APPENDICES
`APPENDICES
`
`
`APPENDICES
`
`
`
`1a
`
`APPENDIX A
`IN THE SUPREME COURT OF THE
`STATE OF OKLAHOMA
`MONDAY, JUNE 19, 2017
`THE CLERK IS DIRECTED TO ENTER THE
`FOLLOWING ORDERS OF THE COURT:
`* * *
`
`114,175
`
`(cons.w/114,183)
`Michael D. Galier v. Murco Wall Prod-
`ucts, Inc. And Welco Manufacturing
`Company et al
`Both petitions for certiorari are
`denied.
`CONCUR: Gurich, V.C.J., Watt, Win-
`chester, Edmondson, Col-
`bert and Reif, JJ.
`DISSENT: Wyrick, J.
`NOT PARTICIPATING: Kauger, J.
`DISQUALIFIED: Combs, C.J.
`
`_______________________
`CHIEF JUSTICE
`
`
`
`2a
`
`APPENDIX B
`FILED
`COURT OF CIVIL APPEALS
`STATE OF OKLAHOMA
`FEB 3 2017
`MICHAEL S. RICHIE
`CLERK
`NOT FOR OFFICIAL PUBLICATION
`IN THE COURT OF CIVIL APPEALS OF THE
`STATE OF OKLAHOMA
`DIVISION I
`MICHAEL D. GALIER,
`Plaintiff/Appellee,
`vs.
`MURCO WALL PRODUCTS, INC., and
`WELCO MANUFACTURING COMPANY,
`Defendants/Appellants,
`and
`Red Devil Corporation,
`Defendant.
`Case No. 114,175
`(Cons.w/114,183)
`
`APPEAL FROM THE DISTRICT COURT OF
`OKLAHOMA COUNTY, OKLAHOMA
`HONORABLE BRYAN C. DIXON,
`TRIAL JUDGE
`AFFIRMED
`
`
`
`3a
`
`Steven T. Horton,
`HORTON LAW FIRM,
`Oklahoma City, Oklahoma,
`and
`Jessica M. Dean,
`Charles W. Branham, III,
`DEAN, OMAR & BRANHAM, LLP,
`Dallas, Texas,
`For Plaintiff/Appellee,
`Clyde A. Muchmore,
`Harvey D. Ellis, Jr.,
`Cullen D. Sweeney,
`CROWE & DUNLEVY,
`Oklahoma City, Oklahoma,
`and
`Gregory L. Deans,
`Katherine H. Stepp,
`DEANS & LYONS, L.L.P.,
`Dallas, Texas
`For Defendant/Appellant,
`Murco Wall Products, Inc.
`
`Monty B. Bottom,
`FOLIART, HUFF, OTTAWAY & BOTTOM,
`Oklahoma City, Oklahoma,
`and
`Michael C. Carter,
`Catherine L. Campbell,
`PHILLIPS MURRAH P.C.,
`Oklahoma City, Oklahoma,
`For Defendant/Appellant
`Welco Mfg. Co.
`
`
`
`4a
`
`OPINION BY BRIAN JACK GOREE, PRESID-
`ING JUDGE:
`appeal, Defend-
`consolidated
`¶1
`In
`this
`ants/Appellants, Murco Wall Products, Inc. (Murco)
`and Welco Manufacturing Company (Welco), seek
`review of the trial court’s judgment based on a jury
`verdict in favor of Plaintiff/Appellee, Michael D.
`Galier. We find no error in the conduct of the trial,
`and the jury’s verdict is supported by competent evi-
`dence. The judgment is affirmed.
`I.
`Background
`¶2 Galier commenced an action against numer-
`ous manufacturers of asbestos products, alleging
`they caused him to contract asbestos-related meso-
`thelioma. He sued under the theories of negligence
`and manufacturers’ products liability. At trial he
`pursued only three of the defendants: Murco, Welco,
`and Red Devil Corporation. The jury reached a ver-
`dict and nine of its members signed a six-page ver-
`dict form. The principal issue before this court is
`whether the trial court erroneously accepted the
`written verdict after the foreman asked a question
`that suggested the verdict did not express the jury’s
`intent.
`¶3 The jury found Galier failed to prove his
`claims against Red Devil but succeeded in proving
`his claims against Murco and Welco. It found Galier
`sustained actual damages totaling $6 million, com-
`prising $1.5 million in economic damages and $4.5
`million in noneconomic damages. It apportioned 40%
`of Gailer’s damages to Murco and 60% to Welco.
`Thirteen non-parties were identified on the verdict
`
`
`
`5a
`
`form and the jury apportioned zero percent liability
`to each of them.
`¶4 Because the jury trial was in a civil action
`claiming bodily injury, the verdict form included an-
`swers to interrogatories pursuant to 23 O.S. 2011
`§61.2. Section 61.2 limits compensation for noneco-
`nomic loss to $350,000 unless the finder of fact con-
`cludes a defendant’s actions met a specified degree of
`culpability. The jury found Galier proved by clear
`and convincing evidence that Murco and Welco acted
`with gross negligence, in reckless disregard of the
`rights of others, and intentionally and with malice.
`These findings authorized the trial court to enter
`judgment for noneconomic compensatory damages in
`excess of the $350,000 limit. §61.2(E). The same find-
`ings also served as the predicate for the jury to con-
`sider punitive damages in a second stage of the trial.
`23 O.S. 2011 §9.1.1
`¶5 After the verdict was announced, the jury’s
`foreman asked the judge a question about the dam-
`ages awarded and the judge polled the jury:
`Foreman Jacobs: We understood we had awarded
`punitive damages and medical
`damages. Is that not correct?
`
`1 A portion of Instruction No. 24 advised the jury, “If you find
`that any Defendant or Defendants whom you found liable and
`responsible for damages acted either with reckless disregard for
`the rights of others or intentionally and with malice, you have
`determined that Plaintiff may be entitled to an award of puni-
`tive damages. The amount of any award for punitive damages is
`not presently before you for decision but would be determined
`in a later stage of the trial if you indicate by your finding that
`such an award is warranted.”
`
`
`
`6a
`
`The Court:
`
`The Court:
`
`Sir, you found by clear and con-
`vincing evidence that there was.
`So, yes, that puts you into the
`punitive damages stage. So we’re
`going to a Stage II.
`Foreman Jacobs: Well, maybe it wasn’t written up
`correctly. We intended to award
`1.5 million for medical and 4.5 for
`punitive. Did we not put that
`down right?
`You cannot award punitive dam-
`ages at this stage, sir. That’s
`what the jury instructions told
`you.
`[Counsel for Welco] Your Honor?
`Maybe we’d better poll the jury.
`‘Counsel for Welco] Yes. My mo-
`tion, Your Honor.
`The judge then summarized the findings as stated on
`the verdict form and continued:
`The Court:
`So I’m going to ask each and eve-
`ry juror who has signed this if
`that is your verdict in this case.
`Mr. Jacobs, you have signed the
`verdict as Foreman of the Jury. Is
`that your verdict in this case?
`Foreman Jacobs: Yes, it is, with the exception of
`the wording we didn’t understand
`correctly.
`Okay. It either is or - -
`
`Mr. Moore:
`The Court:
`Mr. Moore:
`
`The Court:
`
`
`
`7a
`
`Foreman Jacobs: How do we correct that?
`The Court:
`- - it is not. Okay.
`Foreman Jacobs: Well, that was my vote, yes. But .
`. .
`Okay.2
`The Court:
`The judge then proceeded to ask the same question of
`the other eight jurors who signed the verdict form
`and each affirmed the verdict as their own without
`equivocation. The judge then accepted the verdict of
`Stage I and Defendants objected.3
`¶6 When the trial reconvened after the weekend,
`Galier opted to proceed only against Murco in Stage
`II. After deliberating, the jury found in favor of
`Murco. Therefore no punitive damages were award-
`ed.
`
`¶7 Defendants contend that when the jury
`awarded $4.5 million in noneconomic damages, they
`mistakenly believed they had awarded punitive
`damages. They propose this conclusion is supported
`
`2 It is impossible to conclude from the transcript whether Fore-
`man Jacobs voluntarily terminated his response or the Court
`interrupted him.
`3 Counsel for Welco stated: it’s clear to me from the Foreman’s
`comments that though he said that that was his verdict, he un-
`derstood his verdict was something other than what was rec-
`orded on the verdict form . . . I don’t think you can receive this
`verdict. I think it’s inconsistent with what the form says if
`that’s the words from the Foreman.” The Court responded that
`the jury was polled and all jurors assented to the verdict.
`Welco’s counsel courteously persisted: “[C]an they at least ex-
`plain to us what they understood it was to be? I mean, I think
`we have to do that, at least for an appellate record here.” The
`Court declined the request and accepted the verdict.
`
`
`
`8a
`
`by the jury’s award of zero damages after a brief de-
`liberation in Stage II of the trial. Welco argues that
`the jury failed to follow instructions, resulting in a
`defective verdict, and the trial court abused its dis-
`cretion in attempting to cure the defect by polling the
`jury. Murco argues the trial court was required to
`make a meaningful and specific inquiry into the
`foreman’s report and take corrective action. In re-
`sponse, Galier argues that Oklahoma law prohibits
`inquiry into the jury’s intent or understanding in
`reaching its verdict.
`¶8 The questions presented for review reveal a
`tension between two fundamental legal principles,
`the confidentiality and independence of a jury’s de-
`liberation and a party’s right to a just trial.4
`II
`Validity of the Jury Verdict
`¶9 A trial court has broad discretion in conduct-
`ing a jury trial; we will not reverse based on its con-
`duct unless the trial court abused that discretion.
`Stephens v. Draper, 1960 OK 69, 118, 350 P.2d 506,
`510. An abused judicial discretion is manifested
`when discretion is exercised to an end or purpose not
`justified by, and clearly against, reason and evi-
`dence.
`It
`is discretion employed on untenable
`grounds or for untenable reasons, or a discretionary
`act which is manifestly unreasonable. Patel v. OMH
`
`4 “The right of trial by jury shall be and remain inviolate.” Okla.
`Const., Art. 2, §19. Courts have a duty to secure this right by
`strictly enforcing the constitutional and statutory provisions
`that preserve the purity of jury trial. Fields v. Saunders, 2012
`OK 17, 1110, 278 P.3d 577, 581. Justice in the courts shall be
`administered without sale, denial, delay, or prejudice. Okla.
`Const., Art. 2, §6.
`
`
`
`9a
`
`Med. Ctr., Inc., 1999 OK 33, 120, 987 P.2d 1185,
`1194.
`¶10 A trial court should not accept the jury’s
`verdict if it is defective. Stephens v. Draper, 1960 OK
`69, ¶12, 350 P.2d 506, 509. If the verdict is incom-
`plete, ambiguous, or contrary to the jury instruc-
`tions, then the court should direct the jury to retire
`for further deliberation. Stephens at ¶0 (syllabus by
`the court). In this case, the verdict was facially valid.
`¶11 Galier contends it was too late to poll the ju-
`ry because the verdict was in proper form and the
`court had already accepted it.5 We disagree. The de-
`cision of a jury does not become a verdict until it is
`accepted by the court and recorded in the case. Wig-
`gins v. Dahlgren, 1965 OK 131, ¶4, 405 P.2d 1001,
`1003. Until the verdict is accepted and recorded, the
`members of the jury are free to change their votes —
`even to the extent of changing the verdict. Id. Alt-
`hough the court initially accepted the Stage I verdict,
`it was not recorded or filed. Furthermore, the Court
`acknowledged the Stage I verdict before there was
`any suggestion that it might not be correct. We hold
`that the trial court retains authority to inquire of the
`jury concerning its verdict until the jury is dis-
`charged or the verdict has been filed in the case.
`¶12 Galier also proposes in broad terms that a
`jury’s verdict cannot be impeached. This case is dif-
`ferent from those cited by Plaintiff where a jury’s
`verdict could not be challenged after the trial had
`
`5 After the Judge announced the jury’s verdict, and before Mr.
`Jacobs questioned it, the Court asked whether anyone wished
`the jury to be polled. Counsel for some of the parties responded
`no. The Court then stated, ‘That will be the verdict of the jury
`and the judgment of this Court.”
`
`
`
`10a
`
`concluded. Here, the jury was still empaneled when
`the court conducted its poll. Cities Service Oil Co. v.
`Kindt, 1947 OK 219, 118, 190 P.2d 1007,1013 (dis-
`tinguishing an attack on a jury’s verdict when it is
`returned, from cases involving testimony of jurors af-
`ter their verdict has been received and filed). In
`Willoughby v. City of Oklahoma City, 1985 OK 64,
`706 P.2d 883, 889, the Supreme Court examined the
`anti-impeachment rule under the Oklahoma Evi-
`dence Code, 12 O.S. 2011 §2606(B). This rule limits
`the scope of permissible testimony to inquiring
`whether extraneous prejudicial information was im-
`properly brought to the jury’s attention. However,
`§2606(B) applies only to inquiry after the verdict has
`been reached and recorded. Weatherly v. State, 1987
`OK CR 28, ¶11, 733 P.2d 1331, 1334. Because the ju-
`ry in this case had not been discharged, neither the
`common law nor §2606(B) were impediments to poll-
`ing the jury.
`¶13 We turn next to Welco’s argument that the
`Court abused its discretion in attempting to cure the
`defective verdict by polling the jury. The procedure
`for polling the jury is outlined by 12 O.S. 2011 §585.
`It provides:
`When the jury have agreed upon their verdict
`they must be conducted into court, their
`names called by the clerk, and their verdict
`rendered by their foreman. When the verdict
`is announced, either party may require the
`jury to be polled, which is done by the clerk
`or the court asking each juror if it is his ver-
`dict. If any one answers in the negative, the
`jury must again be sent out, for further de-
`liberation.
`
`
`
`11a
`
`In a separate statute, 12 O.S. 2011 §586, the Legisla-
`ture provided a method for converting the jury’s ver-
`dict to a written form and correcting any defects re-
`sulting from that process:
`The verdict shall be written, signed by the
`foreman and read by the clerk to the jury,
`and the inquiry made whether it is their ver-
`dict. If any juror disagrees, the jury must be
`sent out again; but if no disagreement be ex-
`pressed, and neither party requires the jury
`to be polled, the verdict is complete and the
`jury discharged from the case. If, however,
`the verdict be defective in form only, the
`same may, with the assent of the jury, before
`they are discharged, be corrected by the
`court.
`Juries are now uniformly instructed to complete
`their verdict on the written verdict forms provided.
`Although this has likely diminished errors in the de-
`liberative process, it is still possible that a verdict
`agreed to by a juror is not accurately reflected on the
`form. The instant case illustrates that point.
`¶14 Mr. Jacobs referred to the jury’s intent to
`award $4.5 million for punitive damages and then
`suggested “maybe it wasn’t written up correctly.” He
`questioned, “Did we not put that down right?” Poll-
`ing a jury can reveal whether the written verdict ac-
`curately expresses the jury’s deliberative agreement.
`We hold that the trial court had authority to poll the
`jury and its decision to do so was a proper exercise of
`judicial discretion.
`¶15 Welco argues that even if polling the jury
`was within the Court’s discretion, doing so did not
`cure the defective verdict. It must be pointed out that
`
`
`
`12a
`
`polling a jury is not a curative act, it is a diagnostic
`device to ascertain whether the verdict is legally ac-
`ceptable or if further deliberation is necessary. When
`the court polls the jury, each juror is asked “if it is
`his verdict.” §585. If any juror answers in the nega-
`tive, the jury must be sent out for further delibera-
`tion. Id. If all jurors assent that the written verdict is
`the verdict they agreed to during deliberation, then
`the court may accept it.6
`¶16 When asked whether the verdict in this case
`was his verdict, Mr. Jacobs answered yes. But he al-
`so qualified his assent. He communicated an excep-
`tion concerning his understanding of it and he also
`asked how it could be corrected. Finally, he agreed it
`was his verdict because that is how he voted and
`then he apparently began to qualify his answer again
`but did not finish.
`¶17 Whether a qualified assent is equivalent to a
`dissent, requiring further deliberation, depends upon
`the character of the qualification. In Frick v. Reyn-
`olds, 1898 OK 9, ¶16, 52 P. 391, 394, the Supreme
`Court decided it was error for the court to receive the
`verdict instead of directing the jury to deliberate fur-
`ther. The questioned juror conceded he had agreed to
`the verdict but he was unsatisfied with it. On further
`examination, the juror explained he had agreed to it
`only to prevent a hung jury. “An assent must be an
`assent of the mind to the fact found by the verdict.”
`Frick, at ¶18, citing Rothbauer v. State, 22 Wis. 468,
`470 (1868).
`
`6 This assumes that the verdict is otherwise free from defects. A
`verdict that is incomplete, ambiguous, or contrary to jury in-
`structions requires further deliberation regardless of whether
`the jurors unanimously assented to it.
`
`
`
`13a
`
`¶18 Unlike the juror in Frick, Mr. Jacobs did not
`say he was unconvinced by the evidence. See Frick,
`¶15. Mr. Jacobs qualified his assent because he had
`a misunderstanding about noneconomic damages
`and punitive damages. It was a misunderstanding
`related to wording that he apparently believed need-
`ed to be corrected.
`¶19 The record reflects that Mr. Jacobs believed
`he had awarded punitive damages. Next, after listen-
`ing again to the Court review the verdict preliminary
`to the poll, he assented to the verdict for noneconom-
`ic damages with remarks that he had a misunder-
`standing.
`¶20 Had Mr. Jacobs not intended to award $4.5
`million as noneconomic damages, he could have an-
`swered that it was not his verdict. But he did not
`dissent. He acknowledged twice that it was his ver-
`dict. We hold that the trial court would have been
`justified in reasoning that Juror Jacobs misunder-
`stood noneconomic damages to be the legal equiva-
`lent of punitive damages. The jury instructions cor-
`rectly stated the law, Jacobs assented to the verdict,
`and the possibility that he was mistaken about the
`law did not change his factual verdict into a dissent.7
`None of the jurors answered the poll in the negative.
`The trial court did not abuse its discretion in accept-
`ing the jury’s verdict rather than ordering the jury to
`recommence deliberation.8
`
`7 We recognize that a different interpretation of Mr. Jacobs’
`misunderstanding might also be reasonable, but a court’s dis-
`cretionary act is not reversible merely because an alternative
`option was available.
`8 The trial court is not bound to accept a verdict that is not in
`accordance with its instructions. Stephens at 1112. We disagree
`
`
`
`14a
`
`¶21 Defendant Murco urges that the Court erred
`by failing to make a meaningful and specific inquiry
`into the foreman’s response. Galier insists to the con-
`trary, that a court may not inquire into the jury’s in-
`tent or understanding in reaching its verdict. The
`question of the court’s authority is settled law. “[A]
`trial court may make such inquiry of jurors as to en-
`able it to understand their will and intention, and
`their answers to such inquiry will be looked upon as
`an aid in rendering of proper judgment.” First Nat.
`Bank & Trust Co., Muskogee v Exch. Nat. Bank &
`Trust Co., Ardmore, 1973 OK CIV APP 7, 517 P.2d
`805, 809 (published by order of the Supreme Court).
`The Court had authority to inquire of the jury be-
`yond the statutory poll.
`¶22 Because the trial court declined to ask Mr.
`Jacobs additional questions, it cannot be determined
`what precisely he misunderstood about the wording
`of the verdict form. However, questioning a jury
`about its verdict introduces risk. West v. Abney, 1950
`OK 127, ¶11, 219 P.2d 624, 627 (holding that the ac-
`tion of a judge in the correction of verdicts should be
`taken with great caution). There is a possibility that
`the judge’s questions could accidentally trigger im-
`proper comment by jurors concerning their confiden-
`tial deliberation. A court’s questions could also lead
`to unfair prejudice if the jury is ultimately ordered to
`return to deliberation. In West, the court noted that
`the trial court was very careful about the method of
`with Defendant Welco that the jury failed to follow its instruc-
`tions. Prior to the poll Mr. Jacobs asserted that the jury intend-
`ed to award punitive damages, an action inconsistent with the
`instructions. If Jacobs at first believed the jury had awarded
`punitive damages, he and all the other polled jurors later as-
`sented to a verdict to the contrary. The verdict was not incon-
`sistent with the jury instructions.
`
`
`
`15a
`
`instructing the jury as to the form of verdict that was
`acceptable, without intimating as to what that ver-
`dict should be. West at ¶13.
`¶23 The confidentiality of the jury’s deliberation
`must be preserved and questioning jurors about their
`verdict beyond conducting a poll is precarious. How-
`ever, a trial court’s pre-discharge questioning, if it is
`directed toward determining whether the verdict is
`defective or invalid, is not statutorily impermissible.
`As we have already determined, the Court did not
`abuse its discretion by accepting the verdict rather
`than ordering additional deliberation. We likewise
`hold that the Court’s judgment in declining to in-
`quire further was not a clear abuse of discretion.
`III
`Constitutionality of 23 O.S. §61.2(C)
`¶24 Welco next contends that the trial court
`erred in accepting the verdict because 23 O.S. 2011
`§61.2(C)
`is unconstitutional. Section 61.2(C) pro-
`vides,
`Notwithstanding subsection B of this section,
`there shall be no limit on the amount of non-
`economic damages which the trier of fact may
`award the plaintiff in a civil action arising
`from a claimed bodily injury resulting from
`negligence if the judge and jury finds, by
`clear and convincing evidence, that the de-
`fendant’s acts or failures to act were:
`1. In reckless disregard for the rights of others;
`2. Grossly negligent;
`3. Fraudulent; or
`4. Intentional or with malice.
`
`
`
`16a
`
`Welco argues that §61.2(C) violates due process be-
`cause (1) it allows the jury to assess punitive damag-
`es in the guise of noneconomic damages, but without
`the procedural safeguards applicable to punitive
`damages, and (2) the statutory scheme of §61.2(C)
`and §9.1 impermissibly exposes defendants to the
`threat of double recovery of punitive damages. In re-
`sponse, Galier argues that noneconomic compensato-
`ry damages are distinct from punitive damages, and
`they serve different purposes.
`¶25 The purpose of an award of noneconomic
`damages is to compensate the plaintiff for subjective
`injuries. Edwards v. Chandler, 1957 OK 45, ¶5, 308
`P.2d 295, 297. Its purpose is not to punish the de-
`fendant. That the Legislature decided to place a limit
`on the amount of noneconomic damages, and speci-
`fied an exception to the limit, does not transform the
`nature of the damages when the limit is removed.
`Noneconomic damages are not subject to the same
`substantive and procedural due process limitations
`as punitive damages. Title 23 O.S. 2011 §61.2(C) is
`not unconstitutional under the due process clause.
`IV.
`Admissibility of Evidence
`¶26 The defendants propose that the trial court
`erred by improperly admitting evidence. Error may
`not be predicated upon an evidentiary ruling unless
`a substantial right of a party is affected and a timely
`objection or offer of proof was made. 12 0.S.2001
`§2104(A)(1) and (2). The trial court stands as a gate-
`keeper in admitting or excluding evidence based on
`an assessment of its relevance and reliability, and we
`will not disturb its ruling absent a clear abuse of dis-
`
`
`
`17a
`
`cretion. Myers v. Missouri Pacific R. Ca, 2002 OK 60,
`736, 52 P.3d 1014, 1033.
`
`A.
`¶27 Welco contends it is entitled to a new trial
`because the trial court abused its discretion in ad-
`mitting prejudicial evidence regarding Welco of Tex-
`as. Welco asserts the Texas company was a separate
`entity yet Galier relied on its conduct in establishing
`the standards imposing punitive damages or remov-
`ing the limit on noneconomic damages.
`¶28 The record shows that Welco’s former presi-
`dent was one of three owners of Welco and one of
`four owners of the Texas company. The jury was en-
`titled to draw legitimate inferences from these facts.
`Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶18,
`256 P.3d 1021, 1030. That the former president and
`part owner of both companies would have had famil-
`iarity with regulatory issues affecting the companies’
`common business is a legitimate inference. Welco
`had the opportunity to put on evidence controverting
`the inference, and the jury was entitled to decide
`which evidence to believe. Id. The trial court did not
`abuse its discretion in admitting the evidence.
`B.
`¶29 Murco contends the trial court erred in ad-
`mitting the written materials distributed at an As-
`bestos Symposium attended by Murco’s founder, the
`current owner’s father.
`¶30 The parties agree the document was authen-
`ticated. The trial court admitted it as a business rec-
`ord. The subject matter of the conference was the
`carcinogenic action of asbestos. As discussed above,
`the jury was entitled to draw a legitimate inference
`
`
`
`18a
`
`that Murco’s founder, as an attendee at the confer-
`ence, heard at least some of the matters presented
`and therefore was aware that asbestos had adverse
`health effects. The current president of Murco was
`the daughter of the past president. She testified that
`her father would have done anything that he knew to
`do to act reasonably and safely in making and selling
`products. The conference materials were relevant to
`contradict her testimony. The trial court did not
`abuse its discretion in admitting them.
`C.
`¶31 Murco also contends the trial court erred in
`admitting evidence of a ban by the Consumer Prod-
`uct Safety Commission on the use of asbestos in joint
`compound effective January 15, 1978 because the
`ban was not during a relevant time period.
`¶32 Galier’s older brother testified that their fa-
`ther was selling lots in developments from 1970 to
`1979. He said he and his brother accompanied their
`father to construction sites and cleaned up dust left
`after the joint compound was sanded. In addition, he
`said they made a game of throwing dried blobs of
`joint compound at each other and the clumps would
`break apart upon impact. This evidence supports the
`relevance of the 1978 ban. The trial court did not
`abuse its discretion in admitting evidence of the ban.
`V.
`Sufficiency of Evidence
`Defendants assert the verdict is not
`¶33
`supported by competent evidence. In an action at
`law, the jury’s verdict is conclusive as to questions of
`fact. Florafax Int’l, Inc. v. GTE Mkt. Res., Inc., 1997
`OK 7, ¶3, 933 P.2d 282, 287. If there is any compe-
`
`
`
`19a
`
`tent evidence reasonably tending to support the ver-
`dict, we will not disturb the verdict or the trial
`court’s judgment based on the verdict. Id. The jury
`acts as the exclusive arbiter of the credibility of the
`witnesses and the weight of the evidence. Id. We will
`determine the sufficiency of the evidence in light of
`the evidence tending to support it, together with eve-
`ry reasonable inference that may be drawn there-
`from, rejecting all conflicting evidence. Id_
`A.
`¶34 Welco contends the jury’s conclusion that on-
`ly Welco and Murco caused Galier’s alleged injury is
`not supported by the evidence. The verdict form
`listed not only the Defendants but also thirteen
`named non-parties, and asked the jury to apportion
`liability among them. The jury found each of the non-
`parties zero percent liable.
`¶35 The jury should consider the negligence of
`tortfeasors not parties to the lawsuit in order to
`properly apportion the negligence of those tortfeasors
`who are parties. Paul v. N. L. Indus., Inc., 1980 OK
`127, ¶5, 624 P.2d 68, 69. However, in order to appor-
`tion liability to a nonparty, there must be proof of
`negligence on the part of the nonparty. Gowens v.
`Barstow, 2015 OK 85, 132, 364 P.3d 644, 654-55 (tes-
`timony of a dangerous intersection did not require
`the judge to apportion the liability of the city in ab-
`sence of evidence that the city was negligent). It is
`the jury’s role to determine whether any particular
`defendant or named non-party is liable for negli-
`gence. A judgment is not reversible merely because
`the evidence might have supported a verdict differ-
`ent from that rendered by the jury.
`
`
`
`20a
`
`B.
`¶36 Murco contends the evidence was insuffi-
`cient
`to
`prove
`that
`Galier
`was
`significantly and regularly exposed to Murco’s asbes-
`tos compound over an extended period or that the
`wet-based product caused him to contract mesotheli-
`oma. Murco argues the parties agreed to the jury in-
`struction on direct cause stating, “There must be ev-
`idence of exposure to a specific product on a regular
`basis over some extended period of time in proximity
`to where the Plaintiff was present.”
`¶37 Murco’s president testified that Murco man-
`ufactured asbestos joint compound from 1971 to
`1978, and introduced an asbestos-free compound in
`1975, but most of its sales continued to be of the as-
`bestos compound. Galier testified that he had regular
`exposure between 1971 and 1975, when he accompa-
`nied his father to hundreds of job sites. He said he
`was on the work sites three to four times per month
`for a few hours at a time. He testified there was dust
`in the air, and he was present while drywallers
`sanded the dried compound. He said he scraped blobs
`of joint compound off the floor and swept up con-
`struction debris, including joint compound dust. He
`denied he was only exposed to residual debris after
`someone else had cleaned up. He said he saw the
`name Murco on boxes at the sites over the years.
`Murco’s joint compound was a pre-mixed wet product
`that came in boxes with a liner.
`¶38 This record presents competent evidence to
`support the jury’s finding of a significant probability
`that Galier was regularly and significantly exposed
`to Murco’s asbestos-containing product. We will not
`disturb its verdict.
`
`
`
`21a
`
`C.
`¶39 Murco also contends the evidence was insuf-
`ficient to support the amounts awarded as either
`economic or noneconomic damages, or to support the
`requisite finding of misconduct to remove the statu-
`tory limit on noneconomic damages.
`¶40 The measure of damages for a tort claim is
`“the amount which will compensate for all detriment
`proximately caused thereby, whether it could have
`been anticipated or not.” 23 O.S. 2011 §61. In a civil
`action arising from a claimed bodily injury, the
`amount of compensation which the trier of fact may
`award a plaintiff for economic loss is not subject to
`any limitation. §61.2(A). There is no limit on noneco-
`nomic damages if the fact-finder finds, by clear and
`convincing evidence, that the defendant acted in
`reckless disregard for the rights of others, with gross
`negligence, fraudulently, intentionally, or with mal-
`ice. §61.2(C). If the injury is subjective and such that
`laypersons cannot with reasonable certainty know
`whether or not there will be future pain and suffer-
`ing, then expert testimony is required. Reed v. Scott,
`1991 OK 113, ¶9, 820 P.2d 445, 449. Proof of future
`medical expenses and permanent injury or disability
`also requires expert testimony. Godfrey v. Meyer,
`1996 OK CIV APP 124, V, 933 P.2d 942, 943.
`¶41 Galier’s evidence of economic damages was
`future medical treatment. Given that he was asymp-
`tomatic, not receiving medical treatment, and his in-
`jury was a diagnosis some years earlier, expert tes-
`timony was necessary to constitute competent evi-
`dence of his subjective injuries. Plaintiffs expert tes-
`tified that the cost of mesothelioma treatment could
`exceed $1 million. As for non-economic damages, the
`expert testimony established that the progression of
`
`
`
`22a
`
`likely
`the disease is very painful, symptoms will
`begin within ten years, and Galier likely will not
`survive long after he becomes symptomatic.
`¶42 As evidence of misconduct, Galier points to
`evidence that Murco opposed the 1978 ban on asbes-
`tos, continued manufacturing asbestos products until
`the day the ban took effect, and continued buying as-
`bestos and selling asbestos products after the ban.
`¶43 This record supports the jury’s award of eco-
`nomic and non-economic damages, as well as its find-
`ing of clear and convincing evidence of culpable mis-
`conduct.
`
`VI.
`In Personam Jurisdiction
`¶44 Murco contends that the trial court errone-
`ously denied its motion to dismiss for lack of in
`personam jurisdiction. We review this proposition de
`novo as a challenge to the validity of the judgment.
`In personam jurisdiction requires sufficient mini-
`mum contacts with the State of Oklahoma so that
`the exercise of jurisdiction does not offend traditional
`notions of fair play and substantial justice. Guffey v.
`Ostonakulov, 2014 OK 6, 114, 321 P.3d 971, 975. The
`question is whether the totality of the contacts
`makes an exercise of jurisdiction proper. Id. at ¶19.
`The focus is on whether there is some act by which
`the defendant purposefully availed itself of the privi-
`lege of conducting activities within the forum state,
`thus invoking the benefits and protections of its
`laws. Id. at ¶16.
`¶45 Murco is a Texas corporation and its place of
`business is Fort Worth, Texas. Murco’s president
`agreed that Murco’s documents showed tens of thou-
`
`
`
`23a
`
`sands of sales in a two-year period directed to Okla-
`homa, beginning in 1972. In the 1970’s, Murco em-
`ployed a salesperson who had a sales territory of a
`300-mile radius from Fort Worth, Texas, with eight
`purchasers in Lawton, Oklahoma City, Stonewall,
`and Duncan. Murco also entered into an agreement
`with Flintkote Company in Oklahoma City whereby
`Murco would apply a Flintkote label onto its Murco
`product for resale by Flintkote.
`¶46 We conclude that the State of Oklahoma had
`in personam jurisdiction over Murco. The totality of
`circumstances convinces us that Murco purposefully
`availed itself of
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