COLEMAN, Justice, for the Court:
¶ 1. The instant case arises from a jury verdict awarding Mrs. Elsie Smith and
¶ 2. Larry Smith worked on various drilling rigs from the mid-1960s until the early 1990s. At the time, it was commonplace in the industry to use various chemical drilling additives that contained asbestos. Larry indisputably was a heavy smoker, smoking roughly two to three packs a day from at least the mid-1950s through at least 1986. He was diagnosed with lung cancer in August 2002 and died three months later.
¶ 3. On March 15, 2006, Elsie Smith's and Larry's heirs filed a wrongful death action against Union Carbide Corporation ("UCC"); Dow Chemical Company; Montello, Inc. ("Montello"); Chevron Phillips Chemical Co. ("CPChem"); Baker Hughes; and Mississippi Mud, Inc., alleging that the negligent actions of the defendant led to their products causing Larry's death. The claims against Dow Chemical were later dismissed as a result of a joint motion filed with the court. Mississippi Mud, Inc., later became part of Baker Hughes, and Baker Hughes settled before trial. Bringing a claim for strict liability under a products liability design defect theory, the plaintiffs asserted that Larry's exposure to asbestos while working on various oil rigs over the years caused him to develop lung cancer. The products Visbestos and Super Visbestos were made with asbestos supplied by UCC and distributed by Montello. Montello also distributed Shurlift. Flosal and Visquick were the asbestos products of CPChem. Both CPChem and UCC supplied asbestos for IMCO Best, Superbest, and Shurlift.
¶ 4. At trial, four former coworkers of Larry's testified concerning his exposure to asbestos. One of the coworkers, Howard Case, who had worked with Larry at various drill sites, could identify the appellees' products as those he had used at various rigs but admitted that he could not place a specific product with a specific rig at a given time. Case testified that he had worked with Smith at Barnwell in 1966, Reading & Bates in 1967-68, Big Chief Drilling in 1972, Helmerich & Payne in 1973-74, and Delta Drilling in 1976. He could not specify the exact extent to which Smith had used the asbestos viscosifiers, but he did state that Smith had used Flosal at Barnwell and Reading & Bates; Flosal, Visbestos, and Super Visbestos at Big Chief and Helmerich & Payne; and Visquick at Delta Drilling. A second coworker, Billy Jack Graves, identified five separate products of the appellees as being present at Rig 56, where he had worked with Larry for three months: Visbestos, Shurlift, Flosal, Superbest, and Visquick. He also stated that he had seen Larry work regularly with those products on that specific rig. A third coworker, Denver Anding, testified that Larry had worked with Flosal while they had worked different
¶ 5. After a three-week trial in May 2009, the jury returned a verdict in favor of the plaintiffs and assessed total damages of $3,856,346.17. The jury found CPChem to be 35% at fault, Montello 10%, UCC 35%, and Larry's smoking 20%. Before sending the case to the jury, the defendants moved for a directed verdict, which the trial court denied. CPChem previously had made motions for summary judgment and directed verdict, but the court had withheld judgment on the motions. CPChem later was joined in the motions by the other defendants. After the verdict, the defendants subsequently filed motions for JNOV and for a new trial. On January 26, 2010, the court granted the JNOV for the sole reason that, in the court's opinion, the plaintiffs had not meet the "burden of causation" because they had failed to establish that Larry had been exposed to a specific product on a frequent and regular basis in proximity to where he worked. Plaintiffs timely appealed.
¶ 6. A motion for JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994).
3M Co. v. Johnson, 895 So.2d 151, 160-61 (¶ 31) (Miss.2005) (quoting Jesco, Inc. v. Whitehead, 451 So.2d 706, 713-14 (Miss. 1984)). The Court reviews a trial court's grant of a JNOV de novo. Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 64 (¶ 24) (Miss.2004).
¶ 7. The issue presented by the plaintiffs is whether the circuit court erred by granting the appellees' motion for JNOV based on the court's determination that the plaintiffs had failed to pass the frequency, regularity, and proximity test. To answer, we must determine whether the trial court erred in analyzing the plaintiffs' claim under the de minimis "frequency, regularity, and proximity" test in determining whether or not to grant the motion for JNOV.
¶ 8. The defendant companies argue that the circuit court correctly granted JNOV because the plaintiffs failed to satisfy the "frequency, regularity, and proximity" test first established in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), and adopted by the Court in Gorman-Rupp Co. v. Hall, 908 So.2d 749 (Miss.2005). In fact, they relied upon the "frequency, regularity, and proximity" test in their motion for JNOV, and indeed we have written, "[W]e again hold that in asbestos litigation cases, the frequency, regularity, and proximity test is the proper standard in determining exposure and proximate cause" in the context of a motion for summary judgment or directed verdict. Monsanto Co. v. Hall, 912 So.2d 134, 137 (¶ 8) (Miss.2005). As stated in Gorman-Rupp Co.,
Gorman-Rupp Co., 908 So.2d at 756 (¶ 21) (quoting Chavers v. Gen. Motors Corp., 349 Ark. 550, 562, 79 S.W.3d 361, 369 (2002)). The Court expressly added product identification to the test in Monsanto Co., 912 So.2d at 137 (¶ 8).
¶ 9. The case sub judice evidences confusion regarding the applicability of the "frequency, regularity, and proximity" test.
Lohrmann, 782 F.2d at 1163. "The Lohrmann court further noted that such a rule was in effect a de minimis rule in that a plaintiff is required to prove more than a casual or minimal contact with the product." Gorman-Rupp Co., 908 So.2d at 756 (¶ 22). In Gorman-Rupp Co., the Court was asked to apply the "frequency, regularity, and proximity" test solely "in the context of summary judgment for asbestos cases." Gorman-Rupp Co., 908 So.2d at 754-55 (¶ 19). Further, in Chavers, on which the Court heavily relied in adopting the "frequency, regularity, and proximity" test, the Arkansas Supreme Court adopted the test "to determine the admissible evidence that must be demonstrated by the plaintiff in order to survive a motion for summary judgment. ..." Gorman-Rupp Co., 908 So.2d at 756 (¶ 21) (emphasis added).
¶ 10. We are unable to identify any Mississippi case, other than Phillips 66 Co. v. Lofton, 94 So.3d 1051 (Miss.2012), in which the "frequency, regularity, and proximity" test is applied outside the context of a motion for summary judgment. See Gorman-Rupp Co., 908 So.2d 749; Monsanto Co., 912 So.2d 134. Federal courts applying Mississippi law also have applied the "frequency, regularity, and proximity" test only in the context of summary
¶ 11. In Phillips 66 Co., the Court applied, in dicta, the "frequency, regularity, and proximity" test in the context of an appeal after the jury had returned a verdict for the plaintiff. Phillips 66 Co., 94 So.3d at 1062 (¶ 29). The Court remanded that case for a new trial as a result of evidentiary issues. Id. at 1070 (¶ 58). In no other Mississippi case has the "frequency, regularity, and proximity" test been applied as anything other than a de minimus test, applied to decide whether a plaintiff's claim would be allowed to proceed past summary judgment or directed verdict, and we today hold that such is the proper limit of its utility.
¶ 12. In 1993, the Mississippi Legislature codified the Mississippi Products Liability Act, setting the elements of products liability claims. Williams v. Bennett, 921 So.2d 1269, 1273 (¶ 13) (Miss.2006). With the Legislature having created a statutory scheme for products liability, it is not for the Court to add or subtract from those delineated elements.
¶ 13. We clarify today that the "frequency, regularity, and proximity" test is a de minimis rule employed to determine whether a plaintiff has successfully made a prima facie case solely in the context of summary judgment or directed verdict. Justice Kitchens, in his dissent, criticizes us for doing so, but the weight of the authority detailed above, which neither dissent addresses, compels the result we
¶ 14. Because the jury must consider the elements of the claim as established by the Legislature, the court must match the evidence to those elements rather than to the judicially created frequency, regularity, and proximity test when considering a JNOV motion. The "frequency, regularity, and proximity" test is a legal determination, not to be determined by the fact-finder. Today's clarification does not conflict with the holding of Phillips 66 Co., as our discussion of the test therein appeared only in dicta.
¶ 15. In the context of the motion for JNOV now before us, the trial court erred as a matter of law when it applied the "frequency, regularity, and proximity" test outside a summary judgment or directed verdict situation.
¶ 16. The trial court erred when it applied the "frequency, regularity, and proximity" test to the plaintiffs' claim instead of the well-established proximate cause analysis as required under the Mississippi Products Liability Act. Miss.Code Ann. § 11-1-63 (Rev.2002). Accordingly, the trial court erred in its grant of judgment notwithstanding the verdict. Thus, the judgment of the Circuit Court of Smith County is reversed and the case is remanded for further proceedings consistent with the instant opinion, including reconsideration of the grant of JNOV in accordance with the statutorily established elements of the plaintiffs' negligent design claim.
¶ 17.
WALLER, C.J., AND DICKINSON, P.J., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING,
KITCHENS, Justice, dissenting.
¶ 18. I fully join Justice King's dissent. He correctly identifies the issue on appeal: whether the plaintiffs presented sufficient evidence of causation. Despite criticism that the King opinion "does not apply any legal standard to the evidence," the dissent clearly addresses the statute's requirement that "[t]he defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought." Miss.Code Ann. § 11-1-63 (Rev.2002). Moreover, there is no dispute regarding the well-established legal standards governing a motion for judgment notwithstanding the verdict. As Justice Coleman's opinion explains, the motion tests the sufficiency of the evidence, which is to say, whether the movant is entitled to a verdict as a matter of law, see, e.g., 3M Co. v. Johnson, 895 So.2d 151, 160-61 (Miss.2005) (citing Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994)), and any judicial determination that "the necessity of a trier of fact has been obviated," necessarily requires the court to examine the evidence presented. Hyundai Motor America v. Applewhite, 53 So.3d 749, 752-53 (Miss.2011) (citing U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 964 (Miss.2008)). Applying these standards, the dissent provides a thorough recitation of the evidence presented at trial, and correctly determines that the issue of proximate cause, under Mississippi Code Section 11-1-63, was a question for the jury.
¶ 19. Furthermore, I respectfully disagree with the curious conclusion that a trial court may not consider the "frequency, regularity, and proximity" test once a verdict has been entered. This test is a legal standard relevant to the element of causation.
¶ 20. As our opinion in C & C Trucking, 612 So.2d at 1098, clearly articulated, a trial judge faced with a motion for judgment notwithstanding the verdict applies the same legal standards as if he or she were considering a motion for a directed verdict. Yet, Justice Coleman's opinion concludes that the "frequency, regularity, and proximity" test cannot be considered once a verdict has been entered, citing two opinions from this Court, an opinion from the Arkansas Supreme Court, two opinions from the United States Court of Appeals for the Fourth Circuit, and two orders from federal district courts.
¶ 21. Justice Coleman's opinion would prohibit trial judges' reconsideration of prior rulings and would unfairly prejudice defendants. In the present case, the trial court withheld ruling on the defendants' motion for summary judgment, and then denied their motion for a directed verdict. Thus, as a consequence, the plaintiffs may be relieved from their burden of demonstrating "frequency, regularity, and proximity," even though the defendants had placed the issue before the trial judge.
¶ 22. Finally, the opinion mischaracterizes this Court's discussion of the "frequency, regularity, and proximity" test in Phillips 66 Co. v. Lofton, 94 So.3d 1051 (Miss.2012), as dicta. In that case, the judgment in favor of the plaintiff was reversed, and the case was remanded for a new trial based on evidentiary errors; yet, those errors did not dispose of the appellant's argument that the plaintiff had failed to prove causation. In general, reversible evidentiary errors will not preclude a second trial. In contrast, the plaintiff's failure to meet his or her burden of proof entitles the defendant to a judgment as a matter of law, and the plaintiff does not get a second chance to prove his or her case. Had the defendant prevailed on its claim that the proof failed to meet the "frequency, regularity, and proximity" standard, the Court would have reversed and rendered judgment for the defendant. See Applewhite, 53 So.3d at 753 (noting that a new trial is appropriate when there are errors "within the trial mechanism itself," whereas a verdict unsupported by the evidence warrants a judgment for the opposing party). Therefore, because this issue would have changed the disposition, the issue was essential to this Court's decision, and the decision in Phillips 66 is binding authority.
CHANDLER AND KING, JJ., JOIN THIS OPINION. LAMAR, J., JOINS THIS OPINION IN PART.
KING, Justice, dissenting.
¶ 23. I dissent from the plurality opinion herein.
¶ 24. In the trial court, this products liability case resulted in a jury verdict in favor of the plaintiffs. The trial court then granted the defendants' motion for judgment notwithstanding the verdict (JNOV), holding that the plaintiffs' proof failed to meet the frequency, regularity, and proximity
¶ 25. The plurality holds that the frequency, regularity, and proximity test is restricted to a determination of whether to grant or deny summary judgment. Pl. Op. at 8-14. The plurality decides that the trial court applied an incorrect standard to grant the defendants' motion for JNOV, thus it should reverse and remand this matter "for further proceedings consistent with our opinion." Pl. Op. at 15.
¶ 26. The plaintiffs raise only one issue in this appeal, which is that: "The trial court erred by granting Appellees' motion for judgment notwithstanding the verdict because more than sufficient evidence supported the jury's verdict." There is no cross-appeal by the defendants and, thus, no additional issue has been placed before this Court by the defendants. Therefore, the sole issue before this Court is whether the plaintiffs submitted to the jury sufficient evidence upon which reasonable persons might return a verdict for the plaintiffs. See Architex Ass'n, Inc. v. Scottsdale Ins. Co., 27 So.3d 1148, 1154 (¶ 13) n. 11 (Miss.2010) (finding issue not properly before Court because appellee failed to file a cross-appeal). The Court repeatedly has held that it will not address issues not raised on appeal. See Hood ex rel. State Tobacco Litigation, 958 So.2d 790, 815 (¶ 86) n. 17 (Miss.2007). The plurality completely ignores the issue placed before it by the plaintiffs and the Court's admonition that it will not address issues not raised on appeal.
¶ 27. The question presented to this Court is whether there was sufficient evidence to support the jury's verdict. The plurality would reverse this matter for consideration under Mississippi Code Section 11-1-63 (Rev.2002), the Products Liability Statute. The plurality, however, fails to indicate which element, if any, of the products liability statute was not placed before the jury. A review of the record indicates that sufficient evidence was placed before the jury from which it could be found that the plaintiffs established a products liability claim pursuant to Section 11-1-63. Because I believe that there was sufficient evidence from which the jury could return a verdict in favor of the plaintiffs, I dissent and would reverse the grant of JNOV and reinstate the jury's verdict as rendered for the plaintiffs.
¶ 28. Howard Case testified that he worked in the oil drilling industry with Larry Smith off and on from 1966 through 1990. During that time, Larry mixed drilling mud, which contained asbestos. This was a very dusty process, which placed a significant amount of asbestos dust in the air, and no respirators were used. Case worked with Larry at Barnwell, where Larry was exposed to Flosal, an asbestos product. He worked with Larry at Reading and Bates, where Larry also was exposed to Flosal. He worked with Larry at Big Chief, where Larry was exposed to Super Visbestos, Visbestos, and Flosal, all of which were asbestos products. They worked at Helmerich & Payne in 1973 and 1974, where Larry was exposed to Flosal, SuperVisbestos, and Visbestos, all of which were asbestos products. They worked for Delta Drilling, from about 1974 to 1988, where Larry was exposed to Visquick, an asbestos product. Additionally, Larry was exposed to Shurlift, an asbestos product, but he did not recall at which company.
¶ 29. Jack Graves testified that he had worked with Larry for three months, on Delta Rig 56, where Larry was exposed to Visbestos, Shurlift, Super Best, Flosal, and Visquick, all asbestos products. The workers were not provided with respirators or protective clothing. They worked seven days a week and were on call twenty-four hours a day.
¶ 31. Dr. Edwin Holstein, who practiced occupational medicine, testified that Larry suffered from lung cancer due primarily to exposure to asbestos. Larry's exposure to asbestos concentration was considered substantial. Dr. Holstein opined that the four months Larry worked at Marlin would have been sufficient exposure to asbestos to cause Larry's lung cancer.
¶ 32. Dr. Murray Finklestein, an epidemiologist, testified that Larry's lung cancer was caused by exposure to asbestos and smoking. Dr. Colella, a diagnostic radiologist, testified that Larry was exposed to asbestos working in the 1960s, 1970s, and 1980s and that his lungs showed asbestos-related disease. Dr. Kenneth Cohen, an industrial safety engineer and certified industrial hygienist, testified that Larry had significant exposure to asbestos under his working conditions. Dr. Jerrold Abraham, a pathologist, testified that there was no safe type of asbestos and that Larry's lung cancer was caused by exposure to asbestos.
¶ 33. Ken Campbell, who served as president of Montello from its beginning in 1957 to the early 1990s, testified that Montello had used asbestos from Union Carbide in its products of Visbestos and Super Visbestos. The process used was that Montello took the orders, Union Carbide did the manufacturing, and, in most cases, it shipped directly to the customer. He stated that Shurlift was Visbestos-packaged under EMCO's private label.
¶ 34. J.C. Floyd, who worked for Phillips 66 starting in 1966 until retirement in 1992, testified that nonasbestos products were available as early as 1956, and that his company was aware at least by 1969 that asbestos was a carcinogen. He testified that, in August 1973, Phillips 66 circulated a memo to Drilling Specialty employees which indicated that any person who handles loose Flosal fiber for a cumulative total of seven hours per year was an asbestos worker and was entitled to an annual company physical. As a result, Floyd took a medical exam for asbestos exposure, but he did not tell persons who worked daily with asbestos in the oil field about the availability of this medical exam.
¶ 35. Floyd testified that Drilling Specialties put Flosal on the market in 1964, using asbestos from Johns Mansville. He testified that Flosal was packaged under a private label for EMCO, that it was placed in an IMCO bag with the IMCO label.
¶ 36. Floyd testified that after 1965, Drilling Specialties and Montello were the only suppliers of asbestos for drilling mud. He testified that Drilling Specialties also packaged Flosal under a private label of Magcober Visquick, for Magcobar/Dresser Industries.
¶ 37. Phillips 66 admitted that, from 1964 through 1985, nonasbestos products were available for use in oil drilling. It admitted that Flosal was intended to perform its function without causing asbestos-related disease. It admitted that, between
¶ 38. In response to interrogatories, Phillips stated that IMCO Best and Shurlift were Flosal, rebranded for International Minerals Company, and Visquick was Flosal, rebranded for Magcober.
¶ 39. Montello admitted that, prior to 1968, its products contained no warning labels. It admitted that after 1969, the asbestos in all of its products was from Union Carbide. It admitted that all of its asbestos products were intended to perform their function without causing asbestos-related diseases.
¶ 40. Union Carbide admitted in the asbestos toxicology report, which it prepared in 1964, that the potential association between asbestos exposure and certain diseases had been known for years.
¶ 41. Based on the foregoing, sufficient evidence was placed before the jury to establish a products liability claim under Section 11-1-63. The evidence presented to the jury supported a finding that:
¶ 42. Based on the testimony, sufficient evidence was presented at trial for a reasonable juror to conclude that the defendants' products caused Larry's injury. Accordingly, the jury returned a verdict for the plaintiffs. Therefore, I would reverse the grant of a JNOV, and reinstate the jury's verdict in favor of the plaintiffs.