Smith v. Union Carbide Corp.
130 So. 3d 66
Miss.2013Background
- Decedent Larry Smith, a long‑time oil‑rig worker and heavy smoker, developed lung cancer and died; plaintiffs (widow and heirs) sued multiple manufacturers/distributors of drilling additives alleging asbestos exposure caused the cancer.
- Plaintiffs asserted a products‑liability negligent design/strict liability claim under the Mississippi Products Liability Act (Miss. Code Ann. § 11‑1‑63). Jury returned a plaintiff verdict assigning fault among defendants and 20% to Smith’s smoking.
- Defendants moved for JNOV after the verdict; the trial court granted JNOV, reasoning plaintiffs failed the “frequency, regularity, and proximity” test for asbestos exposure causation.
- Plaintiffs appealed, arguing the trial court applied the Lohrmann frequency/regularity/proximity de minimis test improperly at the JNOV stage instead of applying statutory elements of a negligent design claim.
- The Mississippi Supreme Court held the trial court erred: the frequency/regularity/proximity test is a de minimis standard appropriate for summary judgment/directed‑verdict contexts only; at the JNOV stage the court must apply the evidence against the statutory elements (including proximate cause) of the Products Liability Act.
- Court reversed and remanded for reconsideration consistent with applying the statutory elements; several justices dissented, arguing the frequency/regularity/proximity test is a legal standard appropriate at JNOV and that the evidence supported the jury verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by granting JNOV based on frequency/regularity/proximity test | Coleman: trial court misapplied that test at JNOV; court should apply statutory products‑liability elements (including proximate cause) | Defendants: Lohrmann test (frequency, regularity, proximity + product ID) is the proper legal standard to evaluate asbestos exposure causation and supports JNOV | Reversed: Lohrmann test is a de minimis/summary‑judgment standard only; at JNOV the court must apply evidence to statutory elements of Miss. Code §11‑1‑63 |
| Proper role of frequency/regularity/proximity test | Limit test to deciding whether claim survives summary judgment/directed verdict; not for jury or post‑verdict JNOV | Test is a legal standard governing causation and may be applied at JNOV/directed‑verdict stage | Court: test is legal but limited to prima facie threshold at summary judgment/directed verdict; it is not for the factfinder and should not replace statutory elements at JNOV |
| Whether jury instructions or verdict should be revisited based on standard applied | Plaintiffs: jury verdict must stand unless insufficiency under statutory elements shows no reasonable juror could find causation | Defendants: verdict unsupported because plaintiffs failed to show sufficient exposure under frequency/regularity/proximity | Court remanded to reapply statutory elements to evidence; did not reinstate verdict but vacated JNOV decision and ordered further proceedings |
| Whether Mississippi Products Liability Act creates a different standard for asbestos cases | Plaintiffs: Act governs and establishes elements courts must apply uniformly | Defendants: Past cases adopted Lohrmann for asbestos; that precedent should control | Court: Legislature set elements; court will not create separate asbestos exception — apply statutory elements at JNOV stage |
Key Cases Cited
- Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (origin of the frequency/regularity/proximity test in asbestos exposure cases)
- Gorman‑Rupp Co. v. Hall, 908 So.2d 749 (Miss. 2005) (Mississippi adoption of frequency/regularity/proximity for summary‑judgment context)
- Monsanto Co. v. Hall, 912 So.2d 134 (Miss. 2005) (adding product identification to the Lohrmann framework for asbestos litigation)
- Phillips 66 Co. v. Lofton, 94 So.3d 1051 (Miss. 2012) (discussed application of frequency/regularity/proximity post‑verdict; treated in plurality as dicta)
- C & C Trucking Co. v. Smith, 612 So.2d 1092 (Miss. 1992) (explains legal standards a court applies when considering directed verdict and JNOV)