Exxonmobil Oil Corp, V. Wayne Wright
81289-1
| Wash. Ct. App. | Dec 13, 2021Background
- Warren Wright (employee of independent contractor Northwestern Industrial Maintenance) performed asbestos-containing insulation removal at Mobil’s Ferndale refinery in 1979; he used respirators and wet methods when possible. Wright later developed mesothelioma and died.
- Wright’s son sued Mobil and several other defendants; Shell, Texaco, U.S. Oil, and 3M settled; Mobil (ExxonMobil) went to trial.
- A jury awarded $4 million; the trial court held a reasonableness hearing, deemed the settlements reasonable, applied set-offs, and entered judgment for $2,270,000 plus fees.
- Mobil appealed, raising multiple issues: jury instructions (retained control and premises liability), evidentiary rulings (ancient document hearsay, expert industrial hygienist), jury selection (GR 37 peremptory challenge), and the adequacy of settlement disclosure under RCW 4.22.060.
- The Court of Appeals affirmed the jury verdict (the verdict rested on premises-invitee liability), upheld the evidentiary rulings and the GR 37 ruling, but held the settling parties failed to provide required settlement agreements to Mobil/the court and remanded for a new reasonableness hearing, vacating the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retained-control jury instruction | Mobil retained control by reserving safety requirements and thus could be liable | Instruction was overbroad—allowed liability based merely on contractual safety rules | Instruction misstated law (erroneous); but verdict stands on alternate premises-invitee theory |
| Premises-invitee instruction (§343 vs §343A) | Single §343 instruction was sufficient | Court should have also given §343A known-or-obvious danger instruction | §343 instruction was correct and allowed Mobil to argue knowledge; omission of §343A harmless |
| Contributory negligence defense | Mobil: Wright failed to exercise reasonable care for his own safety | Wright: he took available precautions (respirator, wet methods) | Trial court properly refused the instruction—evidence showed Wright acted reasonably |
| Assumption of risk defense | Mobil: Wright knowingly and voluntarily encountered asbestos risk | Wright: no proof he subjectively appreciated the specific risk of mesothelioma or exposure despite precautions | Denial proper—insufficient evidence of the requisite subjective understanding |
| Ancient-document hearsay (newspaper article) | Mobil: article contains inadmissible embedded hearsay | Wright: article admissible as authenticated ancient document | Admission allowable under ER 803(a)(16); if error, it was harmless given minimal impact |
| Expert industrial hygienist testimony | Mobil: testimony speculative, ignored Ferndale samples and respirator effect | Wright: expert grounded conclusions in accepted industrial-hygiene methods and comparative data | Expert testimony admissible; methodology explained—goes to weight, not exclusion |
| GR 37 peremptory challenge (juror 7) | Wright: Mobil’s strike implicated race/implicit bias | Mobil: race-neutral reasons (family lawsuit, visible emotion, caregiver background, hostility) | Denial of peremptory challenge affirmed—objective observer could view race as a factor under GR 37 |
| Settlement disclosure (RCW 4.22.060) | Wright/settling parties: provided amounts and declarations; court could evaluate reasonableness without full agreements | Mobil: statute requires a copy of proposed agreements and five days’ notice; it did not receive full agreements | Settling parties failed to produce required copies; trial court abused discretion by not reviewing full agreements—judgment vacated and remanded for new reasonableness hearing |
Key Cases Cited
- Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743 (instruction scope and requirement to instruct on supported theories)
- Kamla v. Space Needle Corp., 147 Wn.2d 114 (retained-control test for independent-contractor liability)
- Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323 (contractual assumption of safety responsibility can support retained control)
- Hennig v. Crosby Grp., Inc., 116 Wn.2d 131 (active involvement in safety operations required to assume responsibility)
- Cano-Garcia v. King County, 168 Wn. App. 223 (inspections to ensure regulatory compliance do not alone constitute retained control)
- Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121 (Restatement §343/§343A duty framework for invitees)
- Coogan v. Borg-Warner Morse Tec Inc., 197 Wn.2d 790 (ER 702—expert must be grounded in facts, not mere assumption)
- Volk v. DeMeerleer, 187 Wn.2d 241 (admissibility turns on expert’s factual basis and methodology)
- State v. Omar, 12 Wn. App. 2d 747 (GR 37 framework—trial court evaluates peremptory challenges with awareness of implicit bias)