`
`APPENDIX
`APPENDIX
`
`
`
`1a
`
`APPENDIX A
`_________
`IN THE MISSOURI COURT OF APPEALS
`EASTERN DISTRICT
`DIVISION TWO
`_________
`No. ED103953
`_________
`JEANETTE G. POAGE,
`
`
`Respondent,
`
`v.
`
`CRANE CO.,
`
`
`
`
`
`
`
`
`Appellant.
`
`_________
`Appeal from the Circuit Court of the City of St.
`Louis in Cause No. 1322-CC00059. Honorable Rex
`M. Burlison.
`
`_________
`Filed: May 2, 2017
`_________
`OPINION
`_________
`
`Jeanette G. Poage (“Mrs. Poage”) filed a products
`liability suit against Crane Co. (“Crane”) alleging
`that her husband, James E. Poage (“Mr. Poage”)
`suffered personal injuries and wrongful death from
`mesothelioma, which was caused by Crane’s
`asbestos-containing products. Mrs. Poage’s claims
`were based on Crane’s (1) failure to warn and (2)
`defective design under strict liability and negligence
`
`
`
`2a
`theories. After a trial, the jury returned a verdict in
`favor of Mrs. Poage, awarding her compensatory
`damages and punitive damages. Crane now appeals
`arguing there was insufficient evidence to find Crane
`liable, and alternatively, that even if Crane could be
`found liable, the amount of punitive damages should
`be reduced because the award violates Crane’s due
`process, goes beyond “fair and reasonable compensa-
`tion,” and exceeds Missouri’s statutory cap. Addi-
`tionally, Crane argues the trial court erred in failing
`to reduce the judgment by amounts available in the
`asbestos trust under § 537.060 and the common law.1
`I. Factual and Procedural Background
`The relevant facts adduced at trial will be dis-
`cussed under the relevant points on appeal. Nonethe-
`less, we will briefly discuss the uncontroverted
`factual background and the procedural history of this
`case here.
`Mr. Poage joined the Navy in April of 1954. From
`1954 until 1958, Mr. Poage served as a machinist on
`a World War-II era ship named
`the USS
`Haynsworth. During his service, he helped upkeep
`the valves on the Haynsworth, which required re-
`placing gaskets and packing. Mrs. Poage alleged
`some of the gaskets and packing were asbestos-laden
`products produced by Crane, which caused Mr. Poage
`to inhale asbestos dust and eventually develop
`mesothelioma. Mr. Poage died from mesothelioma in
`May 2012. Mr. Poage was never deposed, as Mrs.
`Poage filed the lawsuit after Mr. Poage’s death.
`
`
`1 All statutory reference are to RSMo 2000 unless otherwise
`specified.
`
`
`
`3a
`On January 10, 2013, Mrs. Poage filed her petition
`in the Twenty-Second Judicial Circuit Court claim-
`ing that that Crane was liable to her for damages
`under two different theories: (1) strict liability and
`(2) negligence, both of which were based on defective
`design and failure to warn. See Magnuson by Mabe v.
`Kelsey–Hayes Co., 844 S.W.2d 448, 455 (Mo. App.
`W.D. 1992) (explaining that a products liability claim
`can arise from (1) a design defect, (2) a manufactur-
`ing defect, and/or (3) a failure to warn of danger).
`A jury trial was held from June 23, 2015 to July 2,
`2015. On July 2, 2015, the jury returned a verdict in
`favor of Mrs. Poage, awarding her $1,500,000 in
`compensatory damages and $10,000,000 in punitive
`damages. On September 14, 2015, pursuant to
`§ 537.060, the trial court reduced the compensatory
`award to $822,250 based on Mrs. Poage’s settlement
`agreements with joint tortfeasors, and it entered
`judgment against Crane for that amount, as well as
`$10,000,000 in punitive damages.
`Crane then filed post-trial motions for judgment
`notwithstanding the verdict, a new trial, remittitur,
`and/or an amendment to the judgment on October
`14, 2015. Crane’s motion for judgment notwithstand-
`ing the verdict was based on its contention that Mrs.
`Poage failed to make a submissible case by failing to
`present sufficient evidence to support a verdict in her
`favor. On January 12, 2016, all of Crane’s post-trial
`motions were overruled pursuant to Rule 78.06 and
`deemed “final” for purposes of appeal pursuant to
`
`
`
`4a
`Rule 81.05(a)(2)(A), because the trial court did not
`rule on them within 90 days.2
`Crane now appeals and is seeking (1) “reversal of
`the judgment as a matter of law, or at a minimum a
`new trial, based upon [Mrs. Poage’s] failure to meet
`her burden of proving necessary factual prerequisites
`of the breach-of-duty and causation elements of her
`claims”; and (2) reversal, or at least a substantial
`reduction, of Mrs. Poage’s award of punitive damag-
`es.
`
`II. Discussion
`Point I: The trial court did not err in overrul-
`ing Crane’s motion for judgment notwithstand-
`ing the verdict because Mrs. Poage made a
`submissible claim.
`In Crane’s first point on appeal, it argues that Mrs.
`Poage failed to make a submissible claim because (1)
`she failed to establish cause in fact, (2) she failed to
`establish proximate cause, and (3) Crane owed no
`duty to Mr. Poage because any gaskets or packing on
`the Haynsworth at the time Mr. Poage served were
`not manufactured or supplied by Crane. Accordingly,
`Crane contends that the trial court erred by denying
`its judgment notwithstanding the verdict.
`a. Standard of Review for Judgment Not-
`withstanding the Verdict
`To determine whether a judgment notwithstanding
`the verdict should have been granted, appellate
`courts apply “essentially the same standard” as a de
`
`
`2 All references to Rules are to Missouri Supreme Court Rules
`(2015).
`
`
`
`5a
`novo review. Ellison v. Fry, 437 S.W.3d 762, 768 (Mo.
`banc 2014). When reviewing a circuit court’s denial
`of a judgment notwithstanding the verdict, the
`reviewing court must decide whether the plaintiff
`made a submissible case by offering sufficient evi-
`dence to support every element required for liability.
`Id. In determining whether the plaintiff made a
`submissible case, we view the evidence in the light
`most favorable to the plaintiff. Smith v. Brown &
`Williamson Tobacco Corp., 410 S.W.3d 623, 630 (Mo.
`banc 2013) (herein “Smith II”).3 We will only reverse
`the jury’s decision if “there is a complete absence of
`probative fact to support the jury’s conclusion.” Id.
`(quoting Dhyne v. State Farm Fire & Cas. Co., 188
`S.W.3d 454, 457 (Mo. banc 2006)). “A judgment
`notwithstanding the verdict is a drastic action that
`can only be granted if reasonable persons cannot
`differ on the disposition of the case.” Delacroix v.
`Doncasters, Inc., 407 S.W.3d 13, 39 (Mo. App. E.D.
`2013).
`b. Available Products Liability Claims in
`Missouri
`Under Missouri products liability law, a plaintiff
`has three theories of recovery available to her: strict
`liability, negligence, and breach of warranty. Welsh
`v. Bowling Elec. Mach., Inc., 875 S.W.2d 569, 572
`(Mo. App. S.D. 1994); Linegar v. Armour of America,
`909 F.2d 1150, 1152 (8th Cir. 1990). In the present
`
`3 This opinion includes citations to two cases involving the
`same two parties: (1) Smith v. Brown & Williamson Tobacco
`Corp., 275 S.W.3d 748 (Mo. App. W.D. 2008) (Smith I); and (2)
`Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623
`(Mo. banc 2013) (Smith II).
`
`
`
`6a
`case, the jury found Crane liable to Mrs. Poage under
`theories of (1) strict liability and/or (2) negligence.
`c. Strict Products Liability Claims
`To determine whether a plaintiff has made a sub-
`missible case based on a strict products liability
`claim, Missouri applies the test set forth in Restate-
`ment (Second) of Torts, § 402(A), which is codified by
`§ 537.760. Engel v. Corrigan Co.-Mech. Contractors,
`Inc., a Div. of Corrigan Bros., Inc., 148 S.W.3d 28, 30
`(Mo. App. E.D. 2004). To make a submissible case
`under a strict products liability theory in Missouri,
`the plaintiff must show:
`(1) the defendant sold a product in the course
`of its business; (2) the product was then in a
`defective condition, unreasonably dangerous
`when put to a reasonably anticipated use; (3)
`the product was used in a manner reasonably
`anticipated; and (4) the plaintiff was damaged
`as a direct result of such defective condition as
`existed when the product was sold.
`Strong v. Am. Cyanamid Co., 261 S.W.3d 493, 506
`(Mo. App. E.D. 2007), opinion adopted and reinstated
`after retransfer (Oct. 6, 2008) overruled on other
`grounds by Badahman v. Catering St. Louis, 395
`S.W.3d 29 (Mo. banc 2013); § 537.760; Restatement
`(Second) of Torts, § 402(A). Accordingly, “[t]he strict
`liability theory is further divided into liability for [1]
`defective design of a product and [2] liability for
`failure to warn of an inherent danger in the product.”
`Linegar, 909 F.2d at 1152.
`d. Negligence Products Liability Claims
`To submit a case for negligence, a plaintiff must
`show that “the defendant had a duty to protect him
`
`
`
`7a
`from injury, the defendant failed to perform that
`duty, and the defendant’s failure proximately caused
`his injury.” Strong, 261 S.W.3d at 506. Under both
`strict liability and negligence theories, the plaintiff is
`required to show a causal connection between the
`defendant’s conduct and the plaintiff’s injury. Id.
`e. Causation
`To make a prima facie showing of causation, a
`plaintiff must show that the defendant’s conduct was
`“more probably than not” a cause of injury. Wagner v.
`Bondex Int’l, Inc., 368 S.W.3d 340, 350-51 (Mo. App.
`W.D. 2012). The plaintiff must prove (1) causation in
`fact (or “but for” cause) and (2) proximate causation.
`Strong, 261 S.W.3d at 506. Cause in fact is estab-
`lished if “the plaintiff’s injury would not have oc-
`curred ‘but for’ the defendant’s conduct.” Id. Whether
`the negligent conduct was the cause in fact is a
`question for the jury. Wagner, 368 S.W.3d at 351.
`Proximate cause, however, is a question of law,
`which we review de novo. Id. at 353.
`1. Cause in Fact
`Crane’s claim that there was insufficient evidence
`to show its conduct was the actual cause of Mr.
`Poage’s injuries is based on three premises: (1) there
`is no evidence to show Mr. Poage was even exposed
`to a Crane product while on the Haynsworth; (2)
`Mrs. Poage failed to present evidence that its valves
`were defectively designed; and (3) there was insuffi-
`cient evidence to show that an adequate warning
`would have prevented Mr. Poage’s injuries. Whether
`Crane’s conduct was the “cause in fact” of Mr.
`Poage’s injuries is a factual question left for the jury.
`In Missouri, “[w]e merely instruct the jury that the
`defendant’s conduct must ‘directly cause’ or ‘directly
`
`
`
`8a
`contribute to cause’ [a] plaintiff’s injury” to establish
`cause in fact. Callahan v. Cardinal Glennon Hosp.,
`863 S.W.2d 852, 863 (Mo. banc 1993).
`Substantial Factor
`To establish actual causation in Missouri, the con-
`duct of the defendant must be a “substantial factor”
`in causing the injury. See id. at 862-63. Generally,
`the conduct complained of is a “substantial factor” in
`causing an injury if the injury would not have oc-
`curred “but for” its occurrence.4 Id. However, in cases
`where multiple independent torts are alleged to be
`the cause of the plaintiff’s harm, “substantial factor”
`means that the conduct at issue would be “sufficient
`in and of itself to cause the injury,” even if that
`injury would have occurred due to others’ independ-
`ent conduct.5 Id. (“We now reiterate that the ‘but for’
`
`4 Courts sometimes discuss the substantial factor test to
`establish actual causation, while it is other times used for
`determining “proximate cause.” See Callahan, 863 S.W.2d at
`860-63 (discussing “substantial factor” analysis within the
`context of “but for” causation); Cf. Loyd v. Ozark Elec. Co-op.,
`Inc., 4 S.W.3d 579, 587 (Mo. App. S.D. 1999) overruled by
`Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo.
`banc 2003) (“When two forces are actively operating, and each
`is sufficient by itself to bring about injury or death, the acts of
`one may be held to be a substantial factor and thus the
`proximate cause of the injury or death.”). In both cases, the test
`is used to determine the same thing, and in either case, it is a
`question for the court to determine the submissibility of the
`case. However, because the “substantial factor” test is used as a
`replacement for the “but for” test when multiple independent
`causes exist, we believe the discussion is more relevant to
`“causation in fact” than “proximate cause.” See Callahan, 863
`S.W.2d at 862-63.
`5 Mrs. Poage named 104 defendants in her petition.
`
`
`
`9a
`test for causation is applicable in all cases except
`those involving two independent torts, either of
`which is sufficient in and of itself to cause the injury,
`i.e., the ‘two fires’ cases.”). Nonetheless, in Missouri,
`“we do not use the terms 1) ‘proximate cause,’ 2) ‘but
`for causation,’ or 3) ‘substantial factor’ when in-
`structing the jury.” Id. at 863. Instead, we instruct
`the jury to determine if the defendant’s conduct
`directly causes or directly contributes to cause a
`plaintiff’s injury. Id. The “substantial factor lan-
`guage ‘provides a standard for the trial court in the
`exercise of its duty to determine whether a submissi-
`ble case has been made[.]’” Wagner, 368 S.W.3d at
`356 (quoting Hagen v. Celotex Corp., 816 S.W.2d 667,
`673)).
`Mrs. Poage alleged that multiple companies con-
`tributed to Mr. Poage’s mesothelioma. Accordingly,
`she must present sufficient evidence that Crane’s
`valves were at least a “substantial factor” to submit
`her case to the jury. Missouri has not expressly
`defined how to apply the substantial factor test in
`asbestos cases. Chism v. W.R. Grace & Co., 158 F.3d
`988, 992 (8th Cir. 1998); see also Wagner, 368 S.W.3d
`at 353-54. The majority of courts apply a “frequency,
`regularity, and proximity” standard to determine if a
`defendant’s conduct was a substantial factor in
`causing a plaintiff’s injury in asbestos cases. Chism,
`158 F.3d at 992. In applying this test, a court pri-
`marily looks at four factors: (1) exposure to a particu-
`lar product; (2) the frequency of the exposure; (3) the
`duration of the exposure; and (4) how closely the
`plaintiff worked with the asbestos-containing prod-
`uct. Id. Like the Western District in Wagner, we
`decline to decide if Missouri courts should adopt the
`“frequency, regularity, and proximity” test used by
`
`
`
`10a
`the majority of courts. Wagner, 368 S.W.3d at 354.
`Nonetheless, common sense tells us more frequent
`exposure, lengthier exposure, and being in close
`proximity to asbestos dust will all increase the
`likelihood of causing mesothelioma. In the present
`case, the jury found Crane’s valves “directly caused”
`or “directly contributed to case” Mr. Poage’s mesothe-
`lioma, thus finding Crane’s asbestos-laden valves
`were the cause in fact of his injury. Tom Thompson,
`another machinist on the Haynsworth, testified that:
`(1) he worked side-by-side Mr. Poage for “almost four
`years of [his] life” in the “40-by-40 foot [engine]
`room” on the Haynsworth; (2) he and Mr. Poage
`worked on every valve in the forward engine room,
`which included Crane valves; and (3) Mr. Poage did
`everything on the Haynsworth that he did. Accord-
`ingly, there was sufficient evidence to establish
`Crane’s valves were a “substantial factor” in causing
`Mr. Poage’s mesothelioma.
`Exposure to Crane Valves
`Crane acknowledges that evidence was sufficient to
`show that the Haynsworth was equipped with valves
`that contained asbestos, however, they assert that
`“the record is silent” on which types of valves Mr.
`Poage may have encountered. We disagree. There is
`a substantial amount of evidence that shows Mr.
`Poage was exposed to asbestos-laden Crane valves
`during his four year tenure on the Haynsworth.
`Mrs. Poage presented evidence that Crane sold
`many asbestos-containing valves and gaskets to the
`Navy and that such products were installed on the
`Haynsworth. Although no witness could recall a
`specific time they saw Mr. Poage working with
`relevant Crane products, Mrs. Poage adduced suffi-
`
`
`
`11a
`cient evidence for a reasonable jury to find Crane
`directly caused or directly contributed to causing Mr.
`Poage’s injuries. As discussed in the substantial
`factor analysis infra, Thompson testified that (1) he
`worked side-by-side with Mr. Poage for “almost four
`years of [his] life in a “40-by-40 foot [engine] room”
`on the Haynsworth; (2) he worked on every valve in
`that engine room, including Crane valves; and (3)
`Mr. Poage would have worked on Crane valves as
`well, because Mr. Poage did everything that Thomp-
`son did. Accordingly, the evidence contradicts
`Crane’s assertion that there was “no evidence to
`show
`that Mr. Poage encountered asbestos-
`containing materials associated with a Crane valve.”
`Given that there was sufficient evidence for a jury to
`find Mr. Poage was exposed to asbestos from Crane
`valves, there was sufficient evidence to find the
`exposure directly caused or contributed to his meso-
`thelioma. The jury was presented with further
`evidence of the causal connection when James
`Strauchen, M.D., Mrs. Poage’s pathology and causa-
`tion expert, testified that all types of asbestos cause
`mesothelioma and asbestos exposure is the only
`proven cause of the disease.
`We view the evidence “in the light most favorable
`to the jury’s verdict, giving the plaintiff all reasona-
`ble inferences and disregarding all conflicting evi-
`dence and inferences.” Smith II, 410 S.W.3d at 630.
`Furthermore, we will only reverse the jury’s decision
`if “there is a complete absence of probative fact to
`support the jury’s conclusion.” Id. (quoting Dhyne,
`188 S.W.3d at 457). Given Thompson’s testimony and
`the length of time Mr. Poage worked in the engine
`room on the Haynsworth, there is sufficient evidence
`for a reasonable trier-of-fact to conclude Mr. Poage
`
`
`
`12a
`was “more likely than not” exposed to Crane asbes-
`tos-containing valves. See Strong, 261 S.W.3d at 511
`(“Generally, the fact that only circumstantial evi-
`dence is presented on a material issue is no bar to
`recovery.” However, “[t]he proof must be realistically
`tailored to the circumstances and the existence of a
`defect may be inferred from circumstantial evidence
`with or without the aid of expert evidence.”). For the
`foregoing reasons, there was sufficient evidence for a
`jury to find Crane valves, at minimum, “directly
`contributed” to Mr. Poage’s mesothelioma.
`Sufficiency of Evidence to Show a
`Design Defect Existed
`Additionally, Crane contends that Plaintiff failed to
`present sufficient evidence to show their valves had a
`design defect, because there was no evidence that
`using “asbestos-containing gaskets or packing” was
`required for the valves installed on the Haynsworth.
`A product is considered to have a design defect when,
`“a design is itself inadequate, rendering the product
`unreasonably dangerous without regard to whether a
`warning is given[.]” Moore v. Ford Motor Co., 332
`S.W.3d 749, 757 (Mo. banc 2011).
`Crane cites Smith I to support its contention that
`when a design of a piece of equipment is compatible
`for use with both asbestos-containing and non-
`asbestos-containing components, “there is no basis
`for concluding that the equipment’s design caused
`[Mr. Poage’s] injury.” Smith v. Brown & Williamson
`Tobacco Corp., 275 S.W.3d 748, 792 (herein “Smith
`I”). This is unpersuasive. Smith I actually supports
`Mrs. Poage’s position: “the defect is in the design
`given that the manufacturer had deliberately added
`or omitted the challenged component and has pre-
`
`
`
`13a
`sumably made that decision after balancing a variety
`of factors.” Id. (emphasis added). There is no dispute
`that Crane deliberately added asbestos-containing
`components to its valves before placing them in the
`stream of commerce. Moreover, Dr. Anthony Pan-
`taleoni (“Dr. Pantaleoni”), the vice president of
`environment health and safety for Crane, acknowl-
`edged that Crane specified the use of asbestos-
`containing components in its valve design drawings
`for some valves used on the Haynsworth.6 Addition-
`ally, Mrs. Poage’s expert witness in industrial hy-
`giene, Steven Paskal (“Paskal”), testified at trial that
`for the valves to properly function for a “full range”
`of applications, asbestos-containing gaskets and
`packing were required, not merely available. Crane
`designed and sold valves that incorporated asbestos-
`containing components. Although the valves could be
`used with non-asbestos containing gaskets, doing so
`would limit the utility of the product. Crane even
`specified that asbestos-containing gaskets should be
`used to replace old gaskets. Accordingly, the jury had
`sufficient evidence to conclude the relevant Crane
`valves were defectively designed.
`Sufficiency of Evidence to Show Failure to
`Warn Was the Cause of Injury
`For a plaintiff to establish the cause of injury based
`on a failure to warn, he must show that a plaintiff
`would have heeded the warning and altered his
`
`6 At trial, Respondent introduced “the Navy department
`master parts book.” Dr. Pantaleoni confirmed that the parts
`book was prepared to identify the proper replacement parts for
`Crane valves, and the valves directed users to use asbestos-
`containing gaskets and packing.
`
`
`
`14a
`behavior if an adequate warning existed. Moore, 332
`S.W.3d at 762. The Supreme Court of Missouri
`recognized the difficulty a plaintiff would have
`proving he would have acted differently if the prod-
`uct contained a warning:
`[The plaintiff] is correct that where, as here,
`no warning is given, then evidence of what a
`person would have done had a warning been
`given inherently is hypothetical in character.
`Yet, to show causation, a plaintiff must show
`that the absence of a warning was the proxi-
`mate cause of the injury. As a matter of logic,
`to accomplish this a plaintiff must show that
`she did not have the information the warning
`would have imparted already and that, if she
`had the information, it would have affected
`her conduct. This creates a ‘Catch–22’ in
`which the plaintiff must prove what she would
`have done had a warning been given to prove
`causation, but evidence on this issue must be
`precluded as speculative.
`Id. at 762-63.
`Missouri courts avoid this dilemma by presuming
`that if a product contained an adequate warning, “it
`would have been heeded.” Id. at 763. Nonetheless,
`this presumption is rebuttable. Id. Crane contends
`that Mrs. Poage was “required to introduce evidence
`that the lack of a warning on the valves caused Mr.
`Poage’s harm.” However, as our Supreme Court noted
`in Moore, Missouri helps the plaintiff meet this eviden-
`tiary burden by presuming that a warning will be
`heeded. Id. at 762-63. A plaintiff is only required to
`show he lacked adequate knowledge of the risks associ-
`ated with use of the product to receive the presump-
`tion, and this presumption “would make a prima facie
`
`
`
`15a
`case that had [the defendant] given [the plaintiff] an
`adequate warning, [the plaintiff] would have heeded
`it.” Id. at 762.
`Crane attempted to rebut this presumption by ar-
`guing that Mrs. Poage presented “no evidence that
`Navy would have permitted Mr. Poage to accept that
`warning and deviate from his Navy-directed duties
`and work practices.” This contention is supported by
`Thompson’s testimony that “[o]ne thing [he] learned
`when [he] went to the Navy was [he had to] take
`orders. There was no getting out of [it].” Nonetheless,
`we disregard all conflicting evidence and inferences.
`Smith II, 410 S.W.3d at 630. Also, the jury need not
`accept the testimony as true, and a reasonable jury
`could believe Thompson’s testimony and still con-
`clude the lack of warning caused Mr. Poage’s meso-
`thelioma. Even if Mr. Poage would have had to
`continue working with the asbestos gaskets per the
`Navy’s directions, he could have taken steps to
`prevent—or at least minimize—his exposure by
`taking precautionary measures. For example, he
`could have possibly worn protective gear to prevent
`inhalation of asbestos dust, or he could have possibly
`taken steps to improve ventilation.
`Crane also argued that, even if they had placed an
`adequate warning on the valves, there was insuffi-
`cient evidence to show that the warning would have
`reached Mr. Poage. We disagree. Thompson testified
`that machinists like he and Mr. Poage had onboard
`access to manufacturer’s equipment manuals for
`“[e]very piece of machinery.” If Crane had included a
`warning in the manual accompanying the valves,
`there is a factual basis for concluding the warning
`would have likely reached Mr. Poage. Although
`Crane’s argument that the warnings would not have
`
`
`
`16a
`reached Mr. Poage is logical and may be persuasive
`to some jurors, on review, we will only reverse the
`jury’s decision if “there is a complete absence of
`probative fact to support the jury’s conclusion.”
`Smith II, 410 S.W.3d at 630 (quoting Dhyne, 188
`S.W.3d at 457). Although the jury could have con-
`cluded Mr. Poage would not have heeded any warn-
`ing, it could also conclude Thompson’s testimony was
`not persuasive enough to rebut the presumption. We
`find there was sufficient evidence for the jury to
`conclude Mr. Poage would have heeded a proper
`warning of the valves’ unreasonable danger if Crane
`had included it on the product.
`2. Proximate Cause
`Crane argues that Mrs. Poage “failed to present
`sufficient evidence from which a reasonable juror
`could conclude that an asbestos-containing gasket or
`packing associated with a Crane valve was the
`proximate cause of Mr. Poage’s mesothelioma.” As
`aforementioned, “proximate cause” is a legal deter-
`mination. Wagner, 368 S.W.3d at 353; see also
`Callahan, 863 S.W.2d at 863 (explaining that Mis-
`souri jury instructions “do not use the terms 1)
`‘proximate cause,’ 2) ‘but for causation,’ or 3) ‘sub-
`stantial factor’…[w]e merely instruct the jury that
`the defendant’s conduct must ‘directly cause’ or
`‘directly contribute to cause’ plaintiff’s injury”) (em-
`phasis added). Accordingly, it is the trial court’s
`role—not the jury’s function—to determine if a
`defendant’s conduct is the “proximate cause” of the
`plaintiff’s injuries; “[w]hile causation in fact is a
`question for the jury, ‘[p]roximate cause is a
`question of law for the trial court.’” Wagner, 368
`S.W.3d at 354 (quoting Payne v. City of St. Joseph,
`
`
`
`17a
`135 S.W.3d 444, 451 (Mo. App. W.D. 2004) (emphasis
`added)). Accordingly, whether there was “sufficient
`evidence from which a reasonable juror could con-
`clude” Crane’s valves were the proximate cause of
`Mr. Poage’s mesothelioma is irrelevant. However,
`because “proximate cause” is a prerequisite for
`making a submissible case, we will briefly address it
`here. See Smith II, 410 S.W.3d at 630 (explaining
`that a plaintiff must adduce sufficient evidence to
`support every essential element of a claim to make a
`submissible case).
`The general test for proximate cause is whether an
`injury is “a reasonable and probable consequence” of
`a defendant’s act or omission. Sanders v. Ahmed, 364
`S.W.3d 195, 210 (Mo. banc 2012). Effectively, even if
`actual causation is established, proximate cause
`limits a defendant’s liability to injuries that are “the
`natural and probable consequences of a defendant’s
`actions”; damages that are “surprising, unexpected,
`or freakish” cannot be recovered. See id.; see also
`Wagner, 368 S.W.3d at 354. As the Western District
`has noted, causing a plaintiff’s mesothelioma and
`eventual death after exposing him to asbestos for
`several years “is not surprising, unexpected, or
`freakish, nor is it an unreasonable or improbable
`consequence.” Wagner, 368 S.W.3d at 354. According-
`ly, Mrs. Poage presented sufficient evidence to estab-
`lish that Crane’s conduct was the proximate cause of
`Mr. Poage’s injuries.
`3. Crane’s Duties to Mr. Poage
`Crane contends that Mrs. Poage’s evidence “failed
`to establish that Crane owed a duty to Mr. Poage”
`because they did not manufacture, sell, or otherwise
`place asbestos-containing products into the stream of
`
`
`
`18a
`commerce. Crane argues that it should not, and
`cannot, be held liable under a strict liability or
`negligence theory for another company’s manufactur-
`ing or distribution of hazardous products. It should
`be noted that the question of “duty” is only relevant
`to Mrs. Poage’s negligence claim.
`Crane contends, “In Missouri, product-liability
`claims lie only against those entities that manufac-
`ture, sell, or otherwise place into the stream of
`commerce the harm-causing product,” and “[t]his is
`true whether the action is based in strict liability or
`negligence.” Crane also argues that under § 537.760
`it is categorically immune to a products liability
`lawsuit because their product did not have a design
`defect and it was not unreasonably dangerous at the
`time it was transferred in the chain of commerce. See
`Feiteira v. Clark Equip. Co., 236 S.W.3d 54, 59 (Mo.
`App. E.D. 2007). Furthermore, Crane asserts that it
`is undisputed that it did not manufacture any asbes-
`tos-containing products. Rather, Crane insists that
`its valves did not contain asbestos, while conceding
`that some materials “available for use” in conjunc-
`tion with Crane valves, such as certain gaskets and
`packing seals, were “impregnated with asbestos
`fibers during the time period when Mr. Poage served
`aboard the Haynsworth.”
`We find Crane’s assertion misleading. The record
`shows that Crane’s corporate witness, Dr. Pantale-
`oni, testified at trial that Crane provided the Navy
`with valves that used asbestos-containing gaskets
`and packing for use on the Haynsworth. Dr. Pantale-
`oni further testified that Crane worked with the
`Navy to produce the Navy department master parts
`book, which identified the proper parts for replace-
`ment with their valves. Dr. Pantaleoni confirmed
`
`
`
`19a
`that the book called for asbestos-containing parts for
`the Crane valves used by the Navy. Moreover, Mrs.
`Poage’s expert witness in industrial hygiene, Paskal,
`testified at trial that for the valves to properly func-
`tion for a “full range” of applications, asbestos-
`containing gaskets and packing were required, not
`merely available. Paskal also testified that the
`manual Crane packaged with its valves specified the
`use of asbestos-containing gaskets. (See Matter of
`New York City Asbestos Litig.27 N.Y.3d 765, 793
`(2016) (“[T]he manufacturer of a product has a duty
`to warn of the danger arising from the known and
`reasonably foreseeable use of its product in combina-
`tion with a third-party product which, as a matter of
`design, mechanics or economic necessity, is neces-
`sary to enable the manufacturer’s product to function
`as intended.”).
`As the seller of a valve that contained asbestos-
`laden gaskets and packing, and the seller of a valve
`that
`required
`replacement asbestos-containing
`gaskets and packing, Crane owed its consumers, like
`Mr. Poage, a duty to refrain from producing “unrea-
`sonably dangerous” products as defined
`in §
`537.760(3). A product may inherently be “unreasona-
`bly dangerous” due to its “defective condition” (§
`537.760(3)(a)) or characterized as “unreasonably
`dangerous” due to the absence of an appropriate
`warning (§ 537.760(3)(b)). Accordingly, Crane owed
`Mr. Poage a duty to warn and a duty to produce
`products without a defective design that created an
`unreasonable danger, and there was sufficient evi-
`dence for the jury to conclude that both of those
`duties were breached by Crane.
`
`
`
`20a
`4. Conclusion on Submissibility of the
`Case
`To determine whether a judgment notwithstanding
`the verdict should have been granted, appellate
`courts apply “essentially the same standard” as a de
`novo review. Ellison, 437 S.W.3d at 768. “A motion
`for judgment notwithstanding the verdict should be
`sustained only when all of the evidence and the
`reasonable inferences to be drawn therefrom are so
`strong against the plaintiff’s case that there is no
`room for reasonable minds to differ.” Montgomery v.
`Wilson, 331 S.W.3d 332, 336 (Mo. App. W.D. 2011).
`In determining whether the plaintiff made a submis-
`sible case, we view the evidence in the light most
`favorable to the plaintiff. Smith II, 410 S.W.3d at
`630. We will only reverse the jury’s decision if “there
`is a complete absence of probative fact to support the
`jury’s conclusion. Id. (quoting Dhyne, 188 S.W.3d at
`457).
`The record shows that Mrs. Poage presented suffi-
`cient evidence for a reasonable jury to conclude that
`Crane was liable under theories of both negligence
`and strict liability. Moreov
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
