Case Notes

The Supreme Court held that these mental anguish damages were recoverable. The trial judge had correctly charged the jury that an asbestosis claimant could recover for a reasonable fear of cancer stemming from his present disease as part of the damages for asbestos-related pain and suffering. The Court stated that this case was within the category of claims for emotional distress brought on by a physical injury.

The Court rejected Norfolk's argument that alleged fears of cancer are too remote, saying that the claimants sought damages for their current injury, not their increased risk of future cancer. Given the acknowledgment by Norfolk's expert that the employees were put at heightened risk for asbestos-related lung cancer, and the testimony of the claimants' expert that 10% of the asbestosis sufferers have died of mesothelioma, the Court found there was good cause for increased apprehension of their vulnerability to cancer.

Noting that Norfolk sought to exclude cancer-fear damages altogether rather than forcing the claimants to prove that their alleged fears were genuine and serious, the Court restricted the ability to seek compensation for fear of cancer to those who could survive a sufficiency-of-the-evidence objection.

State Law: Seat Belt Evidence Not Prohibited

State law does not prohibit the admission of evidence of the use or non-use of seat belts in a product liability suit against a car manufacturer. Clark v. Mazda Motor Corp., No. 97,514, Okla.Sup.Ct., March 4, 2003.

Stephanie Clark was involved in a multi-vehicle accident when her 1989 Mazda crossed the median, involving her in four collisions. The last collision ejected her from her seat; amputating her lower arm, and causing paralysis. Although the safety restraint system in the car included a shoulder belt and lap belt, the plaintiff was wearing only her shoulder restraint at the time of the collisions.

She sued Mazda, alleging a defective seat back and/or seat belt design, calling into question the restraint system in the car. Mazda claimed her failure to use the lap belt caused her ejection and sought to offer evidence that the design was not defective and she would not have been ejected if she had worn the lap belt. The question certified to the Oklahoma Supreme Court was whether the Mandatory Seat Belt Act, which prohibits the submission into evidence in any civil suit the use or non-use of seat belts, barred the admission of evidence of the use or non-use of seat belts in a manufacturer's products liability crashworthiness case. The court answered the question by reviewing a recent case where it concluded that the purpose of the Mandatory Seat Belt Act was to protect persons in civil lawsuits from suggestions of fault, but did not foreclose the introduction of evidence regarding the automobile's design.

The court concluded that limiting the evidence of seat belt use to product liability actions in which the car seat's restraint system is at issue would protect plaintiffs from car manufacturers claims that seat belts are”safety components.” It noted that the plaintiff's use or non-use was not at issue and ruled that the evidence was admissible.

Destruction of evidence did not warrant dismissal where the destruction was unintentional and in the absence of prejudice to the opposing party.

Car Involved in Lawsuit Accidentally Scrapped

Jill Klein's Ford Explorer overturned, causing her serious injuries, and she sued Ford Motor Co. Klein v. Ford Motor Co., 2002-08723, N.Y.App.Div., March 3, 2003.The vehicle was made available for inspection prior to commencement of the action and a Ford engineer took approximately 300 pictures of it. After filing suit, Klein requested permission to sell the vehicle, in part due to mounting storage fees. The court denied the motion and ordered the automobile to remain in storage, but the storage facility inadvertently scrapped the car. Ford moved to dismiss the complaint on the grounds that the destruction of the car was in violation of the court's order. The court dismissed the case, emphasizing the apparent violation of its order.

Klein appealed, and the appellate court examined the common-law doctrine of spoilation on which Ford's motion was based in part. The doctrine holds that a party that destroys essential physical evidence to the prejudice of its opponents may be sanctioned by the striking of its pleadings. The court noted, however, that if the evidence is not central to the case or if its destruction is not prejudicial, a lesser sanction ' or no sanction ' may be appropriate. The appellate court found that Ford had not demonstrated sufficient prejudice to justify dismissal as a result of the destruction of the vehicle. Klein's only theory for recovery was the allegedly negligent design of the car ' its high center of gravity that caused it to roll over. The court acknowledged that “the best proof of a defective product is the product itself,” but concluded that circumstantial evidence was sufficient to establish the product defect and the identity of the manufacturer. Significantly, the court observed that ” … in cases of alleged design defects, there is growing recognition that the loss of the specific instrumentality that allegedly caused the plaintiff's injuries is not automatically prejudicial to the manufacturer thereof because the defect will be exhibited by other products of the same design.” The appellate court, therefore, held that dismissal was unwarranted, especially in the absence of a showing that the plaintiff had intentionally disobeyed the court order.

Plaintiffs May Recover Damages for Mental Anguish

Plaintiffs in product liability suits under the Federal Employers Liability Act (FELA) may recover damages for mental anguish resulting from the fear of developing cancer. Norfolk & Western Railway Co., v. Ayers, No. 01-963, U.S. S. Ct., March 10, 2003.

Six former employees of Norfolk & Western Railway Co. (Norfolk) sued Norfolk under the FELA, claiming that it had negligently exposed them to asbestos and caused them to contract asbestosis. The plaintiffs sought damages for mental anguish based on their fear of developing cancer. The Circuit Court of West Virginia instructed the jury that the plaintiffs were entitled to such damages and the jury returned a verdict awarding damages to each plaintiff. The West Virginia Supreme Court denied discretionary review, but the U.S. Supreme granted certiorari.

The Supreme Court held that these mental anguish damages were recoverable. The trial judge had correctly charged the jury that an asbestosis claimant could recover for a reasonable fear of cancer stemming from his present disease as part of the damages for asbestos-related pain and suffering. The Court stated that this case was within the category of claims for emotional distress brought on by a physical injury.

The Court rejected Norfolk's argument that alleged fears of cancer are too remote, saying that the claimants sought damages for their current injury, not their increased risk of future cancer. Given the acknowledgment by Norfolk's expert that the employees were put at heightened risk for asbestos-related lung cancer, and the testimony of the claimants' expert that 10% of the asbestosis sufferers have died of mesothelioma, the Court found there was good cause for increased apprehension of their vulnerability to cancer.

Noting that Norfolk sought to exclude cancer-fear damages altogether rather than forcing the claimants to prove that their alleged fears were genuine and serious, the Court restricted the ability to seek compensation for fear of cancer to those who could survive a sufficiency-of-the-evidence objection.

State Law: Seat Belt Evidence Not Prohibited

State law does not prohibit the admission of evidence of the use or non-use of seat belts in a product liability suit against a car manufacturer. Clark v. Mazda Motor Corp., No. 97,514, Okla.Sup.Ct., March 4, 2003.

Stephanie Clark was involved in a multi-vehicle accident when her 1989 Mazda crossed the median, involving her in four collisions. The last collision ejected her from her seat; amputating her lower arm, and causing paralysis. Although the safety restraint system in the car included a shoulder belt and lap belt, the plaintiff was wearing only her shoulder restraint at the time of the collisions.

She sued Mazda, alleging a defective seat back and/or seat belt design, calling into question the restraint system in the car. Mazda claimed her failure to use the lap belt caused her ejection and sought to offer evidence that the design was not defective and she would not have been ejected if she had worn the lap belt. The question certified to the Oklahoma Supreme Court was whether the Mandatory Seat Belt Act, which prohibits the submission into evidence in any civil suit the use or non-use of seat belts, barred the admission of evidence of the use or non-use of seat belts in a manufacturer's products liability crashworthiness case. The court answered the question by reviewing a recent case where it concluded that the purpose of the Mandatory Seat Belt Act was to protect persons in civil lawsuits from suggestions of fault, but did not foreclose the introduction of evidence regarding the automobile's design.

The court concluded that limiting the evidence of seat belt use to product liability actions in which the car seat's restraint system is at issue would protect plaintiffs from car manufacturers claims that seat belts are”safety components.” It noted that the plaintiff's use or non-use was not at issue and ruled that the evidence was admissible.

Destruction of evidence did not warrant dismissal where the destruction was unintentional and in the absence of prejudice to the opposing party.

Car Involved in Lawsuit Accidentally Scrapped

Jill Klein's Ford Explorer overturned, causing her serious injuries, and she sued Ford Motor Co. Klein v. Ford Motor Co., 2002-08723, N.Y.App.Div., March 3, 2003.The vehicle was made available for inspection prior to commencement of the action and a Ford engineer took approximately 300 pictures of it. After filing suit, Klein requested permission to sell the vehicle, in part due to mounting storage fees. The court denied the motion and ordered the automobile to remain in storage, but the storage facility inadvertently scrapped the car. Ford moved to dismiss the complaint on the grounds that the destruction of the car was in violation of the court's order. The court dismissed the case, emphasizing the apparent violation of its order.

Klein appealed, and the appellate court examined the common-law doctrine of spoilation on which Ford's motion was based in part. The doctrine holds that a party that destroys essential physical evidence to the prejudice of its opponents may be sanctioned by the striking of its pleadings. The court noted, however, that if the evidence is not central to the case or if its destruction is not prejudicial, a lesser sanction ' or no sanction ' may be appropriate. The appellate court found that Ford had not demonstrated sufficient prejudice to justify dismissal as a result of the destruction of the vehicle. Klein's only theory for recovery was the allegedly negligent design of the car ' its high center of gravity that caused it to roll over. The court acknowledged that “the best proof of a defective product is the product itself,” but concluded that circumstantial evidence was sufficient to establish the product defect and the identity of the manufacturer. Significantly, the court observed that ” … in cases of alleged design defects, there is growing recognition that the loss of the specific instrumentality that allegedly caused the plaintiff's injuries is not automatically prejudicial to the manufacturer thereof because the defect will be exhibited by other products of the same design.” The appellate court, therefore, held that dismissal was unwarranted, especially in the absence of a showing that the plaintiff had intentionally disobeyed the court order.