# Petition for Writ of Certiorari — John Crane, Inc. v. Oney (No. 07-1073) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0640%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text : 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0640%3A1. Public record. Not legal advice.