Phillips et al v. Albany International Corporation et al

Filing 305

MEMORANDUM OF OPINION AND ORDER denying Plaintiffs' 298 Motion for New Trial as to Defendant Pneumo Abex LLC. Signed by District Judge Martin Reidinger on 4/5/2016. (khm) Modified text on 4/5/2016 (khm).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:10-cv-262-MR
ERIK ROSS PHILLIPS and
TINA LANDERS, spouse,

)
)
)
Plaintiffs,
)
)
vs.
)
)
PNEUMO ABEX LLC and
)
REDDAWAY MANUFACTURING
)
CORPORATION, INC.,
)
)
Defendants.
)
________________________________ )

MEMORANDUM OF
OPINION AND ORDER

THIS MATTER is before the Court on the Plaintiffs’ Motion for New
Trial only as to Defendant Pneumo Abex LLC (“Abex”). [Doc. 298].1 Abex
has responded to Plaintiffs’ Motion and the matter is ripe for the Court’s
consideration. [Doc. 300].

1

This action originated on November 8, 2010, in this District. [Doc. 1]. By order entered
the same day [Doc. 3], this action was included in the Coordinated Proceeding “In re:
Asbestos-Related Litigation, WDCP-83-1” and transferred to the District Court for the
Eastern District of Pennsylvania. [Id.]. The Pennsylvania court was designated as the
Multi District Litigation (MDL) court to handle asbestos-related claims through the
discovery stage of litigation before returning them to the originating district. As a result,
the parties filed documents that exist on the MDL Docket in the Eastern District of
Pennsylvania under case number 2:11-CV-60074, as well as on this Court’s Docket. The
Court will cite to the Pennsylvania court’s documents as “[MDL Doc. X]” and this Court’s
documents as “[Doc. X]” where the letter “X” represents the Docket entry number of the
particular document referenced.

Plaintiffs Erik Ross Phillips and Tina Landers, husband and wife,
brought this diversity action asserting eight claims for relief in their Third
Amended Complaint. [MDL Doc. 141]. Plaintiffs initially sued numerous
Defendants. In so doing, Plaintiffs generally alleged each “Defendant
corporation does or in the past mined, manufactured, processed, imported,
converted, compounded, supplied, installed, replaced, repaired, used,
and/or retailed substantial amounts of asbestos and/or asbestos-containing
products, materials, or equipment, which are or in the past were sold,
distributed, and used in North Carolina. The Plaintiff [Erik Ross Phillips] was
exposed to various asbestos-containing products while working at various
jobs.” [Id.].

All of Plaintiffs’ claims were premised on North Carolina’s

products liability law, and were based upon the Defendants’ alleged acts or
omissions allegedly causing Mr. Phillips to contract mesothelioma from
breathing asbestos dust. [Id.].
Plaintiffs ultimately proceeded to a jury trial against only two
Defendants, Abex and Reddaway Manufacturing Corporation, Inc., on
August 31, 2015. [Docket Sheet at 50]. On September 11, 2015, the jury
found in favor of the two Defendants and against the Plaintiffs on all of the
Plaintiffs’ claims. [Doc. 296].

Thereafter, the Court entered its Judgment

dismissing Plaintiffs’ action with prejudice on October 2, 2015. [Doc. 297].
2

Plaintiffs filed their new trial motion with regard to Abex on October 30, 2015.
[Doc 298]. Abex filed its response November 13, 2015 [Doc. 300], and
Plaintiffs replied thereto. [Doc. 301].
Plaintiffs, in seeking a new trial against Abex, state as their basis:
There is plain error in the verdict requiring a new trial. The jury
found in issue two that Abex’s negligence proximately caused
the injury. But then it found in issue three that there was an
intervening cause which caused the injury. The law is clear that
an intervening cause must be the sole cause.
[Doc. 298 at 2]. The substance of Plaintiffs’ argument is that insulating
negligence (i.e. intervening or superseding cause) should not have been
submitted to the jury as a separate issue. [Doc. 300-3 at 1]. In this matter,
intervening cause was submitted as Issue 3, a separate issue from proximate
cause. [Doc. 296 at 3]. Plaintiffs did not object on this ground during the
charge conference. They assert now, however, that this was “plain error”
requiring a new trial.
Plain error is a concept that applies to criminal trials, and is embodied
in Federal Rule of Criminal Procedure 52(b).2 The Supreme Court has
interpreted criminal Rule 52(b) to define “a single category of forfeited-butreversible error.” United States v. Olano, 507 U.S. 725, 732 (1993). Plain

Criminal Rule 52(b) provides that a “plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Fed.R.Crim.P. 52(b).
2

3

errors are forfeited errors because “[n]o procedural principle is more familiar
to this Court than that a constitutional right, or a right of any other sort, may
be forfeited in criminal as well as civil cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine it.” Id.
at 731 (internal citation and quotation marks omitted). To fall within the
purview of Criminal Rule 52(b) there must be: (1) an “error” (2) that is “plain”
and (3) that “affects substantial rights.” Moreover, Rule 52(b) leaves the
decision to correct the forfeited error within the sound discretion of the
reviewing court, and the court should not exercise that discretion unless the
error “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (internal citation and quotation marks omitted).
The plain error rule, however, has virtually no application to civil trials.
Unlike the federal criminal rules, the Federal Rules of Civil Procedure do not
express any equivalent to the criminal “plain error” rule. Civil Rule 61 states
that:
Unless justice requires otherwise, no error in admitting or
excluding evidence – or any other error by the court or a party –
is ground for granting a new trial, for setting aside a verdict, or
for vacating, modifying, or otherwise disturbing a judgment or
order. At every stage of the proceeding, the court must disregard
all errors and defects that do not affect any party’s substantial
rights.
Fed. R. Civ. P. 61. The Fourth Circuit has, however, applied a sort of plain
4

error rule in civil cases on a very limited basis. See Gentry v. East West
Partners Club Mgmt. Co., --- F.3d ----, 2016 WL 851673, No. 14-2382, slip
op. at *6 (4th Cir. Mar. 4, 2016).
Even if the more lenient criminal “plain error” rule were to be applied to
this case, Plaintiffs’ argument would still fail for three reasons: (1) they have
not demonstrated that the submission of separate causation issues was an
error, (2) even if it were an error, they have not shown that it affected a
substantial right, and (3) such was specifically invited by the Plaintiffs.
Plaintiffs argued at the charge conference that intervening cause was
an affirmative defense, for which the burden of proof fell on Abex:
[Mr. Francis, Plaintiffs’ Counsel:] With respect to the intervening
cause. There is nothing to show that Champion [alleged
intervening actor] adequately did what they were supposed to do
that their expert could say Champion's testing was sufficient to
put Champion on notice that they were complying or – basically,
that they were on notice of having to do a certain type of an air
test. And I know I'm kind of getting away from the evidence, and
I guess it's coming back to – it's not the plaintiffs' burden to
show intervening cause, and they [Defendants] have not
shown that.
The plaintiff's burden is to show negligence. They have to
then, if negligence is shown to them, then show why their
negligence is stopped or insulated from someone else's
conduct, and that is not something that they've established
today.
[Doc. 300-1 at 6-7 (emphasis added)].

The issues of causation and

intervening cause could not be combined into one issue if different parties
5

had the burden of proof as to the component parts of Plaintiffs’ negligence
claim. Plaintiffs’ request necessarily required that these issues be separated
for presentation to the jury.

Abex did not object to shouldering the

intervening cause burden. Accordingly, the Court instructed the jury that,
with regard to intervening cause, such issue was an affirmative defense to
be proven by Abex, and the jury found it had been proven by Abex. [Doc.
299-4 at 12-15].
Having invited this error (if it was error), Plaintiffs are in no position to
complain about it. Frugard v. Pritchard, 228 N.C. 508, 512, 450 S.E.2d 744,
746 (1994). Under the doctrine of invited error, “a party cannot complain of
a charge given at his request, or which is in substance the same as one
asked by him.” Sumner v. Sumner, 227 N.C. 610, 613, 44 S.E.2d 40, 41
(1947) (internal citations omitted).3

Plaintiffs have also failed to demonstrate that the Court’s separation of the issues of
proximate cause and intervening cause was error. Plaintiffs rely on North Carolina
Pattern Jury Instruction (“NCPJI”) 102.65. According to NCPJI 102.65, North Carolina
law states that the burden is not on the defendant to prove that his negligence, if any, was
insulated by the negligence of some third person. Rather, the burden is on the plaintiff to
prove, by the greater weight of the evidence, that the negligence of the defendant was a
proximate cause of the plaintiff's injury. [Doc. 300-3]. Based on this, Plaintiffs argue that
insulating negligence must not be an independent issue in a verdict sheet. [Id.]. Plaintiffs
also rely on the North Carolina Court of Appeals’ decision in Furr v. Pinoca Vol. Fire Dept.,
53 N.C. App. 458, 281 S.E.2d 174 (1981), for this same proposition. Plaintiffs’ reliance on
Furr is misplaced, however, because the trial court in that case failed to instruct the jury
properly in the first instance. Id. at 462, 281 S.E.2d at 177 (the jury instructions failed to
differentiate adequately between concurring proximate causes and a sole proximate
cause). The Plaintiffs herein do not argue that the Court improperly instructed the jury,
only that the issue of intervening cause should not have been submitted to the jury as a
3

6

Plaintiffs have also failed to show that their substantial rights were
affected, as the failure to combine the issues of proximate cause and
intervening cause does not seriously affect the fairness, integrity, or public
reputation of this judicial proceeding. Fed. R. Civ. P. 61. The Plaintiffs
argued during the charge conference that the burden of proof regarding
intervening cause should be put upon the Defendants. The Court agreed to
do so. The upshot of Plaintiffs’ argument is that this burden should have
remained on the Plaintiffs.

As such they cannot complain that their

substantial rights have been affected as a result of the Court (at Plaintiffs’
urging) having lightened the Plaintiffs’ load by shifting that burden on this
issue to the Defendants. In addition, the insulating negligence charge given
by the Court to the jury was in substantial conformity with NCPJI 102.65, to
which Plaintiffs specifically cite:
A natural or continuous sequence of causation may be
interrupted or broken by the negligence of a third person apart
from and independent of a defendant. This occurs when a third
party's negligence was not reasonably foreseeable by the
defendant and causes its own natural and continuous sequence
which interrupts, breaks, displaces or supersedes the
consequences of the defendant's negligence. Under such
circumstances the negligence of such third party not reasonably
foreseeable by a defendant insulates the negligence of such
defendant and would be the sole proximate cause of injury.
stand-alone issue. As such, the Plaintiffs have failed to demonstrate that the division of
the causation issues was error. Even if it was, it was an error that stemmed from Plaintiffs’
specific request.
7

[Doc. 299-4 at 13].4
In summary, if it was error for the Court to separate the issues of
proximate cause and intervening cause, it was to the Plaintiffs’ benefit. If it
was error, it was an error that prejudiced the Defendants – not the Plaintiffs
– by placing an undeserved burden on the Defendants. The Plaintiffs asked
for such an instruction at trial. The Plaintiffs cannot now complain that they
received precisely what they sought.
Accordingly, for all the reasons set forth herein, the Plaintiffs’ new trial
motion should be denied.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiffs’ Motion for New Trial
only as to Defendant Pneumo Abex LLC [Doc. 298] is hereby DENIED.
IT IS SO ORDERED.

Signed: April 5, 2016

4

Plaintiffs also rely on Duphily v. Delaware Elec. Co-Op, Inc., 662 A.2d 821, 829 (Del.
1995) (if intervening negligence was not reasonably foreseeable, the intervening act
supersedes and becomes the sole proximate cause of plaintiff’s injuries, thus relieving
the original tortfeasor of liability). For this same reason, this reliance on Duphily is
misplaced.
8