ORDER

W. EARL BRITT, Senior District Judge.

This matter is before the court on John Crane, Incorporated's ("John Crane" or "defendant") motion for judgment as a matter of law ("JMOL"). (DE # 461.) Faye Gore ("plaintiff"), individually, and as executrix of the estate of Wade Miller Gore ("Gore"), responded in opposition. (DE # 465.) Thereafter, defendant filed a reply. (DE # 468.) The motion has been fully briefed and is ripe for disposition.

I. BACKGROUND

On 9 June 2015, plaintiff and Gore filed a complaint in the United States District Court for the Middle District of North Carolina. (DE # 1.) The complaint contends Gore was exposed to asbestos-containing products while employed at the Dupont Plant in Leland, North Carolina. (Id. ¶¶ 19, 20.) On 1 August 2016, the action was transferred to this district. (DE # 138.) On 26 September 2016, plaintiff, as the executrix of Gore's estate, amended the complaint to allege wrongful death under N.C. Gen. Stat. § 28a-18-1 et seq. (DE # 160.)

The matter went to trial on 16 September 2019. At the end of plaintiff's case-in-chief, on 20 September 2019, defendant moved for JMOL pursuant to Federal Rule of Civil Procedure 50(a), (DE # 439), which the court denied. Five days later, at the end of defendant's case-in-chief, defendant renewed its motion, which, again, the court denied. Later that day, the court heard closing arguments and instructed the jury on the applicable law. The verdict form required the jury to answer three separate issues. (DE # 443.) The first issue read, "Was Mr. Gore injured by the negligence of the defendant?" (Id. at 11.) The second issue read, "Did the defendant unreasonably fail to provide an adequate warning or instruction with the asbestos-containing gaskets and/or packing products proximately causing Mr. Gore's injury?" (Id. at 14.) The third issue, which the jury would consider if it answered issue one or two "Yes," read, "What amount is the estate of Mr. Gore entitled to recover for wrongful death?" (Id. at 17.) The jury began deliberations immediately following the charge.

The next day, 26 September 2019, the jury, by note, indicated deadlock. (Trans., DE # 463, at 3; see id. at 6 ("There are definite divides. How long do we deliberate before a declaration of a hung jury?").) The court issued an "Allen Charge" and instructed the jury to retire to the jury room to continue deliberations. (Id. at 9.) The following afternoon, the jury, by note, indicated that it had reached a unanimous decision on one issue but remained deadlocked "[o]n the other issue." (Trans., DE # 464, at 4.) Defendant orally moved for a mistrial. (Id.) The court inquired of the foreperson as to which issue had been resolved, learning that the jury had answered "No" to the first issue, negligence, and deadlocked as to the second issue, failure-to-warn. (Id. at 9; see also DE # 454.) The jury did not reach the third issue, damages. (Trans., DE # 464, at 8.) The court accepted the jury's verdict as to issue one and declared a mistrial as to issue two. (Id. at 10.)

On 25 October 2019, defendant filed a renewed motion for JMOL. (DE # 461.) Defendant moves for JMOL pursuant to Rule 50(b) based on the doctrines of collateral estoppel and the law-of-the-case. (Mem. Supp. Mot. JMOL, DE # 462, at 1.) Defendant contends plaintiff's failure-to-warn claim is "a subspecies of negligence" and retrial of such a "negligence-base[d] claim" is barred by the jury's decision on the negligence claim. (Id. at 4.)

II. STANDARD OF REVIEW

Rule 50(b)[] sets forth the requirements for challenging the sufficiency of the evidence after the jury verdict and entry of judgment:

Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 155 (4th Cir. 2012), as amended (May 9, 2012). "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, 554 U.S. 471, 486 n.5 (2008). "In considering a challenge based on a lack of specificity in the Rule 50(a) motion, we remain mindful that the Federal Rules are to be construed liberally, and consider whether the motion provides the court and the nonmoving party sufficient notice of any alleged deficiencies in evidence."1 Liberty Mut. Fire Ins. Co. v. JT Walker Indus., Inc., 554 F. App'x 176, 185 (4th Cir. 2014).

III. DISCUSSION

Defendant first moves for JMOL based on the doctrine of collateral estoppel. Under North Carolina law,2 there is a three-pronged test for defendants to successfully invoke collateral estoppel:

Shehan v. Gaston Cty., 661 S.E.2d 300, 303 (N.C. Ct. App. 2008) (alternations in original).

"Under the doctrine of collateral estoppel, when an issue has been fully litigated and decided, it cannot be contested again between the same parties." Fox v. Johnson, 777 S.E.2d 314, 323 (N.C. Ct. App. 2015) (internal quotation marks and citation omitted); accord Williams v. Peabody, 719 S.E.2d 88, 93 (N.C. Ct. App. 2011) (for purposes of collateral estoppel, for an issue to be actually litigated it must "be in fact determined"). The moving party must "show with clarity and certainty what was determined by the prior judgment." Fox, 777 S.E.2d at 323.

Here, defendant contends that plaintiff is collaterally estopped from maintaining its failure-to-warn claim because the parties are the same, the jury verdict's was a final judgment, and two elements of the failure-to-warn claim—negligent conduct and proximate cause—were decided by the jury in its verdict on negligence.3 (Mem. Supp. Mot. JMOL, DE # 462, at 8, 10-11.) Plaintiff does not dispute that the first and third prongs of collateral estoppel are satisfied. (Resp. Opp'n, DE # 465, at 3-5.) Thus, only the second prong is contested: whether the issues in question—negligent conduct and proximate cause in the failure-to-warn context—are identical and necessary to the jury's finding of no negligence.

In determining this prong, the court should consider the following criteria:

King v. Grindstaff, 200 S.E.2d 799, 806 (N.C. 1973); accord Saimplice v. Ocwen Loan Servicing Inc., 368 F.Supp.3d 858, 865 (E.D.N.C. 2019); State v. Summers, 528 S.E.2d 17, 20 (N.C. 2000). "[C]ourts should examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from [additional] consideration." Yeager v. United States, 557 U.S. 110, 119-20 (2009) (internal citation and quotation marks omitted). "To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide." Id. at 122 (finding that a court may not use the fact that a jury hung as indicative that an issue was not decided in an issue-preclusion analysis). Jurors are presumed to follow the instructions as given. See Richardson v. Marsh, 481 U.S. 200, 206 (1987). Thus, "although no specific finding may have been made in reference thereto[, i]f the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties." Craver v. Spaugh, 41 S.E.2d 82, 84 (N.C. 1947).

While the instructions for the two claims may be similar,4 in determining defendant was not negligent, the jury did not necessarily decide that defendant had a duty to warn, nor did it decide that defendant in fact breached that specific duty.

On the negligence claim, the court instructed the jury, in relevant part:

(DE # 443, at 11.) In contrast, for the failure-to-warn claim, the jury must consider whether "the defendant failed to provide an adequate warning or instruction" and whether that failure was unreasonable. (Id. at 14.) As to the latter, the court instructed the jury: "Failure to provide an adequate warning or instruction is unreasonable if a reasonable and prudent manufacturer or seller, acting under the same or similar circumstances, would have provided an adequate warning or instruction." (Id.)

When determining the negligence issue, the jury determined only that defendant did not breach its duty to use ordinary care to protect people from injury. (See DE # 443, at 11; DE # 454, at 1.) A rational jury could have made this determination in any number of ways, for example, by finding that in exercising ordinary care defendant was not required to replace asbestos-containing products with non-asbestos containing products. The duty of care instruction on the negligence issue did not obligate the jury to consider whether defendant had a duty to provide a warning or instruction regarding its products, or whether, based on the industry-standard, it failed to do so.

Additionally, while the jury instructions on negligence and failure-to-warn do use the same definition for "ordinary care," the context is entirely different. The negligence instruction informs the jury that all companies are "under a duty to use ordinary care to protect others from injury." (DE # 443, at 11.) Thus, the negligence instruction affirmatively identifies the duty and the jury is left to decide whether this duty was breached. Duty in the failure-to-warn context is addressed in the third element of that claim. (Id. at 14.) "Ordinary care" is consciously absent from that element. In the fourth element of the failure-to-warn claim, where "ordinary care" is used, the jury considers whether a company "in the exercise of ordinary care should have known" of a risk of harm. (Id. at 14-15.) This is wholly distinct from its use in the negligence instruction. By deciding that defendant was not negligent, the jury did not necessarily decide that defendant did not unreasonably fail to provide adequate warning or instruction.

The jury's finding of no negligence does not bar the retiral of the failure-to-warn claim, and the doctrine of collateral estoppel does not apply. For the same reasons, defendant's alternative argument based on the law-of-the-case doctrine is without merit. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (finding the law-of-the-case doctrine discretionary as it "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power") (citing Messinger v. Anderson, 225 U.S. 436, 444 (1912)). Defendant's motion for JMOL is DENIED.