WANDA MCGUIRE, EXECUTRIX OF THE ESTATE OF WILLIAM MCGUIRE, APPELLANT
LORILLARD TOBACCO COMPANY and HOLLINGSWORTH & VOSE COMPANY, APPELLEES
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE CHARLES L. CUNNINGHAM JR., JUDGE ACTION No. 10-CI-002831.
BRIEF FOR APPELLANT: Kenneth L. Sales Joseph D. Satterly Paul J. Kelley Louisville, Kentucky Linda George Kathy Farinas Indianapolis, Indiana.
ORAL ARGUMENT FOR APPELLANT: Joseph D. Satterly Louisville, Kentucky.
BRIEF FOR APPELLEE, LORILLARD TOBACCO COMPANY: David T. Schaefer Anne K. Guillory Louisville, Kentucky James E. Berger Kansas City, Missouri Ricardo G. Cedillo San Antonio, Texas.
ORAL ARGUMENT FOR APPELLEE, LORILLARD TOBACCO COMPANY: James E. Berger Kansas City, Missouri.
BRIEF FOR APPELLEE, HOLLINGSWORTH AND VOSE COMPANY: Richard W. Edwards Louisville, Kentucky Andrew J. McElaney, Jr. Timothy D. Johnston Boston, Massachusetts.
ORAL ARGUMENT FOR APPELLEE, HOLLINGSWORTH AND VOSE COMPANY: Richard W. Edwards Louisville, Kentucky.
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES.
Wanda McGuire, executrix of the estate of William "Bill" McGuire, filed claims of negligence and products liability in Jefferson Circuit Court against appellees, Lorillard Tobacco Company ("Lorillard") and Hollingsworth & Vose Company ("H & V"). Following a defense verdict on those claims, she now appeals. Upon a careful review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In March of 2010, Bill McGuire was diagnosed with mesothelioma. Shortly thereafter, he and his wife, Wanda, filed suit in Jefferson Circuit Court asserting claims of products liability and negligence against 33 separate entities, alleging that each entity had exposed him to asbestos and that each exposure was a substantial factor in causing his disease. Bill alleged that many of these entities had exposed him to asbestos over the course of his employment as an ironworker. However, as it related to two of these entities—Lorillard and H & V—Bill alleged that he had been exposed to asbestos by virtue of the "Original Kent" cigarette. To explain, between 1952 and 1956, Lorillard's Louisville plant manufactured Original Kents, a type of cigarette featuring what Lorillard dubbed the "micronite filter." This filter media was manufactured by H & V and it contained a type of asbestos called "crocidolite, " which is a known cause of mesothelioma. And, not only did Bill smoke Original Kent cigarettes during that period of time, he also worked at Lorillard's plant from August, 1953, to August, 1954.
Bill died from mesothelioma on March 15, 2011. Wanda filed an amended complaint on her behalf and on behalf of Bill's estate. This matter only proceeded to trial against Lorillard and H & V. After a four-week trial, a jury returned a verdict in favor of Lorillard and H & V, and the circuit court entered judgment in conformity with these verdicts and dismissed Wanda's claims. Wanda now appeals.
We will discuss additional facts and procedural history relating to this matter as they become relevant to our analysis of the issues Wanda has presented in this appeal. The issues raised by Wanda fall into two general categories: 1) jury instruction issues; and 2) evidentiary issues.
I. JURY INSTRUCTION ISSUES
Initially, Wanda asserted that Bill's mesothelioma was caused by either 1) his alleged exposure to asbestos in the air he breathed at Lorillard's plant in Louisville while employed there for a year beginning in August, 1953; or 2) his alleged exposure to asbestos in the smoke he breathed through Lorillard's Original Kent cigarettes between 1953 and 1956. On these bases, Wanda brought suit against both Lorillard and H & V on theories of negligence and strict liability. When this matter was eventually submitted to the jury, however, Wanda's claims were pared down somewhat. As it related to H & V's liability, the jury instructions provided:
INSTRUCTION NO. 2 – DUTY OF HOLLINGSWORTH & VOSE CO.
You will find for the Plaintiff, Wanda McGuire, against the Defendant, Hollingsworth & Vose Company (hereinafter, "H & V"), if you are satisfied from the evidence as follows:
a) the filter media it manufactured was unreasonably dangerous to persons whom H & V should have expected to use or be exposed to it, either in its design or by the failure of H & V to reasonably warn of said danger, such that an ordinarily prudent company engaged in the manufacture of filter media, had it been aware of the risk, would not have placed them in the market;
b) his exposure, if any, to asbestos from the filter media while working at the Defendant Lorillard's Louisville factory was a substantial factor in causing William McGuire's mesothelioma.
Otherwise you will find for H &V.
As it related to Lorillard's liability, the jury instructions similarly provided:
INSTRUCTION NO. 3 – DUTY OF LORILLARD TOBACCO COMPANY
You will find for the Plaintiff, Wanda McGuire, against the Defendant, Lorillard Tobacco Company (hereinafter, "LTC"), if you are satisfied from the evidence as follows:
a) the Kent cigarettes it manufactured and which contained asbestos in the filter were unreasonably dangerous to persons smoking them, either in their design or by the failure of LTC to reasonably warn of the danger, such that an ordinarily prudent company engaged in the manufacture of cigarettes, had it been aware of the risk, would not have placed them in the market;
b) his exposure to asbestos, if any, by smoking Kent cigarettes after leaving his employment with LTC was a substantial factor in causing William McGuire's mesothelioma.
Otherwise you will find for LTC.
To summarize, the submitted jury instructions: 1) omitted any potential for liability on the part of H & V based upon Bill's alleged exposure to asbestos in the smoke he breathed through the Original Kent cigarettes; 2) omitted any potential for liability on the part of Lorillard based upon Bill's alleged exposure to asbestos in the air he breathed at Lorillard's plant in Louisville while employed there for a year beginning in August, 1953; 3) omitted any potential for liability on the part of Lorillard based upon Bill's alleged exposure to asbestos through smoking Original Kent cigarettes, unless Wanda proved that Bill's mesothelioma was proximately caused by exposure to asbestos through smoking Original Kent cigarettes after August, 1954, rather than sometime between August, 1953 (when he began smoking them), and August, 1954 (when he quit working for Lorillard); and 4) condensed Wanda's two claims of negligence and strict liability against H & V and Lorillard into only one claim of strict liability against each entity.
Wanda takes issue with each of these four points. We will address them in turn below.
A. Omission of liability on the part of H & V based upon Bill's alleged exposure to asbestos in the smoke he breathed through the Original Kent cigarettes.
Wanda's only argument in this regard appears on the ninth page of her ten-page reply brief:
Wanda alleged H & V was responsible for causing Bill's disease from the asbestos in the Kent filter and from the asbestos filter material, which he breathed at Lorillard's plant. Over Wanda's objection, the Trial Court's strict liability instruction led the jury to believe it could only hold H & V responsible for Bill's exposure to H & V's asbestos from his plant exposure, but not from smoking Kent cigarettes. It is highly prejudicial to preclude the jury from considering an entire theory of a plaintiff's case.
By way of background, the circuit court drafted the jury instructions in this matter, but extensively discussed the jury instructions with the parties over the course of a number of hearings and the jury instructions went through several revisions to incorporate the parties' suggestions. On January 25, 2012, after the circuit court had read the finalized instructions to the jury, after Lorillard had completed its closing argument, and after the jury had briefly retired while H & V prepared to give its closing argument, Wanda raised an objection and the following discussion ensued:
COUNSEL: Your honor, I noticed the, as your honor read the instructions and I didn't want to bring it up at the time, but your honor's instruction number two as it relates to Hollingsworth and Vose's duty, I'm sure this was an oversight on your honor. If, you limit it to their liability only to Lorillard's Louisville factory. Uh, and this would be part "b" of instruction 2(b), if any exposure to the asbestos filter media while working at the defendant, Louisville, Lorillard's Louisville factory. And it should be, it's not limited to just that. I think your honor said on the record, oh, and, uh, on the component parts issue that it relates to either the factory exposure or the smoking exposure.
THE COURT: Well, actually, what I had thought I had said with respect to component manufacturing was that as I read that, um, Worldwide case, both things go to the jury as to strict liability for the product that they made and when they try to go beyond that, with that component manufacturer for what I would perceive would be this finished product kind of exposure they said factually that didn't apply. Here, if the jury believes that the, um, smoking was a factor, I think that they're there through Lorillard. I was just trying to find out very clearly where they draw the line. Now, that's the way I have had it from the get-go in the instructions since draft one, so there's really nothing I can do about it now. So it's, I understand what you're saying, but—
COUNSEL: But here's the problem. You denied directed verdict as it relates to H & V's liability for the smoking component of it. And so, this instruction doesn't cover that at all, so, uh, the jury could be confused or misled to believe, uh, that H & V has no liability for the smoking, so—
THE COURT: I don't recall, frankly, this coming up until now, and it's in there the way it's in there and I'm sorry but that's the way it's got to stand.
COUNSEL: Okay. Note our objection.
THE COURT: So noted.
The "Worldwide case" referred to by the circuit court is Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50 (Ky. App. 1999). Generally speaking, it discusses the circumstances under which a "component parts" manufacturer may or may not be held liable to the end-user of a finished product. From the circuit court's reliance upon Worldwide, the circuit court apparently came to regard H & V as a "component parts manufacturer" when it drafted its instructions exempting H & V from liability for Bill's alleged exposure to asbestos in the smoke he breathed through the Original Kent cigarettes.
This discussion and the jury instructions themselves are, from our review of the record, the only indications of why the circuit court decided to exempt H & V from liability in this manner and the record is unclear whether the circuit court regarded its decision as a directed verdict or as a drafting error caught too late. In either event, if Wanda wished to appeal the circuit court's decision, she was required to raise the issue and support her contention of error with an argument in her appellate brief. See CR 76.12(4)(c)(iii) and (v). As noted, however, Wanda instead raised this argument for the first time on the second-to-last page of her reply brief. As a result, H & V's appellate brief, which it tailored to address Wanda's appellate brief, contains no corresponding argument defending the merits of the circuit court's decision, and had no reason to do so.
"[A] reviewing court will generally confine itself to errors pointed out in the briefs, " and "[a]n appellant's failure to discuss particular errors in his brief is the same as if no brief at all had been filed on those issues. Consequently, the trial court's determination of those issues not briefed upon appeal is ordinarily affirmed." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979) (internal citations omitted). Moreover, "[a] reply brief is not a device for raising new issues which are essential to the success of the appeal." Id. at 728; see also CR 76.12(4)(e). Accordingly, and in light of the fact that Wanda's failure to brief this issue gave H & V no reason to defend the merits of the circuit court's decision,  we deem this issue unpreserved and will not address it.
B. Omission of liability on the part of Lorillard based upon Bill's alleged exposure to asbestos in the air he breathed at Lorillard's plant in Louisville while employed there for a year beginning in August, 1953.
The circuit court recognized that Bill's alleged exposure to asbestos in the air he breathed at Lorillard's plant in Louisville would have occurred within the course and scope of his employment with Lorillard. Therefore, the circuit court granted a directed verdict in favor of Lorillard in this respect based upon KRS342.690. Under KRS 342.690(1), an employee's recovery in tort for a work-related injury against his employer is limited to those benefits available under the Workers' Compensation Act. This exclusive remedy provision effectively bars all personal injury claims asserted by an employee against his employer.
Wanda asserts that the circuit court erred in applying KRS 342.690 to dismiss this aspect of her claim against Lorillard. Her argument is that because Kentucky's Workers' Compensation Act would have prohibited Bill from filing a workers' compensation claim against Lorillard regarding his mesothelioma before he had even been diagnosed with mesothelioma,  she must be allowed to proceed with a civil action against Bill's former employer, Lorillard, under Kentucky's constitutional jural rights doctrine, which protects citizens from the legislative abrogation of common-law claims. See generally, Thomas P. Lewis, Jural Rights under Kentucky's Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1991-92) (explaining and critiquing Kentucky's constitutional jural rights doctrine). We are unpersuaded, however, because the Supreme Court of Kentucky has already rejected a similar argument. In Shamrock Coal Co. v. Maricle, 5 S.W.3d 130, 134 (Ky. 1999), the Court stated that "the fact that a remedy for a work-related injury is unavailable under the Workers' Compensation Act does not authorize bringing a civil action for damages" and that such a situation does not violate the jural rights doctrine. Because Bill voluntarily accepted Workers' Compensation coverage during his employment with Lorillard, along with its no-fault benefits, he cannot now escape its statute of repose and exclusive remedy provisions. A worker must either accept or reject Workers' Compensation Act coverage in its entirety and not just those portions which inure to his benefit. Therefore, the circuit court did not err in this regard.
C. Omission of liability on the part of Lorillard based upon Bill's alleged exposure to asbestos through smoking Original Kent cigarettes, unless Wanda proved that Bill's mesothelioma was proximately caused by exposure to asbestos through smoking Original Kent cigarettes after August, 1954.
The circuit court held that the exclusive remedy provision of the Workers' Compensation Act also exempted Lorillard from any liability relating to Bill's alleged exposure to asbestos and resulting mesothelioma through smoking Original Kent cigarettes between August, 1953, and August, 1954, and it granted a partial directed verdict in favor of Lorillard to that effect. In doing so, the circuit court reasoned that the exclusive remedy provision applied because 1) Lorillard was Bill's employer at that time; 2) Bill testified that he smoked Original Kent cigarettes as a result of receiving the cigarettes for free as a benefit of his employment; 3) Bill testified that he would not have smoked Original Kents if he had not been employed by Lorillard; and 4) Kentucky has not adopted the "dual capacity" doctrine.
Before we proceed, the circuit court's latter point regarding the "dual capacity" doctrine warrants further explanation. As stated in Borman v. Interlake, Inc., 623 S.W.2d 912, 913 (Ky. App. 1981), upon which the circuit court's holding largely relied,
Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.
(quoting 2A, Larson, Law of Workmen's Compensation, § 72.80 (1976) at 14-112) (emphasis added). Borman also states in no uncertain terms that Kentucky does not recognize the "dual capacity" doctrine:
The provisions of the Kentucky Workers' Compensation Act prohibit the application of the dual capacity doctrine. KRS 342.690 states that "… the liability of such employer … shall be exclusive and in place of all other liability of such employer to the employee, …" KRS 342.700 concerning third party liability, uses the language liability "in some person other than the employer." We believe this language evinces an intent to maintain the exclusivity of remedy principle intact.
623 S.W.2d at 913 (emphasis added).
As an aside, Borman concerned a wrongful death claim against an entity that was both the decedent's employer and the manufacturer of the steel product that caused the decedent's death. The circumstances of the employee's death indisputably gave rise to the employer's liability under the Act. And, the Borman court ultimately determined that even if Kentucky had adopted the dual capacity doctrine, the doctrine would not apply under the circumstances presented in that case because:
As stated in Larson, there must be new duties and obligations on the part of the employer to give rise to another distinct legal persona who may be separately liable. In the present case, Borman has not raised any additional duty which Interlake owed the decedent distinguishable from its duty to provide him with safe working conditions, equipment and materials. The use of the banding material was an integral part of the decedent's employment. Id.
Here, the circuit court held that Kentucky's refusal to adopt the "dual capacity" doctrine precluded Wanda from suing Lorillard in tort for Bill's alleged exposure to asbestos and consequent mesothelioma through smoking Original Kent cigarettes. What the emphasized language in Borman makes clear, though, is that even if Kentucky had adopted the "dual capacity" doctrine, the doctrine itself is derivative in nature: it can only be applied to "an employer normally shielded from tort liability by the exclusive remedy principle" of workers' compensation. Id. Stated differently, if the "exclusive remedy provision" of workers' compensation would not have otherwise applied to Lorillard in the context of this particular claim, the "dual capacity" doctrine is irrelevant; neither it, nor the exclusive remedy provision, would have precluded Bill from suing Lorillard in tort.
This, in turn, leads back to the central assumption of the circuit court's decision, i.e., that Lorillard was entitled to the "exclusive remedy" protections of Kentucky's Workers' Compensation Act because 1) Lorillard was Bill's employer while he smoked Original Kents between August, 1953, and August, 1954; 2) Bill testified that he smoked Original Kent cigarettes as a result of receiving them for free as a benefit of his employment; and 3) Bill testified that he would not have smoked Original Kents if he had not been employed by Lorillard.
However, the "exclusive remedy" protection only applies to injuries and diseases that are covered by Kentucky's Workers' Compensation Act, and the Act does not provide coverage for an injury or disease merely because the injury occurs or disease arises contemporaneously with employment. Rather, the injury or disease in question must arise "out of and in the course of employment, " and must therefore be considered "work-related" or "occupational." See KRS 342.0011(1) and (2); see also Sowders v. Mason & Dixon Lines, Inc., 579 S.W.2d 380, 382 (Ky. App. 1979) (stating that for purposes of Workmen's Compensation Act, the "employer is not liable for symptomatic, even possibly disabling, pain arising from diseased condition which is not causally attributable to work performance or working conditions"). The General Assembly has specified that a disease will be deemed to arise "out of and in the course of employment" and thus "occupational" if:
[T]here is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause. The occupational disease shall be incidental to the character of the business and not independent of the relationship of employer and employee. An occupational disease need not have been foreseen or expected but, after its contraction, it must appear to be related to a risk connected with the employment and to have flowed from that source as a rational consequence[.]
Conversely, Larson gives two examples of when an injury involving an employee should not be considered to have arisen "out of and in the course of employment:"
Suppose plaintiff is a clerk in defendant's store. On a day when she is off work, she goes into the store to buy a dress, and is hit in the eye by a hanger as a result of the sales clerk's negligence. Obviously she can sue the store and the co-employee. Or, suppose a nurse who works for the defendant hospital happens to be involved in a weekend accident while driving past the hospital, and is rushed to hospital's emergency room, where the alleged malpractice occurs. Here again, no one would contend that her suit is barred.
Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, § 113.08 (2007) (internal footnotes omitted).
Accordingly, the determinative question for the purpose of this part of Wanda's appeal is whether Bill's mesothelioma was legally "caused" by work conditions at Lorillard's plant, or whether Bill's work at Lorillard's plant was merely the stage upon which his disease occurred or arose so that his disability was only coincidental with it, rather than legally caused by it. Wyatt v. Fed. Materials Co., 457 S.W.2d 479, 481 (Ky. 1970).
In that regard, while Lorillard gave Bill Original Kent cigarettes and allowed Bill to smoke them while working, it did not pay him to smoke. Nothing of record demonstrates that smoking Original Kent cigarettes at work or at any other time (including when he was not at work) between August, 1953, and August, 1954, was required of Bill by Lorillard or constituted any part of Bill's work-related duties. Therefore, "contracting mesothelioma from smoking Original Kent cigarettes" cannot be said to bear any relationship to a risk connected with Bill's employment with Lorillard, and, thus, to have flowed from his employment as a rational consequence. KRS 342.0011(3).
Nevertheless, in support of the circuit court's directed verdict, Lorillard reasons that its decisions to supply Bill with cigarettes and to allow him to smoke them on the job entitled it to the exclusive remedy provision of the Act because these things fell within the following rule stated in Jefferson County Stone Co. v. Bettler, 304 Ky. 87, 199 S.W.2d 986, 988 (1947):
It is a firmly established rule that acts necessary to the comfort and convenience of an employee on his job, though such acts are strictly personal to the employee and are not acts of service to the employer, yet such acts are considered incidental to the employment, and ...