Wagner v. Bondex International, Inc.
368 S.W.3d 340
Mo. Ct. App.2012Background
- Bondex International, Inc. and Simpson Timber Company appeal a $4.5 million wrongful death verdict for the Wagner family; Wagner died of mesothelioma in 2007 after exposure in the 1960s-70s to asbestos-containing products.
- Jury apportioned fault: Bondex 20%, Simpson Timber 35%, Conwed 45%; THAN bankruptcy trust later sought as a $900,000 credit; other settlements reduced the judgment by $1.425 million.
- Plaintiffs proved Bondex joint compound contained asbestos and that Wagner was exposed near sanding/mixing events at multiple construction sites; Simpson Timber argued no admissible proof of asbestos exposure from their tiles.
- Experts testified that asbestos exposure has cumulative effect and that Bondex contributed to Wagner’s mesothelioma; Simpson Timber experts claimed exposure but plaintiffs could not prove asbestos content in the specific tiles used.
- Defendants moved for directed verdict/JNOV; all were denied except Bondex on aggravated damages; jury verdict was entered in 2009 and later amended in several post-trial orders.
- HB 393 amendments (537.067) applicable to post-2005 actions; the court later remanded for retrial on apportionment between Bondex and Conwed after reversing Simpson Timber’s liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs proved causation for each defendant | Wagner’s exposure to Bondex asbestos and co-worker testimony plus experts show but-for/causal contribution. | Plaintiffs failed to prove exposure to Simpson Timber asbestos; causation insufficient against Bondex on proximate cause without Lohrmann-type showing. | Simpson Timber liable reversed; Bondex causation is sufficient to submit but for proximate causation supported. |
| Whether the proximate cause standard was properly applied | Courts apply but-for causation with cumulative asbestos exposure; Lohrmann test not controlling in Missouri for mesothelioma. | Lohrmann-style proximity/dose evidence required to prove proximate cause. | But-for causation applies; sufficient evidence to show Bondex contributed to Wagner’s mesothelioma; proximate cause resolved for Bondex. |
| Whether the trial court erred in submitting instructions 7A and 8A | MAI instructions properly directed direct causation; need not require but-for language in jury instruction. | Instructions improperly assumed causation facts; should have required explicit but-for finding. | Instructional error rejected; instructions correctly directed direct cause/contribution; no reversible error. |
| Whether the withdrawal instruction on post-exposure exhibits was proper | Nemeth testimony and exhibits were relevant to negligence/failure to warn; withdrawal would mislead. | Evidence unnecessarily relates only to aggravated damages claim; withdrawal needed. | Point denied; record insufficient to review withdrawal issue; no reversible error due to missing transcript. |
| Whether § 537.060 reductions for THAN and bankruptcy trusts were appropriate | No valid THAN settlement existed; reduction inappropriate; 537.060 applies only to actual settlements entered. | Credit based on stipulated agreement of $900,000; 537.060 governs reductions for settlements with joint tortfeasors. | Reduction of $900,000 to THAN affirmed; 537.060 applies; no error in offset. |
Key Cases Cited
- Hagen v. Celotex Corp., 816 S.W.2d 667 (Mo. banc 1991) (substantial factor test; but-for primary framework for causation in Missouri)
- Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. banc 1993) (but-for causation; two-fires exception explained; jury instructions use direct cause language)
- Benjamin Moore & Co. v. Sundermeyer, 226 S.W.3d 110 (Mo. banc 2007) (but-for causation generally applicable; two-fires exception noted)
- Sundermeyer v. SSM Regional Health Services, 271 S.W.3d 552 (Mo. banc 2008) (reiterates causation standards in Missouri wrongful death actions)
- Richey v. Philipp, 259 S.W.3d 1 (Mo. App. W.D. 2008) (causation in fact requires showing defendant's conduct caused injury)
- Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445 (Mo. App. W.D. 2001) (causation and sufficiency standards; submissible case standard guidance)
- McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995) (remand framework when total damages fixed but remand for apportionment of fault)
- Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (Lohrmann test for substantial causation in circumstantial asbestos exposure cases)