In Re State Public Building Asbestos Litigation

holding today our is limit- emphasize that We considering us

ed to the case before history

unique of this case. procedural above, the circuit

Based order of the reversed, affirmed, part,

court is

part.

Affirmed, reversed, part. part, C.J.,

BROTHERTON, participate. did not Justice,

MILLER, by sitting Retired

temporary assignment.

In re of West PUBLIC STATE ASBESTOS LITIGATION.

BUILDING

(Three Cases).

Nos. 22023-22025. Appeals

Supreme Court Virginia. Nov. 1994.

Submitted

Decided Dec. 1994.

Concurring Opinion by Cleckley Jan.

Justice siting plans prepared by the solid waste waste ties number of Class B solid in its that a brief only approval received local facilities have authorities. facili- being in commercial solid waste included

121 Recht, Arthur M. Casey, Patrick S. Schrader, Recht, Byrd, Byrum Compan- & ion, Wheeling, Simmerman, Jr., Frank E. Bowles, Rice, MeDavid, Love, Graff & Restivo, Clarksburg, Jr., James J. Lawrence Flatley, Douglas Cameron, E. George E. L. II, counsel, Reed, Smith, Stewart Shaw & McClay, appellant for W.R. Grace & Co. ' Goodwin, Wittemeier, Thomas R. Susan C. Goodwin, Charleston, Goodwin & Charles R. Bruton, Foltz, Jr., counsel, Richard W. Scheetz, Philadelphia, jury only Pepper, Hamilton of law. was to & Pfizer, PA, products appellant appellants’ for Inc. consider present buildings, and if in one or more were Everett, Everett, Ruley Diana & Parkers- products present, their were the amount Brownson, counsel, Stich, burg, D. Robert damages be awarded to the which should Muth, MN, Angelí, Minneapolis, & Kreidler including past for appellees, and future costs appellant Asbestospray. removal. in-place management and/or Jr., McGraw, Atty. Darrell V. B. Gen. Silas Charleston, Atty. Gen., Taylor, Deputy finding Sr. returned Sheran, Mandel, appellees damages. Thomas R. R. Terri Michael were entitled to no Hannan, Luzum, Thereafter, Minneapolis, J. O’Connor & vacated the MN, appellees. September verdict in a 1993 order stat- ing: Varner, Munster, A. Catherine D.

James McNeer, McMunn, Highland Clarksburg, LIABILITY as a Court DIRECTED Armstrong for amicus curiae World Indus- asbestos-containing matter of law that tries, Inc. products inherently dangerous prod- This ucts. left for the the issue of

McHUGH, Justice: proved plaintiffs whether the that the re- spective products such in defendants had Corporation, appellants, Asbestospray The issue, and, so, buildings at dam- Pfizer, Inc., the the appeal and W.R. Grace & ages resulting presence. from their 14, September the the order of Circuit liability the Court did direct Monongalia County of Court which vacated verdict, any specific one or more defendants. jury’s appellants for the and However, trial, during on the issue granted a new trial. case arose as an This identification, product existence of a damage property case in asbestos which the in product defendant’s was admitted to be Virginia, appellees, the State of West buildings by plaintiff’s of the [sic] several City Spencer County and Monroe Commission, more than one of the defendants. Addi- sought monetary relief for the tionally, there was more than substantial management removal of asbestos from and/or products evidence that all defendants had buildings. public its subject buddings.

in one or more of There was an abundance of evidence I. also maintenance, removal, on the cost of appellants The were manufacturers of repair relating products. to the and/or asbestos-containing building materials Nevertheless, jury a verdict returned twenty-six in may have been installed damages. manifestly ‘0’ This verdict buildings throughout the State between 1958 given proof presented in inadequate appellees The filed an action seek- and 1973. this matter. monetary ing relief for the removal and/or management public of the asbestos from its jury The went on to state that the buildings against appellants. 1” “type inadequate award verdict was Booth, 156, trial,

After a six-month in which a tremen- under Freshwater v. 160 W.Va. (1977);1 therefore, presented vacat- dous amount of evidence was he jury, jury’s instructed the ed the verdict and awarded new only product asbestos-containing products in- on the issues of identification damages. in as a matter and volved this case are defective agonize reversing type need about and

1. The described a I case court Court Freshwater remanding as follows: for a new trial on the issue of damages proper alone and that is the course. type inadequate jury The easiest award 160, Freshwater, supra, 233 S.E.2d at 315. at plaintiff have entitled to where the would been Additionally, type although it not affect a I does liability a directed verdict on as matter of overruled, law, analysis, part, inadequate Freshwater damages and the Moss, S.E.2d 281 strongly Linville v. 189 W.Va. in favor of the when viewed most type appellate In this of case an defendant. subjects asked us to have review the There are few the entire field judge’s September procedure subject have 1993 order. Af- been to so arguments controversy May change ter this Court much before on recent requested parties years proper scope this Court as the review of an provide information denying additional to assist granting order motion for of the with its examination voluminous very rec- new court trial. The trial has broad Thereafter, parties reargued ord. discretion and the courts will de- case before this Court November 1994. great fer a to his deal exercise of this

discretion. much is This settled. II. Miller, § Wright supra at 2818 at 118. first issue is whether the trial On occasions this several Court has improperly jury’s vacated verdict and addressed the standard review to be ac In awarded a new trial. order to resolve this corded to the decision of the trial to set issue, necessary appro- to establish the aside a award a new trial. priate judge’s standard of review syllabus points In and 5 of Kesner v. Tren decision. ton, (1975), this Court held:

A has vacate a verdict and award a new trial judgment of a ‘The court pursuant 59 of the Rule setting awarding aside a verdict and a new states, Rules Procedure which Civil peculiar weight trial is entitled to and its part: granted relevant “A new trial be respect action in this' will not be disturbed any parties to all or part on all or appeal plainly unless unwarranted.’ of the ... an issues action which there Syllabus 3., point Young Duffield, 152 by jury, has been any a trial for of the (1968). 162 285 S.E.2d reasons for new trials which have heretofore reviewing 5. The judgment test granted been in actions at law[J” Rule 59 setting jury verdict awarding aside a and merely recognizes the common principle law new trial is whether the trial court’s dis- judge that a verdict of jury. vacate verdicts, cretion in supervising so as to Wright 11 Charles Aan and Arthur R. Mil prevent miscarriage justice, has been ler, § Federal and Practice Procedure abused. (1973).2 at 27 Additionally, syllabus points and Athough rarely should Young Duffield, 152 W.Va. grant trial, judge, a new neverthe (1968) provided: further Court less, has broad discretion to determine stronger ‘It takes a case in appel- an granted: whether or not a new should be judgment late court to awarding reverse “Courts do not new trials unless it is denying a new trial giving than one it and reasonably prejudicial clear that error has judgment against party claiming to crept into or jus the record that substantial aggrieved.’ Syllabus, have been Point tice Ultimately has not been done.... The Star v. Brockmeyer, Piano Co. motion invokes sound discretion of the (1916)]. [, W.Va. 780 S.E. court, and review ruling of its quite Wright Miller, supra limited.” 4. An appellate at court is disposed more (footnotes omitted). § 2803 at 32-33 to affirm Howev of a action trial court er, it pointed setting has been out: granting aside a verdict and a new Although language 2. Rule 59 of the Federal Civil Judicial Procedure there are differences be- states, part: and Rules may in relevant "A new trial tween and W.Va.R.Civ.P.59 Rule 59 of the Feder- granted any parties be or to all of the and Rules, purpose al CivilJudicial Procedure and (1) part all or of the issues an action in which substantially behind the two rules is the same. by jury, any there has been a trial of the explanations regard- we will examine reasons for new trials have heretofore ing counterpart the federal to W.Va.RCiv.P.59 in granted been in actions at law in the courts of understanding order to aid our of Rule 59. the United States[.]” Rule has the in a Under such action results trial than when weigh he the evidence judgment denying trial. final a new jury. 3 Charles she were a member of emphasizes syllabus by this Court Another Wright, Federal Practice and Proce Alan legal principle this Court will that 1982). (2d § Charles at 247 ed. As dure setting verdict review an order aside Wright explains: awarding trial unless it was and a new trial —unlike a motion for a new [O]n a abuse of discretion judg for a or for motion directed verdict enter such order: notwithstanding the verdict —the ment merely A is not a referee but judge may the verdict even set aside in supervising is vested with discretion though there is substantial evidence preventing miscarriages of verdicts and required support it. He is not to take justice, power duty with the to set a most favorable to the view the evidence aside and award a new trial if verdict-winner. The mere fact if it plainly wrong supported enough is in conflict is not to set evidence evidence, some and when a sharp Indeed the more aside the verdict. acts, decision, being discharge his so conflicts, ly the the more reluc evidence duty pass upon the power his his should be to substitute tant the weight of the to that limited ex- evidence jury. judgment for that But on tent, peculiar weight will is entitled to ground on the motion for new trial clearly appeal not be disturbed on unless against weight the verdict is unwarranted. evidence, weigh is free for himself. it has been Harris, evidence Indeed Syl. pt. Cook v. on the granting of a new trial said that S.E.2d 676 ground that the verdict Court, however, previously inter- This has element weight of the evidence ‘involvesan jected analysis into the of whether a itself goes further of discretion which than by setting properly granted new trial was It sufficiency of the evidence. em mere regarding standards how the evidence forth which inhere in the braces all the reasons weighed: should be system integrity itself.’ determining the verdict of a ‘In Miller, § Wright supra at at 43-45 evidence, every by jury supported is (footnotes omitted). (1973) all, After “[t]he inference, fairly legitimate reasonable and judge spot and is better able trial was on in arising favor of the from evidence appellate court to whether the than an decide returned, party for the verdict was whom rights of the error affected the substantial facts, considered, must be and those which Similarly, § parties.” Id. at 119-20. at jury might properly find under the addressing recognized has when this Court evidence, Sylla- must be assumed true.’ a judge’s to award new the trial Monongahela point v. Power bus Walker opportunities trial court has “[t]he trial that 825, 131 Company, 147 W.Va. S.E.2d many things the course of a to observe (1963). presented to printed record trial which Frich, 3, McNeely appellate disclose[.]” not pt. v. 187 W.Va. court does Syl. Co., (1992).3 However, type Monongahela Transport Browning this v. 415 S.E.2d 267 481, 485 195, 203, misleading light pur- 27 S.E.2d is of the 126W.Va. analysis Appeals of the The United States Court pose of Rule 59. supra, McNeely, syllabus point ing is McNeely, a new trial. We note that relied on In this Court Monongahela opinion. syllabus point per Power In 2 of 3 from Walker curiam (1963). Walker, In Virginia University, v. West Graf required to determine whether (1992) this Court was per we held: “A curiam grant a trial not to new the trial court’s decision generally opinion appears from that to deviate analysis proper. is different The in Walker was binding accepted law not on the cir- rules of is analysis should have been used from the courts, only upon with and should be relied cuit McNeely whether this in order to determine great caution.” grant- order the trial court's Court could reverse explained justice, judge may Circuit Fourth has best the stan- the trial aside the set verdict, supported by even if dard of review: substantial evi- dence, grant judge’s and a new trial. A trial governed by A trial motion a new is subject decision to new trial award a is not to different standard from a directed verdict judge review unless abuses motion.... Under Rule 59 of the Federal or her his discretion. Procedure, judge may Rules of Civil a trial weigh the evidence and credi- consider the light principles, In these did and, bility of the witnesses he finds the abuse his discretion when he against is weight verdict the clear of the judge’s awarded a order new trial? evidence, is or based on false evidence will indicates that he evaluated the evidence and miscarriage justice, result he must credibility making his the witnesses when verdict, by set even if supported aside example, decision. For stated evidence, substantial a new trial. that, only did some of the (4th Poynter Ratcliff, F.2d stipulate products ap that their were (citations omitted). Cir.1989) pellees’ buildings, also but “there more [appellants] than substantial evidence that all Therefore, to the extent that we products subject had in one or more of the past proper have drifted in the from the buildings.” previously, As we stated a trial standard review to be accorded to a trial Court, judge, unique posi unlike judge’s order which vacated the tion evaluate the evidence and determine trial, clarify awarded new we whether or not the evidence indicates that emphasize ap hereafter that the role of appellants’ products building. were in the pellate reviewing judge’s court a trial de though appear grant termination that a new should be the evidence was controverted as whether very Accordingly, ed is limited. we hold that appellants’ products not the were located governed motion a new trial is appellees’ buildings, in the we do find the different standard than a motion direct for a abused his he discretion when set ed verdict.4 When a trial vacates a granted aside verdict and newa trial. pursuant verdict and awards new trial 59 of Additionally, Rule Rules determined Civil manifestly Procedure the trial has the au inadequate verdict was thority weigh the evidence “an and consider because there was abundance evidence credibility maintenance, removal, of the If witnesses. on the cost of and/or finds repair relating products.” the verdict the clear to the As we stat- evidence, weight previously, damages based on false ed no awarded miscarriage evidence or will in a appellees. appellants argue result judgment. 4. A directed verdict is a final There- a rants different of standard review than that for fore, our standard of review is different for a a new trial: awarding directed verdict an than for order a reviewing ruling In a trial court's on a mo- new trial: judgment notwithstanding tion for a the ver- ‘ " ‘Upon a motion to direct a for the verdict dict, it is not task of the the court defendant, every legitimate reasonable and in- reviewing facts to it determine how would fairly arising testimony, ference the from when presented. ruled have on the evidence Its task entirety, indulged considered in its must be in tois determine whether the evidence was such favorably plaintiff; to and the as- court must might a that reasonable trier of fact have jury may as true sume those facts which the Thus, ruling reached the decision below. properly Syllabus, find under the evidence. judgment notwithstanding motion a for a the Raleigh-Wyoming Nichols v. Coal verdict, the evidence must be viewed in the [, (1932)].'” 1, W.Va. 163 S.E. 767 Point light nonmoving party. most to favorable Chatterton, Syllabus, Jenkins v. 143 W.Va. 250 review, If on the evidence is shown to be [, 1, (1957).’ Syllabus 100 S.E.2d 808] Point verdict, legally to insufficient sustain the 769, Legg, Jividen W.Va. 245 S.E.2d 835 obligation of this Court to the cir- reverse (1978). 1, judgment appel- cuit court and to order Syl. pt. Napter, Cale v. (1991). lant. S.E.2d O.F., Syl. pt. Similarly, judgment notwithstanding Mildred L.M. v. John ver- W.Va. therefore, which, judgment dict is a final war- to determine whether that would be was also they presented evidence there damage. asbestos-containing prod- product no from caused harm their in the future. ucts Indeed, to we more deference City argument was made A similar of new than awards a who Co., 827 F.2d 975 Greenville v. W.R. Grace & denies new trial do to a trial who we Cir.1987). (4th Greenville, In the Court of is, finality ordinarily, lack of because “there affirmed the Appeals of the Fourth Circuit setting aside a verdict and in the action com- judgment court’s which awarded lower Browning, supra, 126 granting new trial.” City to punitive damages pensatory and Accordingly, at 485. at presence an for the asbestos- Greenville above, we hold that on our discussion based The containing product city hall. de- for the trial of discretion was not abuse fendant, Company, argued W.R. Grace to verdict and award vacate rely on the that it was error for the new trial. for Hazardous National Emission Standards Air because there [“NESHAPS”] Pollutants III. actually no evidence that Greenville appellants additional issues for raise city planned renovate or demolish the hall that we do Court to address in the event future; therefore, be no there would Specifically, verdict. not reinstate City Fourth harm to the of Greenville. The (1) regarding appellants raise issues Circuit stated: applicable whether a statute limitations specious argument. This strikes us as a (2) State; whether the city It is that the hall will last obvious as a matter of law that the asbes- could find It renovated or forever. will have be appellants tos-containing products of the future, at some time in the demolished and, therefore, direct defective arrives, day Greenville will be when that (3) liability against appellants; whether required [asbestos-contain- remove disqualified him- should have ing product] building, it has not from the (4) trial; from the self already done so. striking the defense as- erred Local Id. at 982. Beavercreek Schools Cf. (5) risk; sumption whether the Basic, Inc., N.E.2d App.3d 71 Ohio appellant determining that erred (“We (1991) agree ... pre- responsible its Grace & Co. W.R. more the cost of jury’s failure to award than liabilities. decessor’s inexplicable in maintaining the asbestos testimony view the uncontroverted A. plaintiff] faced [the would be Beavercreek with ly inadequate.” the case before at the end evidence, failure unique role to award necessity could of the life of the being any damages was “manifest- have found that us, removing the able to evaluate the buildings[.]”) In judge, asbestos jury’s its limitations bestos case. dispositive of the appellees’ claim is barred Code, claim must The first additional 55-2-12 runs be ^[1959] brought against the case, which states is whether issue, “[w]ithin pursuant to W.Va State which could argue two statute in an as- that the years tort be right bring the shall the same ap- “it next after Lastly, judge noted that the trial rejected judge jury The accrued[.]” the have pears to that either was the Court law Court, argument applied the common by or that this clearly the not instructed regi tempos occurrit of nullum mis-comprehended the evi- doctrine jury totally the (“time King”) against the not run judge. does agree the trial Our We with dence.” not of limitations does that the statute that there was found reading the record revealed of whether product was located confusion the in the jury in the to determine instructions building if as if the so, run statute of W.Va.Code, against the State limitation, 55-2-19 in ^[1923] unless otherwise ex- spite states: of the fact that “Every apply to the State.” pressly provided, shall damages; the of or the amount whether W.Va.Code, 2-1-1 ^[1923] pro products are defective should have gone vides, part: “The Furthermore, relevant common law jury. appellants the the con- England, repugnant far so as it is not to the liability tend that could not have been direct- state, principles the constitution this ed since the had to determine whether same, shall continue force within the ex products damage. the caused The resolution cept respects in those wherein it was ... important determining is this issue by Legislature altered of this state.” may judge whether find that Furthermore, syllabus Perry v. asbestos-containing products are defective as Bank, 963, Street 157 W.Va. Twentieth liability a matter law and direct when this (1974), “[b]y S.E.2d 421 this Court stated case is proceedings, remanded for further VIII, authority virtue of the of Article Sec including a new trial. tion 21 of the Constitution West Code, 1931, and of it The 2-1-1 is within record before us is unclear as to how province Legislature judge enact statutes came to It his determination. abrogate law.” legis common appears judge judicial the trial took notice Code, lature had the to enact W.Va. asbestos-containing products are defec- Therefore, 55-2-19 we [1923]. conclude that case, tive as a matter of If this is the law. W.Va.Code, abrogates 55-2-19 [1923] the we permitted “[w]hile assert that courts are tempus common law doctrine of nullum oc judicial facts, to take notice of certain regí thereby making currit statutes of limita well permit- settled that a trial is not applicable tions to the State. finding upon ted to base facts which are merely personal knowledge matters his Because the applied distinguished proof from of such facts.” tempus the doctrine nullum regi occurrit Settle, 330, Boggs 338, v. 150 W.Va. appellees, did not 446, S.E.2d See also 1 Franklin reach the issues of two-year whether the Cleckley, D. Handbook on Evidence W.Va.Code, statute of limitations found (3rd 1994) 2-l(G) Virginia Lawyers, § 55-2-12 claim ed. appellees’ [1959]barred the (“A discovery applies.5 judicial rule take notice of There fore, adjudicative we decline address these latter open two facts that are to reasonable 1, issues appeal. syl. pt. See dispute, personally con- Shackleford Catlett, S.E.2d 327 particular vinced of the correctness of con- (1978) (“ appellate jur ‘In the exercise of its clusion.”) isdiction, nonjuris Court will not decide Furthermore, appellants contend that questions dictional which were not consid judge applied wrong standard ered and decided the court from which the when September he stated appeal Syllabus has been taken.’ Point asbestos-containing products order Hitt, [, Mowery v. W.Va. 181 S.E.2d are they defective as a matter of law because (1971)”). 334] inherently are dangerous. In Morningstar Manufacturing Black Decker

B. (1979), Second, address we whether the trial jurisdiction this Court concluded that “in this could a matter find as of law that the asbes- ... general test establishing strict products tos-containing appellants are liability in prod tort whether the involved and, therefore, defective direct a verdict on uct is defective the sense that it is not liability against appellants. appel- reasonably safe for its intended use.” In the argue lants there was evidence which case, present products indicated that the unclear what standard the defective. applied to prod conclude that the determine when a issue asbestos-containing of whether uct is defective. Grover, 249, 252, appellants correctly

5. The assert that this Court W.Va. 358 S.E.2d adopted discovery product (1987). has rule liabili- ty personal injuries. claims for See Hickman v. given on behalf of upon ‘Where the evidence judge appears have relied The trial sup clearly insufficient to defendant knowledge that his when he determined own verdict, him that such port so a verdict asbestos-containing products are defective as aside, jury, by if must be set returned a if emphasize that a matter of law. We plaintiff is clear and the evidence on re- judge makes the same decision tidal convincing, duty it is of the trial and being de- regard products to the mand with court, requested, a so to direct ver when law, matter of then the trial fective as a Syllabus, plaintiff.’ Point 5 dict for the clearly on the record judge must indicate Pennsylvania v. The Rail Sommerville he conclusion. how came to that Co., [, 155 S.E.2d 865 road 151 W.Va. (1967)]. may respect, In this a trial Jones, pt. Inc. Syl. v. W.A. Wiedebusch jury if from the there are no take issue Heating Plumbing and W.Va. by jury, questions of to be fact decided (1973). 201 S.E.2d 248 judge may ques not remove a but us, however, the In the now before case jury. Trial tion of fact from the 88 C.J.S. jury not clear as to whether instructions are 208(b) (1955). § This Court has stated: point, jury liability At one was directed. system rule of of the most fundamental our that, although indicate the asbes- instructions questions jurisprudence is of fact are that a tos-containing products are defective as by jury questions be determined law, jury still must determine matter of just by law a court.... as well [I]t of and, if products damage caused in our law that there is established where so, At damages are. what the amount of verdict, support or where no evidence to point, instructions indicate another plain preponderance product finds that if the evidence, conflicting governing facts appellants’ buildings, then the in the located dispute so that reasonable minds are not damages. conflicting These must award therefrom, could draw but one conclusion need to be resolved. instructions judicial ... questions are for determi- Morningstar, supra, In this Court ex nation as matter law. case, liability product in a plained that product is de inquiry initial is whether the 474, 478, Spangler, Fitzwater v. 150 W.Va. and, so, damage. fective if did cause (1966) (citing Petros v. monetary inquiry amount of dam next is the (1961) Kellas, W.Va. “ remand, ages. on the trial syllabus point 4: ‘When the which held liability, must he directs undisputed only one material facts are clearly explain in the record the reasons from them rea inference be drawn his decision. negligence questions sonable minds contributory negligence questions of C. 3, syllabus, Point for the court.’ Graham law Third, whether the trial we address Crist, [, S.E.2d 640 refusing disqualify himself after erred in (1961) citing Shrewsbury, also Wood v. ].” announcing, presentation of the prior to the 569, 186 S.E. 294 case, in-place appellants’ asbestos-con-

Furthermore, our review the rec as matter taining products are defective is not clear as to whether or ord indicates it as matter fact. law and a verdict on 3C argue directed violated Canon liability, although Virginia refer Code Ethics the order which we of the West Judicial states, “A part: Court in relevant previously opinion “[t]he states which disqualify proceeding as a matter of himself LIABILITY should DIRECTED might reasonably be impartiality acknowledge his that a trial We law[.]” questioned[.]”6 may direct verdict: January Judicial became effective Currently, comparable can be found Conduct section 6. 3E(1) Code in Canon Virginia Code The West Judicial Conduct. 130

Although appellants 82, the v. Winegardner, raise this tura 178 357 W.Va. error, assignment an issue as issue S.E.2d this is disposed appropriately pursuant

more to 6, pt. Syl. King, supra. Virginia XVII of Rule the Court West Trial appellants the state evidence indicates (Rule Rules Trials Record XVII out for early as the State issued a proper procedure disqualifying lines the respiratory equipment designed bulletin to judge). we decline to address protect exposure workers from this issue. to asbestos and silica. The record discloses approved bulletin respiratory lists de- However, we that our note review the protect against vices to the inhalation of as- record indicates that there were statements However, bestosis. this does not and of made which may trial have been itself indicate knowledge the State had actual intemperate. Although a need dangerous of a or defective condition. muzzled, not be we caution appellants also assert more in making exercise restraint comments adopted regulations regarding State regard with or the merits lack of merits of exposure threshold limits of to asbestos. party’s position support. proper without However, do not indicate Obviously, impartiality is appellees where record states the importance utmost to instill confidence knowledge had actual that the asbestos levels judiciary. buildings in the state were above thresh Accordingly, conclude, old limits. we based information, upon the above D. could determine that the evidence was not Fourth, we address whether the support sufficient to instruction as striking erred in the defense of sumption of risk. We find no error outset, assumption of risk. At the we note: judge’s ruling. assumption The defense of risk E. plaintiff product

available in a liability Finally, we address case where it is whether the shown that in refusing erred plaintiff directed verdict knowledge had actual of the defec- charge or issue succes- dangerous condition, appreci- tive or fully liability. (hereinafter sor W.R. Grace & Co. involved, ated the risks and continued to “Grace”) only appellant raising product. However, use the plaintiff issue. recovery degree not barred from unless his assumption equals of fault under of risk or syllabus points In 2 and 3 of exceeds the combined fault of the other Corporation, 566, v. Davis Celotex W.Va. parties to the accident. (1992) 420 S.E.2d 557 this Court held: law, 2. At purchaser common of all 3, Syl. pt. King Kayak Manufacturing corporation the assets of a was liable 276, Corporation, 182 W.Va. for the corpora- debts or liabilities of the (1989). Additionally, we have stated: purchased. tion This rule has since been by jury] [in ‘“Where there is tempered by a number exceptions competent tending evidence support statutory provisions. case, pertinent theory duty' in the it is the A corporation successor can be hable give of the trial court to an instruction obligations predeces- debts and of a presenting theory such when requested to corporation express sor if there was an Hospital do so. McAllister v. Weirton implied assumption liability, trans- W.Va. S.E.2d fraudulent, action was or if some element (1983) (citations omitted).” Syl. pt. good transaction not made Taylor, Brammer liability faith. Successor will attach in also (1985).’ Syllabus S.E.2d merger Point Ven- a consolidation or under W.Va. 31-l-37(a)(5) with Code, Finally, ceedings in accordance such will be held opinion, in this liability principles sueees- set forth will also result where the corporation is a mere continuation sor Affirmed, reversed, part, part, predecessor. reincarnation of its remanded. mind, this in we address Grace’s con- With MILLER, BROTHERTON, C.J., and tentions. J., participate. did not Retired purchased certain assets of Grace J., CLECKLEY, concurs and files 10, 1963, April Company the Zonolite concurring opinion. Agreement pursuant and Plan of Reor to an ganization. under the Grace contends that Justice, CLECKLEY, concurring: agreement only it assumed the debts 1995) (Filed Jan. liabilities of Zonolite which existed at pleased I to concur Justice am closing purchase Zonolite. There agree opinion. particularly I McHugh’s fine fore, responsible it is for claims caused regarding broad discre- analysis his with by asbestos-containing manufac materials scope authority of the trial tion and prior Zonolite to the clos tured sold jury’s being verdict as court to set aside a ing purchase of the of Zonolite. I weight the evidence. write however, explicit just separately, to make However, above, we a com stated analysis opinion: implicit in what impliedly if it pany be liable assumes Virginia has trial court in West au- that a liability or or reincar is mere continuation determining a motion for new thority predecessor. appellees The as nation of its under Rule 59 the West acquired all of Zonolite’s sert Grace weigh per- Rules of Civil Procedure to continued to manufacture the assets and quality of the evidence and that our suasive products as same Zonolite. contrary are overruled.1 prior cases to impli could conclude that Grace cases, Addair v. prior of our such as Several edly responsibility or that assumed Co., Inc., Majestic Petroleum pred or reincarnation of its mere continuation (1977), the trial held that Accordingly, cannot conclude ecessor.7 we jury’s review a court’s on this issue.8 erred appellate of an court. the same as that death knell for Addair This case sounds the IV. Indeed, Addaids progeny. several of and its implicit would not express or declarations Accordingly, September we affirm holding limiting of time and its Mononga- stand the test order of the Court of Circuit authority of reviewing scope County lia vacat- extent only that of an court new trial court verdict and awarded a trial. ed the searching for a ratio- pro- long had been a rule and further case will be remanded (Zonolite) predecessor's responsible for its Similarly, that Grace to be liabilities.) 7. other courts have found obligations responsible of Zonolite. See for the Co., 506, 509 848 S.W.2d Harashe v. Flintkote (the (Mo.Ct.App.1993) "[w]hile court held that following issues: also raised the Agreement] was delineated [Grace-Zonolite granted with re- a new trial should be reorganization through purchase of assets aas buildings product spect identifica- merg it er.”) all the elements of de contained facto new and whether a tion was not conceded W.R. Assocs. v. Grace and T.H.S. Northstar damages. granted punitive Howev- should be (D.Minn. Co.-Conn., F.Supp. II, er, supra, holding part there of our because 1993) (The a de the elements of court found that need to address these issues. no merger present Grace assumed were since facto Zonolite, obligations the Zonolite share right merely upholding 1. We stockholders, and Grace holders became Grace paid it believes that a new trial when court solely its shares of assets with Zonolite on the justice not been done cash.) substantial has But see East stock rather than with own theory is an exercise of the trial court’s that it Gypsum District v. U.S. Prairie R-2 School (Grace power. (E.D.Mo.1993) inherent F.Supp. held (4th Yeatts, puts Today’s long nale. decision overdue Sur. Co. v. F.2d Cir.1941).5 By broadening to the end fruitless search. authority limiting of trial courts and that McHugh correctly Justice states this court, appellate of the we strike a decent power of the court should be exercised judicial judicial

note for and restraint econo- if sparingly. disagrees the trial Even court my.2 verdict, jury’s accept with the it should above, suggested prior findings credibility As our cases indi- matters the ver- unless granting against weight cated that the clearly test for a dict is of new manifest approximated for a the test directed verdict.3 the under evidence where acted Although today’s go does improper decision not so far some mistake under some mo- or tive, bias, may feelings. important to state that the trial court order a new or The most any trial where there adopt is evidence which feature of the rule we is that today support judgment would a in favor of the enforcement of these limitations of the trial nonmoving party,4 any notion largely that the tests court’s is to the committed a new a for trial and for directed verdict are self-restraint of trial court and reversals is, course, equated appeal laid to rest. What we be rare. are to Greater latitude position have done is granting take an intermediate should be a allowed trial court in attempt I will to denying which now summarize. new trial than a new trial.6 grant deny The decision to or a new trial This decision is committed to discre within the rests sound discretion of the tion of the trial court because it “is in a court, and we position review this decision for a clear to see and hear the and is witnesses Browning-Ferris abuse discretion. See able to view case from a perspective Vermont, Industries Inc. Dispos v. Kelco can court never match.” Weil v. Inc., al, 257, 2909, Seltzer, (D.C.Cir.1989). 1453, U.S. S.Ct. 873 F.2d (1989). L.Ed.2d 219 Absent a familiarity clear abuse Given the trial court’s intimate discretion, decision; we will proceedings, “may not disturb this with the the trial court indeed, position our weigh is same as the credibility feder evidence assess in rul “ al test that the ing trial court’s decision ‘is not on the motion a new trial.” Wilhelm Inc., (4th upon Bell, appeal, 1429, reviewable save in v. the most Blue 773 F.2d Cir.1985), denied, exceptional circumstances[.]’” Lindner cert. 475 U.S. Mills, Inc., Hosiery Durham 761 F.2d S.Ct. 89 L.Ed.2d 313 There are (4th Cir.1985), quoting many place during Aetna Cas. & critical events take Clearly, granting independently court broad latitude in determine to whether there is suf- granting support denying ficient or evidence to motions for new trial is verdict. principles judicial consistent with the econo- 5. The is federal test summarized in the famous Here, court, my. losing jurisdic- before Judge Casualty statement of Parker in Aetna case, permitted tion of a is to correct errors that Yeatts, Surety Co. v. 122 F.2d at 352: jury might during or the made have the course duty "On such a motion it is the of the Furthermore, giving trial. the trial court trial, set aside the a new if he power may justice encourage achieve liti- opinion is of that the verdict is pursue gants forcefully more issues below evidence, weight upon clear or is based costly appeal. rather than in a full blown and false, evidence which or will in a result justice, miscarriage though may there jurists suggested 3. Some have there is some simi- prevent be evidence substantial which would larity between these two tests and the difference the direction of a verdict.” degree. disagree- Inc., one There can be little Corp. Daiflon, See also Allied Chemical 33, 36, they substantially ment that differ the extent of 449 U.S. 101 S.Ct. 66 L.Ed.2d (1980) (order juiy granting control over verdicts exercised new is not ever, Trautman, appealable "rarely, justify Philip Testing will court. See A. Motions mandamus”). Evidence, issuance of a writ of Sufficiency the (1967). 42 Wash.L.Rev. 787 6. The mere there fact is little discussion grant merits of the evidence in the trial court's theory, 4. Under this a trial court ing becomes denial of motion for a new juror” hearing upon grounds "thirteenth motion for See reversal. Ellis v. International Inc., (4th Cir.1984). weighs Playtex, trial. The new trial court the evidence F.2d 292 record, reduced to trial that cannot be as well as affect the mind of opinion as forming

weight of and the character and the evidence These consider

credibility of witnesses. ignored in de

ations can and should be properly

termining whether a new trial was Circuit has observed

granted. Eleventh apt principles particularly these the motion denied. cases where Blu-J, Kemper Group, Inc. v. C.P.A

See Cir.1990). (11th Thus, in future

F.2d 637

cases, scope of it with this circumscribed review the review that we should

granting or denial of a new trial. rel. of West ex Michele

STATE RUSEN, Attorney Prosecuting

L. County, Relator,

for Wood Judge George HILL,

Honorable W. County, of Wood

Circuit Court Respondents. Harder,

Lisa 22441.

No. Appeals

Supreme Court Virginia. Oct. 1994.

Submitted

Decided Dec.

Dissenting Opinion of Justice 19, 1995.

Workman Jan.

Case Details

Case Name: In Re State Public Building Asbestos Litigation

Court Name: West Virginia Supreme Court

Date Published: Jan 6, 1995

Citation: 454 S.E.2d 413

Docket Number: 22023-22025

Court Abbreviation: W. Va.