Petition for Writ of Certiorari — Murco Wall Products, Inc., Petitioner v. Michael D. Galier
Supreme Court briefFeb 22, 2023
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No.
In the Supreme Court of the United States
MURCO WALL PRODUCTS, INC.,
v.
Petitioner,
MICHAEL D. GALIER,
Respondent.
On Petition for a Writ of Certiorari to
the Oklahoma Supreme Court
PETITION FOR A WRIT OF CERTIORARI
HARVEY D. ELLIS JR.
EVAN M. TAGER
Crowe & Dunlevy
Counsel of Record
324 North Robinson Ave., MINH NGUYEN-DANG
Suite 100
Mayer Brown LLP
Oklahoma City, OK 73102 1999 K Street NW
(405) 235-7743
Washington, DC 20006
(202) 263-3000
GREGORY L. DEANS
etager@mayerbrown.com
KATHERINE H. STEPP
Deans Stepp Law
325 N. Saint Paul St.,
Suite 1500
Dallas, TX 75201
(214) 572-1919
Counsel for Petitioner
QUESTIONS PRESENTED
This Court has held that a state court can exercise
specific personal jurisdiction over a non-resident defendant with respect to a plaintiff ’s cause of action
consistent with the Due Process Clause of the Fourteenth Amendment only when (1) the defendant has
sufficient minimum contacts with the State that show
that it has purposefully availed itself of the privilege
of conducting activities in the State; (2) the plaintiff ’s
cause of action arises out of or relates to those forum
contacts; and (3) the exercise of personal jurisdiction
would comport with traditional notions of fair play
and substantial justice. Ford Motor Co. v. Montana
Eighth Judicial Dist. Ct., 141 S. Ct. 1017, 1024-1025
(2021). In this case, the Oklahoma Supreme Court
found this standard satisfied solely because there was
evidence that the defendant made a small number of
sales of some of its allegedly defective products to customers based in Oklahoma even though there was no
evidence that those customers used or resold the products in Oklahoma.
The questions presented are:
1. Whether the “minimum contacts” requirement
for specific jurisdiction is satisfied whenever a defendant has made limited sales of products to customers
based in the forum State, even when there is no evidence that those customers used or resold those products in that State.
2. If the answer to question 1 is yes, whether a
plaintiff ’s cause of action can be said to relate to or
arise out of the defendant’s forum contacts in the absence of evidence about which of the defendant’s products allegedly caused the plaintiff ’s injury.
ii
PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE STATEMENT
Petitioner Murco Wall Products, Inc., was defendant/appellant before the Oklahoma Supreme Court.
Murco Wall Products, Inc., has no parent corporation.
No publicly held company owns 10% or more of its
stock.
Respondent Michael D. Galier was plaintiff/appellee before the Oklahoma Supreme Court.
iii
TABLE OF CONTENTS
Page
Opinions Below ............................................................1
Jurisdiction ..................................................................1
Constitutional Provision Involved ..............................1
Introduction .................................................................1
Statement ....................................................................3
A. Factual Background ........................................3
B. Proceedings Below ...........................................7
Reasons For Granting The Petition.......................... 10
I. The Court Should Grant Review Of The
Purposeful-Availment Question .......................... 10
A. State And Federal Courts Are Profoundly
Divided On The Question Presented ............ 11
B. The Decision Below Is Incorrect ................... 17
C. This Is An Ideal Case For The Court To
Resolve This Important Issue ....................... 23
II. The Court Should Grant Review Of The
Arise-Out-Of-Or-Relate-To Question .................. 25
Conclusion ................................................................. 30
Appendix A – Oklahoma Supreme Court
decision (Oct. 25, 2022) .................. 1a
Appendix B – Oklahoma Court of Civil Appeals
decision (July 19, 2018) ................ 19a
Appendix C – United States Supreme Court
order (Feb. 20, 2018)..................... 53a
Appendix D – Oklahoma Supreme Court order
(June 19, 2017) ............................. 54a
Appendix E – Oklahoma Court of Civil Appeals
decision (Feb. 3, 2017) .................. 55a
Appendix F – Disrict Court of Oklahoma County
Journal Entry (June 21, 2013) ..... 78a
iv
TABLE OF AUTHORITIES
Cases
Page(s)
AFTG-TG, LLC v. Nuvoton Tech. Corp.,
689 F.3d 1358 (Fed. Cir. 2012) ............................ 17
Ainsworth v. Moffett Eng’g, Ltd.,
716 F.3d 174 (5th Cir. 2013) ................................ 15
Align Corp. Ltd. v. Allister Mark Boustred,
421 P.3d 163 (Colo. 2017) .............................. 15, 22
Asahi Metals Indus. Co. v. Superior Ct.,
480 U.S. 102 (1987)
................................ 2, 10, 12, 13, 14, 15, 18, 19, 23
Book v. Doublestar Dongfeng Tyre Co.,
860 N.W.2d 576 (Iowa 2015).......................... 15, 17
Bridgeport Music, Inc. v. Still N The Water Publ’g,
327 F.3d 472 (6th Cir. 2003) ................................ 16
Bristol-Myers Squibb Co. v. Superior Ct. of Cal.,
137 S. Ct. 1773 (2017) ...................................... 2, 11
Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) ........................................ 12, 20
California Div. of Lab. Standards Enforcement v.
Dillingham Constr., N.A., Inc.,
519 U.S. 316 (1997) .............................................. 28
In re Chinese-Manufactured Drywall Prods. Liab.
Litig., 742 F.3d 576 (5th Cir. 2014) ..................... 17
In re Chinese-Manufactured Drywall Prods. Liab.
Litig., 753 F.3d 521 (5th Cir. 2014) ..................... 16
Dever v. Hentzen Coatings, Inc.,
380 F.3d 1070 (8th Cir. 2004) .............................. 16
Dilworth v. LG Chem, Ltd., — So. 3d —, 2022 WL
7274532 (Miss. Oct. 13, 2022).............................. 23
Ex Parte Edgetech I.G., Inc.,
159 So. 3d 629 (Ala. 2014) ................................... 15
v
TABLE OF AUTHORITIES
(continued)
Cases
Page(s)
State ex rel. Edmonson v. Native Wholesale Supply,
237 P.3d 199 (Okla. 2010).................................... 25
ESAB Grp., Inc., v. Zurich Ins.,
685 F.3d 376 (4th Cir. 2012) ................................ 16
Evers v. FSF Overlake Assocs.,
77 P3d. 581 (Okla. 2003)...................................... 18
State ex rel. Ford Motor Co. v. McGraw,
788 S.E.2d 319 (W. Va. 2016) ........................ 15, 24
Ford Motor Co. v. Montana Eighth Judicial Dist. Ct.,
141 S. Ct. 1017 (2021)
.................... 3, 11, 12, 20, 21, 23, 25, 26, 27, 28, 29
Griffin v. Ste. Michelle Wine Ests. Ltd.,
491 P.3d 619 (Idaho 2021) ............................. 15, 19
Hanson v. Denckla,
357 U.S. 235 (1958) .............................................. 11
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984) .............................................. 20
Holder v. Haarmann & Reimer Corp.,
779 A.2d 264 (D.C. 2001) ..................................... 16
International Shoe v. Washington,
326 U.S. 310 (1945) ........................................ 12, 21
J. McIntyre Mach., Ltd. v. Nicastro,
564 U.S. 873 (2011) .................. 2, 10, 14, 20, 23, 25
J.S.T. Corp. v. Foxconn Interconnect Tech. Ltd.,
965 F.3d 571 (7th Cir. 2020) .......................... 15, 17
Kernan v. Kurz-Hastings, Inc.,
175 F.3d 236 (2d Cir. 1999) ................................. 16
Knox v. MetalForming, Inc.,
914 F.3d 685 (1st Cir. 2019) ................................ 16
vi
TABLE OF AUTHORITIES
(continued)
Cases
Page(s)
Kopke v. A. Hartrodt S.R.L.,
629 N.W.2d 662 (Wis. 2001) ................................ 15
Lesnick v. Hollingsworth & Vose Co.,
35 F.3d 939 (4th Cir. 1994) .................................. 24
State ex rel. LG Chem, Ltd. v. McLaughlin,
599 S.W.3d 899 (Mo. 2020) ...................... 16, 19, 23
LNS Enters. LLC v. Continental Motors, Inc.,
22 F.4th 852 (9th Cir. 2022) .............. 16, 26, 27, 28
Luciano v. SprayFoamPolymers.com, LLC,
625 S.W.3d 1 (Tex. 2021) ..................................... 16
Madara v. Hall,
916 F.2d 1510 (11th Cir. 1990) ............................ 16
Montgomery v. Airbus Helicopters, Inc.,
414 P.3d 824 (Okla. 2018).............................. 17, 18
Rilley v. MoneyMutual, LLC,
884 N.W.2d 321 (Minn. 2016) .............................. 16
Ruckstuhl v. Owens Corning Fiberglas Corp.,
731 So. 2d 881 (La. 1999)..................................... 17
Russell v. SNFA,
987 N.E.2d 778 (Ill. 2013) .............................. 17, 19
Shuker v. Smith & Nephew, PLC,
885 F.3d 760 (3d Cir. 2018) ................................. 16
State v. Atlantic Richfield Co.,
142 A.3d 215 (Vt. 2016) ....................................... 15
State v. LG Elecs., Inc.,
375 P.3d 1035 (Wash. 2016) ................................ 15
State v. NV Sumatra Tobacco Trading Co.,
403 S.W.3d 726 (Tenn. 2013) ............................... 16
vii
TABLE OF AUTHORITIES
(continued)
Cases
Page(s)
Walden v. Fiore,
571 U.S. 277 (2014) ........................................ 18, 20
Willemsen v. Invacare Corp.,
282 P.3d 867 (Ore. 2012) ..................................... 15
Williams v. Romarm, SA,
756 F.3d 777 (D.C. Cir. 2014) .............................. 17
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980) ............................ 11, 12, 21, 23
XMission, L.C. v. Fluent LLC,
955 F.3d 833 (10th Cir. 2020) .............................. 16
Yee v. City of Escondido,
503 U.S. 519 (1992) .............................................. 24
Constitution and Statutes
U.S. Const. amend. XIV, § 1, cl. 2 ......................... 1, 11
28 U.S.C. 1257(a)......................................................... 1
Okla. Stat. tit. 12, § 2004(F) ..................................... 25
Other Authorities
Map Developers, Draw a Circle, https://
perma.cc/SCV6-5KQG?type=image
(created Feb. 5, 2023)............................................. 5
MOORE’S FEDERAL PRACTICE – CIVIL (2022) .............. 15
CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE CIVIL
(4th ed. 2022).................................................. 12, 17
PETITION FOR A WRIT OF CERTIORARI
Petitioner Murco Wall Products, Inc., respectfully
petitions for a writ of certiorari to review the judgment of the Oklahoma Supreme Court in this case.
OPINIONS BELOW
The opinion of the Oklahoma Supreme Court
(App., infra, 1a-18a) is reported at 2022 OK 85. The
opinion of the Oklahoma Court of Civil Appeals (App.,
infra, 19a-52a) is not reported. An earlier relevant
opinion of the Oklahoma Court of Civil Appeals (App.,
infra, 55a-77a) is unreported, as is an earlier relevant
journal entry of the District Court of Oklahoma
County (App., infra, 78a).
JURISDICTION
The Oklahoma Supreme Court issued its opinion
on October 25, 2022. App., infra, 1a. On January 12,
2023, Justice Gorsuch extended the time for filing a
petition for a writ of certiorari in this Court to and including February 22, 2023. The jurisdiction of this
Court is invoked under 28 U.S.C. 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law.
INTRODUCTION
This is the second time that this products-liability
action has reached this Court, and the second time
that the Oklahoma courts have adopted an unacceptably overreaching approach to personal jurisdiction.
The first time, this Court granted, vacated, and remanded for further consideration in light of its then-
(1)
2
recent decision in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017). The
Court should step in again now.
Respondent Michael Galier, a citizen of Oklahoma,
alleges that he was exposed to asbestos-containing
products manufactured by petitioner Murco Wall
Products, Inc., a company based in Texas. Galier sued
Murco in state court in Oklahoma. Initially, the Oklahoma Court of Civil Appeals held that the trial court
could exercise general personal jurisdiction over
Murco. This Court vacated that decision in light of
Bristol-Myers. On remand, the Oklahoma appellate
court switched tack, holding that the trial court could
exercise specific personal jurisdiction. The Oklahoma
Supreme Court affirmed, holding that Murco’s limited
sales to a handful of Oklahoma-based customers was
sufficient to show that it had purposefully availed itself of the Oklahoma market, and that respondent’s
claim arises out of or relates to those sales even
though he could not identify which of Murco’s products allegedly caused his injury.
Both aspects of the Oklahoma Supreme Court’s decision warrant this Court’s review. The state court’s
purposeful-availment holding typifies the confusion
among the lower courts about when a defendant can
be said to have purposefully availed itself of the privilege of doing business in a forum State based on its
sale of products that end up in the State. This Court
has twice granted review to address that issue, but on
both occasions no position commanded a majority of
the Court. See J. McIntyre Mach., Ltd. v. Nicastro,
564 U.S. 873, 885-886 (2011) (plurality op.); id. at 888889 (Breyer, J., concurring); Asahi Metals Indus. Co.
v. Superior Ct., 480 U.S. 102, 108-112 (1987) (lead op.
of O’Connor, J.); id. at 116-117 (Brennan, J., concurring). That lack of a definitive resolution has led the
3
lower courts to adopt expressly conflicting approaches. Those conflicting approaches include the
foreseeability-based approach effectively employed by
the court below, under which the existence of personal
jurisdiction can depend solely on the independent actions of third parties, an approach that provides no
warning or certainty to defendants. The Court should
grant review to resolve this impasse once and for all.
The Oklahoma Supreme Court’s second holding,
that respondent’s claim arises out of or relates to
Murco’s purported Oklahoma contacts, also warrants
review. It runs roughshod over this Court’s admonition that there must be a “close,” “significant,” and
“strong” relationship among the defendant, the forum,
and the litigation. Ford Motor Co. v. Montana Eighth
Judicial Dist. Ct., 141 S. Ct. 1017, 1028, 1030, 1032
(2021). In effect, the court below held that respondent’s claim was sufficiently related to Murco’s forum
contacts merely because some of Murco’s products
used in Oklahoma may have contained asbestos, and
respondent is claiming exposure to asbestos. That is
the type of “anything goes” approach that this Court
rejected in Ford. Id. at 1026. The Court should grant
review to nip this unwarranted expansion of specific
personal jurisdiction in the bud.
STATEMENT
A. Factual Background
1. Murco is a family owned and operated company
that has been a supplier of drywall materials, tools,
and other supplies since 1971. It is incorporated in
Texas and maintains its principal place of business in
Fort Worth, Texas. App., infra, 3a. Murco’s product
line included joint compound products, some of which
contained asbestos from 1971 until 1978, when the
sale of such products was prohibited by the Consumer
4
Product Safety Commission (“CPSC”). Tr. of Proceedings, Afternoon Session 53-54, 164, Galier v. Murco
Wall Prods., Inc., No. CJ-2012-6920 (Okla. Dist. Ct.
May 5, 2015).
Murco has never had any offices, employees,
agents, or property in Oklahoma. App., infra, 22a; see
Okla. Sup. Ct. ROA 47-48. It has never advertised in
Oklahoma, has never registered to do business in Oklahoma, and has never had any affiliates in that State.
Ibid. Instead, all of its offices, employees, and operations, including its sole manufacturing plant, have always been in Texas. Ibid.
Respondent relies on two purported connections
between Murco and Oklahoma. See App., infra, 3a4a. First, in the 1970s, eight of Murco’s customers had
Oklahoma addresses. Ibid. Between 1972 and 1973,
when Murco had just four employees, Murco made 43
sales to seven of those customers; one customer did
not buy anything from Murco. Id. at 23a-24a; see
Okla. Sup. Ct. ROA 82-89; Tr. of Proceedings, Afternoon Session 104, Galier, supra (May 6, 2015).1 Those
sales were for 14 different products, only some of
which contained asbestos. See App., infra, 23a-24a;
Okla. Sup. Ct. ROA 82-89. For one of its customers,
Flintkote, Murco sold both products packaged with
the customer’s private label and products packaged
with its own label. App., infra, 4a, 24a n.2; see Okla.
Sup. Ct. ROA 268-270, 273-277. There is no evidence
in the record as to where any of those customers
placed their orders (Oklahoma or Texas), as to
whether Murco shipped the orders to Oklahoma or
The courts below converted those 43 sales into “units,” meaning individual boxes, bags, or buckets of joint compound. See
App., infra, 3a-4a, 23a n.1. The resulting number gave the appearance of a far greater degree of commercial activity.
1
5
whether the customers picked up the orders in Texas,
or as to whether the customers used or resold the
products in Oklahoma.
Second, in 1977, Murco’s founder wrote a letter to
the CPSC, in which he stated that Murco “has one
salesman, covering about a 300 mile radius of Fort
Worth.” App., infra, 4a (cleaned up). That statement
describes an area that mainly consists of northern,
eastern, and central Texas, as well as parts of Oklahoma, Arkansas, and Louisiana:
Map Developers, Draw a Circle, https://perma.cc/
SCV6-5KQG?type=image (created Feb. 5, 2023). The
evidence showed that Murco had chosen the 300-mile
radius due to shipping costs. App., infra, 23a. There
is no evidence in the record as to whether that salesman actually visited any State other than Texas as
part of his duties, much less as to whether the salesman made any sales in Oklahoma.
6
2. Respondent injured himself at work and was diagnosed with a hernia in April 2011. Tr. of Proceedings, Afternoon Session 124-125, Galier, supra (May
11, 2015). After he underwent hernia surgery in
March 2012, the excised hernia sac was sent for routine pathology, where it tested positive for mesothelioma. Id. at 125. Respondent has never exhibited any
symptom of mesothelioma. Id. at 141. Respondent
has been tested for mesothelioma several times since
that result; all of the tests were negative. Id. at 126139. More recently, against medical advice, respondent has declined to take subsequent tests or seek any
treatment for mesothelioma. Id. at 138-139.
Respondent’s theory is that he contracted mesothelioma due to asbestos exposure as a child. Respondent’s father was a general contractor and real estate
agent. Tr. of Proceedings, Afternoon Session 31,
Galier, supra (May 11, 2015). Respondent asserts
that, between 1969 and 1979, he visited his father’s
jobsites in Oklahoma, where he was exposed to joint
compounds that contained asbestos. Id. at 151; see
App., infra, 4a-5a.
Respondent has never provided any details as to
what Murco products allegedly caused his injury.
During his deposition, respondent recited an alphabetical list of joint compound brands he recalled seeing as a child. Tr. of Proceedings, Afternoon Session
98, Galier, supra (May 11, 2015). He initially did not
include Murco, after which his lawyer demanded a
break. Ibid. After prompting from his lawyer during
the break, respondent added that he also remembered
seeing Murco’s name on boxed joint compound as a
child in the 1970s. Id. at 99. He could not say whether
that product contained asbestos. Id. at 109; see App.,
7
infra, 4a n.2. He has never claimed to have been exposed to asbestos from products packaged with
Flintkote’s private label. App., infra, 4a n.1.
B. Proceedings Below
1. In November 2012, respondent brought a personal-injury suit in the District Court for Oklahoma
County against petitioner and 17 other manufacturers of asbestos-containing products. Pet. 1, Galier, supra (Nov. 1, 2012). Murco moved to dismiss the claim
against it for lack of personal jurisdiction. See App.,
infra, 22a. The trial court denied that motion, holding
that it could exercise general personal jurisdiction
over Murco. Id. at 78a. Murco sought interlocutory
review, to no avail.
By the time of trial, only three of the original defendants remained, with the others having settled or
been dismissed from the case. See App., infra, 33a.
The jury ultimately returned a verdict in favor of respondent and awarded him $6 million in damages for
his asymptomatic mesothelioma. Ibid. Although respondent sued at least 18 companies, and although respondent testified that he recalled several different
products being present at job sites, the jury assigned
40% of the liability to Murco – and 60% to Murco’s codefendant. Ibid. Inexplicably, the jury did not assign
any liability to the several other manufacturers that
respondent specifically identified during his testimony. Ibid.
2. Murco appealed the judgment to the Oklahoma
Court of Civil Appeals, arguing (among other things)
that the judgment was void because the trial court
had lacked personal jurisdiction over it. App., infra,
74a. That court held that the “totality” of Murco’s con-
8
tacts with Oklahoma was sufficient to support the exercise of personal jurisdiction. Id. at 75a. The Oklahoma Supreme Court denied review. Id. at 54a.
Murco filed for a petition for a writ of certiorari in
this Court. See Pet., Murco Wall Prods., Inc. v. Galier,
138 S. Ct. 982 (2018) (No. 17-733). Murco’s petition
argued that the Oklahoma appellate court’s “totality”
approach was inconsistent with this Court’s precedents on personal jurisdiction. Id. at 12-14. The
Court granted the petition, vacated the Oklahoma
Court of Civil Appeals’ judgment, and remanded the
case to that court for further consideration in light of
Bristol-Myers. App., infra, 53a.
3. On remand, the Oklahoma appellate court
again affirmed the trial court, this time concluding
that the trial court could exercise specific personal jurisdiction over Murco. App., infra, at 29a-33a.
First, the Oklahoma Court of Civil Appeals concluded that Murco “purposefully targeted its asbestos
joint compound into Oklahoma because it was within
its calculated profitability zone.” App., infra, 32a. It
based that conclusion on only two facts: (i) that Murco
had picked a 300-mile radius for its salesman because
of shipping costs and much of Oklahoma is within a
300-mile radius of Fort Worth, Texas; and (ii) that
Murco had sold joint compound to a handful of customers with Oklahoma addresses. Id. at 31a-32a.
The court then stated that respondent’s claim “ar[ose]
out of and related to” Murco’s sales that were “purposefully directed toward the State of Oklahoma.” Id.
at 32a.
The Oklahoma Court of Civil Appeals next concluded that the exercise of personal jurisdiction would
be reasonable. App., infra, 32a. It stated that Murco’s
headquarters is “relatively close to Oklahoma County”
9
and that Oklahoma citizens have an interest “in determining whether products sold into their state are
dangerous, and whether the manufacturer breached a
duty.” Ibid.
4. The Oklahoma Supreme Court granted Murco’s
petition for a writ of certiorari on the personal-jurisdiction issue, and affirmed. App., infra, 3a.
First, the court concluded that Murco had “purposefully availed” itself of the “privilege of conducting
activities within Oklahoma.” App., infra, 11a-12a.
The court principally relied on Murco’s sales to customers with Oklahoma addresses. Ibid. It placed particular weight on Murco’s sales of products with
Flintkote’s private label. Ibid. The court also relied
on the 300-mile radius that Murco had set for its
salesman; the court said that this choice of radius “disclosed [Murco’s] intent to sell its product to the majority of the state of Oklahoma.” Id. at 11a.
Next, the Oklahoma Supreme Court concluded
that respondent’s claims arise out of or relate to
Murco’s purported Oklahoma contacts. App., infra,
12a-16a. The court acknowledged that respondent
could not identify which Murco product allegedly
caused his injury or when he had been exposed to that
product, much less to whom and where Murco had
sold the product, but held that respondent did not
need to make that showing. Id. at 4a n.2, 16a. The
court held that it was enough that Murco had sought
to “serve the market for asbestos joint compound in
Oklahoma” and that respondent was alleging that exposure to asbestos joint compound caused his injury.
Id. at 16a.
Finally, the Oklahoma Supreme Court concluded
that the trial court’s exercise of specific personal jurisdiction was reasonable. App., infra, 16a-17a. It stated
10
that the burden on Murco was minimal because the
trial “occurred within Murco’s own chosen radius for
conducting business sales”; that Oklahoma had a substantial interest in adjudicating the case because the
alleged exposure occurred in Oklahoma to an Oklahoma resident; and that respondent had an interest in
“convenient relief.” Ibid. The court further stated
that it would be inefficient for the Texas courts to readjudicate this case. Id. at 17a.
REASONS FOR GRANTING THE PETITION
This Court’s review is warranted both on the question whether Murco’s limited sales to Oklahoma customers constituted purposeful availment of the Oklahoma forum, as well as on the question whether respondent’s claim arises out of or relates to those sales
despite his inability to identify which Murco product
allegedly caused his injury.
I. THE COURT SHOULD GRANT REVIEW OF
THE PURPOSEFUL-AVAILMENT QUESTION
Lower courts are hopelessly divided on when a defendant can be held to have sufficient contacts with a
forum State because its products ended up in that
State. The courts have tried to make sense of the fractured opinions in Asahi and Nicastro, but have come
to expressly conflicting conclusions. Some courts have
held that it is enough if it was foreseeable that the defendant’s products would end up in the forum State
through the regular flow of commerce, while others require something more, such as a showing that the defendant intentionally targeted the forum State.
The decision below is on the wrong side of this divide. The Oklahoma Supreme Court previously had
stated that it requires intentional targeting, but this
case demonstrates that the court, in effect, equates
11
foreseeability with targeting. This Court has explained that the due-process limits on personal jurisdiction principally protect defendants by ensuring
that they have fair warning of where they might be
sued. A foreseeability-based approach does not adequately protect defendants: It allows them to be haled
into inhospitable foreign forums based solely on the
conduct of third-party customers.
The Court should grant review to finally settle this
important issue. Companies across the nation and
the world need clarity on the rules regarding where
they can be sued, so that they can structure their affairs accordingly. And this case presents an ideal opportunity for this Court to provide the needed guidance.
A. State And Federal Courts Are Profoundly
Divided On The Question Presented
1. The Due Process Clause limits a state court’s
power to exercise personal jurisdiction over a defendant. World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 290 (1980). For a defendant that is not “essentially at home” in the State (and thus not subject
to general personal jurisdiction), the state court may
exercise specific personal jurisdiction only when three
requirements are met. Ford, 141 S. Ct. at 1024. First,
the defendant must have sufficient minimum contacts
that show that it “purposefully avail[ed] itself of the
privilege of conducting activities within the forum
State.” Id. at 1024-1025 (quoting Hanson v. Denckla,
357 U.S. 235, 253 (1958)). Second, the plaintiff ’s
cause of action must “arise out of or relate to” the defendant’s forum contacts, such that there is a strong
“affiliation between the forum and the underlying controversy.” Id. at 1025 (quoting Bristol-Myers, 137 S.
Ct. at 1780). Last, the exercise of specific personal jurisdiction must be consistent with “traditional notions
12
of fair play and substantial justice.” Id. at 1024 (quoting International Shoe v. Washington, 326 U.S. 310,
316-317 (1945)); see Burger King Corp. v. Rudzewicz,
471 U.S. 462, 476-478 (1985). These requirements ensure that defendants are treated fairly and protect interstate federalism. Ford, 141 S. Ct. at 1025.
One question that has repeatedly arisen is
whether a seller of products purposefully availed itself
of a forum State when its products foreseeably ended
up in that State through the regular flow of commerce.
This is often referred to as the “stream of commerce”
theory. E.g., 4 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE & PROCEDURE CIVIL
§ 1067.4 (4th ed. 2022) (“WRIGHT & MILLER”). This
Court has granted review three times to address that
question, but in the two more recent cases no position
commanded a majority of the Court.
This Court first addressed the stream-of-commerce
theory in World-Wide Volkswagen, which involved a
car sold in New York that caught fire while the owners
were driving through Oklahoma. 444 U.S. at 288.
The Oklahoma Supreme Court upheld the state
court’s exercise of personal jurisdiction over the car’s
distributor (which operated solely in New York, New
Jersey, and Connecticut) and dealer (which operated
solely in New York) on the theory that it should have
been foreseeable to them that the car would be used
in Oklahoma. Id. at 288-290. This Court reversed,
explaining that “ ‘foreseeability’ alone has never been
a sufficient benchmark for personal jurisdiction.” Id.
at 295. The Court held that the owner’s unilateral decision to drive the car to Oklahoma did not show that
either the distributor or the dealer purposefully
availed itself of that State. Id. at 298.
The Court revisited the issue in Asahi, which involved a suit against a Japanese manufacturer of tire
13
valves following a tire malfunction in California. 480
U.S. at 106. The tire-valve manufacturer had sold
thousands of valves to a tire manufacturer in Taiwan,
which in turn had sold finished tires to stores in the
United States (including in California). Id. at 106107. This Court held that the California state court
could not exercise personal jurisdiction over the tirevalve manufacturer consistent with due process, id. at
108, but no opinion on the purposeful-availment requirement commanded a majority of the Court.
Writing for four Justices, Justice O’Connor took
the position that “[t]he placement of a product into the
stream of commerce, without more, is not an act of the
defendant purposefully directed toward the forum
State,” even if it was foreseeable that the product
might end up in the State. Asahi, 480 U.S. at 112
(lead op. of O’Connor, J.). For Justice O’Connor, there
needed to have been additional conduct that indicated
an “intent or purpose to serve the market in the forum
State,” such as designing the product for that market
or advertising in that forum. Ibid.
In contrast, Justice Brennan, also writing for four
Justices, took the position that no additional showing
beyond “the regular and anticipated flow of products”
into a State was required. Asahi, 480 U.S. at 117
(Brennan, J., concurring in part). In his view, it would
be enough that the defendant had been aware that its
product was regularly being sold in the forum. Ibid.
Justice Sevens, writing for himself and two of the
Justices who also had joined Justice Brennan’s opinion, took the position that it was unnecessary to decide
the purposeful-availment issue. Asahi, 480 U.S. at
121 (Stevens, J., concurring in part).
14
The Court returned to the issue in Nicastro, but
again was unable to form a majority. That case involved a metal-shearing machine manufactured in
England that had allegedly malfunctioned in New
Jersey. 564 U.S. at 878 (plurality op.). The evidence
showed that the manufacturer sold its machines in
the United States exclusively through an independent
nationwide distributor and had never visited New Jersey to advertise its machines, and that only one machine (and at any rate no more than four) had likely
ended up in New Jersey. Ibid.
Justice Kennedy, writing for four Justices, recognized that the jurisdictional rules were “unclear” following Asahi. Nicastro, 564 U.S. at 877 (plurality op.).
He would have cleared up the confusion by expressly
adopting Justice O’Connor’s position in Asahi. Id. at
883-886. Applying that position, Justice Kennedy
concluded that the manufacturer was not subject to
personal jurisdiction in New Jersey. Id. at 886-887.
Justice Breyer, writing for himself and Justice
Alito, did not take a position on Asahi. Nicastro, 564
U.S. at 889-890 (Breyer, J., concurring in the judgment). In Justice Breyer’s view, the manufacturer’s
sale of a single machine into New Jersey would not
have been sufficient under any of the approaches set
out in Asahi, and he did not go further. Id. at 889-893.
Justice Ginsburg, writing for three Justices, dissented. Nicastro, 564 U.S. at 893 (Ginsburg, J., dissenting). In Justice Ginsburg’s view, the manufacturer had purposefully availed itself of the nationwide
market and therefore could reasonably be sued in a
State where its machine allegedly had caused injury.
Id. at 905-906.
As a leading treatise notes, “[t]he three opinions in
Nicastro provide no more authoritative guidance to
15
the lower courts on the stream-of-commerce question
than did the three opinions in Asahi.” 16 MOORE’S
FEDERAL PRACTICE – CIVIL § 108.42[4][b] (2022). The
Court clearly has rejected the view that a single isolated sale can constitute sufficient minimum contacts,
but the Court’s guidance is lacking on what volume of
“regular” sales would be sufficient, whether additional
conduct is required, and, if so, what type of conduct
and how extensive it must be.
2. Lacking definitive guidance from this Court,
the federal courts of appeals and state courts of last
resort have adopted expressly conflicting positions.
The courts principally fall into two camps. In one
camp are the courts that broadly hold that a seller of
products purposefully avails itself of a forum State if
its products foreseeably end up in the State through
the regular flow of commerce. This camp includes the
Fifth and Seventh Circuits, along with (at least) the
highest courts of Alabama, Colorado, Idaho, Iowa, Oregon, Vermont, Washington, West Virginia, and Wisconsin. See Ainsworth v. Moffett Eng’g, Ltd., 716 F.3d
174, 178 (5th Cir. 2013); J.S.T. Corp. v. Foxconn Interconnect Tech. Ltd., 965 F.3d 571, 575-576 (7th Cir.
2020); Ex Parte Edgetech I.G., Inc., 159 So. 3d 629, 642
(Ala. 2014); Align Corp. Ltd. v. Allister Mark Boustred, 421 P.3d 163, 171 (Colo. 2017); Griffin v. Ste.
Michelle Wine Ests. Ltd., 491 P.3d 619, 635 (Idaho
2021); Book v. Doublestar Dongfeng Tyre Co., 860
N.W.2d 576, 594 (Iowa 2015); Willemsen v. Invacare
Corp., 282 P.3d 867, 874 (Ore. 2012); State v. Atlantic
Richfield Co., 142 A.3d 215, 223 (Vt. 2016); State v.
LG Elecs., Inc., 375 P.3d 1035, 1042 (Wash. 2016);
State ex rel. Ford Motor Co. v. McGraw, 788 S.E.2d
319, 342 (W. Va. 2016); Kopke v. A. Hartrodt S.R.L.,
629 N.W.2d 662, 675 (Wis. 2001).
16
In the second camp are the courts that have
adopted a narrower approach and require evidence
that the seller did something more to intentionally
target the forum State. This camp includes the First,
Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuits, as well as (at least) the highest courts of Minnesota, Missouri, Tennessee, Texas, and the District of
Columbia. See Knox v. MetalForming, Inc., 914 F.3d
685, 692 (1st Cir. 2019); Shuker v. Smith & Nephew,
PLC, 885 F.3d 760, 780 (3d Cir. 2018); ESAB Grp.,
Inc., v. Zurich Ins., 685 F.3d 376, 392 (4th Cir. 2012);
Bridgeport Music, Inc. v. Still N The Water Publ’g, 327
F.3d 472, 480 (6th Cir. 2003); Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1075 (8th Cir. 2004); LNS
Enters. LLC v. Continental Motors, Inc., 22 F.4th 852,
860 (9th Cir. 2022); XMission, L.C. v. Fluent LLC, 955
F.3d 833, 843 (10th Cir. 2020); Rilley v. MoneyMutual,
LLC, 884 N.W.2d 321, 334 (Minn. 2016); State ex rel.
LG Chem, Ltd. v. McLaughlin, 599 S.W.3d 899, 904
(Mo. 2020); State v. NV Sumatra Tobacco Trading Co.,
403 S.W.3d 726, 760 (Tenn. 2013); Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 10 (Tex.
2021); Holder v. Haarmann & Reimer Corp., 779 A.2d
264, 273 (D.C. 2001). Further, the Eleventh Circuit
has applied the something-more standard without expressly adopting it. Madara v. Hall, 916 F.2d 1510,
1519 (11th Cir. 1990); see In re Chinese-Manufactured
Drywall Prods. Liab. Litig., 753 F.3d 521, 541 (5th
Cir. 2014) (assuming that the Eleventh Circuit would
follow that approach).
There also are a number of courts that have not
expressly adopted either position and that instead assess personal jurisdiction on a case-by-case basis.
These courts include the Second, D.C., and Federal
Circuits, along with (at least) the highest courts of Illinois and Louisiana. See Kernan v. Kurz-Hastings,
17
Inc., 175 F.3d 236, 244 (2d Cir. 1999); Williams v. Romarm, SA, 756 F.3d 777, 784 (D.C. Cir. 2014); AFTGTG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1364
(Fed. Cir. 2012); Russell v. SNFA, 987 N.E.2d 778, 794
(Ill. 2013); Ruckstuhl v. Owens Corning Fiberglas
Corp., 731 So. 2d 881, 889 (La. 1999).
This circuit split is widely acknowledged, is firmly
entrenched, and will not resolve itself without this
Court’s intervention. See, e.g., J.S.T. Corp., 965 F.3d
at 575 (acknowledging that “circuit courts have split
on the issue”); In re Chinese-Manufactured Drywall
Prods. Liab. Litig., 742 F.3d 576, 586 (5th Cir. 2014)
(expressly disagreeing with the Fourth Circuit’s approach); WRIGHT & MILLER § 1067.4 (“Each approach
finds considerable representation in lower federal
court decisions.”). Indeed, the Illinois Supreme Court
has stated that it will not revisit the issue without
“more definitive guidance from a majority” of this
Court. Russell, 987 N.E.2d at 794; see also, e.g., Book,
860 N.W.2d at 596 (awaiting “further guidance from
the fractured United States Supreme Court”).
B. The Decision Below Is Incorrect
1. In the decision below, the Oklahoma Supreme
Court employed what was, in effect, the broader foreseeability-based approach – even though it had previously rejected that approach.
In Montgomery v. Airbus Helicopters, Inc., 414
P.3d 824 (Okla. 2018), the court said that it was joining the narrower, “something more” camp. In that
case, the court rejected the view that a defendant’s
sales through the regular flow of commerce amounted
to purposeful availment. Id. at 833. The court instead
indicated that it was adopting a requirement that the
defendant have taken “direct and specific conduct” in
Oklahoma. Id. at 834; see ibid. (defendant had not
18
purposefully availed itself of Oklahoma because it
“did not aim the products at Oklahoma markets”).
But in the decision below, the Oklahoma Supreme
Court – with five new members and only one member
of the Montgomery majority participating – demonstrated that its understanding of intentional targeting
is in practice no different than mere foreseeability.
The court held that Murco had “purposefully directed”
its products at the Oklahoma market based principally on its isolated and sporadic sales to seven Oklahoma-based customers. App., infra, 11a-12a. But this
Court has explained that contact with a forum resident does not amount to a contact with the forum itself. Walden v. Fiore, 571 U.S. 277, 285 (2014). A sale
of a product to a forum resident, at most, makes it
foreseeable that the resident might use the product in
the forum; it does not show an intention to target the
forum itself.
The court also relied on the 300-mile radius Murco
had set for its salesman. App., infra, 11a. But there
was no evidence that the salesman actually visited
Oklahoma; Murco’s description of his territory did not
expressly identify any State other than Texas. Id. at
4a. Respondent presented no evidence that Murco’s
salesperson actually visited Oklahoma, and in any
event the Oklahoma appellate courts had no ability to
make that factual determination in the first instance.
Evers v. FSF Overlake Assocs., 77 P3d. 581, 587 (Okla.
2003). The salesman’s radius suggests at most that it
was foreseeable that Murco’s products might find
their way into Oklahoma, given the close distance between Fort Worth and the Oklahoma border.
There was no other indication that Murco targeted
Oklahoma. Justice O’Connor provided examples of
“additional conduct” that “may indicate” an intent to
target a forum State in her opinion in Asahi, 480 U.S.
19
at 112 (lead op. of O’Connor, J.); each is absent here.
Murco did not “design[]” its joint compound for Oklahoma; “advertis[e]” in that State; “establish[] channels for providing regular advice to customers” in that
State; or “market[]” its joint compound “through a distributor who has agreed to serve as the sales agent” in
that State. Ibid.; see App., infra, 22a (Murco “has
never directed advertising to Oklahoma,” “has never
had an office, phone listing, or mailing address in Oklahoma,” and “has never had any * * * agents in Oklahoma”).2
Thus, although the Oklahoma Supreme Court has
said that it requires intentional targeting, the decision below shows that in practice the court equates
foreseeability with targeting. Indeed, the decision below is more consistent with decisions applying the
broader foreseeability approach (see, e.g., Griffin, 491
P.3d at 636-638 (manufacturer purposefully availed
itself of Idaho because its bottles foreseeably “wended
their way into Idaho”)) than with decisions applying
the narrower “something more” approach (see, e.g.,
McLaughlin, 599 S.W.3d at 903-904 (manufacturer
did not purposefully avail itself of Missouri even
The Oklahoma Supreme Court noted that Murco had privatelabeled some of its products for Oklahoma-based Flintkote. App.,
infra, 11a. That does not amount to designing products for Oklahoma. First, Murco labeled the products at Flintkote’s request;
it did not do it as part of its own strategy to target Oklahoma.
Second, Murco merely changed the label on existing products; it
did not change the product itself. Cf. Russell, 987 N.E.2d at 794795 (concluding that the defendant intentionally targeted the forum because it had designed the products at issue specifically for
a forum resident, and only for that resident). Further, even if
that labeling amounted to a cognizable contact with Oklahoma,
it was irrelevant here since respondent did not base his claims
on exposure to Flintkote’s products. App., infra, at 4a n.1.
2
20
though its batteries foreseeably were distributed in
that State)).
2. The Oklahoma Supreme Court’s decision cannot be squared with this Court’s personal-jurisdiction
precedents and the rationales that underlie them.
Starting with the doctrine: This Court has explained that the focus of the specific-personal-jurisdiction analysis is the defendant’s contacts with the forum State, not that of the plaintiff or of third parties.
Burger King, 471 U.S. at 475; Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984).
This is because the “[d]ue process limits” on a State’s
exercise of personal jurisdiction “principally protect
the liberty of the nonresident defendant,” not “the convenience of plaintiffs or third parties.” Walden, 571
U.S. at 284-285. But when a defendant’s products
merely foreseeably entered a forum State through the
regular flow of commerce, the relevant forum conduct
is that of third parties (e.g., customers or distributors),
not the defendant. The defendant has not “manifest[ed] an intention to submit to the power” of that
State, so the exercise of personal jurisdiction would violate due process. Nicastro, 564 U.S. at 882 (plurality
op.).
Turning to the rationales: The Court has explained that the specific-personal-jurisdiction rules
ensure that defendants are treated fairly and protect
interstate federalism. Ford, 141 S. Ct. at 1025. Specific personal jurisdiction reflects a quid pro quo: In
return for “enjoying the benefits and protections of its
laws,” the State “may hold the company to account for
related misconduct.” Ibid. (cleaned up). Relatedly,
the specific-personal-jurisdiction doctrine provides a
defendant with “fair warning” of where it might be
sued, allowing it the opportunity to “structure its primary conduct” to avoid exposure to a particular
21
State’s courts. Ibid. (cleaned up). And the doctrine
ensures that “States with little legitimate interest in
a suit do not encroach on States more affected by the
controversy.” Ibid. (cleaned up).
The Oklahoma Supreme Court’s decision is at odds
with those principles. To begin with, there is no quid
pro quo when a defendant’s products end up in a forum State without the defendant having intentionally
targeted that State – the defendant does not benefit
from the State’s laws. Here, for example, Murco never
sought or enjoyed the “benefits and protection” of Oklahoma laws (International Shoe, 326 U.S. at 319): It
has never sought the “enforcement of [any] contracts”
in Oklahoma, the “defense of [any] property” in Oklahoma, or the “formation of [any] effective markets” in
that State (Ford, 141 S. Ct. at 1029). The most that
can be said is that Murco derived a limited and indirect financial benefit from sales to customers who may
have then resold or used its products in Oklahoma.
Yet this Court has held that “financial benefits * * *
from a collateral relation to the forum State” are “far
too attenuated” to support personal jurisdiction.
World-Wide Volkswagen, 444 U.S. at 299.
Under the decision below, the defendant also lacks
fair warning of where it is likely to be sued. The defendant, in effect, is at the mercy of the independent
decisions of third parties, such as customers and distributors, as to where to use the defendant’s products.
Here, if Murco’s products ended up in Oklahoma, it
was because its customers chose to bring its products
to that State; it is undisputed that it did not advertise
in Oklahoma. App., infra, 22a.
Relatedly, under the decision below, the defendant
lacks the ability to structure its conduct to avoid particular States’ courts. Here, for Murco to avoid being
subject to personal jurisdiction in Oklahoma, it would
22
have needed to screen all potential customers and entered contracts with distributors expressly forbidding
them from selling products in Oklahoma or to Oklahoma-based customers. Cf. Align, 421 P.3d at 172
(upholding exercise of personal jurisdiction in part because defendant “placed no limitation” on where its
distributor could sell its products). Even then, it could
not assure itself that a Texas-based customer would
not use its products on a jobsite in neighboring Oklahoma. Given the close proximity of the two States, it
would be foreseeable that some of Murco’s products
would end up in Oklahoma, no matter what efforts
Murco might make.
Further, the decision below gives short shrift to the
federalism concerns underlying this Court’s personaljurisdiction precedents. To be sure, Oklahoma has an
interest in adjudicating claims by its citizens involving alleged injuries in that State. But Texas also has
interests here: It has an interest in regulating its citizens’ products and conduct, as well as an interest in
ensuring that its citizens are not dragged into inhospitable forums.3 Under the type of foreseeabilitybased approach employed by the court below, those interests do not register.
In sum, the approach employed by the court below
represents an unduly expansive view of specific personal jurisdiction that finds no support in this Court’s
There should be little doubt that the forum in this case was
inhospitable. Respondent was awarded millions of dollars for an
always-fatal condition that he showed (and continues to this day
to show) no signs of having. And the jury found no fault against
the many companies that respondent specifically identified as
having supplied asbestos-containing products to his father, while
at the same time finding 40% fault against Murco, a company
that he had to be prompted by counsel to even remember.
3
23
precedents. This Court should grant review to repudiate that errant approach.
C. This Is An Ideal Case For The Court To Resolve This Important Issue
1. The proper approach to the purposeful-availment requirement in the context of a defendant’s sales
of products through the regular flow of commerce is
unquestionably important. This Court has recognized
that on three occasions, when it granted review in
World-Wide Volkswagen, Asahi, and Nicastro. The
time has come for this Court to provide answers to the
questions it left unresolved in Asahi 36 years ago.
Companies across the country and the world need
those answers. That need only has grown since Asahi
as the channels of commerce have become ever more
interconnected and accessible. Now, even a “retired
guy in a small town in Maine” can “carve[] decoys and
use[] a site on the Internet to sell them” nationwide.
Ford, 141 S. Ct. at 1028 n.4 (cleaned up). Indeed,
every business that sells tangible items potentially is
affected.
The continued division among the lower courts has
real-world consequences. A clear illustration of this
point is that the Supreme Courts of Missouri and Mississippi came to opposite results in two cases involving the same products sold by the same defendant (LG
Chem), which had entered those States through the
regular flow of commerce, even though the defendant
had not acted any differently with respect to one State
compared to the other. Compare McLaughlin, 599
S.W.3d at 904 (holding that LG Chem had not purposefully availed itself of Missouri), with Dilworth v.
LG Chem, Ltd., — So. 3d —, 2022 WL 7274532, at *4
(Miss. Oct. 13, 2022) (holding that LG Chem had purposefully availed itself of Mississippi). So this is not a
24
situation in which courts have adopted different
words but apply them the same way in practice. The
split matters.
The split is particularly problematic because some
state courts apply different tests from the ones applied by the federal courts of appeals for the circuits
in which they are located. For example, the West Virginia Supreme Court is firmly in the regular-flow-ofcommerce camp, whereas the Fourth Circuit equally
firmly is in the “something more” camp – a fact that
the West Virginia Supreme Court has acknowledged.
McGraw, 788 S.E.2d at 341-342 (citing Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939 (4th Cir. 1994)).
The same conflict exists between Iowa and the Eighth
Circuit; Idaho, Oregon, and Washington and the
Ninth Circuit; and (relevant here) Colorado and Oklahoma and the Tenth Circuit. See pp. 15-16, supra.
Conversely, the opposite conflict exists between Texas
and the Fifth Circuit. Ibid.
These different approaches give plaintiffs a reason
to bring suit in the courthouse they believe will be
more receptive to their claims. That is particularly
easy to do in products-liability suits like this one; a
plaintiff ’s attorney often will be able to name an inforum defendant who has had some contact with the
product and thereby destroy complete diversity. This
potential for “[f]orum shopping” is “a substantial reason for granting certiorari.” Yee v. City of Escondido,
503 U.S. 519, 538 (1992).
2. This case presents an ideal opportunity for the
Court to resolve this important, recurring question.
The personal-jurisdiction issue was the only issue addressed by the Oklahoma Supreme Court. See App.,
infra, 3a. There are no antecedent state-law issues;
Oklahoma’s long-arm statute extends the jurisdiction
of the state courts to the outer limits of the federal
25
Constitution. Okla. Stat. tit. 12, § 2004(F); see State
ex rel. Edmonson v. Native Wholesale Supply, 237
P.3d 199, 205 (Okla. 2010). And the purposeful-availment question has the potential to be outcome-determinative.
Granting review in this case also would afford the
Court the opportunity to provide particularly meaningful guidance to lower courts. The Court’s most recent decisions involving the purposeful-availment requirement in products-liability cases have addressed
two extremes. In Ford, the defendant intentionally
and extensively marketed, sold, and serviced its products in the forum States – to the extent that the defendant “d[id] not contest” that it had sufficient minimum contacts with those States. 141 S. Ct. at 1026.
In contrast, it was undisputed in Nicastro that the defendant never targeted the forum State, and the record suggested that just one of its products ended up in
that State. 564 U.S. at 878 (plurality op.).
But this case, like many of the cases faced by the
trial courts day in and day out, lies somewhere in between those two extremes. Granting review in this
case would allow the Court to provide lower courts
with much-needed direction for how to handle the
gray areas. The Court should do so.
II. THE COURT SHOULD GRANT REVIEW OF
THE ARISE-OUT-OF-OR-RELATE-TO QUESTION
The Oklahoma Supreme Court’s holding that respondent’s claim arises out of or relates to Murco’s
contacts with Oklahoma also warrants this Court’s review. That holding is in serious tension with a decision of the Ninth Circuit. It also is wrong, and represents an unwarranted expansion of specific personal
jurisdiction beyond what the Court set out in Ford.
26
1. Lower courts already are struggling to apply
the “arise out of or relate to” standard this Court set
out in Ford.
In Ford, the Court explained that a plaintiff ’s
cause of action can arise out of or relate to a defendant ’s forum contacts even when the contacts were not
a but-for cause of the plaintiff ’s claims. 141 S. Ct. at
1026. But, the Court warned, the standard nonetheless requires a “strong” connection between the defendant’s forum contacts and the plaintiff ’s cause of
action. Id. at 1028. The Court explained that there
must be “real limits” in order to “adequately protect
defendants foreign to a forum.” Id. at 1026.
In particular, in the context of products-liability
cases, the Court made clear that the specific product
at issue matters. The Court upheld the exercise of
personal jurisdiction in Ford even though Ford had
not sold the particular cars alleged to be defective in
the forum States, because Ford had “advertised, sold,
and serviced” the same exact models of cars in those
States “for many years.” 141 S. Ct. at 1028. That provided the required “strong relationship” between the
plaintiffs’ claims and Ford’s in-state activities. Ibid
(cleaned up). But, the Court warned, the analysis
could be different if the plaintiffs’ claims involved car
models that Ford had marketed only outside the forum States. Ibid. That makes sense: For there to be
a strong (yet non-causal) link between a defendant’s
sale of products into a forum and a plaintiff ’s claim,
the claims logically must involve one of the exact types
of product the defendant sold.
The Ninth Circuit has taken the Court’s admonishment to heart, holding that a plaintiff ’s claims must
involve the exact model of product the defendant serviced in the forum State. LNS, 22 F.4th at 864. In
LNS, following a plane crash in Arizona, the plaintiff
27
sued the successor of the plane’s manufacturer in federal court in Arizona. Id. at 857. The successor had
sufficient contacts with Arizona, because it operated a
service center in Arizona where it serviced various
types of planes. Id. at 864. But the successor had not
serviced the particular plane at issue at its Arizona
service center, and there was no allegation that it had
serviced the same model of plane at that service center. Ibid. In light of this Court’s warning in Ford
about the closeness of the connection required, the
Ninth Circuit held that the plaintiff ’s claims did not
sufficiently relate to the successor’s operation of the
service center. Ibid.
The Ninth Circuit’s decision hinged on the identity of the specific model of plane that formed the basis
of the plaintiff ’s claim. It is clear that, without that
information, the court would not have been able to assess the arise-out-of-or-relate-to requirement; and it
certainly would not have held that the requirement
was satisfied. See LNS, 22 F.4th at 864.
The approach taken by the Oklahoma Supreme
Court in this case is in serious tension with the Ninth
Circuit’s approach in LNS. Here, respondent could
not name the specific Murco product or products to
which he allegedly was exposed. App., infra, 4a n.2.
All he knew was the general category of product –
joint compound – but it was undisputed that Murco
sold many different types of joint compound products,
some of which did not include asbestos. See id. at 23a
& n.1; Okla. Sup. Ct. ROA 82-89. So respondent’s assertion that he was exposed to Murco joint compound,
without more, is akin to the plaintiff in LNS saying
that its claims involved a “plane” without specifying
the model. That clearly would not have been sufficient for personal jurisdiction in LNS.
28
But the Oklahoma Supreme Court was unbothered
by the fact that respondent had not identified the specific Murco joint compound product on which he based
his claims. See App., infra, 16a. For the court below,
it was enough that respondent claimed exposure to asbestos in joint compound and that Murco had sold to
Oklahoma customers joint compound that may have
contained asbestos. See ibid. The court seemed to
take the view that demanding any greater specificity
would be too onerous and would not be required by
Ford. See ibid. That cannot be squared with the approach taken by the Ninth Circuit in LNS, which appeared to interpret Ford to require that the plaintiff ’s
claims involve the exact model of plane that the defendant serviced in the forum State. See 22 F.4th at
864. There thus already is confusion among the lower
courts on how to apply the standard set out in Ford.
2. The Ninth Circuit’s approach reflects a faithful
application of Ford; the decision below does not.
For the arise-out-of-or-relate-to requirement to incorporate “real limits” on a state court’s exercise of
personal jurisdiction (Ford, 141 S. Ct. at 1026), the
plaintiff ’s claims and the defendants’ forum contacts
should involve the same model or specific kind of product. Otherwise, if the question whether a plaintiff ’s
claim is related to a defendant’s forum contacts is
framed at too high a level of generality, it will be all
too easy for a court to answer yes: As Justice Scalia
observed, “everything is related to everything else.”
California Div. of Lab. Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (1997)
(Scalia, J., concurring).
The decision below provides a stark example of
how broadly courts will sweep. By relieving respondent of having to prove which specific Murco product
allegedly caused his injuries, the Oklahoma Supreme
29
Court was able to say that respondent’s claim is related to all of Murco’s sales of joint compound to Oklahoma-based customers. App., infra, 16a. That included the sales of private-labeled products to
Flintkote that the court held was so critical to establishing purposeful availment, see id. at 12a – even
though respondent expressly acknowledged that he
was not alleging exposure to any Flintkote products,
see id. at 4a n.1. In contrast, if the court below had
required respondent to prove the specific Murco product to which he had been exposed, that necessarily
would have restricted the arising-out-of-or-related-to
analysis to just Murco’s Oklahoma-linked sales of that
product (if any).
The Oklahoma Supreme Court believed that Ford
supported its approach, but it was cherry-picking from
that decision. The court below took this Court’s rejection of a strict causal standard in Ford as meaning
that respondent did not need to show a “direct link between Murco’s sales to Oklahoma buyers and [his] exposure.” App., infra, 16a. But the court below ignored
this Court’s repeated warnings that the connection
still must be “significant,” “strong,” and “close,” and
must incorporate “real limits.” Ford, 141 S. Ct. at
1026, 1028, 1030, 1032. Left unchecked, the decision
below could quickly lead to the type of “anything goes”
approach that this Court expressly rejected in Ford.
Id. at 1028. The Court should grant review to head off
this troubling development at the pass.
30
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
HARVEY D. ELLIS JR.
EVAN M. TAGER
Crowe & Dunlevy
Counsel of Record
324 North Robinson Ave., MINH NGUYEN-DANG
Suite 100
Mayer Brown LLP
Oklahoma City, OK 73102 1999 K Street NW
(405) 235-7743
Washington, DC 20006
(202) 263-3000
GREGORY L. DEANS
etager@mayerbrown.com
KATHERINE H. STEPP
Deans Stepp Law
325 N. Saint Paul St.,
Suite 1500
Dallas, TX 75201
(214) 572-1919
FEBRUARY 2023
APPENDICES
Appendix A – Oklahoma Supreme Court
decision (Oct. 25, 2022) .................. 1a
Appendix B – Oklahoma Court of Civil Appeals
decision (July 19, 2018) ................ 19a
Appendix C – United States Supreme Court
order (Feb. 20, 2018)..................... 53a
Appendix D – Oklahoma Supreme Court order
(June 19, 2017) ............................. 54a
Appendix E – Oklahoma Court of Civil Appeals
decision (Feb. 3, 2017) .................. 55a
Appendix F – Disrict Court of Oklahoma County
Journal Entry (June 21, 2013) ..... 78a
1a
APPENDIX A
2022 OK 85
IN THE SUPREME COURT OF THE STATE OF
OKLAHOMA
MICHAEL D. GALIER
)
)
Plaintiff/Appellee/Respondent )
)
v.
)
)
MURCO WALL PRODUCTS, INC., )
)
Defendant/Appellant/Petitioner, )
) No. 114,175
and
) FOR OFFICIAL
) PUBLICATION
WELCO MANUFACTURING CO. )
and RED DEVIL CORPORATION, )
)
Defendants.
)
ON CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION I
¶0
Michael Galier brought a negligence
and products liability action against
Defendant/Appellant/Petitioner Murco
Wall Products, Inc., a Texas manufacturer, alleging exposure to Murco’s
products caused him to contract meso-
2a
thelioma. The Oklahoma County District Court denied Murco’s motion to
dismiss for lack of personal jurisdiction
and, following a jury trial, granted
judgment to Galier. The Court of Civil
Appeals affirmed. This Court denied
certiorari. The United States Supreme
Court granted certiorari, vacated the
Court of Civil Appeals’ decision, and remanded for reconsideration in light of
Bristol-Myers Squibb Co. v. Superior
Court of California, San Francisco
County, 137 S. Ct. 1773 (2017). The
Court of Civil Appeals reaffirmed the
district court. We previously granted
certiorari to address whether the Court
of Civil Appeals properly found that
Oklahoma possesses specific personal
jurisdiction over Murco.
AFFIRMED.
Clyde A. Muchmore, Harvey D. Ellis, Jr., Cullen D.
Sweeney, Crowe & Dunlevy, Oklahoma City, Oklahoma, and Gregory L. Deans (pro hac vice) and
Katherin H. Stepp (pro hac vice), Deans & Lyons, LLP,
Dallas, Texas, for Defendant/Appellant/Petitioner,
Murco Wall Products, Inc.
Steven T. Horton, Horton Law Firm, Oklahoma City,
Oklahoma, and Jessica M. Dean (pro hac vice),
Charles W. Branham, III (pro hac vice), and Lisa
White Shirley (pro hac vice), Dean Omar Branham &
Shirley, Dallas, Texas, for Plaintiff/Appellee/Respondent, Michael D. Galier.
3a
OPINION
DARBY, C.J.,
¶1
Oklahoma resident, Michael Galier was exposed to asbestos in Oklahoma in the 1970s. At that
time, Murco sold asbestos joint compound into Oklahoma. In 2012, Galier was diagnosed with mesothelioma. This cause arises from that injury. The question
before this Court is whether Oklahoma possesses specific personal jurisdiction over the nonresident Defendant, Murco. We answer in the affirmative.
I. BACKGROUND
¶2
Murco is a Texas corporation with its principal
place of business in Fort Worth. Murco started making drywall joint compound in 1971. The company began with three to five employees and by 1976 had ten
to twenty employees. Murco maintains limited records from its sales during the 1970s. Murco’s extant
records note each sale by the number of units sold, rather than purchase price. We therefore use the term
“unit” throughout this opinion as a generic reference
to the amount of joint compound packaged in one container; depending on the product, a unit refers to a bag
between 25 and 50 pounds, a 4 gallon box, or 5 gallon
bucket.
¶3
Murco first sold drywall joint compound to Oklahoma customers in 1972. During its early years,
eight of Murco’s eighty-five customers were located in
Oklahoma. See ROA 8255, Vol. II PM Tr. of Jury Trial
109:11 (May 5, 2015). From 1972 to 1973, Murco sold
at least 245,599 units of product. ROA 81. Of those,
232,516 units contained asbestos. Id. And from 1972
to 1973, they sold at least 24,951 units of products containing asbestos to Oklahoma. ROA 82-89. From
1972 to 1974, that number jumps to a total of over
4a
forty thousand units of asbestos joint compound that
Murco sold among eight different customers with Oklahoma addresses. See ROA 266-77. For one of those
customers, Flintkote of Oklahoma City (a distributor),
Murco packaged its asbestos-containing product two
ways. Some were packaged with only Murco’s label,
and some were packaged with only the customer's private “Flintkote” label; both were available for resale
in Oklahoma City.1 Between 1972 and 1974, Murco
sold 23,089 units of asbestos products to Flintkote; of
those, only 2,962 were labeled as a Flintkote product.
ROA 268-70, 273-77. Murco sold 20,127 units of asbestos products to Flintkote labeled with Murco's label. Id.
¶4
In 1977, Murco’s founder and president wrote a
letter to the Consumer Products Safety Commission
which stated: “Murco has one salesman, covering
about a 300 mile radius of Fort Worth.” Def.’s Trial
Ex. 6. Murco’s self-declared sales radius included
most of Oklahoma. After 1978, Murco discontinued
using asbestos in its drywall joint compound.
¶5
Throughout the 1970s, Galier saw Murco’s
name on products at various construction sites. From
1971 to 1975, Galier visited many of his father’s building plots around Moore, Oklahoma, to play or help
clean up after subcontractors.2 To help clean up,
Galier does not base his claims of exposure on any product
packaged with Flintkote’s private label.
1
Galier did not know the specific source of the Murco products
he saw on construction sites or whether the Murco drywall joint
compound he was exposed to contained asbestos or not.
2
The records for Town Craft Homes, Galier’s father's company,
are nonextant due to a tornado; so there is no record of any
worker it hired, product it used, or location where it may have
purchased any building materials.
5a
Galier would sweep, dust, pick up, or throw things
away, often getting on his hands and knees to scrape
up clumps of dried drywall joint compound off the
floor. Galier and his brothers would play on the construction sites by throwing the dried clumps of drywall joint compound at each other or placing the drywall dust they had swept up (created by sanding drywall joint compound) into paper bags to throw at each
other as “grenades.” Later in the 1970s, Galier and
his brothers accompanied their father to other building locations and swept up after the workers.
¶6
In March 2012, doctors diagnosed Galier with
mesothelioma following an unrelated surgery and biopsy, performed in Oklahoma.
II. PROCEDURAL HISTORY
¶7
On November 1, 2012, Galier sued Murco under
theories of negligence and products liability, alleging
he was harmed by exposure to Murco’s products.3 Before trial, Murco moved to dismiss based on lack of
personal jurisdiction. After an initial hearing on the
motion, the trial court granted additional discovery.
At the second hearing on the motion to dismiss, Galier
argued both general and specific jurisdiction. Galier
asserted that Murco should be subject to Oklahoma
jurisdiction because he, an Oklahoma resident, was
Galier’s exposure to asbestos was a fact question the jury answered in Galier’s favor and is not an issue before this Court.
Galier also sued Welco Manufacturing (drywall joint manufacturer) and Red Devil Corporation (caulk manufacturer). The jury
found Welco Manufacturing 60% responsible for Galier’s injury
and Red Devil Corporation not liable. Welco Manufacturing was
part of the initial appeal to the Court of Civil Appeals, but did
not appeal to the United States Supreme Court or participate in
further appeals after remand.
3
6a
injured in this State by Murco’s asbestos joint compound, and Murco sold similar products to customers
located in Oklahoma during the same period in the
1970s.
¶8
The district court denied Murco’s motion, ruling
Oklahoma had general jurisdiction. See Tr. of 2d Mot.
Hr’g 32-33 (June 21, 2013). After a two-week trial in
May 2015, the jury found that Murco was forty percent responsible for Galier’s injury and awarded damages. The district court granted judgment to Galier
on July 6, 2015.
¶9
Murco appealed and the Court of Civil Appeals
affirmed the district court on February 3, 2017. This
Court denied certiorari on June 19, 2017. On the
same day, the United States Supreme Court issued
Bristol-Myers Squibb Co. v. Superior Court of California, San Franciso County, 582 U.S. ——, 137 S. Ct.
1773, 198 L. Ed. 2d 395 (2017), clarifying specific personal jurisdiction. Murco petitioned the United States
Supreme Court for certiorari on the issue of personal
jurisdiction, which the Court granted on February 3,
2018. The United States Supreme Court vacated the
Court of Civil Appeals decision and remanded the case
for reconsideration in light of the newly issued BristolMyers opinion.
¶10 Following remand, the Court of Civil Appeals
determined that the Supreme Court did not intend “to
establish a general rule that a plaintiff must present
evidence tracing the path of an allegedly dangerous
product from manufacturer to end user in order to establish specific personal jurisdiction.” COCA Op. ¶ 21,
July 19, 2018. COCA stated that it was not persuaded
that Galier needed to present proof to the degree of
specificity urged by Murco and further stated that
Murco’s products “did not arrive in the forum by
chance or the random flow of commerce.” See id., at
7a
¶¶ 20, 22. The court noted that Murco “desired to exploit a feasible market,” had “significant sales of its
asbestos joint compound to Oklahoma customers,”
“considered shipping costs[,] and then purposefully
targeted its asbestos joint compound into Oklahoma
because it was within its calculated profitability
zone.” Id., at ¶ 22. COCA concluded by explicitly finding that Oklahoma properly exercised specific personal jurisdiction over Murco and affirming the district court again. Id., at ¶¶ 25, 72. We granted certiorari.
¶11 Murco argues that the Court of Civil Appeals
acknowledged Bristol-Myers and Montgomery v. Airbus Helicopters, 2018 OK 17, 414 P.3d 824, but nevertheless essentially applied the same analysis upon
which it originally affirmed the district court’s determination of personal jurisdiction. Murco asserts that
a nonresident’s sales to third parties located in the forum, even if substantial and continuous, do not
amount to specific jurisdiction unless the plaintiff can
show his claimed injury arises directly from those contacts which the nonresident purposefully created in
the forum. Murco emphasizes that Galier provided no
evidence to show where or how any of Murco’s sales
contacts occurred, only that Murco had sales to thirdparty Oklahoma customers. Further, Murco postulates that the reference to a salesperson with a territory inclusive of Oklahoma offers no proof that this
unidentified person ever created a relevant contact in
Oklahoma, nor for that matter, provides any information regarding the salesperson’s actions, or
whether he or she ever set foot in Oklahoma, or created any sale in the forum. As a result, Murco argues
that the injury did not arise out of its forum contact in
order to permit Oklahoma to assert specific personal
jurisdiction over it in this case. In response, Galier
8a
argues that Murco’s sales ledger from 1972 to 1973
demonstrated Murco sold its products to Oklahoma
customers and knew such customers would ultimately
sell to subcontractors or other Oklahoma residents
down the line.
III. STANDARD OF REVIEW
¶12 A trial court’s determination of personal jurisdiction is a question of law, which we review de novo.
Montgomery, 2018 OK 17, ¶ 17, 414 P.3d at 829; State
ex rel. Edmondson v. Native Wholesale Supply, 2010
OK 58, ¶ 9, 237 P.3d 199, 205. We search the record
for proof that the nonresident party has sufficient contacts with this state to assure that traditional notions
of fair play and substantial justice will not be offended
if this state exercises in personam jurisdiction. Montgomery, 2018 OK 17, ¶ 17, 414 P.3d at 829.
IV. ANALYSIS
¶13 “To establish personal jurisdiction over a nonresident defendant, both the State’s long-arm statute
and the requirements of federal due process must be
satisfied.” Native Wholesale Supply, 2010 OK 58,
¶ 10, 237 P.3d at 205. Oklahoma’s long-arm statute4
extends the jurisdiction of this State to the outer limits of the Oklahoma Constitution and the Constitution
of the United States. Ibid.; 12 O.S. Supp. 2017,
§ 2004(F). “The Due Process Clause of the Fourteenth
Amendment limits the power of a state court to render
a valid personal judgment against a nonresident defendant.”5 World-Wide Volkswagen Corp. v. Woodson,
“A court of this state may exercise jurisdiction on any basis
consistent with the Constitution of this state and the Constitution of the United States.” 12 O.S. Supp. 2017, § 2004(F).
4
The Due Process Clause of the United States Constitution,
U.S. Const. amend. XIV, § 1, provides that no state shall “deprive
5
9a
444 U.S. 286, 291, 100 S. Ct. 559, 564, 62 L. Ed. 2d
490 (1980).
¶14 Due process requires that a nonresident defendant possess “certain minimum contacts” with the
forum such that the “maintenance of the suit” is “reasonable, in the context of our federal system of government,” and “does not offend traditional notions of fair
play and substantial justice” in order to “subject a defendant to a judgment in personam.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316-17, 66 S. Ct. 154, 158,
90 L. Ed. 95 (1945) (internal citation omitted). The
United States Supreme Court has long focused on the
nature and extent of “the defendant’s relationship to
the forum State” when applying that formulation.
Bristol-Myers, 137 S. Ct., at 1779. As such, the United
States Supreme Court has recognized two types of
personal jurisdiction: general and specific. See Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S.
915, 919, 131 S. Ct. 2846, 2851, 180 L. Ed. 2d 796
(2011).
¶15 A state court may exercise general jurisdiction
when a defendant’s “affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop
Tires, 564 U.S., at 919. For a corporation, the “paradigm” bases for general jurisdiction are its place of incorporation and principal place of business. Daimler
AG v. Bauman, 571 U.S. 117, 137, 134 S. Ct. 746, 760,
187 L. Ed. 2d 624 (2014).6 Thus general jurisdiction
over Murco attaches in Texas, not in Oklahoma.
any person of life, liberty, or property without due process of
law.”
“The exercise of general jurisdiction is not limited to these forums; in an ‘exceptional case,’ a corporate defendant's operations
in another forum ‘may be so substantial and of such a nature as
6
10a
¶16 Specific jurisdiction may be exercised over defendants who are less intimately connected with the
state, but only as to a narrower class of claims. Ford
Motor Co. v. Mont. Eighth Judicial Dist. Ct., 592 U.S.
——, 141 S. Ct. 1017, 1024, 209 L. Ed. 2d 225 (2021).
The defendant must perform “some act by which [it]
purposefully avails itself of the privilege of conducting
activities within the forum State.” Hanson v. Denckla,
357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d
1283 (1958).
The contacts must be the defendant’s own
choice and not “random, isolated, or fortuitous.”
Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
774, 104 S. Ct. 1473, 79 L.Ed.2d 790 (1984).
They must show that the defendant deliberately “reached out beyond” its home—by, for example, “exploi[ting] a market” in the forum
State or entering a contractual relationship
centered there. Walden v. Fiore, 571 U.S. 277,
285, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) (internal quotation marks and alterations omitted).
Ford Motor, 141 S. Ct. at 1025. The act by which the
nonresident defendant purposefully avails himself of
the privilege of conducting activities in Oklahoma,
“may be shown by circumstances from which such fact
may be reasonably inferred.” Crescent Corp. v. Martin, 1968 OK 95, ¶ 30, 443 P.2d 111, 118; see also Marathon Battery Co. v. Kilpatrick, 1965 OK 212, ¶¶ 3, 37,
418 P.2d 900, 903, 910.
¶17 Murco contends that even though it actively
sold asbestos joint compound to Oklahomans for
to render the corporation at home in that State.’ ” BNSF Ry. Co.
v. Tyrrell, 137 S. Ct. 1549, 1558, 198 L. Ed. 2d 36 (2017).
11a
years, Oklahoma lacks personal jurisdiction over
them. Murco further claims that Galier failed to trace
the Murco asbestos joint compound that he was injured by, in Oklahoma, to one of the documented sales
of Murco product to Oklahoma customers. We do not
agree that Galier’s burden is so high because the
United States Supreme Court has made it clear that
the law of personal jurisdiction does not require a
“tracing” as described by Murco.
¶18 Murco’s contacts with Oklahoma were not random, isolated, or fortuitous. Rather, Murco chose to
reach out beyond Texas and deliberately exploit the
market in Oklahoma by selling over twenty-four thousand units of harmful asbestos joint compound to numerous Oklahoma customers over the course of two
years. Murco also worked with a local Oklahoma company, Flintkote, to place Flintkote’s label on Murco’s
asbestos joint compound for resale in Oklahoma. Although Galier could not produce evidence of negotiations for that contact, circumstances evince that the
custom labeling was purposefully directed towards
Oklahoma. Murco later disclosed its intent to sell its
product to the majority of the state of Oklahoma when
it purposefully assigned to one salesperson an area of
Oklahoma from the southern border to within fifteen
miles of Kansas.
¶19 A state may hold a nonresident company “to account” for related misconduct “[w]hen (but only when)
a company ‘exercises the privilege of conducting activities within a state’—thus ‘enjoy[ing] the benefits and
protection of [its] laws.’ ” Ford Motor, 141 S. Ct., at
1025 (alterations in original). This doctrine “provides
defendants with ‘fair warning’—knowledge that ‘a
particular activity may subject [it] to the jurisdiction
of a foreign sovereign.’ A defendant can thus ‘structure [its] primary conduct’ to lessen or avoid exposure
12a
to a given State’s courts.” Ibid. (alterations in original) (citations omitted). During the years of evidenced
sales into Oklahoma, Murco enjoyed the benefits and
protection of our laws—“the enforcement of contracts,
the defense of property, the resulting formation of effective markets.” See id., at 1029-30. Murco’s continued sales into Oklahoma for several years made it
foreseeable that Murco should reasonably anticipate
being haled into court here.
See World-Wide
Volkswagen, 444 U.S., at 297; see also Ford Motor, 141
S. Ct., at 1030. Murco could have chosen to not avail
itself of the privilege of conducting activities within
Oklahoma to avoid potential liability if it was concerned the risks were too great. See World-Wide
Volkswagen, 444 U.S., at 297; see also Ford Motor, 141
S. Ct., at 1030. But Murco chose to exploit the market
for its product in this State, and it is not unreasonable
to subject Murco to suit now that its merchandise was
the source of injury in Oklahoma to an Oklahoma resident. See World-Wide Volkswagen, 444 U.S., at 297.
Perhaps even more than Murco’s sales to subcontractors, Murco’s sales relationship with Flintkote,
wherein Murco sold its normal product and also went
the extra mile to custom label its product with a
Flintkote label for resale in Oklahoma—clearly not a
passive sale—shows an intent on the part of Murco to
avail itself of the benefits of this forum.
¶20 Even when the defendant has purposefully
availed himself of the state, the plaintiff ’s claims
“must arise out of or relate to the defendant’s contacts” with the forum in order for the state to exercise
jurisdiction. Bristol-Myers, 137 S. Ct., at 1780 (quoting Daimler, 571 U.S., at 127) (alterations omitted).
Murco’s argument that Galier must trace the exact
product he was injured by from Murco’s plant in Texas
to the point of exposure in Oklahoma appears to be
13a
based on a misinterpretation of Montgomery and Bristol-Myers.
¶21 Montgomery involved a Texas defendant who
sold a helicopter to a Kansas company. 2018 OK 17,
¶¶ 4-5, 414 P.3d 824, 826. The Kansas company hired
an Oklahoma pilot and crew to operate the helicopter
in the region. Id., at ¶ 3, 414 P.3d at 826. The helicopter was delivered to the Kansas company in Texas.
Id., at ¶ 5, 414 P.3d at 826. This Court found that the
Kansas company’s sua sponte act of bringing the helicopter into Oklahoma was not a basis for Oklahoma
assuming personal jurisdiction over the Texas company. Id., at ¶ 36, 414 P.3d at 834.
¶22 In Bristol-Myers Squibb Co. v. Superior Court
of California, San Francisco County, the United
States Supreme Court stated that the nonresident
plaintiffs had not cited any evidence to show how the
pills they took were distributed to the pharmacies
which sold them the pills. 137 S. Ct. 1773, 1783, 198
L. Ed. 2d 395 (2017). Bristol-Myers involved resident
and nonresident plaintiffs with similar claims against
a nonresident defendant. The nonresident plaintiffs
were not prescribed pills in the forum, did not purchase pills in the forum, did not ingest pills in the forum, and were not injured by pills in the forum. The
Court found that the “mere fact that other plaintiffs
were prescribed, obtained, and ingested [pills in the
forum]—and allegedly sustained the same injuries as
did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’
claims.” Bristol-Myers, 137 S. Ct., at 1781. The nonresident plaintiffs showed zero connection of their own
to the forum. The Court noted that “What is needed—
and what is missing here—is a connection between
the forum and the specific claims at issue.” Bristol-
14a
Myers, 137 S. Ct., at 1781. The United States Supreme Court “found jurisdiction improper in BristolMyers because the forum State, and the defendant’s
activities there, lacked any connection to the plaintiffs’ claims.” Ford Motor, 141 S. Ct., at 1031.
¶23 Galier is a resident of Oklahoma. He was exposed to the defective product in Oklahoma. He suffered injuries from the product in Oklahoma. In sum,
Galier “brought suit in the most natural State—based
on an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place’ there.” See Ford Motor, 141 S.
Ct., at 1031 (quoting Bristol-Myers, 137 S. Ct., at
1781). Murco admits that it had contacts with Oklahoma. Murco essentially questions whether those
contacts are related enough to Galier’s suit.
¶24 Recently, the United States Supreme Court
clarified in Ford Motor Co. v. Montana Eighth Judicial District, the type of connection required and elucidated the meaning of the phrase “arise out of or relate to.” See Ford Motor, 141 S. Ct. 1017. The Supreme Court clarified that “None of our precedents
has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do.” Ford Motor, 141 S. Ct., at 1026. The
Court explained that the first part of the arise out of
or relate to standard “asks about causation; but the
back half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal
showing.” Ford Motor, 141 S. Ct., at 1026. The Court
noted that
indeed, [it] has stated that specific jurisdiction
attaches in cases identical to the ones here—
when a company like Ford serves a market for
a product in the forum State and the product
malfunctions there. In World-Wide Volks-
15a
wagen, the Court held that an Oklahoma court
could not assert jurisdiction over a New York
car dealer just because a car it sold later caught
fire in Oklahoma. 444 U.S., at 295, 100 S.Ct.
580. But in so doing, we contrasted the dealer’s
position to that of two other defendants—Audi,
the car’s manufacturer, and Volkswagen, the
car’s nationwide importer (neither of which contested jurisdiction):
“[I]f the sale of a product of a manufacturer
or distributor such as Audi or Volkswagen is
not simply an isolated occurrence, but arises
from the efforts of the manufacturer or distributor to serve, directly or indirectly, the
market for its product in [several or all]
other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there
been the source of injury to its owner or to
others.” Id., at 297, 100 S.Ct. 580.
Or said another way, if Audi and Volkswagen’s
business deliberately extended into Oklahoma
(among other States), then Oklahoma’s courts
could hold the companies accountable for a car’s
catching fire there—even though the vehicle
had been designed and made overseas and sold
in New York. For, the Court explained, a company thus “purposefully avail[ing] itself ” of the
Oklahoma auto market “has clear notice” of its
exposure in that State to suits arising from local accidents involving its cars. Ibid. And the
company could do something about that exposure: It could “act to alleviate the risk of burdensome litigation by procuring insurance,
passing the expected costs on to customers, or,
16a
if the risks are [still] too great, severing its connection with the State.” Ibid.
Ford Motor, 141 S. Ct., at 1027.
¶25 Here, Murco’s sales to Oklahoma customers
were not isolated, but rather related to Murco’s efforts
to serve the market for asbestos joint compound in Oklahoma. Murco deliberately extended its business
into Oklahoma, purposefully availing itself of Oklahoma’s market. Murco’s contacts with Oklahoma regarded only the sale of their drywall product. Galier’s
cause of action related to those contacts. The cases do
not require a direct link between Murco’s sales to Oklahoma buyers and Galier’s exposure to the asbestos.
¶26 Even when the defendant has purposefully
availed himself of the forum and the case arises out of
or relates to those contacts, the court must still consider a variety of “reasonableness” interests to determine if personal jurisdiction is present. World-Wide
Volkswagen, 444 U.S. at 292. These gestalt factors include the burden on the defendant to litigate there,
the forum state’s interest in adjudicating the dispute,
the plaintiff s interest in obtaining convenient and effective relief, the interstate judicial system’s interest
in obtaining the most efficient resolution of controversies, and the shared interest of the several States in
furthering fundamental substantive social policies.
Ibid.; Asahi Metal Indus. Co. v. Super. Ct. of Cal.,
Solano Cty., 480 U.S. 102, 113, 107 S. Ct. 1026, 1033,
94 L. Ed. 2d 92 (1987).
¶27 The burden on Murco to defend in Oklahoma is
minimal. The trial occurred within Murco’s own chosen radius for conducting business sales. Oklahoma
has a substantial interest in adjudicating this case;
Oklahoma has an interest in protecting its citizens,
17a
and the exposure and resulting diagnosis both occurred in Oklahoma to an Oklahoma resident.
Galier’s interest in convenient relief is also substantial as he lives in Oklahoma and he was injured in Oklahoma. Further, the judicial system’s interest in efficient resolution of the controversy demands upholding the ruling on personal jurisdiction as re-starting
this litigation in Texas would be an unwarranted
drain on their judicial system.
V. CONCLUSION
¶28 For all the reasons we have given, the connection between Galier’s claim and Murco’s sales to Oklahomans—or otherwise said, the “relationship among
the defendant, the forum, and the litigation”—supports specific jurisdiction. See Walden v. Fiore, 571
U.S. 277, 284, 134 S. Ct. 1115, 1121, 188 L. Ed. 2d 12
(2014) (internal quotation marks omitted). The judgment of the Court of Civil Appeals is vacated and the
trial court is affirmed.
AFFIRMED.
Darby, C.J., Kane, V.C.J., Winchester, Edmondson,
Gurich, Rowe, Kuehn (by separate writing), JJ. and
Lewis, S.J., concur;
Kauger, J., recused;
Combs, J., disqualified.
KUEHN, J., SPECIALLY CONCURRING:
¶1
I agree with the Majority that specific personal
jurisdiction lies here. Murco’s minimum contacts with
Oklahoma establish that it purposefully availed itself
of the Oklahoma forum, and there is sufficient connection between those contacts and the cause of action to
18a
satisfy the requirement that the suit arises from or relates to Murco’s activities within the forum. Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 592 U.S.
___, 141 S.Ct. 1017, 1026 (2021); Bristol-Myers Squibb
Co. v. Superior Court of Cal., San Francisco Cty., 582
U.S. ___, 137 S.Ct. 1773, 1780 (2017).
¶2
The Majority extensively quotes language from
Ford involving the phrase “arises from or relates to.”
All the Justices in Ford agreed that, no matter how
one reads that phrase, its requirement was met. The
same is true of this case. I would reserve discussion
of this phrase for a case where any possible jurisprudential distinction between and “arise” and “relate”
would affect the outcome.
¶3
However, I tend to agree with Justice Gorsuch’s
broad observation in Ford that, given the rise of national and multinational corporations and the Internet, it may be time to reexamine the overall test for
corporate jurisdiction. Ford, 141 S. Ct. at 1038 (Gorsuch, J., concurring). In my view, we can resolve most
of these disputes by using common sense: if you bring
your toys to the sandbox, you play by the sandbox
rules. If a corporation purposefully avails itself of a
state forum, and if the plaintiff or injury is connected
to that forum, then the corporation is subject to suit
there. For example, Corporation actively does business in Oklahoma, Kansas, and Nevada. Plaintiff is
an Oklahoma citizen who crosses the border to Kansas, and buys and is injured by Corporation’s product
there. Under sandbox rules, Plaintiff may sue Corporation in Oklahoma, where Plaintiff lives and Corporation does business, or in Kansas, where Corporation
does business and Plaintiff was injured. But Plaintiff
can’t sue in Nevada; neither Plaintiff nor the injury
have any connection to that forum. I believe that this
captures the essence of both Ford and Bristol-Myers.
19a
APPENDIX B
THIS OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS
IN THE COURT OF CIVIL APPEALS OF THE
STATE OF OKLAHOMA
FILED
DIVISION I
MICHAEL D. GALIER
Plaintiff/Appellee
v.
MURCO WALL PRODUCTS,
INC., and WELCO MANUFACTURING COMPANY,
Defendants/Appellants,
and
Red Devil Corporation,
Defendant.
COURT OF CIVIL
APPEALS STATE OF
OKLAHOMA
)
JUL 19 2018
)
)
JOHN D. HADDEN
CLERK
)
) Case No. 114,175
) (Consol. w/114,183)
)
)
)
)
)
)
)
)
)
)
)
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BRYAN C. DIXON,
TRIAL JUDGE
AFFIRMED
20a
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.
21a
OPINION BY BRIAN JACK GOREE, PRESIDING
JUDGE:
¶1 On appeal is the validity of a district court judgment on a jury's verdict awarding damages for personal injury caused by exposure to asbestos. The issues are (1) whether Oklahoma has personal jurisdiction over a Texas corporation, (2) whether the trial
court erroneously entered judgment on an allegedly
defective jury verdict, (3) the constitutionality of a
statute relating to noneconomic damages, and (4)
whether the verdict was sustained by admissible evidence. We affirm the trial court’s judgment.
I
¶2 Michael Galier was exposed to asbestos-containing products while he was a child playing on construction sites in his father's business. At the age of
48 he was diagnosed with peritoneal mesothelioma, a
fatal disease caused by asbestos exposure. He commenced an action in Oklahoma County District Court
against numerous manufacturers of asbestos products
alleging negligence and manufacturers' products liability. At trial he pursued three defendants, Murco,
Welco, and Red Devil Corporation. The jury returned
a verdict in favor of Galier and against Murco and
Welco. It found Galier had sustained damages totaling $6 million and it apportioned 40% of the liability
to Murco and 60% to Welco.
¶3 This Court filed an opinion on February 3, 2017,
finding personal jurisdiction over Murco. On June 19,
2017, the Oklahoma Supreme Court denied petitions
for certiorari, and on that same date, the United
States Supreme Court clarified the law of specific personal jurisdiction in Bristol-Myers Squibb Company v.
Superior Court of California, San Francisco, et al., 582
U.S. __, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017). The
22a
United States Supreme Court vacated this court’s
February 3, 2017 opinion and remanded it for further
consideration in light of Bristol-Myers. The Oklahoma
Supreme Court re-assigned the case to the Court of
Civil Appeals, Oklahoma City, for further consideration.
II
¶4 Murco is a Texas Corporation with its principal
place of business in Fort Worth. It has never had any
officers, directors, employees, or other agents in Oklahoma. It has never owned property in Oklahoma, and
it has never directed advertising to Oklahoma. Murco
has never had an office, phone listing, or mailing address in Oklahoma.
¶5 Mr. Galier moved to Oklahoma City when he
was a young boy, and in the early 1970’s he accompanied his brothers to their father's job sites three or
four times a month for a few hours at a time. They
helped out by sweeping and picking up empty boxes.
After 1975, Galier and his brothers visited hundreds
of their father's construction sites and spent time
playing with asbestos joint compounds. Galier recalled the names of five different joint compound products, and Murco was one of them.
¶6 Murco filed a motion to dismiss Galier’s suit on
grounds the court lacked specific personal jurisdiction; it argued his cause of action did not arise out of
any forum-related activities. After a hearing, the district court directed the parties to conduct discovery
pertaining to the jurisdictional question, and the parties supplemented their briefs. Galier produced a few
ledger pages of Murco’s sales in the early 1970s.
These pages indicate Murco sales to customers with
Oklahoma addresses. Galier also attached a tran-
23a
script of the deposition of Murco’s corporate representative, Joan Benton. Ms. Benton testified concerning the ledger sheets.
¶7 Murco, by Ms. Benton’s testimony, stated that
in 1977 it had a salesperson for a market that was
comprised of a 300-mile radius of its manufacturing
plant in Fort Worth. Oklahoma City is within that
boundary. Later, at the trial, Benton explained that
the 300-mile limitation for product sales was due to
the fact that joint compound is a heavy product and
they could not afford to pay the freight for the product
to be shipped beyond 300 miles. When she was asked
about the sales ledger sheets, Benton agreed that
Murco sold its product where it had a market, and it
had a market in Texas and “a little bit in Oklahoma.”
Murco admitted that the invoices demonstrate the
sale of its products to Oklahoma:
Q.
And you don’t dispute that these are records
of Murco sales to various different businesses in Oklahoma, correct?
A.
Correct.
Murco agreed that the ledgers reference invoices
demonstrating the following:
In 1973, Murco sold 2,590 units of asbestos joint
compound invoiced to B & B Drywall, 5901 Meridian Place, Oklahoma City, Oklahoma,
73106.1
In 1972, Murco sold 6,218 units of joint compound invoiced to Dundall Paint Co., 4110
North McArthur, Oklahoma City, Oklahoma,
A “unit” is the generic reference to a container of product
which, depending on the product, could be a box, a bag, or a
bucket of various sizes.
1
24a
73122. Ninety-eight of those units did not contain asbestos, but the rest contained asbestos.
In 1973, Murco sold 7,330 units of asbestos joint
compound invoiced to Flintkote Company, 24
North McCormick, Oklahoma City, Oklahoma
73125.2
In 1973, Murco sold 320 units of asbestos joint
compound invoiced to Ralph Hoilard, Route 1,
Stonewall, Oklahoma 74871.
In 1972, Murco created an invoice to Leon
Ragland Drywall Co., 435 Southeast 53rd
Street, Oklahoma City, Oklahoma. Between
1972 and 1973, Murco sold approximately 3,200
units of asbestos joint compound invoiced to
Don McBee, McBee Enterprises, Inc., 1506
North 44th, Lawton, Oklahoma.
In 1973, Murco sold 2,067 units of asbestos joint
compound invoiced to Sooner Drywall, 410
Northeast, Duncan, Oklahoma 73433.
In 1973, Murco sold 2,006 units of asbestos joint
compound invoiced to Standard Material Corp.,
6 NW 26th Street, P.O. Box 60150, Oklahoma
City, Oklahoma 73106.
Galier argues that the Oklahoma court had jurisdiction because he sued Murco for exposing him to asbestos joint compound, a product that it sold to Oklahoma
customers. Murco argues that third-party subcontractors could have purchased their products at its
Fort Worth plant, and ledger sheets bearing Oklahoma mailing addresses for such third-parties do not
The corporate representative also stated that Murco agreed to
place Flintkote’s label on its (Murco’s) joint compound product so
that it could be sold under the Flintkote name.
2
25a
create an adequate link to justify specific personal jurisdiction.
III
¶8 Oklahoma courts may exercise jurisdiction on
any basis consistent with the Constitution of this
State and the Constitution of the United States. 12
O.S. §2004 (F) (2011). Because a state court’s assertion of jurisdiction exposes defendants to its coercive
power, it is subject to review for compatibility with the
Due Process Clause of the Fourteenth Amendment.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 918, 131 S.Ct. 2846, 180 L.Ed.2d 796
(2011).3
¶9 In International Shoe Co. v. Washington, 326
U.S. 310, 66 S.Ct. 154, 90 LEd. 95 (1945), the court
devised the “minimum contacts” approach to analyzing whether a state court’s assertion of jurisdiction
was permissible under the 14th Amendment.4 The
minimum contacts concept serves two functions, protecting nonresident defendants against the burdens of
litigating in distant forums, and ensuring that the
States “do not reach out beyond the limits imposed on
3
U.S. Const. Amend XIV, §1 provides in pertinent part:
. . . No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
“[I]n order to subject a defendant to a judgment in personam,
if he be not present within the territory of the forum, he [must]
have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play
and substantial justice.’ ” International Shoe, 326 U.S. at 316, 66
S.Ct. 154, citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct.
339, 343, 85 L.Ed. 278 (1940).
4
26a
them by their status as coequal sovereigns in a federal
system.” World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 291-292, 100 S.Ct. 59, 62 L.Ed.2d 490
(1980).
¶10 Following International Shoe, courts have
come to recognize two categories of personal jurisdiction: general (sometimes called “all-purpose”) jurisdiction and specific (sometimes called “case-linked”)
jurisdiction. Goodyear, 564 U.S. at 919, 131 S.Ct.
2846. A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to
hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum state. Id. By contrast, a court may assert specific
jurisdiction only as to claims that arise out of, or are
related to, the contacts with the state. Daimler AG v.
Bauman, 571 U.S. 117, 127, 134 S.Ct. 746, 187
L.Ed.2d 624 (2014).
¶11 Whether a state court may exercise personal
jurisdiction can be a complicated endeavor. “It is evident that the criteria by which we mark the boundary
line between those activities which justify the subjection of a corporation to suit, and those which do not,
cannot be simply mechanical or quantitative.” International Shoe, 326 U.S. at 319, 66 S.Ct. 154. In Helicopteros Nacionales De Colombia, S.A. v. Hall, 466
U.S. 408, 104 S.Ct. 1868, 80 LEd.2d 404 (1984), the
court noted that it was leaving undecided the question
of “what sort of tie between a cause of action and a
defendant's contacts with a forum is necessary” to a
determination that the requisite connection exists for
specific jurisdiction. Id. at 415, 104 S.Ct. 1868.
¶12 Bristol-Myers clarified the requirements for
specific jurisdiction: “In order for a court to exercise
27a
specific jurisdiction over a claim, there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that
takes place in the forum State.” Bristol-Myers, 582
U.S. at __, 137 S.Ct. at 1779 (internal quotation marks
omitted). In Bristol-Myers, a group of more than 600
plaintiffs joined in eight separate actions that were
filed in California. They claimed their health was
damaged by the drug Plavix. Only 86 of those plaintiffs resided in California. The U.S. Supreme Court
found there were inadequate links between the claims
of the non-resident plaintiffs and the drug manufacturer. There could be no personal jurisdiction over
Bristol-Myers Squibb (BMS) as to the claims of plaintiffs who did not reside in the forum, did not receive
their prescriptions in the forum, and were not injured
in the forum. Neither could those plaintiffs living outside the state rely on the defendant's contacts with
other plaintiffs who were California residents. Furthermore, the fact that one of the defendants, a California company named McKesson, was a nationwide
distributor of Plavix was insufficient. During oral argument one of the parties stated: “It is impossible to
trace a particular pill to a particular person . . . . it’s
not possible for us to track particularly to McKesson.”
The Court held: “The bare fact that BMS contracted
with a California distributor is not enough to establish
personal jurisdiction in the State.” Id. at __, 137 S.Ct.
at 1783. In sum, there must be adequate links between the State and the nonresident’s claims.
¶13 The Oklahoma Supreme Court recently applied Bristol-Myers in Montgomery v. Airbus Helicopters, Inc., 2018 OK 17, 414 P.3d 824. Montgomery involved a helicopter crash that occurred in Oklahoma.
The widow of the pilot and a passenger filed suit
against Airbus, a French company who manufactured
28a
the helicopter, and Soloy, a Washington company that
provided the engineering and design specifications for
installing a replacement engine. Airbus assembled
the helicopter in Texas but it did not ship the aircraft
into Oklahoma. There was evidence, however, that
Airbus was aware the end user intended to operate it
in Oklahoma. Citing Bristol-Myers, the court in Montgomery held there were no direct contacts between
Airbus and Soloy and the Oklahoma plaintiffs. Id. at
30, 414 P.3d 824. The defendants’ only direct contacts
were with a third-party, EagleMed, who was also a
non-resident.
¶14 In the wake of Bristol-Myers, evaluating minimum contacts based on the flow of a manufacturer’s
products into a forum, often referred to as a stream of
commerce analysis, has been rejected by the Oklahoma Supreme Court as a valid test for specific jurisdiction. Montgomery, 2018 OK 17, ¶36, 414 P.3d 824,
833. A defendant must purposefully “reach out beyond” their state into another or “deliberately exploit”
a market in the forum state. Walden v. Fiore, 571 U.S,
at 285, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014), citing
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105
S.Ct. 2174, 85 L.Ed.2d 528 (1985) and Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79
L.Ed.2d 790 (1984).
¶15 A two step evaluative process was enunciated
in Daimler, 571 U.S. at 139, n. 20, 134 S.Ct. 746, to
analyze specific personal jurisdiction: First, a court is
to determine whether the connection between the forum and the episode-in-suit could justify the exercise
of specific jurisdiction. Then, in a second step, the
court is to consider several additional factors to assess
the reasonableness of entertaining the case. We follow Montgomery in this regard and apply its state-
29a
ment of the law: “If a defendant has purposefully directed activities at the residents of the forum, and the
litigation results from alleged injuries that arise out
of or relate to those activities, specific jurisdiction over
a nonresident defendant may exist unless jurisdiction
would be unreasonable or would offend the traditional
notions of substantial justice and fair play.” Montgomery, 2018 OK 17, ¶16, 414 P.3d 824, 829.
IV
¶16 In his First Amended Petition, Galier alleged
he was exposed to asbestos-containing products manufactured and/or sold by several identified defendants
including Murco’s joint compound. He claims he contracted asbestos-related malignant mesothelioma
through the inhalation of the asbestos fibers contained in the products manufactured, sold, and/or distributed by each defendant. He notified the parties in
his pleading that he was asserting their liability based
on several theories including negligence, unreasonably dangerous products, and intentional misconduct.
In the light of Bristol-Myers, as guided by Montgomery, we must consider whether these claims arise out
of or relate to activities that Murco purposefully directed to Oklahoma.1
¶17 We are convinced there is a relationship between Murco’s asbestos-containing joint compound
and Galier’s claimed harm. The sufficiency of that
connection is the pivotal issue.
¶18 Murco urges that there is no adequate link
such that Galier’s harm could be said to “arise out of ”
its sales in 1972 and 1973. It was years later, in 1977,
The parties submitted excellent supplemental briefs. At oral
argument, all counsel were exceptionally well prepared and their
presentations were of great assistance to this court.
1
30a
when a letter described its sales radius of 300 miles.
Murco points out that there is no evidence any of the
eight customers with Oklahoma addresses resold its
joint compound to a contractor who in turn supplied it
to a job site where Galier inhaled asbestos fibers. According to Murco, the circumstances are no different
from Bristol-Myers where the plaintiffs were unable to
trace Plavix pills from California to their out-of-state
local pharmacies. See Bristol-Myers, 582 U.S. at __,
137 S.Ct. at 1783.
¶19 Galier argues that the relational test for specific personal jurisdiction does not require him to trace
a particular asbestos-containing product to a specific
job site where he was exposed. He emphasizes that he
resides in Oklahoma and was harmed in Oklahoma,
distinguishing Bristol-Myers on that basis. Galier
acknowledges that Murco’s 300-mile sales radius is
evidenced by a letter written in 1977, but he asserts
this does not foreclose the existence of that marketing
strategy before that date.
¶20 Murco maintains that it is Galier’s burden to
prove evidence of jurisdiction and he is not entitled to
inferences. It is true that in personam jurisdiction
over a non-resident defendant cannot be inferred, but
instead must affirmatively appear from the trial court
record, and the burden of proof in the trial court is
upon the party asserting that jurisdiction exists.
Montgomery, 2018 OK 17, ¶17, 414 P.3d 824, 829.
However, we are not persuaded that Galier must present proof to the degree of specificity urged by Murco
in order to demonstrate specific jurisdiction in this
case.
¶21 In Bristol-Myers, the non-California residents
claimed injury occurring outside California. See Bristol-Myers, 582 U.S. at __, 137 S.Ct. at 1782. They were
not claiming that the drug they took was dispensed to
31a
them in California. See Montgomery, 2018 OK 17,
¶24, 414 P.3d 824, 830. Therefore, they could hardly
argue that there was a link between Plavix sales in
California and their alleged harm outside California.
In an argument which the Supreme Court termed a
“last ditch contention” the non-resident plaintiffs attempted to show the requisite connection by arguing
that a distributor, McKesson, had a contract to distribute Plavix nationally. Bristol-Myers, 582 U.S. at
__, 137 S.Ct. at 1783. The court disposed of that argument by stating that a relationship with a third
party, standing alone, is an insufficient basis for jurisdiction. Id. citing Walden, 571 U.S, at 286, 134 S.Ct.
1115. The relationship between Bristol-Myers and
McKesson was not enough to bridge the gap between
the sale of Plavix pills in California and harm caused
by Plavix outside California. In that context, the Supreme Court observed there was no additional evidence that might have demonstrated an adequate
link, such as identifying how or by whom the drug
taken outside California was distributed to the out-ofstate residents. We conclude that the Supreme Court
did not intend by its decision in Bristol-Myers to establish a general rule that a plaintiff must present evidence tracing the path of an allegedly dangerous
product from manufacturer to end user in order to establish specific personal jurisdiction.
¶22 Our canvas of the record reveals that Murco
desired to exploit a feasible market for its asbestos
joint compound. According to its corporate representative, and at some unspecified point in time, it
reasoned that shipping its product within a radius of
300 miles was cost effective but beyond that region
would be cost-prohibitive due to the weight of joint
compound. Murco’s representative testified that Oklahoma was part of its market. Murco’s ledger sheets
32a
itemize significant sales of its asbestos joint compound to Oklahoma customers located in Oklahoma
City as well as Lawton, Duncan, and Stonewall.
Murco’s asbestos joint compound did not arrive in the
forum by chance or the random flow of commerce.
Murco considered shipping costs and then purposefully targeted its asbestos joint compound into Oklahoma because it was within its calculated profitability
zone.
¶23 Galier, an Oklahoma resident, alleged that he
suffered harm in Oklahoma arising out of and related
to Murco’s sales of asbestos-containing joint compound which it purposefully directed toward the State
of Oklahoma. We must next consider whether the Oklahoma County District Courts exercise of jurisdiction
over Murco would offend traditional notions of justice
and fair play.
V
¶24 “In determining whether personal jurisdiction
is present, a court must consider a variety of interests.
These include the interests of the forum State and of
the plaintiff in proceeding with the cause in the plaintiffs forum choice. But the primary concern is the burden on the defendant. Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum.” BristolMyers, 582 U.S. at __, 137 S.Ct. at 1779 (internal citations and quotation marks omitted). Murco has never
argued that defending itself in Oklahoma would be
impractical or burdensome. Its headquarters in Fort
Worth is relatively close to Oklahoma County. Oklahoma citizens have an interest in determining
whether products sold into their state are dangerous,
and whether the manufacturer breached a duty.
33a
¶25 We conclude that the Oklahoma County District Court properly exercised specific personal jurisdiction over Murco Wall Products.
VI
¶26 Galier 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. Before the court is the issue of 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.
¶27 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 Galier’s
damages to Murco and 60% to Welco. Thirteen nonparties were identified on the verdict form and the
jury apportioned zero percent liability to each of them.
¶28 Because the jury trial was in a civil action
claiming bodily injury, the verdict form included answers to interrogatories pursuant to 23 O.S. §61.2
(2011). 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. 23 O.S. §61.2 (E). The same findings
34a
also served as the predicate for the jury to consider
punitive damages in a second stage of the trial. 23
O.S. §9.1 (2011).2
¶29 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?
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.
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.”
2
35a
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 - -
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.3
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.4
It is impossible to conclude from the transcript whether Foreman 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
4
36a
¶30 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.
¶31 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 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.
¶32 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.5
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.
“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.
5
37a
VII
¶33 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 Med. Ctr., Inc., 1999 OK
33, 120, 987 P.2d 1185, 1194.
¶34 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.
¶35 Galier contends it was too late to poll the jury
because the verdict was in proper form and the court
had already accepted it.6 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
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.”
6
38a
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.
¶36 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 concluded. Here, the jury was still empaneled when the
court conducted its poll. See 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 antiimpeachment 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.
¶37 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
39a
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.
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.
¶38 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.
40a
¶39 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 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.7
¶40 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.
¶41 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.”
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.
7
41a
Frick, at ¶18, citing Rothbauer v. State, 22 Wis. 468,
470 (1868).
¶42 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.
¶43 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.
¶44 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.8 None of the jurors
answered the poll in the negative. The trial court did
not abuse its discretion in accepting the jury’s verdict
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.
8
42a
rather than ordering the jury to recommence deliberation.9
¶45 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.
¶46 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
The trial court is not bound to accept a verdict that is not in
accordance with its instructions. Stephens, 1960 OK 69, ¶ 12,
350 P.2d 506, 509. We disagree 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.
9
43a
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 instructing
the jury as to the form of verdict that was acceptable,
without intimating as to what that verdict should be.
West at ¶13.
¶47 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.
VIII
¶48 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.
44a
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.
¶49 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.
IX
¶50 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 O.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 discretion. Myers v. Missouri Pacific R. Ca, 2002 OK 60,
736, 52 P.3d 1014, 1033.
45a
A
¶51 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.
¶52 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
¶53 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.
¶54 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. A s discussed above, the jury
was entitled to draw a legitimate inference 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
46a
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
¶55 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.
¶56 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.
X
¶57 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 competent 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
47a
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
¶58 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.
¶59 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.
B
¶60 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
48a
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.”
¶61 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.
¶62 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.
C
¶63 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.
49a
¶64 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.
¶65 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 the disease
is very painful, symptoms will likely begin within ten
years, and Galier likely will not survive long after he
becomes symptomatic.
¶66 As evidence of misconduct, Galier points to evidence that Murco opposed the 1978 ban on asbestos,
continued manufacturing asbestos products until the
50a
day the ban took effect, and continued buying asbestos
and selling asbestos products after the ban.
¶67 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.
XI
¶68 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
¶69 Murco contends the trial court erred in refusing a limiting instruction on post-1975 laws and
events because the evidence showed that Galier was
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
51a
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.
¶70 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 exposure 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
¶71 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.
52a
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.
¶72 For the foregoing reasons, the trial court’s
judgment is AFFIRMED.
BELL, J., and SWINTON, J. (sitting by designation),
concur.
53a
APPENDIX C
SUPREME COURT OF THE UNITED STATES
(ORDER LIST: 583 U.S.)
TUESDAY, FEBRUARY 20, 2018
CERTIORARI - - SUMMARY DISPOSITION
17-733 MURCO WALL PRODUCTS, INC. V.
GALIER, MICHAEL D.
The petition for a writ of certiorari is
granted. The judgment is vacated, and the
case is remanded to the Court of Civil Appeals of Oklahoma, First Division for further consideration in light of Bristol-Myers
Squibb Co. v. Superior Court of Cal., San
Francisco Cty., 582 U. S. ____ (2017).
* * *
54a
APPENDIX D
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
55a
APPENDIX E
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
56a
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.
57a
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 nonparties were identified on the verdict form and the
jury apportioned zero percent liability to each of them.
58a
¶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?
The Court:
Sir, you found by clear and convincing evidence that there was.
So, yes, that puts you into the pu-
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.”
1
59a
nitive 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 - -
Foreman Jacobs:
How do we correct that?
The Court:
- - it is not. Okay.
Foreman Jacobs:
Well, that was my vote, yes.
But . . .
60a
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 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
It is impossible to conclude from the transcript whether Foreman Jacobs voluntarily terminated his response or the Court interrupted him.
2
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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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 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.
“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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¶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 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 antiimpeachment rule under the Oklahoma Evidence
Code, 12 O.S. 2011 §2606(B). This rule limits the
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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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.
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
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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 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
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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¶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
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