Lead Opinion
¶1. From about 1960 to 1970, Howard Barnett worked for Mississippi Steel and Iron- Company (MSIC) approximately forty to sixty-five feet away from sandblasting operations. Howard and a coworker both testified that silica sand supplied by Mississippi Valley Silica Company (Valley) was one of two brands of sand used in the sandblasting. They also testified that their work conditions were extremely dusty due to the nearby sandblasting operations. Howard was eventually diagnosed with silicosis, and he filed suit against Valley and other defendants, alleging that his disease was caused by his exposure to silica at MSIC. Howard alleged that Valley’s sand was defective because it failed to provide adequate warnings and instructions regarding the dangers of silica. Howard passed away after he filed suit, and his wife, Dorothy Barnett; was substituted as the plaintiff in her individual capacity and on behalf of all ■ of Howard’s wrongful death heirs.
¶2. The case eventually proceeded to trial against Valley only, and the jury returned a verdict in favor of Dorothy. The jury found that Dorothy had proven both economic and noneconomic damages and assigned Valley thirty-five percent fault for Howard’s injuries. The trial court then submitted the issue of punitive damages to the jury, and the jury returned a verdict for punitive damages in the amount of $500,000. After judgment was entered on the verdict, the trial court also awarded Dorothy attorneys’ fees. The trial court denied Valley’s post-trial motions for judgment notwithstanding the verdict (JNOV) or a new trial and to alter or amend the judgment, and Valley appealed.
¶3, On appeal, Valley raises a number of issues, which may be restated as follows: (1) whether the ■ judgment must be reversed and rendered because Dorothy nev
FACTS AND PROCEDURAL HISTORY
¶4. Howard Barnett worked for MSIC for thirty years. From about 1960 to 1970, Howard worked in a covered area of MSIC’s facility on High Street in Jackson as a saw operator and crane operator. During that time, he worked approximately forty to sixty-five feet away from sandblasting operations. Howard and one of his former coworkers, Lee Burch, testified that on a daily basis, their workspace was extremely dusty because dust from the sandblasting operations carried easily through the air. Howard testified that he “ate a lot of sand” while working at MSIC during this decade and that the “sand was rough up there” even when he operated a crane. The sandblasting created enough dust that MSIC’s neighbor complained about it. Howard and Burch both testified that they observed bags of silica sand manufactured by Valley and Southern Silica being used in MSIC’s sandblasting operations.
¶5. After Howard retired, he developed significant pulmonary issues and other health problems. His family practitioner, Dr. Charles Pruitt, initially diagnosed Howard as suffering from chronic obstructive pulmonary disease (COPD) and treated him accordingly. However, as Howard’s pulmonary health worsened, Dr. Pruitt eventually referred him to Dr. Julian Rose, a pulmonologist. Dr. Rose treated Howard for several years and eventually diagnosed him with silicosis. Howard passed away in February 2011.
¶6. Prior to his death, Howard filed the instant lawsuit against Valley and other defendants. Howard’s complaint alleged that his lung injuries were caused by exposure to silica and that Valley’s sand was defective because it failed to contain adequate warnings of the dangers of silica. See Miss. Code Ann. § ll-l-63(a) (Rev. 2014). Certain defendants subsequently filed motions for summary judgment, which Valley joined, arguing that Howard’s injuries were discoverable in 2005, so the three-year statute of limitations had run before he filed his lawsuit in 2010. However, the trial court denied these motions.
¶8. The jury found in favor of Dorothy and apportioned fault thirty-five percent to Valley, thirty-five percent to Southern Silica, and thirty percent to MSIC. The jury also found economic damages of $165,615.73; noneconomic damages of $1,034,384.27; and damages for loss of consortium of $500,000. The trial court then submitted the issue of punitive damages to the jury, and the jury awarded $500,000 in punitive damages. The trial court entered judgment in favor of Dorothy for $1,095,-000
¶9. After judgment was entered, Dorothy filed a motion for costs and attorneys’ fees, and Valley filed a motion for JNOV or a new trial and a motion to alter or amend the judgment. In the latter motion, Valley argued that the judgment should be reduced pursuant to the statutory cap on noneconomic damages, Miss. Code Ann. § ll-l-60(2)(b) (Rev. 2014), and that the statutory cap on punitive damages, Miss. Code Ann. § ll-l~65(3)(a) (Rev. 2014), precluded any award of punitive damages. The trial court denied Valley’s motions and later awarded Dorothy attorneys’ fees in the amount of $212,312.50.
¶10. Valley filed a timely notice of appeal from the final judgment of the circuit court. Additional facts and procedural history are discussed below in connection with the various issues raised by Valley on appeal.
DISCUSSION
¶11. The issues raised by Valley on appeal are set out above in paragraph 3. We address these issues in turn below.
I. The absence of an estate does not require reversal.
¶12. “The wrongful death statute allows the statutory heirs to recover damages for the defendant’s wrongful, lethal conduct.” In re Estate of England,
¶13. Valley argues that the foregoing principles require us to reverse and render judgment in its favor. Valley argues that the jury found that it “was not responsible for Howard’s death,” and therefore Dorothy lacked “standing” to recover any damages related to Howard’s exposure to silica. We disagree for three reasons, which we summarize briefly here and explain in more detail below. First, a cursory reading of the jury’s verdict shows that the jury actually found that Valley’s “failure to warn ... was a proximate cause of Howard Barnett’s lung condition and death” (emphasis added), which directly contradicts the basic premise of Valley’s argument. This finding was inconsistent with another of the jury’s findings, but if Valley intended to argue that one of two conflicting findings constituted a rejection of Dorothy’s wrongful death claim, it should have requested clarification of the verdict. We conclude that it waived this issue by failing to do so,.
1114. Second, we conclude that Valley’s objection is not a jurisdictional issue of “standing” but a real-party-in-interest objection, which may be waived if not timely asserted. M.R.C.P. 17(a). We conclude that Valley waived the issue by failing to raise it until after judgment had been entered on the verdict.
¶15. Third, even if Valley had preserved the issue by making a timely objection in the trial court, we do not believe that Mississippi Supreme Court precedent requires us to reverse and render judgment in favor of Valley. See generally Methodist Hosp. of Hattiesburg Inc. v. Richardson,
A. The verdict form does not establish that the' jury rejected Dorothy’s wrongful death claim. The verdict form is internally inconsistent, but Valley waived any argument based on the inconsistency.
¶16. Valley’s threshold argument on appeal is that “[bjecause the Hinds County jury’expressly determined that Valley was not responsible for Howard Barnett’s death, there could be no recovery for his heirs under the wrongful death statute.” Appellant’s Br. at 8. Valley argues that, based on this supposed express determination by the jury, Dorothy lacks “standing” to recover survival damages. Id. In response, Dorothy seemingly accepts Valley’s premise that “the jury did not find for [her] on her wrongful death claim,” Appellee’s Br. at 21, but she contends that Valley’s argument is procedurally. barred and misinterprets relevant precedents. A clear understanding of the jury’s findings is necessary to determine the legal effect of the verdict. The jury answered the first five questions of the verdict form, as follows: . •
VERDICT FORM
Answer “Yes” or “No” to all questions unless otherwise instructed.
1. Do nine (9) or more of you find that Plaintiffs have proved by a prepon-
*1111 derance of the evidence that silicosis or silica-related diseases were a substantial contributing cause of Howard Barnett’s lung condition?
Yes / No_
2. Do nine (9) or more of you find that Plaintiffs have proved beyond a preponderance of the evidence that silicosis or silica-related diseases wer[e] a substantial contributing cause of Howard Barnett’s death?
Yes_No ¿
3. -Do nine (9) or more of you find that Plaintiffs have proved by a preponderance of the evidence that Howard Barnett had substantial exposure to respirable silica from sand supplied by Mississippi Valley Silica Company,
Inc.?
Yes l No_
If you[r] answer to the above question is “No,” you may stop at this point and return this form into open Court as the verdict of the jury. If your answer to the above question is “Yes,” you; must proceed to the next question on this form.
4.Do nine (9) or more of you find that Plaintiffs have proved by a preponderance of the evidence that a failure to warn on behalf of Mississippi Valley Silica Company, Inc. was a proximate cause of Howard Barnett’s lung condition and death?
Yes ¿ No_
If you[r] answer to the above question is “No,” you may stop at this point and return this form into open Court as - the verdict of the jury. If your answer to the above question is “Yes,” you must proceed to the next question on this form.
5.What amount, if any, do nine (9) or • more of you determine to be Howard Barnett’s damages that were proximately caused and contributed to by exposure to respirable silica? Enter the amount on the line: -
Economic Damages $■ 165.615.73
Non-Economic Damages (pain and suffering) $ 1.034,384,27
Wrongful Death $ 0.00
Loss of Consortium $ 500.000.00
TOTAL (add amounts above) $ 1.700.000.00
¶17. Thus, in Question 4, the jury expressly found that Valley’s “failure to warn ... was ■ a proximate cause of Howard Barnett’s lung condition and death” (emphasis added). The jury’s answer to Question 4 directly contradicts Valley’s assertion on appeal that the “jury expressly determined that ... Valley was not responsible for Howard Barnett’s death.” Moreover, the jury’s answer to Question 4 indicates that Dorothy is entitled to recover damages under the wrongful death statute, Miss. Code Ann. § 11-7-13 (Supp. 2015). “To be entitled to recovery, the wrongful death plaintiff must prove that the wrongful conduct proximately caused the death.” England,
¶18. However, the jury’s answer to Question 4 is inconsistent with its answer to Question 2, The jury’s finding that Valley’s failure to warn proximately caused Howard’s death logically required a finding that silica-related disease was a substantial contributing cause of his death. Dorothy alleged that Valley’s conduct
¶19. Valley also emphasizes that the jury found no ■ damages for “Wrongful Death,” but we do not believe that anything can be inferred from that. The jury was instructed on the meaning of noneco-nomic damages',
¶20. Nonetheless, the jury’s answers to Question 2 and Question 4 are inconsistent. The question is whether that inconsistency entitles Valley to any relief given that neither party raised the issue before the jury was discharged. We addressed a similar issue in Bartley-Rice v. State Farm Mutual Automobile Insurance,
¶21. Similarly in this case, the verdict form and the jury’s answers were read in open court. The trial judge then asked the parties if there were “[a]ny questions or comments,” and there were none. The trial then proceeded to the punitive damages phase, and finally the jury was discharged. Only later did Valley assert that the jury’s answer to Question 2 constituted a rejection of Dorothy’s wrongful death claim. However, as explained above, Valley ignores the jury’s finding in response to Question 4 that its wrongful conduct proximately caused Howard’s death. Although the two answers are inconsistent, Valley never raised the issue or sought clarification of the verdict before the jury was discharged. Under the reasoning of Bart-ley-Rice, the issue is procedurally barred.
¶22. If Valley believed that an award of damages was precluded by one of two inconsistent findings in the verdict form, it was incumbent on Valley to seek clarifieation of the verdict while that was still possible. Having failed to do so, Valley cannot now challenge the judgment based on the one finding that is helpful to its position while ignoring the jury’s finding in favor of Dorothy. In response to Question 4, the jury found that Valley’s “failure to warn ... was a proximate cause of Howard Barnett’s lung condition and death.” This is exactly what the law required Dorothy to prove in order to prevail on her wrongful death claim. England,
¶23. We also note that although Valley now argues that the jury’s negative answer to Question 2 should have disposed of the entire case, the verdict form itself suggests otherwise. The verdict form—to which the parties agreed—instructed the jurors that if they answered “Yes” to Question 3, then they were required to proceed to Question 4. On its face, this instruction applied regardless of the jury’s answer to Question 2. Indeed, the structure of the verdict form effectively rendered moot the jury’s answers to both Question 1 and Question 2. This probably was not what the parties had in mind, but it is what the verdict form said.
¶24. In summary, the fundamental premise of Valley’s argument—that the “jury expressly determined that ... Valley was not responsible for Howard Barnett’s death”—is contradicted by the jury’s verdict. The jury expressly found that Valley’s wrongful conduct was a proximate cause of Howard’s death, which is the essence of a statutory wrongful death claim. The jury’s verdict was internally inconsistent, and one of its findings does support Valley’s argument; however, Valley waived that argument by failing to seek clarification of the verdict before the jury was discharged.
¶25. Valley’s argument that Dorothy lacks “standing” to recover the damages that the jury awarded also conflates-Dorothy’s basic standing to sue with her ability to recover damages on a particular claim. Valley’s real objection is that Dorothy, in her role as a wrongful, death beneficiary, is not the real party in interest to-recover the particular damages awarded to her because, in Valley’s view, the jury found that its conduct was not a proximate cause of Howard’s death,
¶26. As our Supreme Court has explained, it is a mistake to “confuse standing to sue with the right to relief.” White Cypress Lakes Dev. Corp. v. Hertz,
¶27. With respect to Dorothy’s standing to sue, “[i]t is well settled that Mississippi’s standing requirements are quite liberal.” Hall v. City of Ridgeland, 37 So.3d 25, 33 (¶24) (Miss.2010) (quotation marks omitted) (quoting Burgess v. City of Gulfport,
¶28. In this case, there is no dispute that “as of the commencement of suit,” id. Howard’s personal injury claim against Valley was grounded in a legal right recognized by law. Nor is there any dispute that when Dorothy filed her amended complaint and was substituted as a plaintiff, she had a claim against Valley that-was grounded in legal rights recognized by law. As a wrongful death beneficiary, she'had a claim against Valley under the wrongful death statute for any damages caused by Valley resisting from’ Howard’s personal injuries and death. See England,
¶29. Thus, Valley’s objection does not go to . Dorothy’s standing in any jurisdictional sense. Rather, Valley’s argument is that although Dorothy originally had standing to pursue survival damages as part of a wrongful death claim, her standing evaporated the moment the jury returned a verdict that, according to Valley, found that Valley was not responsible for Howard’s death. That does not raise an issue of Dorothy’s standing; rather, our Supreme Court has treated that argument as a real-party-in-interest objection. See Richardson II,
¶30. Because it does not implicate the court’s jurisdiction, “[a] real-party-in-interest defense must be timely and-may be waived if tardily asserted.” Kirk,
¶31. Similarly, the United States Court of Appeals for the Fifth Circuit has held that a real-party-in-interest objection must be raised at a point when “joinder of the real party in interest remains ‘practical and convenient.’ ” In re Signal Int’l LLC,
C. Even if Valley had timely raised the issue, Dorothy would be entitled to a reasonable time to open an estate and join it as a party.
¶33. For the two distinct reasons discussed above, Valley waived its argument that Dorothy lacks “standing.” However, even if Valley had timely raised the issue, we would conclude that Dorothy would be entitled to “a reasonable time ... after objection” to open an estate and join the estate as a party. M.R.C.P. 17(a). Because Valley’s objection was not raised until after trial, Dorothy was never afforded the “reasonable time” to substitute that Rule 17(a) allows.
¶34. The dissent concludes that Valley has not waived the issue and that the time to substitute has passed. Relying primarily on this Court’s decision in England, supra, the dissent maintains that we must reverse and render judgment for Valley. Although the Mississippi Supreme Court’s decisions on this issue have been described as “confused,” Richardson II,
¶35. In Wilks v. American Tobacco Co.,
[T]he heirs failed to alternatively base their cause of action on the survival statute at any point in time during this litigation. The complaint and trial proceeded exclusively under the ■wrongful death statute. [The defendant] cannot be blamed for the heirs’ failure to alternatively pursue a cause of action for personal injury under Mississippi’s survival statute.
Id.
1136. Several years later, in England, supra, this Court applied Wilks ⅛ holding to a dispute in chancery court between wrongful death heirs and their decedent’s ex-husband. England,
[I]t is definite that, if Rezulin proximately caused Betty England’s death, any damages for Betty’s personal injuries from Rezulin must be recovered in an action for wrongful death, and could not be recovered by the estate under the survival statute.
On the other hand, it is definite that if Rezulin did not proximately cause Betty’s death, there could be no recovery for the heirs under the wrongful death statute. ...
' Wilksmskes clear that the proper resolution of this case is to allow the estate administrator to assert both a wrongful death action and a survival action against the manufacturers of Rezulin. If the jury finds that Rezulin caused'Betty’s death, then the estate is foreclosed from recovering in the survival action for any personal injuries caused by Re-zulin; that recovery would belong solely to Betty’s wrongful death heirs. If the jury finds that Rezulin did not cause Betty’s death, the estate may recover for any personal injuries caused by Re-zulin [under the survival statute]. If the estate recovers survival damages, then [Betty’s ex-husband] could recover any amount from the estate to which he is entitled under the holographic instrument.
Id. at 1068-69 (¶¶ 25-26, 29) (citations omitted).
¶37. In Richardson v. Methodist Hospital of Hattiesburg Inc.,
¶38. On remand, the hospital moved to dismiss on the ground that only the decedent’s estate (and not her wrongful death heirs) could pursue a survival action but no estate had been opened. Richardson II,
(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. ... No action shall be dismissed on the ground that it is not prosecuted in-the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
M.R.C.P. 17(a) (emphasis added).
¶39. We acknowledge that it is somewhat difficult to reconcile Richardson II with Wilks.
¶40. In the present case, Howard’s original complaint and Dorothy’s amended
¶41. In summary, we conclude that Valley has waived any objection to Dorothy’s “standing,” which in reality is an objection that she is not the real party in interest. Moreover, even if Valley had preserved the issue, we would only remand the case to give Dorothy an opportunity to open an estate and join it as a party.
II. Whether Howard filed suit within the applicable limitations period was an issue for determination by the jury.
¶42. Valley next argues -that the circuit court should have granted its motion for summary judgment or its motion for JNOV because Howard filed suit after the statute of limitations had run. The applicable statute of limitations is three years, and because this case involves a “latent disease,” the limitations period began to run when Howard “discovered, or by reasonable diligence should have discovered, [his] injury.” Miss. Code Ann. § 15-1-49 (Rev. 2012). Valley joined a pretrial motion for summary judgment based on the statute of limitations, which was denied, but at trial Valley did not move for a directed verdict or request a jury instruction on this issue. Valley then re-urged the issue in its post-trial motion for JNOV or a new trial, but it did so under the heading “GROUNDS ON WHICH A NEW TRIAL IS WARRANTED.” There, Valley briefly argued that “a new trial [was] warranted” because the court- “erred .by failing to grant [its pretrial summary judgment] motion.” The manner in which, this issue was raised in the court below complicates our review on appeal..
¶43. First, we will not review the circuit court’s pretrial denial of summary judgment. Such a ruling is rendered moot and cannot be reviewéd on appeal once a case proceeds to a trial on the merits. Gibson v. Wright, 870.So.2d 1250, 1254 (¶8) (Miss.Ct.App.2004) (citing Black v. J.I. Case Co.,
¶44, When, as in this case, a circuit court has determined that a genuine factual dis
¶45. Furthermore, before the circuit court, Valley argued that it was entitled to a new trial because the court erred by denying its pretrial motion for summary judgment; however, as we have explained just above, such a pretrial ruling becomes moot once the case proceeds to trial, so it would not be grounds for a new trial. Finally, the one statute-of-limitations-related argument that Valley seems to have preserved in the trial court simply does not correspond to the issue that it seeks to raise on appeal. In the trial court, Valley raised a claim that it was entitled to a new trial based on the statute of limitations, but in this Court it argues that it is entitled to judgment as a matter of law on that ground. Despite these various procedural difficulties, we will address the merits of Valley’s argument.
¶46. In the circuit court, Valley took the position that Howard did not have silicosis or any other silica-related disease. Valley maintained that Howard suffered only from COPD, which Valley attributes to smoking, not silica. However, Valley also argues that if Howard did have a silica-related disease, then he discovered or should have discovered his injury in 2005 or no later than 2006. Accordingly, Valley argues that the statute of limitations had run before Howard filed suit on June 10, 2010. In support of this argument, Valley cites the following statement in Dr. Julian Rose’s April 2005 notes: “silicosis suspect.” Valley also cites the April 2005
¶47. Our Supreme Court has held that when medical records or tests are “suggestive” of a particular illness but a diagnosis is not made until a later date, “the determination of the time at which [a plaintiff] knew or by reasonable diligence should have known of his illness ... is a fact question which must be resolved by a jury.” Ridgway Lane & Assocs. Inc. v. Watson,
¶48. We agree with Dorothy that the evidence in this case created a genuine issue of material fact with respect to the applicability of the statute of limitations. Under Mississippi law, notes in Howard’s medical records suggesting the possibility of silicosis are insufficient to trigger the statute of limitations as a matter of law, and Dr. Julian Rose testified that he was first able to diagnose Howard with silicosis less than three years prior to the commencement of this lawsuit. Valley contends that Dr. Rose’s testimony was not credible, but his credibility was an issue for the jury to decide. See, e.g., Jackson v. Griffin,
III. The trial court’s instruction on Valley’s duty was consistent with Mississippi Supreme Court precedent.
¶49. Valley next argues that the trial court committed reversible error in instructing the jury regarding a manufacturer’s duty to warn. “The giving or refusal of jury instructions by a circuit court is reviewed under an abuse-of-discretion standard.” Howell v. Equip. Inc.,
¶50. Valley specifically objects to the following instruction given by the trial court:
Mississippi law imposes upon the manufacturer of a product the duty to warn anyone who may reasonably be expected to be in the vicinity of the product’s probable use and to be endangered by it if defective. The manufacturer’s duty to warn in Mississippi ‘ is non-delegable. Thus, the manufacturer’s warning must be reasonably calculated to reach such persons and the presence of an intermediary party will not by itself relieve the manufacturer of its duty.
Valley argues that.Mississippi law does not impose such a duty to warn “bystanders.”
¶51, However, as Dorothy points out, the trial court’s instruction accurately reflects Mississippi Supreme Court precedent on this point. In Swan v. I.P. Inc.,
Lack of an adequate warning is a defect which makes a product unreasonably dangerous for strict liability purposes. This Court has extended this duty to bystanders, holding that the duty imposed by [section] 402A [of the Restatement (Second) of Torts] “exists in favor of anyone who may reasonably be expected to be in the vicinity of the product’s probable use and to be endangered by it if it is defective.”
Id. at 852 (quoting Coca Cola Bottling Co. v. Reeves,
¶52. Valley responds by arguing that Swan is no longer good law and has been superseded by the Mississippi Products Liability Act (MPLA), Miss. Code Ann. § 11-1-63, which was originally enacted in 1993. Valley contends that the MPLA impliedly precludes recovery by a mere “bystander” because the statute consistently refers to a “user or consumer” of the product. See id. However, we read the statute’s references to users and consumers as relevant, to the question whether the product is defective—e.g., the knowledge of the product’s ordinary, users and consumers must. be taken into account, see d. §§ 11—1—63(c)(i), (c)(ii), & (e)—not as a limitation on the parties who may sue for injuries caused by defective products. The trial court gave jury instructions that were consistent with these provisions of the MPLA. Moreover, even after the enactment of the MPLA, our Supreme Court has continued to describe “[products liability” law as providing a cause of action for “bystanders” who are injured by defective-products. R.J. Reynolds Tobacco Co. v. King,
¶53. Read as a whole, the trial court’s instructions simply recognized a duty to provide a reasonable warning concerning dangers- of which the manufacturer knew or should have known to those persons “who may reasonably be expected to be in the vicinity of the product’s probable use and to be .endangered by it if defective.” Furthermore, Howard was not a mere casual “bystander” in the sense of a random passerby on an isolated occasion; rather, he worked .in close proximity to sandblast
TV. Dorothy presented sufficient evidence to sustain the verdict.
¶54. Valley next argues that it is entitled to JNOV or a new trial because on multiple issues Dorothy’s proof was insufficiént or the jury’s verdict was against the overwhelming weight of the evidence.
A. Dorothy presented sufficient evidence that Howard was exposed to Valley's sand.
¶55, Valley argues that Dorothy failed to prove that Valley supplied sand to MSIC because there was no evidence of sales from Valley to MSIC. However, Howard and Burch both testified that sand supplied by Valley and Southern Silica was used regularly in MSIC’s sandblasting .operations. The two men also identified the sandbags of those two companies. Citing Mississippi Valley Silica Co. v. Reeves,
B. Dorothy presented sufficient evidence that Howard was exposed to harmful levels of respirable silica.
¶56. Valley next argues that even if there was sufficient proof of exposure to Valley sand, there was insufficient proof that Howard was exposed to harmful levels of respirable silica. However, Dr. Steve Haber, a certified B-reader
¶57. Valley argues that this evidence was insufficient as a matter of law because some of the conditions in the study on which Dr. Rose relied may have differed from Howard’s work conditions at MSIC. For example, the precise distance between the sandblasting operations and the workers in the study is unclear. However, a plaintiff in a silica case “is not required to” “offer any direct evidence of the level of [his] exposure” and “may show an unsafe exposure or dose through circumstantial evidence, so long as that evidence is reliable.” Id. at (¶ 34). In Holmes, the Supreme Court held that the plaintiff s evidence on this issue was sufficient to survive a motion for JNOV because he “offered evidence of extremely dusty work conditions”; that he was exposed to concrete dust that contained silica, “though no one [knew] exactly]” how much; and that he “suffered] from silicosis, an injury known to be caused by silica overexposure.” Id. at (¶ 35). The Court further explained that the plaintiff “offered testimony, though not uncontroverted, that his x-rays were consistent with someone with silicosis, which, by its very definition, requires a sufficient dose of silica.” Id. at (¶ 37). Dr. Rose also testified in Holmes, and there he relied in part on a study suggesting that it was more likely than not that the plaintiffs work did not result in overexposure to silica. Id. at (¶39). However, the Supreme Court held that the study’s limitations did not defeat the plaintiffs claim because his “substantial” “circumstantial evidence” of overexposure—his “dusty work conditions ..., exposure to concrete dust on multiple occasions, his diagnosis of silicosis, etc.”—was sufficient to survive the defendant’s motion for JNOV. Id. .
¶58. Holmes is on point, as it is not meaningfully distinguishable from the present case. Like the plaintiff in Holmes, there was credible evidence that Howard’s work conditions were extremely dusty, that he was exposed to silica, and that he ultimately developed silicosis. As in Holmes, Valley raised questions about the study on which Dr. Rose relied, but given the “substantial” “circumstantial evidence” presented at trial, those questions were a matter for the jury to consider, not a ground for judgment as a matter of law or a new trial. Id. Accordingly, we conclude that the trial judge properly denied Val
C. Dorothy presented sufficient evidence that Valley breached its duty to provide adequate warnings.
¶59. Finally, Valley argues that although its sandbags contained no warning labels during the relevant period, there was insufficient evidence that it breached its duty to provide “adequate warnings or instructions.” Miss. Code Ann. § 11—1— 63(a)(i)(2). Valley primarily argues that there was no proof that it “knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought.” Id. § 11—1—63(c)(i). In Valley’s view, there was no evidence that it should have known during the 1960s that sandblasting operations could expose “bystanders” such as Howard to harmful levels of respirable silica.
¶60. In response, Dorothy first points to a letter written by Valley’s former president and part owner, Frank Bogran, which stated in part:
From 1960 to 1976, I was part owner and President of [Valley]. We were primarily engaged in the processing and sale of sandblasting sand .... During this period of time all of us in the industry were aware of the health hazards inherent in the sandblasting industry. ... Any responsible executive in this industry would have known—should have known—that many European countries had banned the use of silica sand as early as 1949 ....
Bogran wrote this letter in 1990, fourteen years after he left his employment with Valley. In deposition testimony read at trial, Bogran claimed that he did not became aware that sandblasting could cause silicosis until 1972. Dorothy also relies on the testimony of Dr. Vernon Rose, who stated that .silica exposures related to sandblasting had been a known cause of silicosis for many decades prior to Howard’s exposures in the 1960s. However, Dr. Rose admitted on cross-examination that studies he cited regarding “bystander exposure” to silica were not published until the 1970s, after Howard’s period of exposure.
¶61. On appeal, Valley maintains that the Bogran letter was an unsworn prior inconsistent statement that was admissible for impeachment purposes only, not as substantive evidence. See M.R.E. 613; Karpinsky v. Am. Nat’l Ins.,
¶62. Regardless of the evidentiary status of the Bogran letter, we conclude that there was sufficient evidence for a jury to find that, between 1960 and 1970, Valley “knew or in- light of reasonably available knowledge should have known about the danger” inherent in the use of silica in sandblasting operations, even as it related to a so-called bystander such as Howard. Miss. Code Ann. § 11—1—63(c)(i). Valley’s argument seems to be that while perhaps it knew enough to have had a duty to warn persons who were directly engaged in sandblasting, it did not know enough to warn persons such as Howard, who merely worked in close proximity to sandblasting operations. However, we cannot conclude that this fine distinction can serve to limit Valley’s duty as a matter of law. We reiterate that Howard was not a “bystander” in the sense of a random passerby. He worked close enough to the sandblasting that his working conditions were extremely dusty and he “ate a lot of sand.” Given that there was sufficient evidence that Valley was aware of a relationship between sandblasting and silicosis, we conclude that there was sufficient evidence for a jury to find that Valley knew or should have known that silica was a danger to persons working in such close proximity to sandblasting.
V. The trial court did not err by submitting the issue of punitive damages to the jury.
¶63. “[PJunitive damages • are not favored in the law and are to be allowed only with caution and within narrow limits,” i.e., “only in extreme cases.” Tideway Oil Programs Inc. v. Serio,
¶64. Based on the evidence already discussed, we conclude that the trial court did not err in submitting the issue of punitive damages to the jury. As noted in the preceding section, the jury heard evidence that Valley placed no warning on its sandbags even though silicosis had been a known danger of sandblasting for decades. Thus, this was not a case in which a defendant provided some warning that was ultimately deemed inadequate. Rather, the evidence permitted an inference that Valley did nothing at all to warn of a known and deadly risk. Viewing the evidence in the light most favorable to Dorothy, see Stewart v. Gulf Guar. Life Ins.,
¶65. Valley next argues that punitive damages cannot be awarded against it because it has a net worth of zero. In support of this argument, Valley introduced into evidence the liquidation plan and the final decree from its federal bankruptcy proceeding. Valley relies on Mississippi Code Annotated section 11—1— 65(3)(a)(vi), which provides that for a defendant with a net worth of less than fifty million dollars, “no award of punitive damages shall exceed .... [t]wo percent ... of the defendant’s net worth.”
¶66. In response, Dorothy argues that Valley’s net worth is not really zero because “Valley has massive assets in the form of multiple insurance policies.” However, the defendant’s net worth must “be determined in accordance with Generally Accepted Accounting Principles” (GAAP), Miss. Code Ann. § 11—1—65(3)(b), and Dorothy presented no evidence that insurance policies are treated as assets under GAAP. See In re Miss. Medicaid Pharm. Average Wholesale Price Litig.,
¶67. Based on its net worth of zero, Valley argues that punitive damages cannot be awarded against it because two percent of zero is zero. However, the Mississippi Supreme Court previously reached a different conclusion. In Canadian National Railway Co. v. Wattman,
merely establishes that net worth is considered'—not that it is solely considered—in determining the amount of punitive damages, and.it is used to calculate the statutory cap for - punitive damages. We do not see how a statutory cap based on net worth suggests that there is a minimum net worth, such as zero, that will “cut off”, the award of punitive damages. Hence, [a company] potentially could be liable for punitive damages, even if it were determined that the company presently has a negative net value.
Id. at 1119 (¶ 22) (emphasis added).
¶68. Valley argues that “with all due deference to the ■ Mississippi Supreme Court, Wattman’s consideration of the statutory cap on punitive damages was pure dicta” because “[t]he issue before the Court was. personal jurisdiction, as opposed .to any damage award.” While it is true that the Supreme Court did not apply the punitive damages cap in Wattman, its interpretation of the statute was part of its analysis of whether, the plaintiffs’ allegations were sufficient to justify piercing the corporate veil and to establish a prima facie case of personal jurisdiction. See id. at 1119-20 (¶¶ 22-24). Exactly how significant the point was to the Court’s analysis is unclear, but we do not believe that its .interpretation of the punitive damages statute can be dismissed as mere “dicta.”
¶69. Although neither party cited the case, we note that only three months after Wattman handed down, the Supreme Court applied the punitive damages cap in a case in which the circuit court found that the defendant had a net worth of zero. See Coleman & Coleman Enters. Inc. v. Waller Funeral Home,
¶70. Valley’s argument that the punitive award must be reduced to $0 is consistent with the language of the punitive damages statute. However, we are bound to follow Mississippi Supreme Court precedent. Accordingly, under Wattman, we conclude that the trial court did not err by denying Valley’s motion to reduce the punitive award to $0.
VIL The Mai court correctly applied the apportionment statute and the noneconomic damages cap.
¶71. As noted above, the jury found total economic damages of $165,615.73; noneconomic damages of $1,034,384.27; and damages for loss of consortium of $500,000. The jury also assigned thirty-five percent fault to Valley. Based on these findings, the trial court entered judgment for Dorothy for economic damages of $57,965.51; noneconomic damages of $362,034.49; and damages for loss of consortium of $175,000. See Miss. Code Atm. § 85-5-7(2) (Rev. 2011). The trial court concluded that the statute capping noneconomic damages at $1,000,000, see Miss. Code Ann. § ll-l-60(2)(b), did not require a further reduction because the judgment awarded Dorothy noneconomic damages, including for loss of consortium, of only $537,034.49.
¶72. Valley argues that the trial court applied the relevant statutes in the wrong order. Valley believes that the court first should have applied the $1,000,000 cap on noneconomic damages and then reduced that amount based on Valley’s percentage of fault. Had the trial court done so, Valley would have been liable for a total of only $350,000 in noneconomic damages. This is an issue of statutory interpretation, which we review de novo. Conrod v. Holder,
¶73. Section ll-l-60(2)(b) provides that “in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.” The statute further provides that “[i]t is the intent of this section to limit all non-economic damages to the above.” Id. Section 85-5-7(2) provides that “the liability for damages caused by two (2) or more persons shall be several only, and not joint
¶74. First, as to section ll-l-60(2)(b), the judgment does “not award the plaintiff more than One Million Dollars ... for noneconomic damages.” In its verdict, the jury found that Howard/Dorothy had suffered noneconomic damages in excess of $1,000,000, but a jury’s finding is not the same thing as an “award.” See Tucker v. Marcus,
¶75. The trial court’s judgment also complies with section 85-5-7(2) because it holds Valley liable for precisely thirty-five percent of the total noneconomic damages found by the jury. Miss. Code Ann. § 85-5-7(2). Accordingly, pursuant to the judgment, Valley is “liable only for the amount of damages allocated to [it] in direct proportion to [its] percentage of fault.” Id.
¶76. For the above reasons, we conclude that the trial court properly applied both section ll-l-60(2)(b) and section 85-5-7(2) and that no further reduction in the judgment was required.
VIII. The award of attorneys’ fees must be vacated and remanded for a determination based on appropriate findings of fact and conclusions of law.
¶77. “Where punitive damages are awarded by the jury, attorneys’ fees are justified.” Miss. Power & Light Co. v. Cook,
¶78. “The fixing of reasonable attorneys’ fees is a matter ordinarily within the sound discretion of the trial court[.]” Id. at (¶ 39) (quoting Gilchrist Tractor Co. v. Stribling,
¶79. In the court below, Dorothy initially requested an unspecified amount of attorneys’ fees. It appears that Dorothy subsequently supplemented her motion by providing detailed records of her attorneys’ time to the trial judge for in camera review. Dorothy’s supplement apparently requested $212,312,50 in fees. .However, the supplement does not appear to have been filed with the court, and it is not a part of the record on appeal. Valley filed an amended response in opposition to Dorothy’s request for attorneys’ fees and raised various objections to the requested amount. The trial court subsequently granted Dorothy’s motion for attorneys’ fees' in an order that simply stated as follows:
THIS CAUSE having come on to be heard on Plaintiffs Motion for Award of Costs, Attorneys’ Fees, and Other Relief. The Court, having reviewed the , pleadings and arguments of the parties, and. being otherwise .advised in the premises, finds that the motion is well taken and should be granted. The Court finds that $212,312.50 is reasonable in relation to the results obtained in this case.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs Motion for Award of Costs and Attorneys’ Fees is. Granted in the amount of $212,312.50 plus an interest rate of 8% per annum until fully paid.
The trial court made no further findings concerning the reasonableness of the fee or Valley’s objections.
¶80, The trial court’s one-page order would be insufficient to justify an award of attorneys’ fees of this, magnitude, even if the record contained counsel’s time records, which it does not. Our Supreme Court has expressly mandated that a trial court’s determination of reasonable attorneys’ fees must “consider the eight factors, enumerated in Rule 1.5 of the Rules of Professional Conduct.” BellSouth Pers. Commc’ns LLC v. Bd. of. Supervisors of Hinds Cty.,
CONCLUSION
■ ¶81. For the foregoing reasons, we affirm the November 28, 2012 judgment of the circuit court in all respects. We vacate and remand for further proceedings consistent with this opinion only with respect to the February 27, 2014 order granting attorneys’ fees.
¶82. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED IN PART AND VACATED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
Notes
. This amount consisted of thirty-five percent of the $1,700,000 in total compensatory damages found by the jury plus the $500,000 award of punitive damages.
. See Glenn v. Peoples,
. The completed verdict form returned by the jury suggests that the jury may have experienced some indecision in answering Question 2. The jury appears to have checked both ■ "Yes” and "No” before finally settling on "No.”
. The jury was instructed: " ‘Noneconomic damages’ mean[s] subjective, nonmonetary damages arising from pain, suffering, mental anguish, emotional distress, .physical impairment, loss of the enjoyment of loss [sic], loss of consortium, and other nonmonetary damages. The term ‘noneconomic damages’ does not include punitive damages.”
.See Laney v. Vance,
. Even if Valley had preserved this issue, the appropriate relief would not be to reverse and render judgment in Valley’s favor, as Valley argues on appeal. When a special verdict con
. As discussed in the previous section, the juiy actually found that Valley’s wrongful conduct was a proximate cause of Howard's death, However, the discussion in this section accepts, solely for purposes of argument, Vál-ley's contention that the jury found otherwise,
. "[Wjith the exception of slight changes or deletions, Rule 17(a) of-the Mississippi Rules of Civil Procedure tracks the language from Rule 17(a) of the federal rules.” Kirk,
. Miss. Code Ann. § 91-7-233 (Rev. 2013).
. See Richardson II,
. This Court’s opinion in England describes the better procedure for pursuing wrongful death and survival damages in a case such as this, but Richardson II indicates that a plaintiff's failure to follow that procedure does not
. There is no bar to a post-judgment substitution under Rule 17(a). Such "post-judgment ratifications have been 'deemed valid by [the ' Mississippi Supreme Court] and other courts.” Kirk,
. In federal court, in contrast, "[a] motion under Rule 50(b) is not allowed unless the movant sought relief on similar grounds under Rule 50(a) before the case was submitted to the jury.” Exxon Shipping Co. v. Baker,
. If we view the issue as whether Valley was entitled to JNOV, then we “consider the evidence in light most favorable to [Dorothy], giving [her] the benefit of all favorable inference[s] that may be reasonably drawn from the evidence,” and we will reverse only if "the facts so considered point so overwhelmingly in favor of [Valley] that reasonable men could not have [returned] a .,. verdict” for Dorothy. Coho Res. Inc. v. Chapman,
. For the applicable standards of review, see supra n.14.
, “A B-reader is a doctor certified by [the National Institute for Occupational Health and Safely (NIOSH) ] to identify the presence
. Valley also argues that it owed no duty at all to "bystanders.” We have addressed this argument in Part III, supra.
, At trial, plaintiff's counsel argued that a different letter written by Bogran was admissible as a statement against interest. See M.R.E. 804(b)(3). However, counsel ultimately withdrew his request to introduce that letter into evidence, and it was marked for identification only.
. Valley also makes a cursory argument that the punitive award should be reversed and rendered because it does not serve the purpose of punitive damages. "[T]he primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others .... ” Miss. Code Ann. § 11—1—65(l)(e); see also Tideway Oil,
. A federal district judge similarly held that our comparative negligence statute, Miss. Code Ann. § 11-7-15 (Rev. 2004), should be applied before the statutory cap on noneco-nomic damages, rather than vice versa. See Graves ex rel. W.A.G. v. Toyota Motor Corp., No. 2:09CV169KS-MTP,
Dissenting Opinion
DISSENTING:
¶83. With respect to the majority,' I must dissent on the issue of Dorothy’s standing. After Barnett’s passing, Dorothy pursued Barnett’s claims under the wrongful-death statute. The wrongful-death statute provides for a decedent’s statutory heirs to recover “all the damages of every kind to the decedent ... [including] property damages and funeral, medical, or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty.” In re Estate of England,
¶84. Certain recoverable damages not specifically-allotted by the wrongful-death statuté are attainable through. Mississippi’s survival statute, which “allows an estate administrator to commence and prosecute any personal action which the decedent might have commenced and prosecuted ... [and] [a]ny recovery from such action becomes an asset of the estate ....” Id. at 1068 (¶ 21) (citing Miss. Code Ann. § 91-7-233 (Rev. 1994); Miss. Code Ann. § 91-7-91 (Rev. 1994)).
¶85. Furthermore, the wrongful-death statute recognizes the “one-suit rule,” mandating that only one suit shall be commenced for recovery of damages for the decedent. Estate of England,
¶86, In the present ease, Barnett instituted the action himself at the commencement of the suit. However, upon his death, Dorothy filed an amended complaint wherein she substituted herself in his place to pursue wrongful-death damages. An estate was never opened. Hence, it goes without saying that neither Dorothy nor any other party was ever an administrator or executor of Barnett’s estate. By way of the amended complaint, Dorothy’s only capacity for recovery became by and through the wrongful-death statute. As such, Dorothy was not entitled to recoup any hypo
¶87. At the close of the trial, the jury determined that it could not attribute Barnett’s death to silicosis either by cause or by contribution. Accordingly, while Dorothy had standing to recover wrongful-death damages, she was not awarded any. The jury only awarded survival damages. Since an estate was never opened for Barnett, there was not a party to the action with standing to recover the survival damages awarded. As such, I am of the opinion that we are without authority to dispose of this case in any way but to reverse and render the judgment as void since no one and no entity possessed the proper standing to recover the survival damages awarded.
CARLTON, J., JOINS THIS OPINION.
, The applicable version of the wrongful-death statute for this case was updated in 2004. Nonetheless, the language from the 2002 version of the statute as cited in Estate of England is identical to the 2004 version save for the addition of the phrase “or of any unborn quick child” to the list of persons for whom heirs may recover damages. All refer» enees made to die statute in Estate of England remain viable for this analysis,
. The language used in sections 91-7-233 and 91-7-91 remains untouched at present. Hence, the supreme court’s references to boA . statutes in Estate of England,ave also applicable to the instant case.