each affirmed the verdict as their own without

equivocation. The judge then accepted the verdict of

Stage I and Defendants objected.3

¶6 When the trial reconvened after the weekend,

Galier opted to proceed only against Murco in Stage

II. After deliberating, the jury found in favor of

Murco. Therefore no punitive damages were awarded.

¶7 Defendants contend that when the jury

awarded $4.5 million in noneconomic damages, they

mistakenly believed they had awarded punitive

damages. They propose this conclusion is supported

2 It is impossible to conclude from the transcript whether Fore-

man Jacobs voluntarily terminated his response or the Court

interrupted him.

3 Counsel for Welco stated: it’s clear to me from the Foreman’s

comments that though he said that that was his verdict, he understood his verdict was something other than what was recorded on the verdict form . . . I don’t think you can receive this

verdict. I think it’s inconsistent with what the form says if

that’s the words from the Foreman.” The Court responded that

the jury was polled and all jurors assented to the verdict.

Welco’s counsel courteously persisted: “[C]an they at least explain to us what they understood it was to be? I mean, I think

we have to do that, at least for an appellate record here.” The

Court declined the request and accepted the verdict.

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by the jury’s award of zero damages after a brief deliberation in Stage II of the trial. Welco argues that

the jury failed to follow instructions, resulting in a

defective verdict, and the trial court abused its discretion in attempting to cure the defect by polling the

jury. Murco argues the trial court was required to

make a meaningful and specific inquiry into the

foreman’s report and take corrective action. In response, Galier argues that Oklahoma law prohibits

inquiry into the jury’s intent or understanding in

reaching its verdict.

¶8 The questions presented for review reveal a

tension between two fundamental legal principles,

the confidentiality and independence of a jury’s deliberation and a party’s right to a just trial.4

II

Validity of the Jury Verdict

¶9 A trial court has broad discretion in conducting a jury trial; we will not reverse based on its conduct unless the trial court abused that discretion.

Stephens v. Draper, 1960 OK 69, 118, 350 P.2d 506,

510. An abused judicial discretion is manifested

when discretion is exercised to an end or purpose not

justified by, and clearly against, reason and evidence. It is discretion employed on untenable

grounds or for untenable reasons, or a discretionary

act which is manifestly unreasonable. Patel v. OMH

4 “The right of trial by jury shall be and remain inviolate.” Okla.

Const., Art. 2, §19. Courts have a duty to secure this right by

strictly enforcing the constitutional and statutory provisions

that preserve the purity of jury trial. Fields v. Saunders, 2012

OK 17, 1110, 278 P.3d 577, 581. Justice in the courts shall be

administered without sale, denial, delay, or prejudice. Okla.

Const., Art. 2, §6.

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Med. Ctr., Inc., 1999 OK 33, 120, 987 P.2d 1185,

1194.

¶10 A trial court should not accept the jury’s

verdict if it is defective. Stephens v. Draper, 1960 OK

69, ¶12, 350 P.2d 506, 509. If the verdict is incomplete, ambiguous, or contrary to the jury instructions, then the court should direct the jury to retire

for further deliberation. Stephens at ¶0 (syllabus by

the court). In this case, the verdict was facially valid.

¶11 Galier contends it was too late to poll the jury because the verdict was in proper form and the

court had already accepted it.5 We disagree. The decision of a jury does not become a verdict until it is

accepted by the court and recorded in the case. Wiggins v. Dahlgren, 1965 OK 131, ¶4, 405 P.2d 1001,

1003. Until the verdict is accepted and recorded, the

members of the jury are free to change their votes —

even to the extent of changing the verdict. Id. Although the court initially accepted the Stage I verdict,

it was not recorded or filed. Furthermore, the Court

acknowledged the Stage I verdict before there was

any suggestion that it might not be correct. We hold

that the trial court retains authority to inquire of the

jury concerning its verdict until the jury is discharged or the verdict has been filed in the case.

¶12 Galier also proposes in broad terms that a

jury’s verdict cannot be impeached. This case is different from those cited by Plaintiff where a jury’s

verdict could not be challenged after the trial had

5 After the Judge announced the jury’s verdict, and before Mr.

Jacobs questioned it, the Court asked whether anyone wished

the jury to be polled. Counsel for some of the parties responded

no. The Court then stated, ‘That will be the verdict of the jury

and the judgment of this Court.”

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concluded. Here, the jury was still empaneled when

the court conducted its poll. Cities Service Oil Co. v.

Kindt, 1947 OK 219, 118, 190 P.2d 1007,1013 (distinguishing an attack on a jury’s verdict when it is

returned, from cases involving testimony of jurors after their verdict has been received and filed). In

Willoughby v. City of Oklahoma City, 1985 OK 64,

706 P.2d 883, 889, the Supreme Court examined the

anti-impeachment rule under the Oklahoma Evidence Code, 12 O.S. 2011 §2606(B). This rule limits

the scope of permissible testimony to inquiring

whether extraneous prejudicial information was improperly brought to the jury’s attention. However,

§2606(B) applies only to inquiry after the verdict has

been reached and recorded. Weatherly v. State, 1987

OK CR 28, ¶11, 733 P.2d 1331, 1334. Because the jury in this case had not been discharged, neither the

common law nor §2606(B) were impediments to polling the jury.

¶13 We turn next to Welco’s argument that the

Court abused its discretion in attempting to cure the

defective verdict by polling the jury. The procedure

for polling the jury is outlined by 12 O.S. 2011 §585.

It provides:

When the jury have agreed upon their verdict

they must be conducted into court, their

names called by the clerk, and their verdict

rendered by their foreman. When the verdict

is announced, either party may require the

jury to be polled, which is done by the clerk

or the court asking each juror if it is his verdict. If any one answers in the negative, the

jury must again be sent out, for further deliberation.

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In a separate statute, 12 O.S. 2011 §586, the Legislature provided a method for converting the jury’s verdict to a written form and correcting any defects resulting from that process:

The verdict shall be written, signed by the

foreman and read by the clerk to the jury,

and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be

sent out again; but if no disagreement be expressed, and neither party requires the jury

to be polled, the verdict is complete and the

jury discharged from the case. If, however,

the verdict be defective in form only, the

same may, with the assent of the jury, before

they are discharged, be corrected by the

court.

Juries are now uniformly instructed to complete

their verdict on the written verdict forms provided.

Although this has likely diminished errors in the deliberative process, it is still possible that a verdict

agreed to by a juror is not accurately reflected on the

form. The instant case illustrates that point.

¶14 Mr. Jacobs referred to the jury’s intent to

award $4.5 million for punitive damages and then

suggested “maybe it wasn’t written up correctly.” He

questioned, “Did we not put that down right?” Polling a jury can reveal whether the written verdict accurately expresses the jury’s deliberative agreement.

We hold that the trial court had authority to poll the

jury and its decision to do so was a proper exercise of

judicial discretion.

¶15 Welco argues that even if polling the jury

was within the Court’s discretion, doing so did not

cure the defective verdict. It must be pointed out that

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polling a jury is not a curative act, it is a diagnostic

device to ascertain whether the verdict is legally acceptable or if further deliberation is necessary. When

the court polls the jury, each juror is asked “if it is

his verdict.” §585. If any juror answers in the negative, the jury must be sent out for further deliberation. Id. If all jurors assent that the written verdict is

the verdict they agreed to during deliberation, then

the court may accept it.6

¶16 When asked whether the verdict in this case

was his verdict, Mr. Jacobs answered yes. But he also qualified his assent. He communicated an exception concerning his understanding of it and he also

asked how it could be corrected. Finally, he agreed it

was his verdict because that is how he voted and

then he apparently began to qualify his answer again

but did not finish.

¶17 Whether a qualified assent is equivalent to a

dissent, requiring further deliberation, depends upon

the character of the qualification. In Frick v. Reynolds, 1898 OK 9, ¶16, 52 P. 391, 394, the Supreme

Court decided it was error for the court to receive the

verdict instead of directing the jury to deliberate further. The questioned juror conceded he had agreed to

the verdict but he was unsatisfied with it. On further

examination, the juror explained he had agreed to it

only to prevent a hung jury. “An assent must be an

assent of the mind to the fact found by the verdict.”

Frick, at ¶18, citing Rothbauer v. State, 22 Wis. 468,

470 (1868).

6 This assumes that the verdict is otherwise free from defects. A

verdict that is incomplete, ambiguous, or contrary to jury instructions requires further deliberation regardless of whether

the jurors unanimously assented to it.

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¶18 Unlike the juror in Frick, Mr. Jacobs did not

say he was unconvinced by the evidence. See Frick,

¶15. Mr. Jacobs qualified his assent because he had

a misunderstanding about noneconomic damages

and punitive damages. It was a misunderstanding

related to wording that he apparently believed needed to be corrected.

¶19 The record reflects that Mr. Jacobs believed

he had awarded punitive damages. Next, after listening again to the Court review the verdict preliminary

to the poll, he assented to the verdict for noneconomic damages with remarks that he had a misunderstanding.

¶20 Had Mr. Jacobs not intended to award $4.5

million as noneconomic damages, he could have answered that it was not his verdict. But he did not

dissent. He acknowledged twice that it was his verdict. We hold that the trial court would have been

justified in reasoning that Juror Jacobs misunderstood noneconomic damages to be the legal equivalent of punitive damages. The jury instructions correctly stated the law, Jacobs assented to the verdict,

and the possibility that he was mistaken about the

law did not change his factual verdict into a dissent.7

None of the jurors answered the poll in the negative.

The trial court did not abuse its discretion in accepting the jury’s verdict rather than ordering the jury to

recommence deliberation.8

We recognize that a different interpretation of Mr. Jacobs’

misunderstanding might also be reasonable, but a court’s discretionary act is not reversible merely because an alternative

option was available.

7

8 The trial court is not bound to accept a verdict that is not in

accordance with its instructions. Stephens at 1112. We disagree

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¶21 Defendant Murco urges that the Court erred

by failing to make a meaningful and specific inquiry

into the foreman’s response. Galier insists to the contrary, that a court may not inquire into the jury’s intent or understanding in reaching its verdict. The

question of the court’s authority is settled law. “[A]

trial court may make such inquiry of jurors as to enable it to understand their will and intention, and

their answers to such inquiry will be looked upon as

an aid in rendering of proper judgment.” First Nat.

Bank & Trust Co., Muskogee v Exch. Nat. Bank &

Trust Co., Ardmore, 1973 OK CIV APP 7, 517 P.2d

805, 809 (published by order of the Supreme Court).

The Court had authority to inquire of the jury beyond the statutory poll.

¶22 Because the trial court declined to ask Mr.

Jacobs additional questions, it cannot be determined

what precisely he misunderstood about the wording

of the verdict form. However, questioning a jury

about its verdict introduces risk. West v. Abney, 1950

OK 127, ¶11, 219 P.2d 624, 627 (holding that the action of a judge in the correction of verdicts should be

taken with great caution). There is a possibility that

the judge’s questions could accidentally trigger improper comment by jurors concerning their confidential deliberation. A court’s questions could also lead

to unfair prejudice if the jury is ultimately ordered to

return to deliberation. In West, the court noted that

the trial court was very careful about the method of

with Defendant Welco that the jury failed to follow its instructions. Prior to the poll Mr. Jacobs asserted that the jury intended to award punitive damages, an action inconsistent with the

instructions. If Jacobs at first believed the jury had awarded

punitive damages, he and all the other polled jurors later assented to a verdict to the contrary. The verdict was not inconsistent with the jury instructions.

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instructing the jury as to the form of verdict that was

acceptable, without intimating as to what that verdict should be. West at ¶13.

¶23 The confidentiality of the jury’s deliberation

must be preserved and questioning jurors about their

verdict beyond conducting a poll is precarious. However, a trial court’s pre-discharge questioning, if it is

directed toward determining whether the verdict is

defective or invalid, is not statutorily impermissible.

As we have already determined, the Court did not

abuse its discretion by accepting the verdict rather

than ordering additional deliberation. We likewise

hold that the Court’s judgment in declining to inquire further was not a clear abuse of discretion.

III

Constitutionality of 23 O.S. §61.2(C)

¶24 Welco next contends that the trial court

erred in accepting the verdict because 23 O.S. 2011

§61.2(C) is unconstitutional. Section 61.2(C) provides,

Notwithstanding subsection B of this section,

there shall be no limit on the amount of noneconomic damages which the trier of fact may

award the plaintiff in a civil action arising

from a claimed bodily injury resulting from

negligence if the judge and jury finds, by

clear and convincing evidence, that the defendant’s acts or failures to act were:

1. In reckless disregard for the rights of others;

2. Grossly negligent;

3. Fraudulent; or

4. Intentional or with malice.

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Welco argues that §61.2(C) violates due process because (1) it allows the jury to assess punitive damages in the guise of noneconomic damages, but without

the procedural safeguards applicable to punitive

damages, and (2) the statutory scheme of §61.2(C)

and §9.1 impermissibly exposes defendants to the

threat of double recovery of punitive damages. In response, Galier argues that noneconomic compensatory damages are distinct from punitive damages, and

they serve different purposes.

¶25 The purpose of an award of noneconomic

damages is to compensate the plaintiff for subjective

injuries. Edwards v. Chandler, 1957 OK 45, ¶5, 308

P.2d 295, 297. Its purpose is not to punish the defendant. That the Legislature decided to place a limit

on the amount of noneconomic damages, and specified an exception to the limit, does not transform the

nature of the damages when the limit is removed.

Noneconomic damages are not subject to the same

substantive and procedural due process limitations

as punitive damages. Title 23 O.S. 2011 §61.2(C) is

not unconstitutional under the due process clause.

IV.

Admissibility of Evidence

¶26 The defendants propose that the trial court

erred by improperly admitting evidence. Error may

not be predicated upon an evidentiary ruling unless

a substantial right of a party is affected and a timely

objection or offer of proof was made. 12 0.S.2001

§2104(A)(1) and (2). The trial court stands as a gatekeeper in admitting or excluding evidence based on

an assessment of its relevance and reliability, and we

will not disturb its ruling absent a clear abuse of dis-

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cretion. Myers v. Missouri Pacific R. Ca, 2002 OK 60,

736, 52 P.3d 1014, 1033.

A.

¶27 Welco contends it is entitled to a new trial

because the trial court abused its discretion in admitting prejudicial evidence regarding Welco of Texas. Welco asserts the Texas company was a separate

entity yet Galier relied on its conduct in establishing

the standards imposing punitive damages or removing the limit on noneconomic damages.

¶28 The record shows that Welco’s former president was one of three owners of Welco and one of

four owners of the Texas company. The jury was entitled to draw legitimate inferences from these facts.

Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶18,

256 P.3d 1021, 1030. That the former president and

part owner of both companies would have had familiarity with regulatory issues affecting the companies’

common business is a legitimate inference. Welco

had the opportunity to put on evidence controverting

the inference, and the jury was entitled to decide

which evidence to believe. Id. The trial court did not

abuse its discretion in admitting the evidence.

B.

¶29 Murco contends the trial court erred in admitting the written materials distributed at an Asbestos Symposium attended by Murco’s founder, the

current owner’s father.

¶30 The parties agree the document was authenticated. The trial court admitted it as a business record. The subject matter of the conference was the

carcinogenic action of asbestos. As discussed above,

the jury was entitled to draw a legitimate inference

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that Murco’s founder, as an attendee at the conference, heard at least some of the matters presented

and therefore was aware that asbestos had adverse

health effects. The current president of Murco was

the daughter of the past president. She testified that

her father would have done anything that he knew to

do to act reasonably and safely in making and selling

products. The conference materials were relevant to

contradict her testimony. The trial court did not

abuse its discretion in admitting them.

C.

¶31 Murco also contends the trial court erred in

admitting evidence of a ban by the Consumer Product Safety Commission on the use of asbestos in joint

compound effective January 15, 1978 because the

ban was not during a relevant time period.

¶32 Galier’s older brother testified that their father was selling lots in developments from 1970 to

1979. He said he and his brother accompanied their

father to construction sites and cleaned up dust left

after the joint compound was sanded. In addition, he

said they made a game of throwing dried blobs of

joint compound at each other and the clumps would

break apart upon impact. This evidence supports the

relevance of the 1978 ban. The trial court did not

abuse its discretion in admitting evidence of the ban.

V.

Sufficiency of Evidence

¶33

Defendants assert the verdict is not

supported by competent evidence. In an action at

law, the jury’s verdict is conclusive as to questions of

fact. Florafax Int’l, Inc. v. GTE Mkt. Res., Inc., 1997

OK 7, ¶3, 933 P.2d 282, 287. If there is any compe-

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tent evidence reasonably tending to support the verdict, we will not disturb the verdict or the trial

court’s judgment based on the verdict. Id. The jury

acts as the exclusive arbiter of the credibility of the

witnesses and the weight of the evidence. Id. We will

determine the sufficiency of the evidence in light of

the evidence tending to support it, together with every reasonable inference that may be drawn therefrom, rejecting all conflicting evidence. Id_

A.

¶34 Welco contends the jury’s conclusion that only Welco and Murco caused Galier’s alleged injury is

not supported by the evidence. The verdict form

listed not only the Defendants but also thirteen

named non-parties, and asked the jury to apportion

liability among them. The jury found each of the nonparties zero percent liable.

¶35 The jury should consider the negligence of

tortfeasors not parties to the lawsuit in order to

properly apportion the negligence of those tortfeasors

who are parties. Paul v. N. L. Indus., Inc., 1980 OK

127, ¶5, 624 P.2d 68, 69. However, in order to apportion liability to a nonparty, there must be proof of

negligence on the part of the nonparty. Gowens v.

Barstow, 2015 OK 85, 132, 364 P.3d 644, 654-55 (testimony of a dangerous intersection did not require

the judge to apportion the liability of the city in absence of evidence that the city was negligent). It is

the jury’s role to determine whether any particular

defendant or named non-party is liable for negligence. A judgment is not reversible merely because

the evidence might have supported a verdict different from that rendered by the jury.

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B.

¶36 Murco contends the evidence was insufficient

to

prove

that

Galier

was

significantly and regularly exposed to Murco’s asbestos compound over an extended period or that the

wet-based product caused him to contract mesothelioma. Murco argues the parties agreed to the jury instruction on direct cause stating, “There must be evidence of exposure to a specific product on a regular

basis over some extended period of time in proximity

to where the Plaintiff was present.”

¶37 Murco’s president testified that Murco manufactured asbestos joint compound from 1971 to

1978, and introduced an asbestos-free compound in

1975, but most of its sales continued to be of the asbestos compound. Galier testified that he had regular

exposure between 1971 and 1975, when he accompanied his father to hundreds of job sites. He said he

was on the work sites three to four times per month

for a few hours at a time. He testified there was dust

in the air, and he was present while drywallers

sanded the dried compound. He said he scraped blobs

of joint compound off the floor and swept up construction debris, including joint compound dust. He

denied he was only exposed to residual debris after

someone else had cleaned up. He said he saw the

name Murco on boxes at the sites over the years.

Murco’s joint compound was a pre-mixed wet product

that came in boxes with a liner.

¶38 This record presents competent evidence to

support the jury’s finding of a significant probability

that Galier was regularly and significantly exposed

to Murco’s asbestos-containing product. We will not

disturb its verdict.

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C.

¶39 Murco also contends the evidence was insufficient to support the amounts awarded as either

economic or noneconomic damages, or to support the

requisite finding of misconduct to remove the statutory limit on noneconomic damages.

¶40 The measure of damages for a tort claim is

“the amount which will compensate for all detriment

proximately caused thereby, whether it could have

been anticipated or not.” 23 O.S. 2011 §61. In a civil

action arising from a claimed bodily injury, the

amount of compensation which the trier of fact may

award a plaintiff for economic loss is not subject to

any limitation. §61.2(A). There is no limit on noneconomic damages if the fact-finder finds, by clear and

convincing evidence, that the defendant acted in

reckless disregard for the rights of others, with gross

negligence, fraudulently, intentionally, or with malice. §61.2(C). If the injury is subjective and such that

laypersons cannot with reasonable certainty know

whether or not there will be future pain and suffering, then expert testimony is required. Reed v. Scott,

1991 OK 113, ¶9, 820 P.2d 445, 449. Proof of future

medical expenses and permanent injury or disability

also requires expert testimony. Godfrey v. Meyer,

1996 OK CIV APP 124, V, 933 P.2d 942, 943.

¶41 Galier’s evidence of economic damages was

future medical treatment. Given that he was asymptomatic, not receiving medical treatment, and his injury was a diagnosis some years earlier, expert testimony was necessary to constitute competent evidence of his subjective injuries. Plaintiffs expert testified that the cost of mesothelioma treatment could

exceed $1 million. As for non-economic damages, the

expert testimony established that the progression of

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the disease is very painful, symptoms will likely

begin within ten years, and Galier likely will not

survive long after he becomes symptomatic.

¶42 As evidence of misconduct, Galier points to

evidence that Murco opposed the 1978 ban on asbestos, continued manufacturing asbestos products until

the day the ban took effect, and continued buying asbestos and selling asbestos products after the ban.

¶43 This record supports the jury’s award of economic and non-economic damages, as well as its finding of clear and convincing evidence of culpable misconduct.

VI.

In Personam Jurisdiction

¶44 Murco contends that the trial court erroneously denied its motion to dismiss for lack of in

personam jurisdiction. We review this proposition de

novo as a challenge to the validity of the judgment.

In personam jurisdiction requires sufficient minimum contacts with the State of Oklahoma so that

the exercise of jurisdiction does not offend traditional

notions of fair play and substantial justice. Guffey v.

Ostonakulov, 2014 OK 6, 114, 321 P.3d 971, 975. The

question is whether the totality of the contacts

makes an exercise of jurisdiction proper. Id. at ¶19.

The focus is on whether there is some act by which

the defendant purposefully availed itself of the privilege of conducting activities within the forum state,

thus invoking the benefits and protections of its

laws. Id. at ¶16.

¶45 Murco is a Texas corporation and its place of

business is Fort Worth, Texas. Murco’s president

agreed that Murco’s documents showed tens of thou-

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sands of sales in a two-year period directed to Oklahoma, beginning in 1972. In the 1970’s, Murco employed a salesperson who had a sales territory of a

300-mile radius from Fort Worth, Texas, with eight

purchasers in Lawton, Oklahoma City, Stonewall,

and Duncan. Murco also entered into an agreement

with Flintkote Company in Oklahoma City whereby

Murco would apply a Flintkote label onto its Murco

product for resale by Flintkote.

¶46 We conclude that the State of Oklahoma had

in personam jurisdiction over Murco. The totality of

circumstances convinces us that Murco purposefully

availed itself of the privilege of conducting activities

within Oklahoma. The judgment against Murco is

not void for lack of personal jurisdiction.

VII.

Jury Instructions

¶47 In reviewing jury instructions on appeal, we

must consider the instructions as a whole. Dutsch v.

Sea Ray Boats, Inc., 1992 OK 155, ¶7, 845 P.2d 187,

189. The instructions need not be ideal but must reflect Oklahoma law regarding the subject at issue.

Id. The test for error in instructions is whether the

jurors were probably misled regarding the legal

standards they should apply to the evidence. Id. We

will not reverse a judgment based on misdirection of

the jury unless we conclude that the error probably

resulted in a miscarriage of justice. 20 O.S. 2011

§3001.1.

A.

¶48 Murco contends the trial court erred in refusing a limiting instruction on post-1975 laws and

events because the evidence showed that Galier was

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not regularly exposed to asbestos-containing products at home sites after 1975. It argues that the trial

court conditionally admitted the evidence, based on

the representation that subsequent testimony would

show that Galier was exposed to Murco’s joint compound during that period. The trial court refused the

requested instruction on the ground a jury question

was presented. The proposed instruction stated:

LIMITING INSTRUCTION

Testimony was offered into evidence of Michael Galier’s alleged exposure to Defendants’ asbestos containing products from 1976

to 1979. Such evidence of alleged exposure to

Defendants’ asbestos containing products

from 1976 to 1979 was received conditioned

upon evidence substantiating exposure to Defendants’ asbestos containing products from

1976 to 1979.

You are now instructed that you must not

consider any evidence or testimony regarding

any alleged exposure to Defendants’ asbestos

containing product subsequent to 1976. You

are further instructed that you must not consider any testimony or evidence as to Murco’s

Wall Products, Inc.’s Welco Manufacturing

Company’s, or Red Devil Inc.’s alleged

knowledge of asbestos, alleged use of asbestos or asbestos containing products, or any

alleged ban on the use of asbestos in joint

compound or caulk subsequent to 1976.

¶49 First, we note that the instruction is confusing and internally inconsistent. It acknowledges

there was evidence of post-1975 exposure, but instructs the jury to ignore evidence of post-1975 expo-

25a

sure and events because there was not evidence substantiating post-1975 exposure. Second, Murco offers

no precedential authority in support of its limiting

instruction. The trial court did not err in refusing to

submit the limiting instruction to the jury.

B.

¶50 Murco contends the trial court erred by refusing a failure-to-mitigate instruction because

Galier decided to decline further medical testing.

“The duty to mitigate damages in a personal injury

action merely requires the use of ordinary care to secure timely medical treatment after an injury.”

James v. Midkiff, 1994 OK CIV APP 165, ¶4, 888

P.2d 5, 6. Galier’s decision to forego testing could

have no effect on his damages because there was no

evidence that he could have benefitted from any

treatment while he was asymptomatic. The trial

court did not err in refusing the instruction.

¶51 For the foregoing reasons, the trial court’s

judgment is AFFIRMED.

BELL, J., and SWINTON, J. (sitting by designation),

concur.

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APPENDIX C

IN THE DISTRICT COURT OF OKLAHOMA

COUNTY

STATE OF OKLAHOMA

MICHAEL D. GALIER

v.

BORG-WARNER MORSE TEC INC., ET AL.

CASE NO. CJ-2012-6920

JUDGE BRYAN C. DIXON

JOURNAL ENTRY

On the 21st day of June, 2013, this matter came

on before me, the undersigned Judge, on Defendant

MURCO WALL PRODUCTS, INC.’s Motion to Dismiss for Lack of Personal Jurisdiction, and the Court

having read the various briefs, responses, and replies

filed by the parties’ attorneys, and having given the

Motion due consideration, finds that the Court has

general jurisdiction over Defendant MURCO WALL

PRODUCTS, INC.

IT IS THEREFORE ORDERED, ADJUDGED

AND DECREED by the Court that the Motion to

Dismiss for Lack of Personal Jurisdiction of the Defendant is denied.

/s/ Bryan C. Dixon

BRYAN C. DIXON

JUDGE OF THE DISTRICT COURT