Petition for Writ of Certiorari — John Crane, Inc. v. Oney (No. 07-1073)

< mene U.S.

071073FEB15 2008

No.

Ju Che OPPICE OF THE CLERK

Supreme Court of the Gntted States

+

JOHN CRANE INC.,

Petitioner,

SANDRA KAY ONEY,

EXECUTOR OF THE ESTATE OF

SHARON VAUGHN ONEY, DECEASED,

Respondent.

¢

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

+

PETITION FOR WRIT OF CERTIORARI

4

Archibald Wallace, III

Counsel of Record

WALLACEPLEDGER, PLLC

The Capstone Center

7100 Forest Avenue, Suite 302

Richmond, Virginia 23226

(804) 282-8300

Michael A. Pollard

BAKER & MCKENZIE LLP

One Prudential Plaza, Suite 3900

130 East Randolph Drive

Chicago, Dlinois 60601

(312) 861-2786

Counsel for Petitioner Dated: February 15, 2008

THE LEX GROUP®© ¢ 1750 K Street N.W. @ Suite 475 ¢ Washington. DC 20006

(202) 955-0001 ¢ (800) 815-3791 @ Fax: (202) 955-0022 ¢www.thelexgroupdc.com

QUESTIONS PRESENTED

Under general maritime law, should damages

in an asbestos liability wrongful death action

be apportioned pursuant to a limited joint and

several liability approach, under which

nonsettling defendants, settling defendants,

entities not named as party defendants, and

bankrupt entities are placed on a jury’s

verdict form?

This question should be answered in the affirmative.

2.

Under Article III, Section 2 of the United

States Constitution, should maritime law be

applied to wrongful death actions, based on a

failure to warn, that are filed against land-

based manufacturers of asbestos-containing

products by private employees servicing ships

in navigable waters?

This question should be answered in the negative.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of the

Supreme Court of the United States, John Crane

Inc. certifies that it is an indirect wholly-owned

subsidiary of Smiths Group plc, a public company

traded on the London Stock Exchange.

TABLE OF CONTENTS

Page

QUESTIONS PRITAM a ncccccccsesecescccesessesesecccscecees i

CORPORATE DISCLOSURE STATEMENT ........... ii

PARA GEE” SRE ETT visiiniieiiskscacubncanncantiiciasdeiacdinadia iil

TABLE OF CITED AUTHORITIES..............0........ vili

OPINIONS AND ORDERS RELEVANT TO

BO ID sisnsonstinssectitisissseacinaga phdiltinbsbaneebiaahaaanaaaiidinaiaiaan 1

NATURE OF THE CASE AND MATERIAL

SN iischicsenicesinisiiinnadinnianisaiaaiheaduaieailesaidkeness 2

CONSTITUTIONAL PROVISION AT ISSUE........... 6

FRR ETS, COU IF Be sits nasattinarinsasonnsicedatinnbicsinbons 7

A. Mr. Oney’s Exposure History and

PENI ticsstesi subeenciadieiabenaneiethstecnnpiasdes 7

B. The Lawsuit and Trial ..................... 9

PRINCIPLES OF LAW, ARGUMENT, AND

Fh FD ash icici tinnabndsebishiiinnadaisnancateinttuabphans 13

I. JOHN CRANE’S PETITION SHOULD

BE GRANTED SO THAT THIS COURT

MAY DEFINITIVELY DECIDE HOW

TO APPORTION DAMAGES UNDER

GENERAL MARITIME LAW IN

CASES WHERE FEWER THAN ALL

IDENTIFIED TORTFEASORS ARE

NAMED AS DEFENDANTS .................... 16

iv

A. This Petition Should Be Granted

Because the Decision of the

Supreme Court of Virginia

Conflicts with Existing Maritime

Jurisprudence on the Proper

Method of Apportionment.............. 18

B. A Limited Joint and

Several Liability Approach to

Apportioning Liability of an

Insolvent Defendant Among All

Other Identified Tortfeasors Is

Consistent with Edmonds and

SS SETI OOE SINE LOO TIO 26

C. Public Policy Considerations

Demand the Inclusion of All

Settling Parties and Aii

Contributing Non-Parties on the

II. CERTIORARI SHOULD BE GRANTED

BECAUSE THE SUPREME COURT

OF VIRGINIA’S DECISION TO

AFFIRM THE APPLICATION OF

MARITIME LAW TO PLAINTIFF'S

WRONGFUL DEATH CLAIM

CONFLICTS WITH THIS COURT'S

ESTABLISHED PRECEDENT................ 36

Se ET cxndeccccnncesnsichanaskensnaaanuaanemissteniehes tates 38

APPENDIX

Order of

The Supreme Court of Virginia

Re: Refusing Petition for Appeal

entered December 19, 2007 ...................... la

Final Order of

The Circuit Court for the

City of Newport News

Re: Post Trial Motions

ertened Jame 12, BO0T............00...c00cccrscc0000 2a

Memorandum Opinion of

The Circuit Court for the

City of Newport News

entered May 25, 2007............cccsscccccsssccaces 5a

Order of

The Circuit Court for the

City of Newport News

Re: Various Motions

GTUBed Piss 1, BOOT oscccceccescscssscsceneesannns 15a

Excerpts of John Crane Inc.’s Posttrial

Motions to Set Aside the Jury’s Verdict

Gated Agwtl BS, 2007 .....cccscessssiscccccancnosses 22a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

CUA TRREE Bla UE, Ginchicdileasiniindtbtaniininnes 48a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

Pk TEE We EE ik entices ntiestnccrenicn 50a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

I Tie FEIT cabcittenstiesesccscccscccnisnencscenes 60a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

ESE ie Re 62a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

NG ois kes ciscicicccnisnnconexseneces 66a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

REE 68a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

a cenenseianes 85a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

I I scisacnedieeketion 108a

Excerpts of Transcript of Proceedings before

The Honorable Timothy S. Fisher

NI i cesecsanteenens 154a

Defendant, John Crane Inc.’s Motion to 1)

Apportion Fault of Judgment-Proof Defendant

Proportionally Among Both Settling and

Nonsettling Defendants, and 2) Permit the

Jury to Apportion Fault to Employer Shipyard

and Memorandum in Support,

With Exhibits,

dated February 26, 2007....................... 174a

Amended Abbreviated Complaint

dated December 11, 2006...................... 375a

Abbreviated Complaint

dated March 27, 2006 ........................... 380a

Vili

TABLE OF CITED AUTHORITIES

Page(s)

United States Authorities:

United States Supreme Court Cases:

East River S.S. Corp. v.

Transamerica Delaval, Inc.,

ee I va taivnntsnnnsnessansnstnnsatreatagaioins 36

Edmonds v. Compagnie Generale Transatlantique,

MAD TIE. Be CRT biihanitvhecadvsvadesncataieinens passim

Grubart v. Great Lakes Dredge & Dock Co.,

Se BER TE >: SERN ecenruny ete erent 15

John Crane Inc. v. Jones,

U.S. Supreme Court, No. 07-792

(being distributed for conference

PORES Bs FE cis tvctinscsncncsaniccnsinen 15, 36, 37

McDermott, Inc. v. AmClyde,

ES CF.Fe. Fe CRD ccsicvissvicsccncansiscsseccsaains passim

Sisson v. Ruby,

ME Tia TS CD i atte snntscdninesixnaroacinns 14, 15

United States v. Reliable Transfer,

VS RES. Be (St. °. .) ner 16, 19, 25, 31

Wilburn Boat Co. v. Fireman’s Fund Ins. Co.,

ak ft: | eee 22

Other Federal Cases:

Bordelon v. Consolidated Georex Geophysics,

628 F. Supp. 810 (W.D. La. 1986)............0.00-. 25

Calhoun v. Yamaha Motor Corp., U.S.A.,

350 F. 3d 316 (3d Cir. 2003)................ 13, 22, 23

Greenly v. Mariner Mgmt. Group, Inc.,

192 F.3d 22 (ist Cir. 1999).............. ce. 22

Harrison v. Garber Bros., Inc.,

750 F. Supp. 203 (E.D. La. 1990).......13, 24, 25

Leger v. Drilling Well Control, Inc.,

592 F.2d 1246 (5th Cir. 1979).................. 24, 25

Oman vy. Johns-Manville Corp.,

764 F.2d 224 (4th Cir.) (en banc),

474 U.S. 970, 106 S. Ct. 351 (1985)......... 15, 16

Constitutional Provision:

ee EE, GNP, TD OL. GE, Bh ccccccccccccccccecccsccoceccccsocsness 6

State Court Authorities:

Cases:

Carniv Vv. isle,

953 So.2d 461 (Fla. 2007)..............cccc cece ee eee 22

Estate of Moses v.

Southwestern Va. Transit Mngmnt. Co.,

273 Va. 672, 678 S.E.2d 156 (2007)............... 36

Garlock Sealing Technologies, LLC v. Little,

270 Va. 381, 620 S.E.2d 773 (2006)....... passim

John Crane Inc. v. Jones,

Va. , 650 S.E.2d 851 (2007)....... 16, 36

Sensenbrenner v.

Rust, Orling & Neale, Architects,

236 Va. 419, 374 S.E.2d 55 (1988)................. 36

Sigler v. Gr hore Co.,

663 So. 2d 212 (La. Ct. App. 1995) ....13, 23, 24

Statutes:

Va. Code § 8.01-38.1 (1950, as amended)................. 36

Tex. Civ. Prac. & Rem. Code

33(A) §$§ 33.003-004 (2008) ...... 2.0... 13, 21

La. Civ. Code Book ITI, Title V,

I, Bie Fe IR ccncncccctcsnsseccacsccccsuscceess 14, 21

Other Authorities:

David D. Jensen, Navigating the Straits of

Settlement and Insolvency: A Reconciliation of

Joint d Several Liabili d Proportionate

Settlement under the Maritime Law,

60 Wash. & Lee L. Rev. 623 (2003) ...17, 26, 27

OPINIONS AND ORDERS

RELEVANT TO APPEAL

John Crane Inc. v. Oney, Record No. 071861,

Supreme Court of Virginia, Denial of Petition

for Appeal, December 19, 2007 (App. 1a).

Oney v. John Crane Inc., Circuit Court for the

City of Newport News, Virginia, Law No.

00301TF, Final Order, June 12, 2007 (App.

2a-4a).

Oney v. John Crane Inc., Circuit Court for the

City of Newport News, Virginia, Law No.

00301TF, Memorandum Opinion, May 25,

2007 (App. 5a-14a).

Oney v. John Crane Inc., Circuit Court for the

City of Newport News, Virginia, Law No.

00301TF, Order, April 1, 2007 (App. 15a-21a).

NATURE OF THE CASE AND

MATERIAL PROCEEDINGS

This Petition is from the Supreme Court of

Virginia’s denial of John Crane Inc.’s (“John Crane”)

Petition for Appeal, which both affirmed the Circuit

Court for the City of Newport News, Virginia’s

exercise of federal maritime jurisdiction over

Plaintiffs wrongful death action in an asbestos

liability lawsuit, and affirmed an apportionment

scheme that did not permit the jury to apportion

fault to various entities other than John Crane, such

as insolvent entities, entities that had established

trusts to compensate injured workers and their

families, and former defendants who had settled.

Plaintiff, Sandra Kay Oney, the executor of

the estate of her husband, Sharon Vaughn Oney

(“Decedent”), brought this action against eleven

asbestos manufacturers and suppliers, including

John Crane.’ Plaintiff sought damages for John

Crane’s alleged failure to warn the Decedent of

harms associated with asbestos inhalation under

strict liability and negligence theories of recovery.

Before trial, all other defendants were dismissed,

through settlements or voluntary nonsuits, leaving

John Crane as the sole defendant at trial.

Prior to trial, John Crane moved the trial

court to apply Virginia law rather than federal

‘ The eleven defendants originally named were Garlock Sealing

Technologies, LLC; Waco, Inc.; Metropolitan Life Insurance

Company; Foster-Wheeler USA Corporation; SB Decking Co.;

Union Carbide Corporation; Warren Pumps, Inc.; Goulds

Pumps, Inc.; Buffalo Pumps, Inc.; Crane Company; and John

Crane. Crane Company and John Crane are unrelated.

maritime law as invoked by Plaintiff in her Motion

for Judgment. John Crane also filed Motions to

Apportion Fault of Judgment-Proof Defendants and

to Permit the Jury to Apportion Fault to Employer

Shipyard. Addressing the same issues, Plaintiff filed

a Motion to Apply Joint and Several Liability and

Prohibit Allocation of Comparative Fault to Non-

Party Entities, and a Motion to Prohibit Evidence

Relating to Negligence of Non-Party and/or

Bankrupt Companies. At the pre-trial conference on

March 16, 2007, Judge Timothy S. Fisher denied

John Crane’s motions and granted Plaintiffs

motions. (Order, April 1, 2007, App. 15a-21a).

Once the trial court had ruled that federal

maritime jurisdiction applied to the case, the issue

was not argued again. Thereafter, the trial was held

daily from March 26, 2007 through April 11, 2007,

excluding weekends, before a jury in the Circuit

Court of Newport News, Virginia. The parties

revisited the question of which apportionment

scheme comports with maritime law at the close of

evidence, when Plaintiff orally moved the trial court

to strike the evidence regarding comparative fault of

any alleged tortfeasor other than John Crane or

Garlock Sealing Technologies, LLC (“Garlock”). The

trial court granted Plaintiffs motion over John

Crane’s objection.

The jury awarded Plaintiff $9,251,392.06 and

found John Crane to be 60% at fault and Garlock

40% at fault. Pursuant to the trial court’s rulings

before and during trial, these were the only two

entities included on the verdict form. The jury

awarded $9,000,000 in compensatory damages and

$251,392.06 in medical and funeral expenses but did

not award punitive damages. John Crane filed its

motion to set aside the verdict on April 23, 2007.

Subsequent to trial, upon hearing post-trial

motions on May 8, 2007, Judge Fisher reaffirmed his

pre-trial rulings, including his denial of John Crane’s

Motions to Apply Virginia law, and to Apportion

Fault of Judgment-Proof Defendant and to Permit

the Jury to Apportion Fault to Employer Shipyard,

as well as his granting of Plaintiffs Motions to Apply

Joint and Several Liability and Prohibit Allocation of

Comparative Fault to Non-Party Entities, and to

Prohibit Evidence Relating to Negligence of Non-

Party and/or Bankrupt Companies. (Memorandum

Opinion, May 25, 2007, App. 5a-14a). On June 12,

2007, the trial court entered a Final Order imposing

judgment against John Crane in the amount of

$5,550,835, “such amount being the 60% share of the

total jury award assigned by the jury” to John

Crane. (Final Order, June 12, 2007, App. 2a-4a).

John Crane did not have an appeal of right

under applicable Virginia procedures. Thus, on

September 12, 2007, John Crane petitioned the

Supreme Court of Virginia for an appeal of the trial

court’s judgment on the grounds that the trial court

had improperly asserted maritime jurisdiction under

the existing case law of this Court, the Court of

Appeals for the Fourth Circuit, and the Supreme

Court of Virginia. Additionally, John Crane argued,

assuming arguendo that maritime law was proper to

apply, that the trial court nonetheless improperly

prevented the jury from apportioning fault to various

entities other than John Crane and Garlock. John

Crane also appealed the trial court’s judgment on

three issues arising out of state law, none of which

are appealed in this Petition. On December 19,

2007, the Supreme Court of Virginia denied John

Crane’s petition without issuing an opinion. (Denial

of Petition for Appeal, Supreme Court of Virginia,

December 19, 2007, 1a).

CONSTITUTIONAL PROVISION AT ISSUE

3 “The judicial Power shall extend to all Cases,

in Law and Equity, arising under this

Constitution, the Laws of the United States,

and Treaties made, or which shall be made,

under their Authority;..—to all Cases of

admiralty and maritime jurisdiction”. U.S.

ConsT. art. ITI, § 2, cl. 1.

STATEMENT OF THE FACTS

A. Mr. Oney’s Exposure History and

Death.

Plaintiffs decedent, Sharon Vaughn Oney

(“Mr. Oney”), was employed as a machinist at the

Newport News Shipbuilding and Drydock Company

(hereinafter “the shipyard”) from 1962-1994. (TR,

March 27, 2007, 446-48? at 1llla-1l4a). He was

neither a sailor nor a merchant mariner, but rather

was a private citizen working to build and repair

ships as an employee of the shipyard. There,

between 1962 and 1972, Mr. Oney worked on the

construction and overhaul of aircraft carriers and, to

a lesser degree, submarines. (TR, March 27, 2007,

449-53 at 114a-19a, 474 at 132-33a, 477-79 at 133a-

36a, 487-88 at 139a-141la, 525-26 at 151a-53a). The

majority of his time was spent constructing and

repairing the catapult portions of nascent aircraft

carriers such as the NIMITZ, the KENNEDY, the

AMERICA, and the ENTERPRISE. Id. After 1972,

Mr. Oney was promoted to supervisor at the

shipyard and ceased working regularly as a

machinist. (TR, March 27, 2007, 490-91 at 141la-

143a). Mr. Oney retired from his job as a supervisor

in 1994. (TR, March 27, 2007, 447 at 113a).

Throughout his life, Mr. Oney maintained no other

employment relevant to this appeal.

Evidence presented at trial established that

Mr. Oney worked for nearly ten years as a shipyard

? All citations to the record made in this Petition reference the

volume of the transcript on the day the evidence was recorded

and the page numbers (i.e., “TR, March 27, 2007, 1-5”), where

appropriate, followed by the Appendix page numbers.

machinist in an environment of heavy exposure to

asbestos fibers released by a variety of products to

which he, and other tradesmen around him, had

been exposed on a daily basis, including pipe

covering, insulation, gaskets, packing, cloth, cement,

boilers, brick, and mud. (TR, March 27, 2007, 456 at

120a-21a, 462-64 at 12la-24a, 469-74 at 127a-33a,

480-81 at 136a-38a, 521-23 at 148a-5la). More

specifically, Mr. Oney and several of his former co-

workers testified that they were regularly exposed to

asbestos-containing products manufactured by

Johns-Manville, Flexitallic, Garlock, and John

Crane. (TR, March 27, 2007, 456 at 120a-21a, 464-

65 at 123a-25a, 468-70 at 125a-28a, 480-81 at 136a-

38a, 493-94 at 143a-45a, 517 at 146a-47a, 521-23 at

148a-51a; TR March 28, 2007, 543-45 at 86a-89a,

547 at 89a-90a, 580 at 90a-91la, 586-87 at 91la-93a,

643 at 93a-94a, 646 at 95a, 670-73 at 96a-100a, 677

at 100a-10la). The John Crane products to which

Mr. Oney was exposed were pipe gaskets and valve

packing.

On January 27, 2006, Mr. Oney was

diagnosed with mesothelioma, which his doctors

attributed to occupational asbestos exposure. (TR,

March 28, 2007, 744-46 at 104a-107a; TR, March 29,

2007, 803-04 at 68a-70a, 814 at 76a). His doctors

also testified that all the products to which Mr. Oney

was exposed were “significant and substantial,

contributing causes to the development of his

malignant mesothelioma.” (TR, March 29, 2007, 815

at 77a). Mesothelioma is a rare cancer that is almost

exclusively attributable to asbestos exposure. (TR,

March 28, 2007, 738-40 at 101a-104a). Through

September 2006, Mr. Oney received chemotherapy

and radiation therapy. (TR, March 27, 2007, 440 at

110a; TR, April 4, 2007, 1707 at 60a-6la). None of

his treatments were successful, and on November 17,

2006, Mr. Oney died at age 65. (TR, March 30, 2007,

1112 at 67a).

Mr. Oney is survived by his wife of 46 years.

(TR, March 27, 2007, 438 at 109a). The Oneys had

no children. Id. The evidence at trial demonstrated

that Mr. Oney was well into retirement at the time

of his death but continued to maintain certain

investment properties he and his wife rented to the

public for supplemental income. (TR, March 27,

2007, 494-95 at 145-46a).

B. The Lawsuit and Trial.

On February 21, 2006, Mr. Oney sued thirteen

manufacturers and suppliers of asbestos-containing

products, including John Crane and Garlock,

alleging that each manufactured products to which

he was exposed while working at the shipyard and

that each manufacturer’s product was a substantial

contributing factor to causing his mesothelioma.

(See Pl.’s Abbrev. Compl. at 380a-84a). After Mr.

Oney’s death, Plaintiff filed an amended complaint

for the wrongful death of her husband, limiting the

action to eleven defendants. (See Pl.’s Am. Abbrev.

Compl. at 375a-79a).

In its Answer, John Crane asserted several

defenses, including that its products did not release

sufficient asbestos fibers to cause Mr. Oney’s illness,

and that John Crane’s products were not a

significant contributing cause of his mesothelioma.

John Crane’s Answer also asserted that other

10

manufacturers’ asbestos-containing products caused

Mr. Oney’s illness and death, not John Crane’s. By

the time of trial, all of the defendants except John

Crane had either been voluntarily non-suited or

dismissed pursuant to settlement. (TR, March 16,

2007, 37-38 at 155a-56a).

During the course of discovery and trial, Mr.

Oney and his former co-worker witnesses identified

the manufacturers and/or suppliers of other

asbestos-containing products to which Mr. Oney was

exposed, including Johns-Manville and Flexitallic.

(TR, March 27, 2007, 468-70 at 126a-28a, 480-81 at

136a-38a; TR, March 28, 2007, 580 at 90a-91a, 670-

73 at 96a-100a; TR, April 2, 2007, 1222-23 at 62a-

65a). These two companies had not been named by

Mr. Oney as defendants in this action, likely due to

their judgment-proof status. Nevertheless, Johns-

Manville has a trust in place that compensates

claimants meeting certain requirements of exposure

and diagnosis. Although Plaintiffs fact and expert

witnesses implicated both Johns-Manville and

Flexitallic as substantial contributing causes of Mr.

Oney’s disease, Plaintiff never sued or settled with

either. Plaintiffs counsel acknowledged during pre-

trial arguments concerning liability allocation that

plaintiff simply chose not to file a claim with Johns-

Manville’s trust, though she was free to do so. (TR,

March 16, 2007, 37 at 155a).

At trial, Plaintiffs expert Dr. Maddox testified

that each and every exposure to asbestos

experienced by Mr. Oney constituted a substantial

contributing cause of his mesothelioma. (TR, March

29, 2007, 803-04 at 68a-70a, 808-19 at 70a-81a, 867-

11

69 at 82-84a). Followed logically, the thrust of Dr.

Maddox’s testimony was that every identified

manufacturer of asbestos-containing products

contributed to Mr. Oney’s disease, regardless of the

amount of asbestos fiber released by the product or

the duration and intensity of Mr. Oney’s exposure to

it. Thus, according to Dr. Maddox, every asbestos-

containing product to which Mr. Oney was exposed

was at least partially responsible for his death.

In the face of this evidence, John Crane moved

the court in advance of trial to allow the verdict to be

apportioned among non-settling defendants, settling

defendants, and other absent tortfeasors. (TR, March

16, 2007, 37-56 at 155a-73a). The motion was denied

as to absent tortfeasors. Id. at 55. John Crane

argued again at the close of trial, during the jury

instruction conference, that the court should instruct

the jury that they were free to apportion damages

among all identified tortfeasors pursuant to a

limited joint and several liability approach. (Id.; TR,

April 9, 2007, 2258-64 at 53a-59a). John Crane

argued that such an apportionment scheme was

consistent with maritime law and the trend of this

Court’s decisions concerning the same. (TR, April 9,

2007, 2258-64 at 53a-59a). The trial court denied

John Crane’s motion, thereby leaving absent

tortfeasors and even most settling defendants off the

verdict form. Id. at 2264.

At that same time, Plaintiff also moved to

strike John Crane’s evidence as to the comparative

fault of any manufacturer except Garlock. (TR, April

9, 2007, 2256-64 at 50a-59a). Plaintiffs counsel

argued that because Plaintiff never sued or filed a

12

claim against Johns-Manville or Flexitallic, it had no

place on the verdict form. Id. The trial court agreed

and granted Plaintiffs motion to strike as to Johns-

Manville and Flexitallic. Id. at 2258-64.

Ultimately, the jury was instructed that it

could assign a percentage of liability for Mr. Oney’s

death only to John Crane and Garlock. (TR, April

11, 2007, 2559 at 49a). On April 10, 2007, the jury

returned its $9.25 million verdict, allocating 60% of

the liability to John Crane and 40% to Garlock. Id.

Judgment in the amount of $5,550,835 was entered

against John Crane on June 12, 2007. John Crane

timely filed its Notice of Appeal to the trial court on

July 9, 2007 and filed its Petition for Appeal to the

Supreme Court of Virginia on September 12, 2007.

The Supreme Court of Virginia denied the Petition

for Appeal on December 19, 2007.

13

PRINCIPLES OF LAW,

ARGUMENT, AND AUTHORITIES

John Crane respectfully asks this Court to

determine the correct liability apportionment

scheme under maritime products liability law when

there are several different types of potential

tortfeasors who may have contributed to the

plaintiffs injury. Such is the case in asbestos

litigation where a multitude of asbestos-containing

products, manufactured by various entities, have

been identified as having contributed to a plaintiffs

injury. Although this Court has addressed the

method of apportioning fault among tortfeasors in

cases where all potential tortfeasors are named 2s

defendants (see McDermott, Inc. v. AmClyde, 511

U.S. 202 (1994)where the Court adopted a

“proportionate fault approach” upon determining

how a settlement with less than all defendants in an -

admiralty case should affect the liability of a

nonsettling defendant remaining at trial), this Court

has not yet determined the parameters of the

McDermott analysis, specifically, how it applies to

maritime cases where, as here, fewer than all

potential tortfeasors are named as defendants. The

need to identify the correct apportionment scheme

for cases decided under maritime law is paramount,

especially in light of the differing approaches used by

federal and state courts. See Calhoun v. Yamaha

Motor Corporation, U.S.A., 350 F.3d 316 (3d Cir.

2003); Sigler v. Grace Offshore Co., 663 So.2d 212

(La. Ct. App. 1995); Harrison v. Garber Bros., Inc.,

750 F. Supp. 203 (E.D. La. 1990); Texas Civ. Practice

& Remedies Code, 33(A) §§ 33.003-004 (2008);

14

Louisiana Civ. Code Book III, Title V, Chap. 3, Art.

2323 (2008).

Based on this Court’s reasoning in both

McDermott and Edmonds v. Compagnie Generale

Transatlantique, 443 U.S. 256 (1979), John Crane

contends that the jury should be permitted to

apportion fault to all defendants remaining at the

table at verdict and all defendants who have settled,

regardless of whether the evidence at trial showed

exposure by the plaintiff to a particular settling

defendant’s products. Moreover, the jury should

have the option to apportion fault to judgment-proof

entities for which there was affirmative evidence of

exposure at trial, regardless of whether they were

ever sued. Likewise, formerly bankrupt entities

with trusts established to compensate injured users

of their products should appear on the jury form,

especially when the plaintiff makes the conscious

and informed decision not to seek such

compensation. Finally, any percentage of fault

allocated to a judgment-proof entity should be re-

apportioned according to a “limited joint and several

liability” approach, to preserve the settlement

expectations of all parties. A scheme such as the one

proposed by John Crane herein is more faithful to

the principles enunciated in McDermott than the

extremely narrow one devised by the trial court and

approved by the Supreme Court of Virginia in this

case.

John Crane also respectfully asks this Court

to determine whether its most recent maritime

jurisdiction decisions, Sisson v. Ruby, 497 U.S. 358

15

(1990), and Grubart v. Great Lakes Dredge & Dock

Co., 513 U.S. 527 (1995), and tests articulated

therein, require that a previously consistent line of

federal appellate cases, holding maritime

jurisdiction to be unavailable to shipyard workers in

asbestos cases, be overruled as well. Analysis of past

rulings of the Courts of Appeals, and of this Court,

reveals that shipyard workers claiming asbestos

injury cannot sue under maritime jurisdiction under

the law of the Fourth Circuit and various other

Circuits. See Oman v. Johns-Manville Corp., 764

F.2d 224, 230 (4th Cir.) (en banc), cert. denied,

Oman v. H.K. Porter, 474 U.S. 970, 106 S. Ct. 351

(1985). Although the Fourth Circuit’s test for

applying maritime jurisdiction was disapproved by

this Court for being too fact-specific, the result in

Oman and its brethren is valid under this Court’s

current test as articulated in Sisson and Grubart.

Moreover, the Supreme Court of Virginia’s decision

conflicts with Sisson and Grubart, because its

decision improperly applied the “disruptive impact”

and “substantial relationship” factors of the nexus

test. John Crane has already appealed this issue to

this Court in the appeal styled John Crane Inc. v.

Jones, U.S. Supreme Court, No. 07-792 (Petition for

Writ of Certiorari filed December 13, 2007), which

arose from substantially similar facts and from the

same trial court as the case at bar.

Bao.

16

I. JOHN CRANE’S PETITION SHOULD

BE GRANTED SO THAT THIS COURT

MAY DEFINITIVELY DECIDE HOW

TO APPORTION DAMAGES UNDER

GENERAL MARITIME LAW IN CASES

WHERE FEWER THAN ALL IDENTIFIED

TORTFEASORS ARE NAMED AS

DEFENDANTS.

Recent holdings by Virginia trial courts and,

most recently, by the Supreme Court of Virginia,

have forced litigants in asbestos shipyard tort claims

to consider the impact of maritime law on cases

which had previously been tried exclusively under

state substantive law. See John Crane Inc. v. Jones,

_. Va. __, 650 S.E.2d 851 (2007) (holding that

maritime jurisdiction was properly applied to a tort

claim brought by the widow of a shipyard employee

who worked on navigable waters); Oman v. Johns-

Manville Corp., 764 F.2d 224, 230 (4th Cir.) (en

banc), cert. denied, Oman v. H.K. Porter, 474 U.S.

970, 106 5S. Ct. 351 (1985) (holding that maritime

jurisdiction was inappropriate under substantially

identical facts). One of the most problematic aspects

of the new application of maritime law to asbestos

cases has been application of the fault

apportionment concept first pronounced by this

Court in United States v. Reliable Transfer, 421 U.S.

397 (1975), and refined in McDermott. Although

this Court clarified in McDermott that the liability of

nonsettling defendants in maritime cases should be

calculated with reference to the jury’s allocation of

proportionate responsibility, rather than by giving

nonsettling defendants credit for the dollar amount

of settlements entered into between a plaintiff and

17

other defendants, it did not have occasion to address

how this “proportionate share approach” would apply

in cases where fewer than all tortfeasors are named

as defendants. McDermott, 511 U.S. at 217. Nor

has the Supreme Court of Virginia addressed this

issue. Although it was presented with an

opportunity to address the apportionment issue in

the factually similar case of Garlock Sealing

Technologies, LLC v. Little, 270 Va. 381, 388, 620

S.E.2d 773, 777 (2005), the Supreme Court of

Virginia addressed it only in dicta. Accordingly,

neither the Supreme Court of Virginia nor this Court

has addressed how apportionment properly functions

in cases where less than all potential tortfeasors are

named as defendants and there is evidence that each

contributed to the plaintiffs injury.

However, this Court has provided substantial

guidance on this issue. Read together, Edmonds and

McDermott suggest that fault should be apportioned

initially among all those identified as tortfeasors,

regardless of whether they were named as parties to

the action, and then a judgment-proof tortfeasor’s

share of the liability should be divided proportionally

among all other identified tortfeasors. This method

would both ensure that no defendant at trial pays

more than its equitable share of a judgment and

prevent punishment of those defendants who choose

not to settle. See David D. Jensen, Navigating the

trai of tlement _an Insolvency: A

Reconciliation of Joint and Several Liability and

Proportionate Settlement under the Maritime Law,

60 Wash. & Lee L. Rev. 623 (2003) (“Note”)

(proposing an apportionment approach substantiaily

similar to that set forth in this Petition). This

18

scheme best applies the paramount considerations

discussed in McDermott.

This Court should grant certiorari to address

for the first time the maritime apportionment issue

that the Supreme Court of Virginia declined to

decide in Little and declined to address in this case.

If the Court refuses to hear this case, apportionment

of liability in maritime law will remain unsettled,

with each state applying its own apportionment

scheme.

A. This Petition Should Be Granted

Because the Decision of the

Supreme Court of Virginia

Conflicts with Existing Maritime

Jurisprudence on the Proper

Method of Apportionment.

This case presents the Court with an

opportunity to cure an injustice that is occurring

under the currently undefined maritime liability

apportionment scheme in which former

manufacturers of encapsulated low dose exposure

asbestos products are being found liable and

assigned more than their proportionate share of tort

liability, simply because they are financially viable.

Because the correct apportionment theory is unclear,

it is often the case, as it was here, that courts will

refuse to allow absent or judgment-proof tortfeasors,

whose products are usually present in far greater

quantities, release thousands of times more asbestos

fibers, and are comprised of a more potent form of

asbestos, io appear on a jury verdict apportionment

form. These courts reason that a jury should not be

19

allowed to assign liability to a party not present

before them under the mistaken rationale that it is

unfair to the absent party and/or the plaintiff to do

so. Under this Court’s maritime precedent, however,

liability is regularly assigned to absent tortfeasors.

It is well-settled that the principle of joint and

several liability continues to apply in a maritime

setting where judgment has been entered against

multiple defendants. McDermott, 511 U.S. at 220-

21; Edmonds, 443 U.S. at 263. It is also established

that where one defendant settles with a plaintiff

before trial and the other defendants continue to

trial, the claims that the plaintiff has against the

non-settling defendants are reduced by the released

defendant’s proportionate share of responsibility for

the total obligation. McDermott, 511 U.S. at 211

(finding three considerations “paramount” to

allocation of liability: (1) consistency with the

proportionate fault approach of Reliable Transfer, (2)

the promotion of settlements, and (3) judicial

economy). Indeed, this situation occurred in this

case when Garlock, which settled with plaintiff prior

to trial, was placed on the verdict form and allocated

40% of the fault. Nevertheless, in maritime cases

where multiple manufacturers of asbestos-

containing products have been identified as having

contributed to a plaintiffs injury, yet only a few have

been named as defendants, important allocation

questions remain: (1) how should fault be

apportioned among all those identified; (2) how

should a judgment-proof tortfeasor’s liability be

apportioned among other identified tortfeasors; and

(3) how should the fault of a judgment-proof

20

tortfeasor with a trust fund in place, from which a

plaintiff may recover, be apportioned by the jury.

In light of these unanswered questions, John

Crane advocated at trial the following

apportionment scheme: all entities whose products

may have been a substantial contributing factor to

Plaintiffs injury, and all entities who settled with

Plaintiff in exchange for a release of liability to

Plaintiff for his injury, be placed on the jury form.

Then, once fault has been apportioned, the

percentage of fault allocated to judgment-proof

entities should be re-apportioned among all other

viable entities. The trial court ruled in favor of

Plaintiff, however, and refused to allow the

appearance of any absent tortfeasors on the verdict

form. (TR, March 16, 2007, 51-56 at 167a-73a; TR,

April 9, 2007, 2256-64 at 50a-59a). In its ruling, the

trial court specifically noted that it felt obligated by

the Supreme Court of Virginia’s dicta in Little, 270

Va. at 387-88, 620 S.E.2d at 777 to rule as it did.

(TR, March i6, 2007, 51-56 at 167a-73a). The

Supreme Court of Virginia evidently felt obligated by

the same when it chose not to award John Crane an

appeal in the instant case.

In Little, the Supreme Court of Virginia

discussed in dicta, but did not decide, the proper

method of apportioning liability in asbestos cases

decided under maritime law. 270 Va. at 387-88, 620

S.E.2d at 777. There, the triai court apportioned

liability among Garlock and ten entities that had not

been parties to the litigation, including three

insolvent entities. Id. at 385, 387. The trial court

then held Garlock alone responsible for the shares of

21

the insolvent’ entities, which method of

apportionment Garlock appealed. Id. The Supreme

Court of Virginia chose not to address Garlock’s

contentions of error in apportionment, ruling that

“[wle will not permit Garlock...to obtain an

apportionment of liability among itself and 10

entities that were not parties to this litigation and

then complain about the method of apportionment.”

Id. at 387-88, 620 S.E.2d at 777. In dicta, the Court

expressed “serious reservations” about whether

United States Supreme Court precedent would allow

apportionment of liability to settling defendants,

non-settling defendants and absent tortfeasors, but

it did not rule on the matter. Id.

Contrary to the Supreme Court of Virginia’s

concerns, the idea of apportioning fault to a non-

party is not novel. At least two states with high

volumes of asbestos litigation have statutes

providing for the allocation of fault to non-parties.

See Texas Civ. Practice & Remedies Code, 33(A) §§

33.003-004 (2008) (ordering the trier of fact to

determine the percentage of responsibility held by

each claimant, each defendant, each settling person,

and each “responsible third party” designated by a

defendant); Louisiana Civ. Code Book III, Title V,

Chap. 3, Art. 2323 (2008) (providing for the

distribution of percentages of fault in wrongful death

actions to “all persons causing or contributing to the

injury,” regardless of whether the person is a

nonparty, insolvent, or immune to suit). Although

apportionment of fault to non-parties in Texas and

Louisiana is based on statutory provisions, in the

absence of a full statutory body of general maritime

tort law, courts sitting in admiralty have the

22

freedom to articulate rules, based on state law,

which ensure that liability is properly apportioned

among tortfeasors. See Carnival Corp. v. Carlisle,

953 So. 2d 461, 464 (Fla. 2007) (where the court

noted that “federal maritime law is an

amalgamation of federal legislation, federal common

law, and state maritime law); see also Greenly v.

Mariner Mgmt. Group, Inc., 192 F.3d 22, 26 (1st Cir.

1999) (finding that “[a]lthough a court sitting in

admiralty jurisdiction must apply federal maritime

rules that directly address the issues at hand, it may

— and should — resort to state law when no federal

rule covers a particular situation”); Wilburn Boat Co.

v. Fireman’s Fund Ins. Co., 348 U.S. 310, 320-21

(1955). Recent federal and state decisions also

support the apportionment of fault to non-parties in

appropriate circumstances.

In Calhoun v. Yamaha Motor Corp., U.S.A.,

350 F.3d 316, 325 (3d Cir. 2003), a products liability

case tried under maritime law, the Third Circuit

affirmed the district court’s submission to the jury of

the possible comparative negligence of two

tortfeasors, Roffe and Palmas del Mar, who had not

been joined as parties to the suit. According to the

plaintiffs, rules of joint and several liability should

have governed, and the possible negligence of non-

parties should not have been considered. Id. Ruling

that error was unlikely, the Third Circuit quoted

from McDermott to the effect that, “{iJn such cases

[of settlement], the plaintiffs recovery against the

settling defendant has been limited not by outside

forces, but by its own agreement to settle. There is

no reason to allocate any shortfall to the other

defendants, who were not parties to the settlement.”

23

Id. at 325, n.11, citing McDermott, 511 U.S. at 220-

21 (citations and footnotes omitted). The Court of

Appeals held that although Roffe and Palmas del

Mar did not settle with plaintiffs, nor was there

immunity resulting from contract, the comparative

negligence rule announced in McDermott still

applied. Id. The court specifically noted that Roffe

and Palmas del Mar had not been made parties to

the suit due to the voluntary acts of the plaintiffs in

dismissing them or suing them elsewhere. Id. As

such, the court held the “recovery against [the two]

has been limited not by outside forces, but by [their

own decision].” Calhoun, 350 F.3d at 325, n. 11,

quoting McDermott, 511 U.S. at 221. Under such

circumstances, the court observed, that defendants

at trial should only be responsible for their

proportionate share of liability. Id. at 325, n. 11.

The Calhoun court discussed another

maritime decision that reached a similar conclusion.

In Sigler v. Grace Offshore Co., 663 So. 2d 212, 213

(La. Ct. App. 1995), the plaintiff sued his employer,

the employer’s insurer, and a crew boat operator for

injuries he allegedly sustained while offloading

equipment from a drilling vessel. The plaintiff later

voluntarily dismissed his claims against his

employer and its insurer. Id. at 214. The court

explained that the crew boat operator could be held

responsible only for his proportionate share:

Although there has not been a

settlement per se in this case, the

plaintiff voluntarily dismissed his

claims against [his employer and its

insurer] with prejudice. For purposes

24

of the proportionate allocation of fault,

we discern no distinction between a

settlement and a voluntary dismissal.

Both are agreements entered into by

the plaintiff which serve to limit his

recovery as opposed to the outside

forces such as insolvency or statutory

immunity discussed in McDermott.

Id. at 215 (emphasis added). The same reasoning

can be applied with equal force here where Plaintiff

voluntarily dismissed several defendants, chose not

to sue Johns-Manville, and further chose not to

pursue her rights to share in its available trust fund

proceeds. In this sense, the relation between

Plaintiff and Johns-Manville can be equated to a

settlement, voluntary dismissal, or any other action

taken by a plaintiff which limits her recovery.

Further, in Harrison v. Garber Bros., Inc., 750

F. Supp. 203, 204-05 (E.D. La. 1990), the plaintiff

contended that there should be no apportionment

made to a settling non-party joint tortfeasor because

she had not sued him. Instead, she argued, citing

Leger v. Drilling Well Control, Inc., 592 F.2d 1246

(5th Cir. 1979), that the general rule of joint and

several liability for maritime claims controls, so that,

if found at all at fault, Garber Bros. would have been

liable to her for the non-partys fault as well.

Harrison, 750 F. Supp. at 204-05. The district court

disagreed, finding that Leger did not concern

settling tortfeasors who had not been named in the

plaintiffs lawsuit. Id. at 205. The Leger court held

that non-settling joint tortfeasors may attempt to

prove that the settling alleged joint tortfeasor was at

25

fault and the liability for the damage proved will be

allocated among the tortfeasors and the plaintiff

based on their comparative fault; the plaintiffs

recovery against the non-settling joint tortfeasors

being reduced by his own comparative fault as well

as that of the settling alleged joint tortfeasor. Leger,

592 F.2d at 1249. The district court noted in

Harrison that this rule applies equally where a

settling tortfeasor is never made a party, but before

settling could have been sued. Harrison, 750 F.

Supp. at 205. The court determined this rule to be in

full accord with this Court’s decision in Reliable

Transfer. See also, Bordelon v. Consolidated Georex

Geophysics, 628 F. Supp. 810, 811 (W.D. La. 1986)

(‘How else can comparative fault be applied in

cases involving multiple joint tort-feasors, without

determining the fault of each alleged joint tort-feasor

vis-a-vis the other alleged joint tort-feasors as well

as the plaintiff.”)

As demonstrated by the cases. above,

application of maritime law’s apportionment scheme

is unsettled. Although Virginia’s highest court holds

that allocating fault to non-parties is not permitted,

other state and federal courts routinely permit juries

to apportion fault to non-parties to ensure that

defendants are held responsible only for their

proportionate share of responsibility to the plaintiff.

This Court now has the opportunity to apply the

“proportionate share approach” of Reliable Transfer

and McDermott to the knotty apportionment issues

raised in asbestos liability cases where a second

generation of low dose exposure defendants is

being held accountable for the asbestos exposures

26

created by far more culpable, now insolvent, entities.

This Court should, therefore, grant John Crane’s

Petition.

B. A Limited Joint and _ Several

Liability Approach to Apportioning

Liability of an Insolvent Defendant

Among All Other Identified

Tortfeasors Is Consistent with

Edmonds and McDermott.

At trial, John Crane _ proposed = an

apportionment scheme that would permit allocation

of liability to four classes of tortfeasors: (a)

defendants “at the table” at verdict, e.g., John Crane;

(b) defendants who were sued by the plaintiff but

settled before the verdict, eg., Garlock; (c)

tortfeasors who are judgment-proof but have

established a trust for compensation of injured

asbestos workers and their families, e.g., Johns-

Manville; and (d) all persons or corporations who

contributed to the plaintiffs injury but were not sued

by the plaintiff, e.g., Flexitallic. (TR, March 16, 42-

49 at 159a-66a; April 9, 2007, 2256-64 at 50a-59a).

Under this scheme, a fact finder first allocates fault

to all identified tortfeasors - non-settling

defendants, settling defendants, tortfeasors not

named as defendants, and tortfeasors that are

insolvent — and then reallocates the fault assessed to

a judgment-proof tortfeasor among the other

identified tortfeasors, including settling defendants

and those that were never made parties. See Note at

644, App. 223a-24a. All of the defendants left at the

table at verdict would be responsible only for the

ae.

27

percentage shares allocated to them, plus a

proportionate share of the judgment-proof

tortfeasor’s liability. John Crane argued that such

an approach comes closest to ensuring that no

defendant at trial pays more than its proportionate

share of the judgment, and replicates the allocation

that would result for non-settling defendants (after

contribution) had no settlement occurred. (See John

Crane’s Mot. to 1) Apportion Fault of Judgment-

Proof Defendant Proportionally Among Both Settling

and Nonsettling Defendants, and 2) Permit the Jury

to Apportion Fault to Employer Shipyard, and

Memorandum in Support, 14 at 189a-90a). The trial

court rejected this proposal, ignoring the evidence

that proved Johns-Manville and _ Flexitallic’s

unquestionable and substantial contribution to the

cause of Mr. Oney’s disease. (TR, March 27, 2007,

468-70 at 126a-28a, 480-81 at 136a-38a; TR, March

28, 2007, 580 at 90a-9la, 670-73 at 96a-100a;

TR, March 29, 2007, 803-04 at 68a-70a, 808-19 at

70a-81a, 867-69 at 82a-84a; TR, April 2, 2007, 1222-

23 at 62a-65a; TR, April 9, 2007, 2256-64 at 50a-

59a).

John Crane submits that this Court’s

decisions in Edmonds and McDermott support John

Crane’s proposed approach to apportionment. See

Note, at 643. In McDermott, the plaintiff sued a

crane manufacturer (AmClyde), the manufacturer of

a crane hook (River Don), and three manufacturers

of steel slings for damage to a crane and an offshore

platform deck. McDermott, 511 U.S. at 204-05.

Before trial, McDermott settled with the three sling

defendants for $1 million dollars. Id. at 204. The

28

other two defendants did not settle, and the jury

eventually assessed the plaintiffs damages at $2.1

million, apportioning liability at 32% to AmClyde,

38% to River Don, and 30% jointly to McDermott and

the sling defendants. Id. at 206. Faced with the

task of determining how the $1 million settlement

with the sling defendants should affect the liability

of the non-settling defendants, the Court

unanimously adopted a “proportionate share”

approach. Id. at 217. Under this scheme, any

amount paid in settlement extinguishes any claim

that the injured party has against the released

defendant, and further diminishes the claim that the

injured party has against the non-settling

defendants by the released defendant’s proportionate

share of responsibility for the total obligation. Id. at

209, 217. The Court, therefore, reduced the

plaintiffs recovery from the non-settling defendant

by the settling defendants’ proportionate percentage

share of responsibility for the total obligation,

rather than dollar-for-dollar on the settlement

amount. McDermott, 511 U.S. at 210, 218. River

Don was left responsible only for its precise share

of the damages — 38% of $2.1 million, or $798,000.

Id.

This Court recognized the appeal of a limited

joint and several liability approach when it noted

that the principles of joint and several liability

articulated in Edmonds would not elevate River

Don’s liability to include that of AmClyde - a

judgment-proof defendant. Id. at 211, n. 10. The

Court stated that while “it might be thought that,

since AmClyde is immune from damages, River

29

Don’s liability should be $1.47 million (McDermott’s

$2.1 million loss minus 30% of $2.1 million, the

share of liability attributed to the settling

defendants and McDermott),” the better approach

was to view the contractual provision limiting

AmClyde’s liability as a “quasi settlement.” Id.

“Viewed as such, the proportionate credit in this case

properly takes into account both the 30% of liability

apportioned to the settling defendants (and

McDermott) and the 32% allocated to AmClyde.

This leaves River Don with $798,000 or 38% of the

damages.” Id. The Court was willing to adopt an

approach similar to limited joint and _ several

liability that would have held River Don liable only

for its precise share of damages and not that of

AmClyde.

A limited joint and several liability scheme is

also consistent with the Court’s statement in

McDermott that the principle of joint and several

liability “can result in one defendant’s paying more

than its apportioned share of liability when the

plaintiffs recovery from the other defendants is

limited by factors beyond the plaintiff's control, such

as a defendant's insolvency.” 511 U.S. at 220-21. For

example, consider a case where there are three

potential tortfeasors: (1) one which was not sued by

plaintiff because it is insolvent, (2) one which was sued

by plaintiff and settled, and (3) one which goes to

trial and suffers an adverse judgment. The third

party, rather than the plaintiff, would be forced

to bear the judgment-proof defendant’s share of

responsibility for the total obligation in the amount

that it would have paid had the second party not

30

settled.? Thus, the only remaining viable defendant

would actually be paying more than its originally

apportioned share of liability, but it would not be

required to bear the entire portion of the judgment-

proof defendant’s responsibility alone. Conversely,

where recovery from absent defendants was limited

by the plaintiffs voluntary acts, the scheme would

force the plaintiff to bear the consequences of his or

her strategic decisions. This approach avoids

“disadvantaging the party that spurns settlement

offers,” which the McDermott cour* considered to be

an unnecessary incentive to promote settlement.

See McDermott, 511 U.S. at 215.

Plaintiff argued first in the trial court (TR,

March 16, 2007, 37 at 155a; TR, April 9, 2007, 2258-

64 at 53a-59a), and again in opposition to John

Crane’s Petition to the Supreme Court of Virginia,

that even if this Court’s holding in McDermott did

apply as John Crane argues, because Johns-Manville

* In this case, the second and third parties would each be re-

apportioned a percentage of the allocation to the judgment-

proof first party. For example, assuming an award of

$1,000,000, if the first party were apportioned 50% of the fault,

the second were apportioned 30%, and the third received 20%,

the re-apportionment would be as follows: the second party

would ultimately be apportioned $550,000 (its original 30%

share + one half of the judgment-proof party’s 50% share, or

25% = 55%), and the third party would be apportioned $450,000

(its original 20% share + one half of the judgment-proof party’s

50% share, or 25% = 45%). Since the plaintiff has already

agreed with the amount that the second party should pay in

exchange for a release from liability, the second party is liable

for no more than that amount, and the third party is liable for

45%, an amount that closer resembles its ultimate share of

fault while still taking in to account this Court’s concern in

McDermott that a plaintiff not be penalized for a judgment-

proof defendant’s inability to pay.

31

never settled with Plaintiff or was made a party to

Plaintiffs suit and later dismissed, there was no

basis for allowing a jury to apportion liability to it.

However, Plaintiff plainly misreads McDermott and

misinterprets its scope. As noted above, in

McDermott, it was only the “sling defendants,” and

not AmClyde, that settled with McDermott prior to

trial. AmClyde was instead immune from liability

under a contract entered into voluntarily with

McDermott. Nonetheless, this Court still reduced

the verdict by AmClyde’s proportionate share of

liability. The critical distinction to be observed in

applying McDermott’s proportionate share rules,

therefore, is not, as Plaintiff has previously argued,

whether there was a settlement with the absent

tortfeasor and the plaintiff. The critical factor is

whether the absent defendant is unavailable due to

some voluntary action of the plaintiff (such as a

contract making a potentially liable party immune

from liability or, as in the case at bar, a strategic

decision not to sue a party that has limited resources

with which to pay) as opposed to the defendant being

unavailable due to forces outside the plaintiffs

control.

Lastly, a limited joint and several liability

method is consistent with all three “paramount”

principles announced in McDermott - (1) the

proportionate fault approach of Reliable Transfer, (2)

the promotion of settlements without unnecessary

pressure to do so, and (3) judicial economy. First,

limited joint and several liability is consistent with

the proportionate fault approach in that it results in

each non-settling defendant paying only the share of

damages it would have paid had all defendants

32

proceeded to trial. Second, a limited joint and

several liability approach preserves settlement

incentives, but does not provide additional incentives

at the expense of other, non-settling defendants. See

Note, at 650, App. 230a-32a. As with proportionate

share apportionment, a settling defendant will still

appear on the jury verdict form so that the jury can

apportion fault to it; however, the plaintiff bears the

risk that the settlement monies received from the

settling defendant will not be enough to account for

its proportion of fault after allocation and, if

necessary, the reallocation of a judgment-proof

entity’s share. Id. Third, the approach promotes

judicial economy, because reallocating a judgment-

proof tortfeasor’s share of damages among the other

defendants takes little or no additional time at trial.

It is simply a quick mathematical exercise to divide

the judgment-proof tortfeasor’s liability between the

viable defendants proportionately to their degree of

fault. Further, the “good faith” settlement hearings

that the McDermott Court disfavored would be

unnecessary because the non-settling defendants

would have no interest in how much or how little a

defendant settles for. Id. at 650-651.

Because John Crane’s proposed approach to

apportionment best serves the three principles

announced in McDermott, this Court should adopt a

limited joint and several liability approach to allow a

judgment-proof tortfeasor’s share of responsibility

for the total obligation to be borne by all other

identified tortfeasors - settling and non-settling,

those named and unnamed - proportionately. The

trial court erred in instructing the jury on its ability

to allocate damages only to John Crane and Garlock

33

and in submitting a verdict form containing only

those entities. As a result, John Crane will pay more

than its fair share of the $9.25 million judgment. A

new trial is warranted.

C. Public Policy Considerations

Demand the Inclusion of All Settling

Parties and All Contributing Non-

Parties on the Jury Form.

The apportionment scheme approved by the

trial court and by the Supreme Court of Virginia

effectively allows plaintiffs to manipulate maritime’s

joint and several liability rule to reap all the benefits

of settlement without risking the apportionment of

damages to settling entities. For example, Plaintiffs

counsel in this case consistently takes the position

that John Crane has no reason and no right to know

with whom Plaintiff has settled until just prior to

the jury’s verdict. However, during trial, plaintiffs

typically argue that John Crane has the burden of

proof as to which other entities contributed to the

plaintiffs injury, refusing to consent to inclusion of

those parties on the jury form unless they were

specifically named by the plaintiffs fact witnesses.

Thus, under Virginia’s current scheme, John Crane

has the unenviable task of proving the plaintiffs

exposure to products when it may not benefit from

apportionment to any of those entities as they may

not have settled with the plaintiff but were rather

non-suited.*‘

* Compare this approach to Virginia law where defendants

receiving an adverse judgment are automatically entitled to a

dollar for dollar set off for monies received by the plaintiff in

settlement. Under Virginia law, a defendant is not required to

put on any evidence, or even mention a settling defendant’s

name, to receive this credit.

34

An apportionment rule that protects the

expectations of the parties at trial by allowing for

apportionment to all entities that contributed to the

plaintiffs injury, whether settled or not, whether

originally named a party or not, would be more fair.

Asbestos trials are highly technical proceedings

which require testimony from as many as a dozen

expert witnesses. To require defendants like John

Crane to guess the identify of parties about which it

must prove exposure during its case in chief (so that

it might benefit from Virginia’s apportionment

scheme in the event the jury returned an adverse

judgment for John Crane) is highly prejudicial and

inevitably leads to a waste of judicial resources spent

entertaining redundant testimony. Moreover, it

forces defendants like John Crane to devote much of

their limited time before the jury demonstrating the

liability of other parties, rather than presenting a

full defense as to why they are not themselves liable

to the plaintiff.

The apportionment scheme proposed by John

Crane further promotes judicial economy in that

it makes contribution lawsuits unnecessary.

McDermott, 511 U.S. at 209. In McDermott, the

Court recognized the appeal of its proportionate

share approach when it noted that under this

approach, “no suits for contribution from the settling

defendants are permitted, nor are they necessary,

because the nonsettling defendants pay no more

than their share of the judgment.” 511 U.S. at 209.

In asbestos products liability cases, avoiding

contribution suits is of utmost importance. In such

cases, courts face the possibility of every defendant

35

that receives an adverse judgment in a case filing a

contribution suit against every other possible

tortfeasor. For each asbestos case, therefore, courts

may be faced with an additional thirty suits.

Permitting the jury to apportion damages at trial

among all potential tortfeasors would dramatically

reduce the potential for a barrage of contribution

suits arising from each case that goes to trial. In her

Brief in Opposition to John Crane’s Petition for

Appeal to the Virginia Supreme Court, Plaintiff

notes that to ensure that each potentially

responsible entity was brought before the court,

John Crane could have cross-claimed against

co-defendants or filed third-party claims for

contribution or indemnity against additional

entities. Plaintiff fails to realize the importance of

judicial economy. Asbestos trials often take weeks to

try. Forcing defendants and the courts to endure

weeks of additional litigation is a waste of judicial

resources.

Giving the jury the ability to apportion fault

to all potentially responsible entities reflects an

asbestos plaintiffs true variety of exposure. If

accepted, John Crane’s apportionment theory would

place maritime products liability defendants on even

ground, and give the jury an equal opportunity to

evaluate all potential exposures experienced by a

plaintiff, instead of merely those hand-picked by the

plaintiffs counsel. This approach comports with

fundamental fairness and judicial economy. The

Court should grant John Crane’s Petition.

36

II. CERTIORARI SHOULD BE GRANTED

BECAUSE THE SUPREME COURT OF

VIRGINIA’S DECISION TO AFFIRM

THE APPLICATION OF MARITIME

LAW TO PLAINTIFF'S WRONGFUL

DEATH CLAIM CONFLICTS WITH THIS

COURT’S ESTABLISHED PRECEDENT.

On February 26, 2007, John Crane moved the

trial court to apply Virginia law, rather than

maritime law, to decide the issues in this case. At

the final pre-trial conference held March 16, 2007,

following Little, 270 Va. at 387-88, 620 S.E.2d at

777, and Judge Tench’s ruling the previous year in

Jones v. John Crane, the trial court decided to apply

maritime law. (TR, March 16, 2007, 51-52 at 167a-

69a, 58). As a result, the jury was not instructed on

the Virginia standard of case — “knew or had reason

to know” asbestos was dangerous — but was instead

forced to apply the stricter maritime standard of

“knew or should have known.”

®° The differences between maritime and Virginia tort law

number far more than the one listed above. To cite a few more

differences, maritime law follows a comparative fault approach

to liability with allocation of fault among joint wrongdoers

(McDermott, Inc., 511 U.S. at 207), while contributory

negligence by the plaintiff is a complete bar to recovery in

Virginia (Estate of Moses _v. Southwestern Va. Transit

Mngmnt. Co., 273 Va. 672, 678 S.E.2d 156, 159-60 (2007).

Plaintiffs in admiralty courts can recover under a strict liability

standard (East River

476 U.S. 858, 865 (1986)), while plaintiffs in Virginia courts

cannot. Sensenbrenner v. Rust, Orling & Neale, Architects,

236 Va. 419, 424 n.4, 374 S.E.2d 55, 57 (1988). Virginia

observes a statutory cap of $350,000 on punitive damages. §

8.01-38.1, Code of Virginia, 1950, as amended. General

maritime law, if it provides for punitive damages, has no cap.

37

At the time of this filing, John Crane is

seeking an appeal of this identical issue to this Court

under a substantially similar set of facts in John

Crane v. Jones, No. 07-792.° John Crane believes

that the Supreme Court of Virginia’s denial of John

Crane’s Petition for Appeal in the instant case was

heavily influenced by its previous decision in Jones,

650 S.E.2d 851, to apply general maritime law to

cases brought by shipyard workers alleging

that exposure to asbestos-containing products

proximately caused their injuries. Because both the

facts and arguments raised by John Crane in Jones

and the present case are substantially similar for

purposes of determining whether applicatior of

general maritime law is appropriate, John Crane

incorporates herein by reference its arguments made

in the Jones appeal. Should this Court decide in

John Crane’s favor on this issue in Jones, John

Crane requests that the Court also grant this appeal

and reverse the trial court’s ruling consistently with

the Court’s findings in Jones.

5 At the time of this filing, Jones is scheduled to be distributed

for Conference on February 15, 2008.

38

CONCLUSION

For the foregoing reasons, John Crane Inc.

respectfully requests that this Court grant its

Petition for Writ of Certiorari and, upon review,

vacate the judgment of the trial court entered on

June 12, 2007, reverse the Supreme Court of

Virginia’s ruling dated December 19, 2007, and order

that a new trial be conducted under the law of the

Commonwealth of Virginia, or, if maritime law was

appropriately applied in this case, to order a new

trial pursuant to the apportionment scheme

described herein.

Respectfully submitted,

JOHN CRANE INC.,

By Counsel

co

[00 ee

Archibald Wallace, ITI (admitted April 19, 1982)

WALLACEPLEDGER, PLLC

The Capstone Center

7100 Forest Avenue, Suite 302

Richmond, Virginia 23226

Telephone: (804) 282-8300

Facsimile: (804) 282-2555

Email: axwallace@wallacepledger.com

Counsel of Record

and

Michael A. Pollard

BAKER & MCKENZIE LLP

One Prudential Plaza, Suite 3900

130 E. Randolph Drive

Chicago, Illinois 60601

Telephone: (312) 861-2786

Facsimile: (312) 861-3718

Email: michael.a.pollard@bakernet.com

APPENDIX

la

[ENTERED: DECEMBER 19, 2007]

VIRGINIA:

In the Supreme Court of Virginia held at the

Supreme Court Building in the City of Richmond on

Wednesday the 19 day of December, 2007.

John Crane, Inc., Appellant,

against Record No. 071861

Circuit Court No. 00301-TF

Sandra Kay Oney, Executor, etc., Appellee.

From the Circuit Court of the City of Newport News

Upon review of the record in this case and

consideration of the argument submitted in support

of and in opposition to the granting of an appeal, the

Court is of opinion there is no reversible error in the

judgment complained of. Accordingly, Court refuses

the petition for appeal.

A copy,

Teste:

Patricia L. Harrington, Clerk

By: /s/

Deputy Clerk

2a

VIRGINIA: IN THE CIRCUIT COURT FOR THE

CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor of the

Estate of SHARON VAUGHN ONEY, Deceased,

Plaintiff,

Vv. At Law No. 00301-TF

JOHN CRANE, INC.,

Defendant.

FINAL ORDER

THIS DAY came the plaintiff, Sandra Kay

Oney, Executor of the Estate of Sharon Vaughn

Oney, deceased, by counsel, and the Defendant, John

Crane, Inc., by counsel, on the jury’s verdict and

John Crane’s Post trial Motions To Set Aside The

Jury’s Verdict;

Whereas on April 11, 2007, the jury returned

a verdict in favor of the plaintiff and awarded the

plaintiff $9,000,000 in compensatory damages and

$251,392.06 in medical and funeral expenses, for a

total jury award of $9,251,392.06, and awarded legal

interest thereon beginning July 11, 2007 until paid;

and

Whereas the jury apportioned 60% of the total

jury award to defendant John Crane, Inc., and 40%

of the total award to Garlock Sealing Technologies,

LLC, and

3a

Whereas on April 23, 2007 the defendant filed

written motions to set aside the verdict on various

grounds; and

Whereas each of the parties have filed written

briefs relating to John Crane’s Post Trial Motions to

Set Aside the Jury’s Verdict, and both parties have

fully argued said motions ore tenus, and the motions

are ripe for decision. It is hereby

ORDERED that John Crane’s motion to set

aside the verdict be, and hereby is, denied as to each

of the grounds asserted by John Crane for the

reasons stated on the record of proceedings of May 8,

2007, for the reasons set forth in the Plaintiffs Brief

in Opposition to John Crane’s Post Trial Motions,

and for the reasons set forth in this Court’s

Memorandum Opinion dated May 25, 2007, attached

as Exhibit A and incorporated by reference hereto;

and it is further

ORDERED that judgment shall be, and it

hereby is, entered against the defendant, John

Crane Inc., in the amount of $5,550,835 with legal

interest thereon beginning July 11, 2007 until paid

and the costs, such amount being the 60% share of

the total jury award assigned by the jury to John

Crane, Inc., with exceptions taken by the defendant

to all such rulings; and it is

ORDERED that, upon agreement of the

parties, John Crane Inc. shall file an appeal bond in

the amount of $6,000,000 in the event it chooses to

file an appeal in this matter.

4a

The Court further Orders that the Clerk

provide a certified copy of this Order to counsel for

the plaintiff and defendant.

And the record made by the Court Reporter

herein of the said proceedings is filed as part of the

record in this case.

Entered this 12th day of June, 2007.

/s/

Timothy S. Fisher, Judge

SEEN:

/s/

Robert R. Hatten, Esq.

Counsel for Plaintiff

SEEN AND OBJECTED TO for all reasons stated in

the record and in the motions and briefs previously

filed herein:

/s/

Archibald Wallace, III, Esq.

Counsel for Defendani John Crane Inc.

5a

[ENTERED: MAY 25, 2007]

VIRGINIA: IN THE CIRCUIT COURT FOR THE

CITY OF NEWPORT NEWS THIS 25TH DAY OF

MAY, 2007

The Honorable Timothy S. Fisher, Judge

SANDRA KAY ONEY, EXECUTOR OF THE

ESTATE OF SHARON VAUGHN ONEY,

v. Case No. 00301-TF

JOHN CRANE, INC., ET AL,

Defendant.

MEMORANDUM OPINION

The following constitutes the court’s rulings

on the post-trial motions filed by defendant, John

Crane, Incorporated, received pursuant to the court’s

order and as further supplemented at the hearing on

May 8, 2007.

B-I: Defendant John Crane’s post-trial motion

to set aside the verdict and to award a new trial on

the grounds that it is excessive as a matter of law is

denied.

B-II: Defendant John Crane’s post-trial

motion to set aside the jury verdict for reasons the

jury instructions were incomplete or inaccurate in

whole or in part is denied.

6a

B-IIT Supplement: The supplement to John

Crane’s post-trial motion to set aside the jury verdict

specifically referred to what was proffered as

plaintiffs instruction number 8. is denied.

The court ruled on a version of that

instruction to give to the jury and apparently the

version that was then prepared by the parties and

provided to the court had an inadvertent change in

wording which was not intentionally changed by the

plaintiff and apparently not noticed by the defendant

at the time of the reading of the instructions.

For the purposes of the response to this

motion and for the record, it should be noted that

both plaintiff and defendant were represented by

extremely competent, experienced and organized

attorneys.

The plaintiff and defendant’s counsel were

each given the use of a witness room for the entire

duration of the trial which were right outside of the

courtroom and next to each other.

Both sides placed computer equipment and

files in those witness rooms and used the witness

rooms daily.

The instructions following the court’s rulings

were prepared by plaintiffs and defendant’s counsel

together, in those witness rooms, and then provided

to the court.

The court was unaware that plaintiff and

defendant, or defendant, had not kept a separate

7a

copy of the instructions finally prepared by the

plaintiff following the court’s rulings to read to the

jury. The court was even corrected by defendant’s

counsel as to the numbering on one instruction when

defendant’s counsel had noticed the court had

numbered two instructions with the same number.

That correction was made at the time of the

instructions being provided to the jury.

This objection relates to an instruction which

even if it was an error is not a material error, and

was not done intentionally by the plaintiff and was

not contemporaneously objected to by the defendant.

Accordingly, the supplement of John Crane’s post-

trial motion B-II to set aside the jury’s verdict is

denied.

B-III: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that.

the testimonies of Paul Stewart and James Delaney

were improperly excluded is denied.

The court would further state as previously

announced and repeated in the hearing on May 8th

that the disclosure of the testimony of the witnesses

Paul Stewart and James Delaney were filed in

accordance with the standing orders applicable to

asbestos cases and Rule 4:1 of the Rules of the

Supreme Court of Virginia.

Regardless, of the adequacy or inadequacy of

the disclosures, the subsequently determined

substance of the proffered testimony of both

witnesses did not support an argument for the

8a

admissibility of the testimony of either Mr. Delaney

or Mr. Stewart.

B-IV: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

the court improperly disallowed Dr. Bruce Case to

testify at trial in any form is denied.

The court did not disallow the testimony of Dr.

Bruce Case. The court was advised that Dr. Bruce

Case would not be available during the time of the

trial anticipated for the defendant’s case in chief.

Apparently, the defendant had a problem with

scheduling between itself and it’s expert witness, Dr.

Case, and Dr. Case advised the defendant he would

only be available to testify during the “first week of

trial, as he would be out of both the country and the

continent during the remaining period of trial.”

There was no representation by the defendant

that Dr. Case’s absence from the trial was based on

any form of emergency or unanticipated event. It

was represented to the court this was a scheduling

problem in that the defendant had advised Dr. Case

of the beginning of the trial and he had some other

event scheduled for the following week.

The plaintiff objected to taking Dr. Case’s

testimony during its case in chief and receiving no

valid reason for forcing the plaintiff to interrupt its

presentation of the evidence to accept the

defendant’s expert witness during the plaintiffs case

in chief, the court denied the motion.

9a

The defendant then asked for permission to

take Dr. Case’s de bene esse deposition sometime

during the first week of the trial or on the first

weekend, which again was during the period of time

the plaintiff would be presenting its evidence. Any

deadline had passed for the taking of depositions at

that time and again being presented with no valid

reason for forcing the plaintiff to participate in a de

bene esse deposition sometime in the evening on a

day during the first week of the trial during its

presentation of evidence or during the first weekend,

the court denied that request.

The defendant then asked for leave of court to

designate portions of the transcript of Dr. Case’s

deposition which again any deadline had passed for

the designation of portions of the transcript of the

deposition and the defendant objected and again,

being presented with no valid reason for extending

that deadline for this particular expert witness, the

court denied the request.

The defendant was perfectly free to call Dr.

Case as a witness during its case in chief (assuming

no further objections by the plaintiff concerning the

substance of Dr. Case’s testimony); however, the

defendant did not call Dr. Case during the

presentation of its case in chief because their paid

expert witness had a scheduling conflict which the

plaintiff objected to being forced to accommodate and

the court did not see a valid reason to accommodate

defendant’s expert witness.

Had there been any representation of an

emergency or unanticipated event which Dr. Case

10a

was experiencing such as a family illness or some

other event; certainly the court may have acted

differently in this matter and, frankly, the plaintiff

may have acted differently and not interposed an

objection. However, this appeared to be simply a well

compensated expert witness for the defendant who

was simply choosing to do something other than

attend a trial which presumably he had contracted

with the defendant to be paid to attend.

The court did not exclude Dr. Case’s

testimony. Dr. Case apparently chose not to attend

the trial. That would seem to be a problem between

the defendant and its witness.

B-V: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

(1) the verdict form was incomplete as submitted to

the jury and (2) was incompletely submitted by the

jury is denied.

B-VI: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

John Crane was improperly required to identify

their products that contributed to Mr. Oney’s

injuries by the manufacturer’s name rather than by

generic product type is denied.

B-VII: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

the court erred in applying general maritime law

rather than Virginia law is denied.

B-VIII: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

lla

the claim for punitive damages was improperly

submitted to the jury is denied.

B-IX: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

its motion to stay the proceedings was improperly

denied is denied.

B-X: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

the testimony of James Thornton was improperly

limited is denied.

The defendant stated in its motion, “at no

time did John Crane intend to elicit testimony from

Mr. Thornton concerning the knowledge an/or

negligence of the Newport News Shipyard.” As the

court stated during the trial, the parties had agreed

to the limitation of Mr. Thornton’s testimony and the

court was enforcing that agreement and the law of

the case.

B-XI: Defendant John Crane’s post-trial

motion to set aside the verdict on the grounds that

the court improperly relied on the rulings of judges

in past cases without further considering the

evidence and law presented is denied.

There is a doctrine that rules and principles of

law on which a court rested a previous decision are

authoritative in all future cases in which the facts

are substantially the same. That doctrine, as we are

aware, is known as stare decisis a latin phrase which

literally means to “stand on the decisions.” It

expresses the common law doctrine that court

12a

decisions should be guided by precedent. It is a

doctrine under which courts adhere to precedent on

questions of law in order to insure certainty,

consistency, and stability in the administration of

justice with departure from precedent permitted for

compelling reasons (as to prevent the perpetuation of

injustice. )

The court did specifically advise the defendant

in response to defendant’s repeated requests that the

court hold essentially “Daubert” pre-trial hearings

regarding the admissibility of the testimony of

plaintiff s proffered experts, that “Daubert” did not

apply to Virginia procedure. This court saw no

reason to conduct such pre-trial evidentiary hearings

on testimony of witnesses who have not only been

admitted as experts in other trials in this circuit and

in this state; but also in other trials across the

country.

That opinion of the court applied to both

plaintiffs and defendant’s experts.

As the court advised both sides, during

research on the pre-trial motions the court had read

several decisions from other states, specifically

California, Ohio and Pennsylvania and Georgia, in

which most of the defendant’s proffered experts had

all testified as had one or two of plaintiffs experts.

The court saw no reason to hold pre-trial

hearings on the testimony of those experts to

determine the admissibility of their testimony when

they had been accepted as experts in numerous

courts in Virginia and across the country.

13a

The defendant would now seem to argue that

because other judges in other courts had reached the

same conclusion meant that this court should not

reach that conclusion simply contravenes the

doctrine of stare decisis.

Defendant appears to be asking the court to

follow the observation of Ralph Waldo Emerson

wherein he noted, “A foolish consistency is the

hobgoblin of little minds, adored by little statesmen

and philosophers and divines.” There did not appear

to be any “foolish consistencies’ in the prior decisions

of the courts on which this court relied and I don’t

think there were any “little minds” involved in those

decisions either.

It would perhaps be advisable for the

defendant to consider the decision of the Virginia

Supreme Court on January 12, 2007, in Ford Motor

Company, et al v. Benitez, 273 Va. 242 (2007) in light

of the observation of Albert Einstein who defined

insanity as “doing the same thing over and over

again and expecting different results.” This

particularly comes to mind regarding a motion filed

citing the government contractor defense wherein

the court noted in more than one written opinion

denying such a motion in failure to warn cases by

referring to the “thousands” of decisions preceding

this concluding that the government contractor

defense does not apply in a failure to warn case; yet

it appeared to have been filed in this case.

The defendant’s motion is denied.

l4a

B-XII: Defendant John Crane’s post-trial

motion affirming all objections and arguments raised

before and after and during trial posed an

interesting question to the court in that John Crane

was asking the court to affirm their preservation of

the record and further affirm that they had not

waived or with-drawn any objection.

It does not appear to be one which would

require a ruling of the court as either John Crane

has met those requirements or it has not, so the

motion is denied.

I believe this addresses all post-trial motions.

If any were missed, advise me immediately.

I would ask that the counsel for the plaintiff

prepare an appropriate order incorporating the

provisions of this opinion, forwarding to the

defendant for endorsement and further forwarding

to the court a judgment order. I believe the parties

have agreed to a six million dollar ($6,000,000.00)

appeal bond.

/s/

Timothy S. Fisher, Judge

15a

VIRGINIA: IN THE CIRCUIT COURT FOR THE

CITY OF NEWPORT NEWS

SANDRA KAY ONEY, As Executor of the Estate

of SHARON VAUGHN ONEY, Deceased

Plaintiff,

Vv. Civil Action No. 00301TF

JOHN CRANE, INC., et al.,

Defendants.

ORDER

The parties to this action appeared by counsel

for a pretrial conference on March 16, March 23, and

March 26, 2007, and various motions previously

briefed were argued ore tenus.

UPON CONSIDERATION of the briefs and

the arguments of counsel, it is HEREBY ORDERED

that:

;. John Crane’s Renewed Motion to State

the Proceedings is DENIED;

2. Plaintiffs Motion to Apply Joint and

Several Liability and Prohibit Allocation of

Comparative fault to Non-Party Entities is

GRANTED;

3. Plaintiffs Motion to Prohibit Evidence

Relating to Negligence of Non-Party and/or

Bankrupt Companies is GRANTED;

16a

4. John Crane’s Motion to Apply Virginia

law is DENIED;

5. John Crane’s Motions to Apportion

Fault of Judgment Proof-Defendant and to Permit

the Jury to Apportion Fault to Employer Shipyard

are DENIED;

6. Plaintiffs Motion to Apply a “Should

Have Known” Standard of Care is GRANTED;

7. Plaintiffs Motion to Prohibit Defendant

from Presenting Evidence to “Pure” Chrysotile

Exposure is DENIED; however, Defendant must

provide a factual predicate before presenting any

such evidence;

8. Plaintiffs Motions to Prohibit John

Crane’s attorneys or witnesses from showing

asbestos block oor _ pipecovering insulation

demonstrative samples to the jury without first

establishing a factual predicate of type and use, and

Motion to prohibit John Crane’s attorneys or

witnesses from removing asbestos packing products

from their airtight containers are GRANTED

pursuant to the agreement of the parties;

9. Plaintiffs Motion to Limit Testimony of

Industrial Hygiene and Medical Experts, to Prohibit

“Dose Reconstruction” Testimony, and to Prohibit

Dose or Risk Extrapolation from Hypothetical Doses

is GRANTED and this standard shall apply to both

Plaintiffs and Defendant’s experts. John Crane’s

Motion to Prohibit Dose or Accident Reconstruction

by Plaintiffs Experts is DENIED;

17a

10. Plaintiffs Motion to Prohibit Defendant

from Claiming its Products are Exempt from OSHA

Warning Requirements is DENIED; however, John

Crane shall not mention the OSHA labeling

exemption in opening statements and John Crane

shall establish an adequate factual foundation that

it was exempt from OSHA’s labeling requirements

before counsel may argue, allege, or present evidence

of such a claim to the jury.

11. John Crane’s Motion to Exclude

Evidence that Related to Knowledge or State of the

Art that Post Dates John Crane’s Last Date of

Manufacture is GRANTED pursuant to the

agreement of the parties. The parties agree that

post-exposure evidence in the scientific community

may be offered, subject to the proper foundation, for

purposes of causation, but not for state of the art;

12. Plaintiffs Motion to Strike Defendant’s

Government Contractor Defense is GRANTED;

13. Plaintiffs Motion to Strike

Sophisticated User/Equal Knowledge Defense is

GRANTED;

14. Plaintiffs Motion to Strike Defense of

Intervening Negligence is GRANTED;

15. Plaintiffs Motion regarding Smoking is

GRANTED;

16. Plaintiffs Motion to Prohibit Reference

to Lack of Autopsy is GRANTED;

18a

17. Plaintiffs Motion in Limine Prohibiting

Direct or Indirect Use of Depositions of any Witness

who Testified where Plaintiff was not a party or

present at the time of the deposition is GRANTED

pursuant to the agreement of the parties;

18. John Crane’s Motion to Preclude

Punitive Damages is DENIED; however, the

Plaintiff shall not reference punitive damages in

opening statements and Plaintiff must prove a

factual basis for punitive damages;

19. John Crane’s Motion to Prohibit and/or

Limit Motions in Limine at Trial is DENIED;

however, Motions in Limine presented at trial must

comply with the Newport News Circuit Court’s Local

Rules, subject to the Court’s discretion regarding

certain incidences of trial, which may require

additional motions and/or briefing;

20. John Crane’s Motion to Prohibit

Experts from Expressing any Opinion that

Constitutes a Conclusion of Law or Goes to the

Ultimate Issue of the Case is GRANTED in part

pursuant to the parties’ agreement. The Plaintiff

agrees he will not ask his experts whether John

Crane was negligent or grossly negligent; the

Plaintiff, however, may solicit expert testimony

relating to the standard of care and whether John

Crane deviated from that standard of care;

21. John Crane’s Motion in Limine to

Exlude Exhibits Showing Knowledge of Associations

of which John Crane was not a Member is DENIED.

The parties agree to read a stipulation to the jury

19a

that John Crane was not a member of such

associations, and Plaintiff agrees that John Crane

may file late counterdesignations to the depositions

of the Associations’ custodians of records. If an

adequate basis of authenticity is established to the

Court through the depositions of the custodians of

records, the documents from these associations will

be admitted or denied on the basis of relevance as

established at trial;

22. John Crane’s Motion to Exclude

Testimony Regarding any Asbestos-Related Disease

Other than Mesothelioma is DENIED;

23. Plaintiffs Motions to Strike the

Testimony of Paul Steward and James Delaney are

GRANTED for the reasons stated on the transcript

of the hearing on March 26, 2007;

24. Plaintiffs Motion in Limine_ re

PowerPoints & Demonstrative Aides is GRANTED

pursuant to agreement of the parties;

25. Plaintiffs Motion regarding the Jury

Questionnaire is GRANTED pursuant to agreement

of the parties;

26. Plaintiffs Objections to John Crane’s

Exhibit List and Literature Designations are

reserved for trial;

27. John Crane’s Objections to Plaintiffs

Exhibit List and Reliance Articles are reserved for

trial;

28.

20a

As of the date of this Order, the

following motions in Limine are pending and will be

heard and ruled upon at a later time:

A.

I certify

Plaintiffs Motion in Limine to Limit the

Testimony of Dr. James Crapo;

Plaintiffs Motion in Limine to Limit the

Testimony of Dr. Bruce Case;

Plaintiffs Motion in Limine to Prohibit

the Testimony of James R. Thornton;

John Crane’s Motion to Quash the De

Bene Esse Deposition of Jim Walker;

John Crane’s Motion to Quash the

Testimony of Terrence McNamara;

Entered this 1* day of April, 2007,

nunc pro tunc March 26, 2007.

/s/ Timothy S. Fisher

The Honorable Timothy S. Fisher

that the documents to which this

authentication is affixed are true copies of a record

in the Newport News Circuit Court, that I have

custody of the record and that I am the custodian of

that record.

Rex A. Davis, Clerk

By: /s/

D.C.

Zla

SEEN AND OBJECTED TO for all the reasons

stated on the transcripts of the hearings on March

16, March 23, and March 26, and for the reasons

stated in the briefs filed by the parties.

/s/ Robert R. Hatten

Counsel for Plaintiff

Robert R. Hatten, Esq.

J. Conard Metcalf, Esq.

Hugh B. McCormick, Esq.

William W.C. Harty, Esq.

Erin E. Hieronimus, Esq.

As to Par 10, Plaintiff opened this discussion in its

Opening Statement and defendant responded as to

Paragraph 20, John Crane’s objection as to any

conclusions of law and not the limited two listed in

this order. As to Par 9 John Crane’s motion was

denied because plaintiffs motion was accepted

provided it appeal to both parties. With these

objections and those noted in the preamble

paragraph above, John Crane signs this order.

/s/ Archibald Wallace, III

/s/ Archibald Wallace, III

Counsel for Defendant

Archibald Wallace, III, Esq.

Thomas Moran, Esq.

Patricia J. Bugg, Esq.

22a

[ENTERED: APRIL 23, 2007]

VIRGINIA: IN THE CIRCUIT COURT OF THE

CITY OF NEWPORT NEWS

Sandra Key Oney, Executor of the Estate of

SHARON VAUGHAN ONEY, Deceased

Plaintiff,

v. Case No. 00301TF

JOHN CRANE INC.

Defendant.

JOHN CRANE INC.’S POSTTRIAL MOTIONS

TO SET ASIDE THE JURY’S VERDICT

The Defendant, John Crane, Inc. (hereinafter

“John Crane”), by counsel, moves the Court to set

aside the verdict of the jury in this case as contrary

to the law and the evidence and to grant it a new

trial, in whole or in part, by reason of the following:

A. VIRGINIA’S STANDARD ON

SETTING ASIDE A JURY VERDICT

When the trial court considers a motion to set

aside a verdict, it must consider all the evidence.

T.M. Graves Construction, Inc. v. Nat'l Cellulose

Corp., 226 Va. 164, 169, 306 S.E.2d 898, 901 (1983).

In order to grant such a motion, “the trial court must

be satisfied from the evidence adduced either that

there was no evidence to support the verdict, or that

the verdict was plainly contrary to the evidence.

This conclusion must be drawn from the whole

23a

evidence in the case.” Id. (emphasis in original); see

also Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d

404, 407 (2005) (holding that the trial court may only

set aside the jury verdict if it is “plainly wrong or

without credible evidence to support it”). In arriving

at this conclusion, “the trial court...must place itself

in the jury’s shoes. It must see what the jury saw so

that it can decide whether any credible evidence

exists to support the jury’s verdict.” T.M. Graves,

226 Va. at 169. The party which

* * *K

of all trades of each ship on which he worked, and

that the cause of his mesothelioma was amosite

asbestos, a component found in many other asbestos

products used aboard the ships but not found in

John Crane products. A copy of Dr. Case’s report is

attached hereto as Exhibit “L”. As a result of the

Court’s decision, John Crane was unable to present

its entire defense. The jury’s excessive verdict, as

detailed in B-I above, demonstrates the resulting

prejudice to John Crane.

. In further support of its argument,

John Crane refers the Court to all arguments it

made on this issue during the trial of this matter,

which arguments are incorporated herein. See Oney

TR, March 23, 2007, 140-46; April 3, 2007, 1633-

1636.

Conclusion

For the foregoing reasons, John Crane

respectfully requests that this Court set aside the

jury’s verdict in this case and award a new trial on

24a

all issues on the grounds that it was unfairly

prejudiced by the Court’s refusal to allow Dr. Case to

testify in any manner, and for the reasons already

discussed in the record.

V. DEFENDANT JOHN CRANE’S

POSTTRIAL MOTION (B-V) TO SET

ASIDE THE VERDICT ON THE

GROUNDS THAT 1) THE VERDICT

FORM WAS INCOMPLETE AS

SUBMITTED TO THE JURY

AND 2) WAS INCOMPLETELY

SUBMITTED BY THE JURY

John Crane, by counsel, respectfully asks the

Court to set aside the verdict reached by the jury

and to award a new trial on the grounds that (1) the

Verdict Form ultimately approved for use by the jury

improperly excluded various corporations whose

products contributed to the decedent’s injury under

the uncontroverted evidence of the case, and that (2)

the jury failed to properly complete the form it was

given. In support thereof, John Crane states the

following:

:. The Verdict Form submitted to the jury

had allocations for only two manufacturers of

asbestos products: John Crane and Garlock.

2. Other than John Crane and Garlock,

Plaintiffs own witnesses, Mr. Oney, through

videotaped deposition, Mr. Silver, Mr. Staley, and

Mr. Bond, testified at trial that they and Mr. Oney

were regularly and routinely exposed to products

manufactured by the following:

25a

a. Johns-Manville (Oney TR, March

27, 2007, 469, 481; March 28,

2007, 580, 670)

b. Flexitallic (OQney TR March 27,

2007, 469; April 2, 2007, 1222-23)

3. In his testimony of March 28, 2007,

Plaintiffs expert, Dr. Maddox, also provided a

detailed list of asbestos-containing products to which

machinists such as Mr. Oney were routinely exposed

while working at the Shipyard:

pipe insulations

mud/cement

cloth/insulation

boilers

asbestos board

though the manufacturers of the same were not

identified. (Oney TR March 27, 2007, 722-24)

4. John Crane submits that all of the

manufacturers and products listed in q{ 2 and 3

above should have been included on the Verdict

Form, especially in light of Plaintiffs expert’s

testimony that each of Mr. Oney’s' exposures

eventually causes his mesothelioma. (Dr. Maddox’s

testumony at Oney TR, March 29, 2007, 803-4).

5. In further support of this argument,

John Crane restates and refers the Court to (a) its

arguments during trial (Oney TR April 9, 2007,

2258-2263) as well as (b) John Crane Inc.’s Reply to

Plaintiffs Motion in Limine to Apply Joint and

Several Liability and Prohibit Allocation _ of

26a

Comparative Fault to Non-Party Entities, (c) John

Crane’s Response to Plaintiffs Motion in Limine to

Prohibit Evidence Relating to Negligence of Non-

Party and/or Bankrupt Companies, (d) John Crane’s

Motion to 1) Apportion Fault of Judgment-Proof

Defendant Proportionally Among Both Settling and

Nonsettling Defendant, and 2) Permit the Jury to

Apportion Fault to Employer Shipyard and

Memorandum in Support, (e) arguments contained

in B-VI infra, and (f) the testimony of Dr. Maddox as

a whole.

6. Even assuming that the verdict form

was proper with just the two manufacturers listed,

the jury clearly failed to consider all of the evidence

before reaching its decision on apportionment.

Several times throughout the testimonies of

Plaintiffs witnesses, Mr. Oney and his co-workers

identified Garlock’s gaskets as the most popular

gaskets in the shipyard and the gaskets that Mr.

Oney used most often. (Oney TR, March 28, 2007,

646; April 2, 2007, 1226, 1232). While the evidence,

therefore, demonstrated that John Crane’s products

were used less than, or at most, equal to Garlock’s

products, the statement by Plaintiffs counsel in

closing that the jury should award 75% of the

damages to John Crane and only 25% to John Crane

(Oney TR, April 9, 2007, 2007, 2439) had potential to

improperly influence the injury in inserting an

element of punishment into the verdict when they

did not find that such punishment was warranted in

this case. The jury’s own concerns, brought to the

attention of the court during deliberations, further

evince the jury’s confusion and unwillingness to

apportion the proper amount of damages to Garlock:

27a

“Why was Garlock in the lawsuit? Why are we being

asked to split the award between Garlock and Crane

when we were told the case would be Oney vs.

Crane?” Oney TR, April 10, 2007, 2542.)

: B In finding that Garlock’s products did

not contribute to Mr. Oney’s injury in an»equal or

greater percentage than those of John Crane, the

jurys apportionment scheme was _ arbitrary,

improper, and against the manifest weight of the

evidence. The result was to impose on John Crane

60% of the total injury when, in reality, the evidence

was that its products were used by Mr. Oney less

than those of other manufacturers. See Rome v.

Kelly Springfield Tire Co., 217 Va. 943, 948, 234

S.E.2d 277, 281 (1977).

8. As more fully set forthe in B-I above,

here, the issues of liability and amount “cannot be

reconciled with any logical interpretation of the

evidence as to damages.” See Rome and Doe v. West,

220 Va. 440, 445, 281 S.E.2d 850, 852-53 (citing

Rome, 217 Va. 943), except to say that the jury was

confused, improperly motivated, and wrongly acting.

When a jury allows itself to be improperly

influenced, so that it disregards the uncontroverted

evidence, the Court’s proper action is to set aside the

verdict and order a new trial. See Rome, 217 Va.

948-49.

Conclusion

For the foregoing reasons and those in the

record, John Crane respectfully requests that this

Court set aside the jury’s verdict in this case and

award a new trial on all issues on the grounds (1)

28a

that the Verdict Form was improperly submitted to

the jury, and (2) that the jury improperly completed

the form it was given.

VI. DEFENDANT, JOHN CRANE,

INC.’S POST TRIAL MOTION (B-VI)

TO SET ASIDE THE VERDICT

ON THE GROUNDS # THAT

JOHN CRANE WAS IMPROPERLY

REQUIRED TO IDENTIFY OTHER

PRODUCTS THAT CONTRIBUTED

TO MR. ONEY’S INJURIES BY

THE MANUFACTURER’S NAME

RATHER THAN BY GENERIC

PRODUCT TYPE

John Crane, by counsel, respectfully asks the

Court to set aside the verdict reached by the jury

and to award a new trial on the grounds that John

Crane was improperly required to identify other

products that contributed to Mr. Oney’s injury by the

manufacturer’s name rather than by generic product

type. In support thereof, John Crane states the

following:

i. The Verdict Form submitted to the jury

had allocations for only two manufacturers of

asbestos products: John Crane and Garlock, which

both manufactured gaskets and packing to which

Mr. Oney claims exposure.

2. Other than John Crane and Garlock,

Plaintiffs own witnesses, including Mr. Oney and

his co-workers, testified that they and Mr. Oney

were repeatedly exposed to several asbestos-

29a

containing products other than gaskets and packing,

including the following:

a. pipecovering (Oney TR, March

28, 2007, 573, 691, 696; April

2007, 1215)

b. boilers (Oney TR, March 28,

2007, 696)

C. turbines (OQney TR, March 28,

2007, 696)

3. Plaintiffs expert, Dr. Maddox, also

provided a list of asbestos-containing products to

which machinists such as Mr. Oney were routinely

exposed while working at the Shipyard:

pipe insulation

mud/cement

cloth/insulation

boilers

asbestos board

(Oney TR March 27, 2007, 722-24)

4. In light of the abundant testimony that

Mr. Oney was frequently exposed to other asbestos-

containing products, especially pipecovering, the

contribution of those products to Mr. Oney’s

mesothelioma should have been taken into

consideration by the jury on the jury form. Requiring

John Crane to elicit precise manufacturer names of

the myriad other asbestos-containing products to

which Mr. Oney was exposed was’ unduly

burdensome and prejudicial to John Crane.

mek

+e

30a

5. In further support of its argument,

John Crane refers the Court to all arguments made

during trial (Oney, TR, April 9, 2007, 2285-2264).

Conclusion

For the foregoing reasons, and those in the

record, John Crane respectfully request that this

Court set aside the jury’s verdict in this case and

award a new trial on all issues on the grounds that

John Crane was improperly required to identify

other products to which Mr. Oney was exposed, and

which contributed and/or caused his mesothelioma,

by specific manufacturer name rather than by

generic product type.

Vil. DEFENDANT, JOHN CRANE INC’S

POSTTRIAL MOTION (B-VII) TO

SET ASIDE THE VERDICT ON THE

GROUNDS THAT THE COURT

ERRED IN APPLYING GENERAL

MARITIME LAW RATHER THAN

VIRGINIA LAW

John Crane, by counsel, respectfully asks the

Court to set aside the verdict reached by the jury

and to award a new trial on the ground that the

Court erred in applying general maritime law rather

than Virginia law to the present case. In support

thereof, John Crane states the following:

On February 26, 2007, John Crane filed its

Motion to Apply Virginia Law and Memorandum in

Support. Because the arguments raised therein are

the same as those raised in this pretrial motion,

John Crane restates and incorporates its previously

3la

filed Motion to Apply Virginia Law and

Memorandum in Support as if fully set forth herein.

Therefore, for the foregoing reasons and the

reasons set forth in John Crane’s previously filed

motion, John Crane respectfully requests that

this Court set aside the jury’s verdict in this case

and order a new trial on the grounds that

general maritime law was improperly applied to this

case.

VUl. DEFENDANT, JOHN CRANE INC.’S

POSTTRIAL MOTION (B-VIII) TO

SET ASIDE THE VERDICT ON THE

GROUNDS THAT THE CLAIM

FOR PUNITIVE DAMAGES WAS

IMPROPERLY SUBMITTED TO

THE JURY

The defendant, John Crane, by counsel,

respectfully asks this Court to set aside the verdict

reached by the jury and to award a new trial on the

grounds that Plaintiffs claim for punitive damages

was improperly submitted to the jury. In support

thereof, John Crane states the following:

& In the Final Pretrial Conference held

March 16, 2006, the Court heard and rejected John

Crane’s Motion to Preclude Punitive Damages, filed

February 26, 2007 in which John Crane asserted

that punitive damages were impermissible in a

maritime wrongful death action such as the present

case. That motion is restated and incorporated

herein as if fully set forth.

32a

2. Without waiving its objections to the

allowance of a claim for punitive damages in a

maritime setting, on April 5, 2007 John Crane

moved to strike the punitive damages claim of

Plaintiff for reason that Plaintiff had not presented a

case for punitives, which motion was also rejected by

the Court. Oney, TR, April 5, 2007, 1833-1846.

John Crane restated and incorporates herein all

arguments made during trial. Id.

3. John Crane renewed its Motion to

Strike the Punitive Damages claim on April 9, 2007,

which Motion was again rejected by the Court.

Oney, TR April 9, 2007, 2271-75, 2342. John Crane

restates and incorporates herein all arguments made

during trial. Id.

4. In each instance, allowing Plaintiffs

punitive claim to proceed was improper. First as is

more fully set forth in John Crane’s Pretrial Motion

to Preclude Punitive Damages, filed February 26,

2007, punitive damages are not available for

Plaintiff under the general maritime law. Second,

even if the general maritime law does recognize

claims for punitive damages, Plaintiff in this case

failed to make a case for punitive damages.

5. Virginia law provides that “negligence

which is so willful or wanton as to evince a conscious

disregard of the rights of others, as well as malicious

conduct, will support an award of punitive damages.”

Owens-Corning Fiberglas Corp. v. Watson, 243 Va.

128, 144, 413 S.E.2d 630, 640 (1992). Virginia

defines “willful and wanton negligence” as “acting

consciously in disregard of another persons’ rights or

acting with reckless’ indifference to the

33a

consequences, with the defendant aware, from his

knowledge or existing circumstances and conditions,

that his conduct probabiy would cause injury to

another.” Id. Note, however, that “the imposition of

punitive damages [in Virginia] is not favored

generally and, ‘because punitive damages are in the

nature of a penalty, they should be awarded only in

cases of the most egregious conduct.” Id. citing

Philip Morris Inc. v. Emerson, 235 Va. 380, 407, 368

S.E.2d 268, 283 (1998).

In Watson, punitive damages were properly

awarded because the defendant, Owens-Corning,

knew that inhalation of dust from its kaylo product

could cause lung disease in humans, it actively

concealed this danger, and it did not warn insulators

of this hazard even though it warned its own

employees. Watson, 243 Va. at 148. These three

elements are lacking in the present case, as there is

no proof that John Crane actively concealed any

knowledge of the risks associated with use of its

products. Nor is there evidence that John Crane

definitively knew of the dangers associated with its

products and chose not to warn consumers of the

same. In fact, the jury here found that John Crane’s

conduct did not rise to a level of conduct that would

justify an imposition of punitive damages.

6. Despite finding that John Crane’s

conduct did not justify an award of punitive

damages, however, it may be inferred that the jury’s

ultimate award oof compensatory damages

improperly contained an element of punishment,

which resulted from simply permitting the punitive

claim to go to the jury. Though the taint resulting

34a

from the improper submission of Plaintiffs punitive

claim to the jury cannot be measured, it is entirely

inferable that such action by the Court improperly

influenced the jury in granting its excessive award of

compensatory damages - $9.2 million, an amount

grossly exceeding the special damages claimed in

this case. See B-I supra.

: Similar to Virginia law, under general

maritime law, punitive damages are available only

where a defendant’s “intentional or wanton and

reckless conduct amounted to a conscious disregard

of the rights of others.” CEH, Inc. v. F/V_ Seafarer,

70 F.3d 694, 699 (1st Cir. 1995); In re: the Exxon

Valdez, 270 F.3d 1215, n. 14 (9" Cir. 2001) (noting

that to allow punitive damages a defendant’s

conduct must be “intentional or wanton and reckless

conduct amounted to a conscious disregard of the

rights of others”); See In the Matter of the Complaint

of Cameron Boat Rentals, Inc., 683 F.Supp. 577, 585

(W.D. La. 1988) (finding that willful and wanton

conduct is the standard for imposing punitive

damages). Under either a Virginia or Admiralty

setting, Plaintiff did not demonstrate during trial

that John Crane’s actions amounted to wiliful or

wanton conduct.

Conclusion

Because Plaintiff failed to present a case in

which punitive damages could be awarded, John

Crane respectfully requests this Court to set aside

the jury’s verdict in this case and award a new trial

on the grounds that permitting the punitive

damages claim to the jury was improper.

35a

IX. DEFENDANT, JOHN CRANE INC.’S

POSTTRIAL MOTION (B-IX) TO

SET ASIDE THE VERDICT ON THE

GROUNDS THAT ITS MOTION TO

STAY THE PROCEEDINGS WAS

IMPROPERLY DENIED

John Crane, by counsel, respectfully asks this

Court to set aside the jury’s verdict in this case and

award a new trial on the grounds that John Crane’s

Motion to Stay should have been granted, and in

support thereof states the following:

1. On December 21, 2006, John Crane

filed its Motion to Stay Proceedings and

Memorandum in Support in which John Crane

asserted that a stay was proper because its appeal of

a previous case, Garland Jones v. John Crane,

Newport News Circuit Court, No. 39028T-01, was

pending before the Virginia Supreme Court, and in

that appeal, several issues, including excessiveness

of the verdict, were to be resolved. Thereafter, on

March 7, 2007, after the Virginia Supreme Court

granted its writ of appeal, John Crane filed its

Renewed Motion to Stay Proceedings and

Memorandum in Support, which is restated and

incorporated herein. A hearing on John Crane’s

Renewed Motion to Stay Proceedings was held

March 16, 2007, at which time the Court denied the

motion despite the appeal’s potential to disrupt the

issues presented in this case.

2. While a motion to stay is within the

sound discretion of the court, in the present case, a

denial of John Crane’s motion was improper

36a

especially in light of the excessiveness of the verdict

submitted by this jury. Childers Foods, Inc. v.

Rockingham Poultry Marking Co-op, 203 F.Supp.

794, 796 (W.D. Va. 1962) (holding that “[a] motion to

stay proceedings is addressed to the sound discretion

of the court, and the denial or grant of a stay is

predicated upon the inherent power of a court to

control its docket”).

3. In Jones, a judgment against John

Crane was entered for $3,400,000, which amount

represented 34% of the total judgment. The

excessiveness of this verdict is on appeal to the

Virginia Supreme Court and will be decided during

the June session.

4. In the present case, the jury returned a

verdict for Plaintiff of $9,251,392.06, of which John

Crane is required to pay 60%, or approximately $5.5

million. Had the Motion to Stay Proceedings been

granted, and the award in Jones then been reduced

or vacated, the jury would not have been permitted

to enter such an excessive verdict in this case.

5. In further support of its argument,

John Crane directs the Court to its arguments made

in Pretrial Motion B-I above and all arguments made

at the hearings on the Motion to Stay.

Conclusion

For the foregoing reasons, John Crane

respectfully requests this Court to set aside the

jury’s verdict in this case and grant a new trial! on all

issues on the grounds that the proceedings should

37a

have been stayed until resolution of the pending

appeal in Jones.

X. DEFENDANT JOHN CRANE ING’S

POSTTRIAL MOTION (B-X) TO

SET ASIDE THE VERDICT

ON THE GROUNDS # =THAT

THE TESTIMONY OF JAMES

THORNTON WAS IMPROPERLY

LIMITED

John Crane, by counsel, respectfully requests

this Court to set aside the jury’s verdict in this case

and award a new trial on the grounds that the

testimony of James Thornton was improperly limited

to exclude testimony regarding the substitution

program in place at the Newport News Shipyard

during his employ. In support thereof, John Crane

states the following:

1. On April 5, 2007, John Crane called as

a witness James R. Thornton, Direct of

Environmental Health and Safety for the Shipyard,

to testify about his duties as an industrial hygienist

at Newport News Shipyard, the protocol at the

Shipyard for using asbestos, and what he observed

and directed about the use of gaskets and packing

materials at the Shipyard, including his and the

Shipyard’s determination that gaskets and packing

materials did not emit enough asbestos during their

normal and intended use to violate the OSHA

Standards in existence at the time of Mr. Oney’s

alleged exposure. Oney TR, April 15, 2007, 1961-

2022; see also disclosure of James Thornton provided

in John Crane’s List of Factual and Expert

38a

Witnesses Who Will or May Be Called to Testify at

Trial, attached hereto as Exhibit “M”; see also John

Crane Inc.’s Reply to Plaintiffs Motion in Limine RE

James R. Thornton, filed March 21, 2007, a copy of

which is attached hereto as Exhibit “N”. At no time

did John Crane intend to elicit testimony from Mr.

Thornton concerning the knowledge and/or

negligence of the Newport News Shipyard. See

Exhibit “M” identified above.

2. At trial, John Crane sought to question

Mr. Thornton about whether the Shipyard, after

conducting various air sampling tests at the

direction of Mr. Thornton, permitted asbestos

gaskets and packing to remain at the Shipyard

though other products were removed and/or

substituted for other non-asbestos products. (Oney

TR, April 5, 2007, 1967-1997). In other words, John

Crane sough to elicit testimony that while the

Shipyard, under its substitution program in place

when Mr. Thornton came to work there, removed

most of the asbestos-containing products from its

yard, gaskets and packing materials were continued

to be used at the yard, as their use complied with

OSHA. Id.

3. The Court excluded this line of

questioning due to its concern that the same would

necessarily evoke to the jury the Shipyard’s

knowledge and/or negligence, which was ruled

pretrial to be improper. (Oney TR, April 5, 2007,

1978-83).

4. Such a ruling was improper because the

purpose behind this line of questions was not to

39a

bring out the potential negligence of the Shipyard,

but rather to demonstrate first that when used in

their normal and foreseeable manner at the

Shipyard, gaskets and packing did not emit fibers in

excess of what was permitted by OSHA at the time

of Mr. Oney’s exposures. That being so, John Crane

owed no duty to warn of any dangers associated with

the use of its products, as they cannot be said to be

inherently dangerous. Second, the questions sought

to demonstrate that because their use complied with

OSHA, gaskets and pakcing material were allowed

to remain in use at the Shipyard, while other

asbestos-containing products were removed and/or

substituted. Oney TR, April 5, 2007, 1978-9). Such

evidence further related to the state of the art and

the standards in place during the period of Mr.

Oney’s alleged exposure, which is clearly material to

this case.

5. In further support of its argument,

John Crane refers the Court to its arguments made

at trial (Oney TR, April 5, 2007, 1961-2022).

Conclusion

For the foregoing reasons, John Crane

respectfully requests this Court to set aside the

jury’s verdict in this case and grant a new trial on all

issues on the grounds that Mr. Thornton should

have been permitted to testify regarding the

exemption of gaskets and packing material from the

Shipyard’s substitution program.

40a

XI. DEFENDANT, JOHN CRANE INC’S

POST TRIAL MOTION (B-XI)

TO SET ASIDE THE VERDICT ON

THE GROUNDS THAT THE

COURT IMPROPERLY RELIED ON

THE RULINGS OF JUDGES IN

PAST CASES WITHOUT FULLY

CONSIDERING THE EVIDENCE

AND LAW PRESENTED

John Crane, by counsel, respectfully asks

this Court to set aside the jury’s verdict and grant

a new trial on the grounds that the Court

improperly relied on the rulings of judges in past

cases without providing John Crane an adequate

opportunity to submit new evidence and/or

argument. In support thereof, John crane states the

following:

1. During a hearing in this matter held

February 26, 2007, during which John Crane sought

to exclude the testimony of Plaintiffs experts

regarding the “every fiber contributes” theory of

causation as unreliable and untested, the Court

indicated that it intended to admit everything that

was ruled admissible in last year’s cause of Jones v.

John Crane, Case No. 39028T-01, Newport News

Circuit Court. Specifically, the Court stated that

“anything {Plaintiffs experts] testified to in Jones is

admissible in this case.” Oney TR, February 26,

2007, 74; see also Id. at 57-77. John Crane objected,

noting that such a ruling fails to take into account

how certain testimony may have come up or how

evidence may have been presented. Id. at 74.

4la

Additionally, John Crane asserted that it should not

be stuck with decisions to object, not object, and

other like decisions, made by it in a previous case

when, hopefully, it is smarter today than yesterday.

Id. at 65.

2. In addressing this issue, at the final

pretrial conference held March 16, 2007, the Court

clarified that its decision to “follow...what has been

done,” stemmed from its desire to maintain

consistency within the circuit. Oney, TR, March 16,

2007, 30-32. The Court’s desire to maintain

consistency within the circuit, however, does not

take into account that in previous cases similar

issues may not have been raised and thus were not

objected to, different evidence may have been

presented, and different circumstances and/or facts

may have warranted different results. Citing

consistency as the overall rational for adhering to

previous decisions creates a box into which all issues

simply cannot fit and in which they cannot be

properly handled.

Conclusion

For the foregoing reasons, and because its

ability to have a full and fair trial was deeply

impaired, John Crane respectfully requests that this

Court set aside the jury’s verdict and order a new

trial on the grounds that the Court consistently and

improperly relied on the previous rulings of judges in

other cases.

42a

XII. DEFENDANT JOHN CRANE, INC.’S

POST TRIAL MOTION (B-XID

AFFIRMING ALL OBJECTIONS

AND ARGUMENTS RAISED

BEFORE, DURING AND AFTER

TRIAL

Me John Crane, by counsel, respectfully

asks the Court to affirm John Crane’s preservation

for the record of any and all objections, exceptions,

defenses, and arguments made by John Crane in all

motions, briefs, memoranda, and oral argument

before this Court not otherwise raised in this

Posttrial Motion, whether the same occurred or were

filed before, during, or after trial in this case.

2. John Crane further asks the Court to

affirm that John Crane has not waived or withdrawn

any objection, exception, or argument it has made

before, during or after trial, unless John Crane has

expressly stated otherwise.

3. John Crane further states that it

adheres to any and all defenses, arguments or

objections contained in the following documents it

has filed with this Court and made during oral

arguments of the same, except where a particular

defense, argument or objection has been expressly

waived or withdrawn by John Crane:

Motion to Apply Virginia Law _ and

Memorandum in Support, filed February 26,

2007

Motion to Apportion Fault Proportionately

and Allow Fault of Judgment-Proof Defendant

43a

Proportionately among Both Settling and

Nonsettling Defendants, and 2) Permit the

Jury to Apportion Fault to Employer

Shipyard, and Memorandum in Support, filed

February 26, 2007

Motion to Preclude Punitive Damages, filed

February 26, 2007

Motion to Exclude Testimony Regarding any

Asbestos-Related Disease other than

Mesothelioma and Memorandum in Support,

filed February 26, 2007

Motion to Prohibit and/or Limit Motions in

Limine at Trial, filed February 26, 2007

Motion to Exclude Evidence that Relates to

Knowledge or State of the Art that Post Dates

John Crane’s Last Date of Manufacture, filed

February 26, 2007

Motion in Limine to Exclude Exhibits

Showing the Knowledge of Associations of

Which John Crane was Not a Member and

Memorandum in Support, filed February 26,

2007

Motion to Prohibit Experts from Expressing

any Opinion that Constitutes a Conclusion of

Law or Goes to the Ultimate Issue of the Case,

filed February 26, 2007

Motion to Determine Sufficiency of Expert

Disclosures at Pretrial Conference, filed

February 26, 2007

44a

Motion to Stay Proceedings and Memorandum

in Support, filed December 21, 2006

Renewed Motion to Stay Proceedings and

Memorandum in Support, filed December 21,

2006

Renewed Motion to Stay Proceedings and

Memorandum in Support, filed March 7, 2007.

Motion to Prohibit Plaintiffs Reference to the

“Every Fiber Contributes” Theory of

Causation and to Prohibit Plaintiffs Experts

from Testifying as to an Ultimate Issue of

Fact, and Memorandum in Support

Opposition to Plaintiffs Motion to Apply Joint

and Several Liability and Prohibit Allocation

of Comparative Fault to Non-Party Entities,

filed March 6, 2007

Opposition to Plaintiffs Motion to Apply

“Should Have Known” Standard of Care, filed

March 6, 2007

Opposition to Plaintiffs Motion to Prohibit

Evidence Relating to Negligence of Non-Party

and/or Bankrupt Companies, filed March 6,

2007

Opposition to Plaintiffs Motion to Strike

Defendant’s Government Contractor Defense,

filed March 6, 2007

Opposition to Plaintiffs Motion to Strike

Defendant’s Sophisticated User/Equal

Knowledge Defense, ~*ed March 6, 2007

45a

Response to Plaintiffs Motion to Prohibit

Defendants from Claiming Its Products Are

Exempt from OSHA’s Warning Requirements,

filed March 6, 2007

Response to Plaintiffs Motion to Prohibit

Reference to Lack of Autopsy, filed March 6,

2007

Response to Plaintiffs Brief and Motion in

Limine to Prohibit the Direct or Indirect Use

of the Deposition of any Witness Who

Testified Where the Plaintiff Was Not a Party

or Present at the Time of the Deposition, filed

March 6, 2007

Reply to Plaintiffs Motion to Strike Testimony

of Paul Steward, filed March 21, 2007

Reply to Plaintiff's Motion to Stike Testimony

of James Delaney, filed March 21, 2007

Reply to Plaintiffs Motion to Limit Testimony

of Dr. Bruce Case, filed March 22, 2007

Reply to Plaintiffs Motion to Limit Testimony

of Dr. James Crapo, filed March 21, 2007

Reply. to Plaintiffs Motion in Limine RE

James R. Thornton, filed March 21, 2007

Motion to Dismiss, or Alternatively, to Permit

a Spoliation or Missing Evidence Inference

against the Plaintiff

John Crane’s Motion in Limine to exclude the

testimony of Terrence McNamara

46a

John Crane’s Opposition to some of Plaintiffs

requested instructions and John Crane’s

Objection to the court’s rulings on its

exceptions

John Crane’s Objections and Motions made

Be during the trial.

WHEREFORE, for the reasons stated, John

Crane respectfully requests the Court to grant it a

new trial on any and all issues, or in the alternative,

for remittitur.

Respectfully submitted,

JOHN CRANE INC.,

By Counsel

/s/ Patricia J. Bugg

_ Archibald Wallace, III (VSB #06005)

Patricia J. Bugg (VSB #72775)

Stephen A. Bryant (VSB #16948)

Thomas J. Moran (VSB #71296)

WALLACEPLEDGER, PLLC

The Capstone Center

7100 Forest Avenue, Suite 302

Richmond, VA 23226

(804) 282-8300

and

Daniel J. O’Connell

O’Connell, Tivin Miller & Burns, LLC

645 Tollgate Road, Suite 220

Elgin, Iilinois 60123

Counsel for John Crane, Inc.

47a

CERTIFICATE OF SERVICE

I hereby certify that on this 23 day of April,

2007, a true and accurate copy of the foregoing was

sent via email and U.S. Mail, postage prepaid to:

Robert R. Hatten, Esq.

PATTEN, WORNOM, HATTEN & DIAMONSTEIN

12350 Jefferson Avenue, Suite 300

Newport News, VA 23602

Counsel for Plaintiff

/s/ Patricia J. Bugg

48a

VIRGINIA:

IN THE CIRCUIT COURT OF

THE CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor )

Of the Estate of SHARON )

VAUGHN ONEY, Deceased, ) AT LAW NO.

Plaintiff, ) 00301TF

Vv. )

)

JOHN CRANE, INC., )

Defendant. )

TRANSCRIPT OF PROCEEDINGS

Newport News, Virginia

DAY 13

April 11, 2007

BEFORE:

THE HONORABLE TIMOTHY S. FISHER,

Judge, and a Jury.

-——-—8—— == @e w@we35nrnnnnn nen en eee er ewer ewe ewe ew er

TAYLOE ASSOCIATES, INC.

Registered Professional Reporters

Telephone: (757) 461-1984

Norfolk, Virginia

* = *

THE CLERK: We, the jury, find in

favor of the plaintiff, Kay Oney.

49a

And we, the jury, award the plaintiff,

Kay Oney, damages for the following:

A. Compensatory damages: $9

million.

Medical expenses: $235,644.06 -- let

me say that again. $235,644.06.

C. Funeral expenses: $15,748.

We award interest on $9,251,392.06

beginning July 11th, 2007.

Do you want me to read that,

Judge?

THE COURT: Let me see it, please.

Yes, go ahead and read it.

THE CLERK: If you find that one or

more of the companies listed below are at fault and

that they substantially contributed to Vaughn

Oney’s injury and death, you may allocate the

percentages of liability, including John Crane. The

total of these percentages must be 100 percent.

If you find that John Crane is the only

company at fault and that it substantially

contributed to Vaughn Oney’s injury and death, then

you should allocate 100 percent to John Crane.

John Crane: 60 percent.

Garlock: 40 percent.

* K *

VIRGINIA:

IN THE CIRCUIT COURT OF

THE CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor

Of the Estate of SHARON

VAUGHN ONEY, Deceased, AT LAW NO.

Plaintiff, 00301TF

JOHN CRANE, INC.,

)

)

)

)

Vv. )

)

)

Defendant. )

TRANSCRIPT OF PROCEEDINGS

Newport News, Virginia

DAY 11

April 9, 2007

BEFORE:

THE HONORABLE TIMOTHY S. FISHER,

Judge, and a Jury.

TAYLOE ASSOCIATES, INC.

Registered Professional Reporters

Telephone: (757) 461-1984

Norfolk, Virginia

* De ~

PROCEEDINGS

THE COURT: Good morning, everyone.

MR. HATTEN: Good morning.

5la

MR. WALLACE: Good morning.

THE COURT: Okay. Mr. Wallace.

MR. WALLACE: When we _ finished

Friday, we were still putting on evidence.

THE COURT: Yes, sir.

MR. WALLACE: We believe we have

completed our evidence, and we rest.

MR. O’CONNELL: (Nodding head.)

MR. WALLACE: I guess I'll formally do

that --

THE COURT: I just want to get the

scheduling at the moment.

MR. HATTEN: Your Honor, at this

time, I would move to strike the defendant’s evidence

as to comparative fault of the plaintiff and also as to

comparative fault as to any defendant except

Garlock.

I don’t think there’s been any evidence,

any other company whose asbestos products were

specifically used or worked with by Mr. Oney or

worked around.

THE COURT: Okay.

MR. WALLACE: May I have just a

second?

THE COURT: Sure.

52a

MR. WALLACE: In response to the

first motion that was made, the testimony has been

in this trial that Mr. Oney worked from 1962 to 1994

and claims exposure throughout that period.

In view of that, in view of some of his

witnesses, remembering that there were protections

and safeguards against that asbestos from the mid

‘70s on, he then had the potential for exposure those

last 19 years of his work life.

We have instructions and we'll argue

them in a minute and the Court may deal with this

issue at that point, so we have instructions that

speaks to the fact that if he had exposures during

those time frames, it was contributory negligence on

his part as to the negligence.

THE COURT: The question is not the

instructions at this point. It’s the evidence that’s

come out in the courtroom.

MR. WALLACE: I know.

THE COURT: Is there any evidence,

frankly, of Mr. Oney being negligent in any way from

any witness from any year?

MR. WALLACE: I don’t think so up

until 1975 when the safety and precautionary things

were in the shipyard. And his witnesses have

testified yes, from that point we were warned and we

had --

THE COURT: The question was, was

there any evidence that he didn’t comply with any of

that?

53a

MR. WALLACE: No.

THE COURT: Okay. So then it would

appear appropriate to grant the motion?

MR. WALLACE: Probably. I just don’t

want to give it away.

THE COURT: Well, that’s fine. Don’t

may my job any easier.

All right. The motion to strike the

comparative negligence of the defendant is granted.

MR. HATTEN: Comparative negligence

of the plaintiff.

THE COURT: Of the plaintiff is

granted. Thank you. He said contributory and got

me off the track.

MR. WALLACE: On the second issue,

the testimony has been probably a little different

than Mr. Hatten is sharing. For example, Mr. Oney

was very clear in saying 2150 and SS6 AM were the

only two that he saw that he worked with, but Mr.

Stanley names not only John Crane gaskets and

packing, Garlock gaskets and packing, but he named

Johns-Manville gaskets and packing. He also named

products that he used and Mr. Oney used also. He

also named asbestos sections cement and cloth. Mr.

Silver --

THE COURT: That’s a product. Was

there anyone identified as making that?

MR. WALLACE: Say again.

54a

THE COURT: That’s a product --

MR. WALLACE: No, nobody was

identified as making it, but if you are exposed to an

asbestos product, I think you can deal with it under

a category of other asbestos products; you don’t have

to say who made it, per se.

THE COURT: He is just talking about

striking national defendants at the moment.

MR. WALLACE: I’m the only

defendant. I’d love for me to be stricken.

MR. HATTEN: Any --

THE COURT: The only active

defendant at the moment.

MR. HATTEN: Their burden of proof

as to anyone who has settled that they have to make

a case against, there’s been no claim filed against

Johns-Manville and there’s been no -- there has been

a settlement with Garlock and there has been proof

of Garlock and that’s why we conceded to Garlock.

THE COURT: Interestingly enough, I

don’t think there was a product identified from

Johns-Manville; just said that --

MR. WALLACE: Mr. Stanley = did

identify gaskets and packing made by Johns-

Manville.

THE COURT: I was_ focused’ on

Flexitallic, but apparently that’s not asbestos?

55a

MR. WALLACE: It is, but it’s another

product. I think --

MR. HATTEN: Flexitallic is a bankrupt

company, also we have no claim against. You can’t

put Johns-Manville on the form unless you filed a

claim, and we have not filed a claim because joint

and several liability applies to maritime law and

there’s been no claim filed.

And they have a right to file a claim for

contribution or indemnity after a verdict against

Manville Trust.

THE COURT: I agree certainly about

Gerlock, and I agree Johns-Manville was mentioned.

But as far as the legal argument on Johns-Manville,

wouldn’t it be appropriate for that defendant not to

stay as somebody they can --

MR. WALLACE: Not as long as they

have a claim.

MR. HATTEN: I don’t have a claim.

THE COURT: He doesn’t have one.

MR. HATTEN: I’ve not filed any claim.

THE COURT: That was my

understanding from the beginning. And that’s when

I understood very few things. I understand a little

bit more now.

MR. WALLACE: Weill, you know, we’re

in this sort of Catch-22, Your Honor.

56a

THE COURT: I understand.

MR. WALLACE: In the beginning Mr.

Hatten says to the jury, don’t worry; you'll see it’s

not just John Crane. But then when he gets to this

point, he says to you, we don’t want anybody but

John Crane. So it’s a Catch-22. He can tell them at

the beginning it’s one thing, but then at the end he

comes back and says, no, you can’t do anybody but,

and we disagree on the law on the issue of

apportionment and who should be on the verdict

form anyway. And we've been steadfast on_ that

before trial in motions and throughout trial. We'll

argue instructions on that in just a few minutes.

MR. HATTEN: The burden of proof on

contributing cause is on the defense. And the law

prohibits parties that have not been named or

haven't settled. And so, you know, you have to

operate within the strictures of what the Supreme

Court says who can be on that form. You have to

prove your case. And the only one you provide a

prima facie case against that the Supreme Court

permits is Garlock.

MR. WALLACE: The Supreme Court

rule that Mr. Hatten cites and that this Court

through Judge Tench has followed is the dictum by

an opinion that was written saying, in essence, you

got questions in this area. That issue has never

really been resolved by the Virginia Supreme Court.

THE COURT: Regardless of what he

said in the opening statement, there’s clearly, I

assume from the defendant, is an interest in this

case and demonstrating that the thermal insulation

57a

around the pipe covering containing amosite caused

the plaintiffs mesothelioma.

MR. WALLACE: That’s my position.

THE COURT: I understand. Now,

there was never a manufacturer identified --

assuming we ever got to that point, there was never

a manufacturer identified of that product to vacate

the defendant in this case.

Now, the defendant can certainly say,

we don’t know who made it, but that stuff caused the

injury. I don’t know that we really got to that point

either.

MR. WALLACE: I don’t think that’s

Mr. Hatten’s argument.

THE COURT: No. But I think in his

opening statement he may very well have been

anticipating something along that line.

MR. HATTEN: Judge, you _ already

ruled on this in pretrial. You said the motion to --

plaintiff’s motion to prohibit evidence relating to the

negligence of non party and/or bankrupt companies

is granted.

THE COURT: Right.

MR. HATTEN: Of course, the

allocation of damages doesn’t involve any bankrupt

companies in this case.

THE COURT: We’re now down to the

point of who has to prove it. It may have been

58a

the word “Garlock” might never have gotten

mentioned.

MR. WALLACE: Johns-Manville was

proven, but he doesn’t want you to allow it.

THE COURT: It’s bankrupt.

MR. WALLACE: It’s not bankrupt. It’s

come out of bankruptcy, has a trust, and it has

money, and it pays handsomely.

MR. HATTEN: If you file a claim

against the Manville Trust, then they can be put on

the verdict form unless you disclaim it before the

trial. But if you don’t file a claim against them, then

you have no -- they can’t put it on the jury verdict

form at all.

I've confirmed this with the general

counsel for the Manville Trust as part of all the

documents. I was on the committee that reorganized

the Manville Trust and wrote that document.

THE COURT: I think Garlock can stay;

the others cannot, so I'll grant that motion.

MR. HATTEN: Thank you.

THE COURT: Any other motions, Mr.

Hatten?

MR. HATTEN: I have no other

motions.

THE COURT: Any motions, Mr.

Wallace?

59a

| MR. WALLACE: I have one. It was a

question I might bring to the Court’s attention.

On April 5th, which was Thursday, the

Court admonished the jury about some type of

discussion. And the Court was not -- did not share

with anyone -- or at least with us -- what thut

discussion was or what the admonition was.

The suggestion is -- and I may be

incorrect and I certainly would be happy to hear

that,

60a

VIRGINIA:

IN THE CIRCUIT COURT OF

THE CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor

Of the Estate of SHARON

VAUGHN ONEY, Deceased, AT LAW NO.

Vv.

JOHN CRANE, INC.,

)

)

)

Plaintiff, ) 00301TF

)

)

)

Defendant. )

TRANSCRIPT OF PROCEEDINGS

Newport News, Virginia

DAY 8

April 4, 2007

BEFORE:

THE HONORABLE TIMOTHY S. FISHER,

Judge, and a Jury.

TAYLOE ASSOCIATES, INC.

Registered Professional Reporters

Telephone: (757) 461-1984

Norfolk, Virginia

* * +

Dr. Marks, a radiologist, and we saw Dr.

Harpole, a surgeon, and they told us that

nothing more could be done.

6la

At this time we saw Dr. Kessler, the

oncologist. He did chemotherapy with cis-

platin and Alimta, three sessions of that. He

referred us to Dr. Layser, radiologist, who did

14 sessions and nothing -- nothing was

successful. We tried everything.

We checked into a clinical trial. He

didn’t qualify.

By the time he was diagnosed, he

was in stage IV -- ’m sorry Nothing could be

done.

Q. Kay, did you keep a notebook of ali the

different doctors’ appointments and all the questions

and the answers and all the different things that you

had to do there for about two years?

A. I did, yes. I was the primary

caregiver for my 94-year-old mother and

Vaughn. And I had to keep all my records

straight. Of course I also wanted to be

prepared when I went with him to his doctors’

visits. We went to the doctor 82 times in 2006.

I went with him every time. When he was

hospitalized I spent every night. If I was not

allowed in the room with him, I stayed in the

waiting room.

62a

VIRGINIA:

IN THE CIRCUIT COURT OF

THE CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor )

Of the Estate of SHARON )

VAUGHN ONEY, Deceased, ) AT LAW NO.

Plaintiff, ) OO301LTF

Vv. )

)

JOHN CRANE, INC., )

Defendant. )

TRANSCRIPT OF PROCEEDINGS

Newport News, Virginia

DAY 6

April 2, 2007

BEFORE:

THE HONORABLE TIMOTHY S. FISHER,

Judge, and a Jury.

-_—-—e8e - - weoeWwwneeneeeeeenteenenete wo ewreew ener eel er

TAYLOE ASSOCIATES, INC.

Registered Professional Reporters

Telephone: (757) 461-1984

Norfolk, Virginia

* Bg *

Q. Would it be fair to say when you got to

the KENNEDY Mr. Oney had already been working

there before you got there?

A. Yeah.

Q. And would it be fair to say that, I don’t

know what products he worked on before I got there?

Ris That’s correct.

Q. Would it be fair to say, I don’t know

how long he worked on the KENNEDY?

A. That would be -- yes.

Q. Now, Mr. Oney became a supervisor

during the time that you knew him, correct?

A. Correct.

Q. And once he became a supervisor, there

was -- he wouldn’t have to cut his own gaskets as

much, correct?

A. That’s correct.

Q. And he was not doing as much hands-

on work as he did as a mechanic or as a helper?

A. That’s correct.

Q. Isn’t it a fact you don’t recall that he

ever cut a gasket or packing when he was a

supervisor?

A. Not when he was supervising; I

don’t know.

Q. Did you ever use Flexitallic gaskets?

Yes.

A.

Q. And what color were they?

A.

Bluish-gray.

Q. Did you use them in the same places

that you used the other gaskets?

A. Yes.

Q. For the same thing?

A. They used them on the steam line

mostly, yeah.

Q. So you used Garlock gaskets, John

Crane gaskets, Flexitallic gaskets.

Were there any others that you just

can’t remember the names of?

A. No.

Q. Do you know the name Victor as a

asket?

A. No.

Q. You don't recognize it as a

manufacturer of gaskets that you used?

A. I don’t recall that name.

Q. Do you recall being deposed in

preparation for this case on January 22, 2007?

65a

A. Yes.

Q. That was the snowstorm that you

described earlier coming through to get here?

A. Yes.

66a

VIRGINIA:

IN THE CIRCUIT COURT OF

THE CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor

)

Of the Estate of SHARON )

VAUGHN ONEY, Deceased, ) ATLAWNO.

Plaintiff, ) 00301TF

Vv. )

)

JOHN CRANE, INC., )

Defendant. )

TRANSCRIPT OF PROCEEDINGS

Newport News, Virginia

DAY 5

March 30, 2007

BEFORE:

THE HONORABLE TIMOTHY S. FISHER,

Judge, and a Jury.

TAYLOE ASSOCIATES, INC.

Registered Professional Reporters

Telephone: (757) 461-1984

Norfolk, Virginia

“ os *

moving into the lungs and so there’s no way

really to keep it under control. It’s very

uncomfortable for the patient to do that.

67a

Q. That evening were you summoned back

to the home?

A. No, I was not on call, but Frances

was and she came back.

Q. And did he die on the evening --

A. Yes, he did.

Q -- of November 17th at 11:20 p.m. --

A. Yes, he did.

Q -- in the evening?

Throughout this time you had an

opportunity to observe not only your patient, Mr.

Oney, but his wife, Kay?

A. Yes.

Q. Can you describe for the jury the

affection, care, and attention that Kay gave to her

husband?

A. She was a very devoted caregiver

and spouse. She very rarely left his side. I

would encourage her frequently to try and get

out and, you know, just do something else

besides be in the middle of all of this. Most of

the time she refused. Like I said, she refused

to have anybody come in from hospice

*K *K *

68a

VIRGINIA:

IN THE CIRCUIT COURT OF

THE CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor

Of the Estate of SHARON

VAUGHN ONEY, Deceased, AT LAW NO.

Plaintiff, 00301TF

JOHN CRANE, INC.,

)

)

)

)

Vv. )

)

)

Defendant. )

TRANSCRIPT OF PROCEEDINGS

Newport News, Virginia

DAY 4

March 29, 2007

BEFORE:

THE HONORABLE TIMOTHY S. FISHER,

Judge, and a Jury.

-“-—-——-2e ere ee we ew eeee seen ese we ene ewe ne nee enn — =

TAYLOE ASSOCIATES, INC.

Registered Professional Reporters

Telephone: (757) 461-1984

Norfolk, Virginia

* ¥ *

THE WITNESS: And I believe that

they accurately describe exposures to asbestos-

containing dust from a variety of different products.

69a

BY MR. HATTEN:

Q. And the summaries you found were

consistent with what was in the depositions?

A. Yes. The summaries are consistent

with what’s in the depositions, and also the

coworker depositions support the facts as

stated in the plaintiff's deposition.

Q. All right. Now, Doctor, assume that the

evidence in this case -- and this is a month before

trial, but assume that the evidence in this case

supports the testimony that you have just read, that

there was regular, routine use of making fabrication

of gaskets, removal of gaskets, and that he worked

around other products as well, and assume that the

evidence is that the fabrication of these gaskets and

the removal of these gaskets and the other products

that he worked around all created visible dust as you

have summarized.

What implications do those descriptions

have to you as to what the -- as to whether or not

those exposures would have contributed all or part to

his mesothelioma?

A. Well, I believe with the exposures

like I had just described would have been

attributable exposures; in other words, they

would have contributed either in whole or in

part to the development of this man’s

mesothelioma.

Q. All right. Now, what conclusion, if any,

can you reach as a physician when there is a

70a

description of visible dust from asbestos-containing

products?

A. When there is a visible dust, that

means you have a pretty high concentration of

particles in that dust. Now, the older

literature refers to dust concentrations having

to be five million particles per cubic foot or

greater before you could see visible dust in

very favorable lighting conditions.

My understanding is that five

million dust particles per cubic foot is kind of

an imprecise term because that includes not

only asbestos fibers, but also plaster or mica or

whatever type of binders are present in a dust-

producing material.

But on the average -- you know, if

you have to use a figure, five million particles

per cubic foot is roughly equivalent to six

fibers per cc. And that would be a pretty high

dust level by itself.

So if you see a visible dust, you

or anything of that sort, that they do have the

potential to be released and, _ therefore,

respirable.

Q. And did you review the various levels of

asbestos exposure that these different reports

showed to determine whether or not the exposure

71la

from these different reports showed the potential to

release exposure above background levels?

A. Yes, the fiber release that a lot of

these documents showed was up to three fibers

per cc, which is certainly high enough to

contribute to the development of

mesothelioma. That’s certainly far above the

permissible exposure concentrations that are

now in place.

Q. You’re not an industrial hygienist,

correct?

A. That’s correct, I’m not an industrial

hygienist.

Q. And you didn’t attempt to analyze the

various studies from an industrial hygiene point of

view; is that correct?

A. That’s correct. As a physician, I

noted that they either showed or showed the

potential for fiber release. That’s what I need

to know to help in the causation statements

after a diagnosis of malignant mesothelioma.

Q. Okay. And were you _ provided

summaries of these studies as well?

A. Yes, sir. [ve got an extract of those

studies.

Q. Now, from the summaries that were

provided -- assuming there’s expert testimony that

these summaries are correct -- would the summaries

72a

that were provided to you -- did they add to any

understanding that you may have concerning the

role of gaskets and packing in the release of asbestos

fibers?

A. Well, yes, sir. They show release

that is above ambient air, above regulated

limits, and in some instances exposure levels

that are extremely high during work with

gaskets.

Q. All right. Specifically the reports by Dr.

Longo, can you identify these reports as reports that

you have previously seen?

A. Yes, sir. There’s two main books, I

believe. One is a fabrication study, one is the

removal studies.

Q And did you review both of those?

A. Yes, sir.

Q. And did the -- the levels of potential

asbestos exposure release as demonstrated in those

studies what, if any, conclusions -- have medical

significance to this case?

A. Well, both of these studies show

fiber concentrations during the work being

done that are plenty high enough to give

respirable asbestos fibers that contribute to

the development of mesothelioma. These are

levels that are above ambient air, these are

levels that are above any conceivable

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background, and levels that are above the

regulated limits.

Q. Okay. You mentioned some

photographs that you have seen. Let me show you

these photographs.

Are these photographs the ones that

you are referring to?

A. Yeah, these are some of the

photographs that are contained within the

Longo fabrication report, I believe. And they

show wavy, curly little fibers of the short that

you would expect to see with chrysotile

asbestos.

Q. Can you hold that up just to --

A. Sure.

Q. All right. Dr. Longo explained to us

those photographs, but did that have medical

significance to you, those photographs of the surface

of gaskets?

A. Well, this is a lower-power

photograph taken with a scanning electron

microscope, similar, I suppose, to the scanning

electron microscope that I operated for about

15 years, and it shows patches where the

individual fibers shine through, so to speak.

This area is seen in a higher

magnification picture here. And when you

look at that patch you see that there’s fibers

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just sticking out into the air. To me, this

indicates a potential for release -- for fiber

release and, therefore, the potential for this to

be respirable asbestos fiber.

Q. All right. Doctor, did you also review a

report — is one of the reports in there a report on

valve packing that was done by Dr. Longo? Is that

also in your book of reports?

A. Yes, sir, that would be item two in

this book.

Q. Okay. Have you read and reviewed all

of those various reports at one time or another?

A, Yes, sir. I can’t say that [ve read

every single word or page on them, but I have

looked through all of these reports previously.

Q. From all of those reports about gaskets

and packing, were you able to form a conclusion with

a reasonable degree of medical certainty as to

whether or not gaskets and valve packing had the

potential to release fibers that would have medical

significance for the causation of mesothelioma?

A. Well, I was able to determine by

looking at the documents that both gaskets

and packing do have the potential to release

fibers into the air within the breathing zone of

patients like Mr. Oney.

Q. Assume that in this case there's

evidence that the routine use of gaskets, both

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fabricated gaskets and removal of gaskets, created

visible gust.

What, if any, conclusions would you

reach as to the medical significance of that

information about these products?

A. Well, given this type of information

from the Longo studies, I would conclude that

visible dust produced by Mr. Oney would have

contained asbestos and he would have

breathed that asbestos and it would have

contributed to his mesothelioma.

Q. Did you see in the depositions and the

summaries of the depositions whether or not Mr.

Oney identified any specific manufacturers of

gaskets and packing?

A. Well, he did state in his deposition

that he was able to observe the names of

several trade names on products that he’s

used. It was either printed on the outside or

on the packaging that the material came in.

Q. And what were some of those names?

MR. O’CONNELL: Objection; same

reason.

THE WITNESS: Names that he

mentioned in his deposition were John Crane sheet

packing, Garlock sheet packing, John Crane,

Garlock, Flexitalic, and Manville gaskets, John

Crane Super Seal packing, Crane valves, Leslie

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valves, Garlock sheet packing, John Crane SS-6AM,

a type of square packing that came on a roll.

BY MR. HATTEN:

Q. Are the John Crane products that you

previously mentioned -- are they included in the

testing that Dr. Longo and Dr. Millette did sheet -- I

mean, the gasket material?

A, Certainly materials with those

same trade names are used in the Longo and

Millette studies.

Q. All right. Doctor, on the basis of -- did I

provide you with the actual transcripts of the

witnesses as well as the summaries?

A. Oh, yes, sir; I have those right here.

Q. And did you have an opportunity to

review the actual transcripts as well as_ the

summaries of Mr. Oney and the witnesses?

A. Yes, I looked through them. I

looked through Oney’s a bit more detailed than

I looked through the coworkers. But with all

of them I looked at them and checked some of

the references back to the full transcript.

Q. All right. On the basis of the testimony

that you’ve read, the testing of gaskets and packing

as revealed in your book there and the testing by Dr.

Longo of the John Crane gaskets and valve packing,

have you reached a conclusion that you can express

with a reasonable degree of medical certainty

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concerning whether or not the exposures to John

Crane gaskets and packing as described in the

testimony and the reports was a_ substantial,

contributing cause to Mr. Oney’s mesothelioma?

A. Well, yes, I have reached a

conclusion, and that conclusion is that that

would have been one of the attributable

exposures that Mr. Oney had at the shipyard;

that is to say, that exposure as you’ve just

described it was a substantial and significant

contributing cause of the development of his

mesothelioma.

Q. All right. Now, you’ve read in the

depositions that he was exposed to other products as

well; is that correct?

A. Yes, sir.

Q. Did you read in the depositions and the

testimony that Mr. Oney was exposed to other

products?

A. Yes, sir, I did.

Q. Do you have an opinion as to whether

or not the other asbestos products that he was

exposed to onboard ships at the Newport News

Shipyard were also substantial, contributing causes

to his developing mesothelioma?

A. Well, yes, as a general statement to

the extent he breathed in asbestos fibers from

all of the products that he worked with at the

shipyard, all of those exposures were

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significant and _ substantial, contributing

causes to the development of his malignant

mesothelioma.

Q. All right. If he had not had one

exposure or another exposure -- whatever exposure

you want to pick at the shipyard -- what influence

would it have, if any, if you took part of the exposure

that he had away from your causation analysis?

A. Well, mesothelioma is an

indivisible disease; you don’t have part of the

mesothelioma caused by one exposure and

another part caused by another exposure.

However, to answer that in a

hypothetical fashion, if he had had only, let’s

say, 50 percent of the exposure that he actually

did have, he still might have developed a

mesothelioma, but the chances of him doing

that would have been less.

If he had developed mesothelioma,

odds are that he would have developed it at a

later time. It would not have necessarily been

this mesothelioma -- could have been a

morphological and entirely different

mesothelioma, but those are the chances. The

chances would have been less and the chances

would have been for it to be later.

Q. You brought with you today a container

of marbles. And just to illustrate the point you've

just made, can you explain to the jury how all of the

various exposures that one receives may play a role

in causing mesothelioma?

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A, Sure. Well, this is a famous

experiment -- famous illustration that we’ve

used for years and years and years. And what

it refers to is a jar representing the human

body that’s partially filled with water. Now,

we've left out the water just for the purposes of

simplicity and we didn’t want to make a big

mess right here on the conference table, but

when the water overflows is when an

individual develops malignant mesothelioma.

We start with a certain given level of water.

You start adding asbestos fibers to it. Some

asbestos fibers add very little. Chrysotile

fibers, for example, have a fairly low

carcinogenic potential by themselves.

Amphibole fibers have a greater carcinogenic

potential on a fiber-by-fiber basis, so those are

bigger balls to go in here. So we add more

chrysotile. We have an exposure to -- a bigger

exposure to a chrysotile-containing product, or

maybe we have an exposure to a mixed

asbestos-containing product, and the

exposures add up and build up over a period of

time, and eventually we have enough asbestos

in the jar that the water overflows and the

individual develops mesothelioma.

Well, the purposes of this analogy

is to show you that it’s not just one fiber, like

the last fiber, or the first fiber that causes the

mesothelioma, but it’s all of the fibers that the

person has been exposed to that contribute to

this jar overflowing.

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Q. Doctor, earlier you talked about the fact

that chrysotile fibers may disappear from the lung

over time. And so if that’s the amount of asbestos

that may be in the lung at the time that the cancer

starts, that the mesothelioma starts, can you

illustrate what the effect of the half-life of chrysotile

would be in comparing how much asbestos is there

when the cancer starts versus how much would be

there at autopsy?

A. During the time interval from the

development of the disease until a piece of

lung tissue is gotten either at autopsy or at

surgery, you’re going to have a lot of clearance

of the chrysotile going on, but the amphibole

fibers are likely to still remain in place

because their clearance half-life is anywhere

from 20 or 30 up to over a hundred times

slower than the chrysotile.

So if you clear most of the

chrysotile from the lung, you might still be left

with a little bit, but the relative proportion of

the amphibole fiber will be a lot greater.

Q. Okay. Doctor, do you have an opinion

with a reasonable degree of medical certainty as to

whether or not all of the various asbestos exposures

that Mr. Oney received at the shipyard while

working onboard ship, including gaskets, packing,

pipe covering, other products — do you have an

opinion with a reasonable degree of medical

certainty as to whether or not all of those exposures

contributed to cause his mesothelioma?

8la

A. Yes, sir, I do. It is my opinion that

all of those exposures to asbestos contributed

to the development of his mesothelioma.

Q. And to the extent that the evidence

shows that Mr. Oney was exposed to gaskets and

packing from removing gaskets, fabricating gaskets,

do you have an opinion with a reasonable degree of

medical certainty as to whether or not those

exposures would have been a substantial and

contributing cause to his mesothelioma?

A. Yes, sir. Those particular

exposures would have been a substantial and

significant and contributing cause to the

development of his mesothelioma.

Q. If the gaskets were manufactured by

John Crane or if the gaskets were manufactured by

Garlock or if the gaskets were manufactured by

Johns-Manville, would it make any difference as to

whether it was a substantial and contributing cause?

A. No, as long as those-were asbestos-

containing gaskets that released fibers that he

breathed, then his body would not be able to

tell where the asbestos came from, and they

would all contribute to the development of his

mesothelioma.

Q. Doctor, are you aware of any air

sampling

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either Modern Pathology or Human Pathology,

January Ist, page 1 through 20 or something

like that.

Q. Okay. Another stain done was CK5/6,

correct?

A. Yes, sir.

iQ. That was negative?

A. Yes, sir. Again, CK5/6 is positive in

fewer than 50 percent of sarcomatoid

mesotheliomas.

Q. Okay. In your opinion, Doctor, this is a

sarcomatous mesothelioma, correct?

A. Yes, sir, that’s correct. That would

be on the basis of the histologic pattern, the

admixture of collagen with it and copositivity

of pan-keratin, vimentin.

Q. Tell me if you disagree with this

statement, that each exposure to _ asbestos

contributes to the risk of mesothelioma but not

necessarily to the causation of mesothelioma.

A. Well, in general I think that

exposures would contribute to _ both.

Conceivably it can be circumstances -- there

could be circumstances where it’s within the --

the latency period is too short or some other

extenuating circumstances that it could

conceivably not contribute to the cause.

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Generally, I would disagree with

the statement because I think it would

contribute to both.

Q. You talked about the carcinogenicity on

both direct and cross now of the different asbestos

fibers with regard to mesothelioma.

I believe it’s your testimony that in

terms of if you’re going to rank the fibers in terms of

their potency --

A, Yes, sir.

Q. -- that the amosite is about 30 times

greater than that of chrysotile?

A. Yes, sir. The medical literature

contains a variety of different estimates, but

that would be the one that Id subscribe to.

Q. For crocidolite, it’s 50 times greater

than chrysotile?

A. About that.

Q. You say the medical literature is all

over the place. There’s literature that goes up to as

high as a thousand times to one with regard to

crocidolite versus chrysotile, correct?

A. Well, 800 to one, at least. There’s

some that says two to one or four to one on the

other extreme, but I personally would choose

something in the middle.

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Q. Let me ask you this question: Do you

believe that the following two statements are equal:

One, there’s no safe level of exposure to asbestos;

two, there’s no known safe level of exposure to

asbestos all when it comes down to mesothelioma?

A, Well, in the context of

mesothelioma, I think that you probably got

equivalent statements there.

Q. Okay.

A, I mean, I could even conceive of

situations in which -- if you took an 85-year-old

man and sent him in to do something that’s

going to involve an asbestos exposure, it’s

probably more likely that he'll die of

something else before he has the long enough

latency period. I mean, I can think of extreme

examples that might fall outside of the

illustration that you just made, but in general

terms I think that is a correct statement.

Q. All this material given to you by Mr.

Hatten, the gasket studies, the packing studies, the

Longo tests, in coming to your opinions in this case

as to whether or not asbestos-containing products at

the shipyard were a cause of Mr. Oney’s

mesothelioma, you didn’t need to rely on that at all,

did you?

A. Well, quite frankly, Mr. Oney’s case

is

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VIRGINIA:

IN THE CIRCUIT COURT OF

THE CITY OF NEWPORT NEWS

SANDRA KAY ONEY, Executor )

Of the Estate of SHARON )

VAUGHN ONEY, Deceased, ) AT LAW NO.

Plaintiff, ) 00301TF

Vv. )

)

JOHN CRANE, INC., )

Defendant. )

TRANSCRIPT OF PROCEEDINGS

Newport News, Virginia

DAY 3

March 28, 2007

BEFORE:

THE HONORABLE TIMOTHY S. FISHER,

Judge, and a Jury.

-7n"wWe2e ee ee ww ewewreiwnwneinwnnnen ene inn en en nner wnnnenen ee’ - =

TAYLOE ASSOCIATES, INC.

Registered Professional Reporters

Telephone: (757) 461-1984

Norfolk, Virginia

Me * *

shipyard. Not only one time; this is

continuously. Packing, things in the material

shack. Stays on a big old roll. And when the

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guys u

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