Opinion
Docket No. 123691.
Decided September 21, 1992, at 9:30 A.M. Leave to appeal sought.
Henderson Goldberg, P.C. (by Joel Persky), for the plaintiff.
Collins, Einhorn Farrell, P.C. (by Clayton F. Farrell and Noreen L. Slank), for the defendant.
Defendant appeals from a judgment entered after a jury found it liable for negligence related to the death of Edward Tarnosky, plaintiff's decedent. We affirm.
Edward Tarnosky died from lung cancer on April 16, 1982, after working as a plumber and pipefitter for thirty-four years. During his work, Mr. Tarnosky was exposed to various products containing asbestos, including "Carey cement," a product manufactured by defendant's corporate predecessor.
Plaintiff brought this action, alleging in part that defendant was liable for negligence because defendant's predecessor failed to warn Mr. Tarnosky of the dangerous nature of its asbestos products. Robert Abbs, Mr. Tarnosky's former co-worker, testified that he and Mr. Tarnosky had worked together and that Mr. Tarnosky had been exposed to various asbestos products, including Carey cement, for a period of approximately three months. Mr. Abbs testified that when he worked as an insulator at the Chevy Powerhouse, the decedent and other pipefitters would work above, below, and next to him and other insulators, and that asbestos dust was visible in the air and on their clothing. Dr. Gerritt Schepers, plaintiff's medical expert, testified that less than a three-month exposure to asbestos was sufficient to cause asbestosis and lung cancer and that the exposure to asbestos was a causative factor in Mr. Tarnosky's contracting lung cancer and ultimately in his death. Dr. Schepers also testified that Mr. Tarnosky's cigarette smoking was a substantial contributing factor to his contracting lung cancer. At the conclusion of the trial, the jury found defendant liable and awarded plaintiff $300,000. The trial court reduced the verdict by an amount equal to prior settlements reached by plaintiff with former defendants.
I
Defendant first contends that the trial court erred in denying defendant's motions for a directed verdict and judgment notwithstanding the verdict because plaintiff failed to show that exposure to Carey cement was a substantial factor in Mr. Tarnosky's lung cancer, and therefore failed to show proximate cause.
Directed verdicts are not favored, especially in negligence actions. Vsetula v Whitmyer, 187 Mich. App. 675, 679; 468 N.W.2d 53 (1991); Goldman v Phantom Freight, Inc, 162 Mich. App. 472, 477; 413 N.W.2d 433 (1987). This Court reviews a trial court's decision regarding a motion for a directed verdict to determine whether, viewing the evidence in the light most favorable to the nonmoving party, a question of fact for the jury existed. Stoken v J E T Electronics Technology, Inc, 174 Mich. App. 457, 463; 436 N.W.2d 389 (1988). The trial court's decision to grant or deny a motion for a directed verdict will not be disturbed on appeal unless the trial court abused its discretion. Howard v Canteen Corp, 192 Mich. App. 427, 431; 481 N.W.2d 718 (1992). Similarly, judgment notwithstanding the verdict is improper where the evidence is such that reasonable minds could differ. Byrne v Schneider's Iron Metal, Inc, 190 Mich. App. 176, 179; 475 N.W.2d 854 (1991).
Liability for negligence does not attach unless the plaintiff establishes that the injury in question was proximately caused by the defendant's negligence. Brisboy v Fibreboard Corp, 429 Mich. 540, 547; 418 N.W.2d 650 (1988); Nichols v Clare Community Hosp, 190 Mich. App. 679, 684; 476 N.W.2d 493 (1991). When there is more than one factor contributing to produce an injury, the negligence of one actor is the proximate cause of the injury only if it was a substantial factor in producing the injury. Brisboy, supra, 547; Vsetula, supra, 682. Proximate cause is usually a factual issue for the jury to determine. Vsetula, supra, 682.
In this case, plaintiff introduced evidence that Mr. Tarnosky was exposed to Carey cement for a period sufficient to cause injury and that occupational exposure to asbestos was a cause of his lung cancer and death. From the evidence presented, a reasonable juror could have concluded that exposure to defendant's asbestos product was a substantial factor in causing Mr. Tarnosky's lung cancer and death. The trial court therefore properly denied defendant's motions for a directed verdict and judgment notwithstanding the verdict. See Brisboy, supra, 548-549.
II
Defendant next contends that it was entitled to a directed verdict or judgment notwithstanding the verdict because plaintiff failed to adequately identify defendant's product. Defendant correctly notes that plaintiff cannot establish exposure to the particular product through evidence that the product was simply present somewhere in Mr. Tarnosky's workplace, but must instead show that the product was used in the specific area in which Mr. Tarnosky worked. Barlow v John Crane-Houdaille, Inc, 191 Mich. App. 244, 247-251; 477 N.W.2d 133 (1991).
Plaintiff, however, presented evidence that Mr. Tarnosky was directly exposed to Carey cement, and not merely that the product was present at the workplace. Viewing the evidence in the light most favorable to plaintiff, a question of fact for the jury existed regarding whether Mr. Tarnosky was exposed to Carey cement.
III
Defendant also contends that it was entitled to a directed verdict or judgment notwithstanding the verdict' because plaintiff failed to demonstrate that, had defendant's predecessor warned of the danger, the risk of injury would have been avoided. Generally, when proceeding under a theory of liability based on a negligent failure to warn, proximate cause cannot be established unless it is shown that an adequate warning would have prevented the plaintiff's injury by altering the conduct involved. Nichols, supra, 684. See, e.g., Woodworth v Gates Learjet Corp, 173 Mich. App. 480; 434 N.W.2d 167 (1988); May v Parke, Davis Co, 142 Mich. App. 404, 418; 370 N.W.2d 371 (1985); Falkner v John E Fetzer, Inc, 113 Mich. App. 500; 317 N.W.2d 337 (1982).
We believe, however, that in certain circumstances the jury should be permitted to infer that a warning would have resulted in the product not being used or other appropriate action being taken to heed the warning. In Muilenberg v Upjohn Co, 115 Mich. App. 316, 332-333; 320 N.W.2d 358 (1982), the doctor who had prescribed the defendant manufacturer's drug for the plaintiff testified that he had not been warned regarding the dangers of the drug in question, and that he had prescribed the drug as an alternative to another drug that he did not want to prescribe because it had serious side effects. This Court reasoned that, because the doctor had not been warned, the doctor did not hesitate to prescribe the drug and that there was, therefore, sufficient evidence to send the question of proximate cause to the jury. Id., 333.
The result in Muilenberg is in agreement with the recent federal court decision in Raney v Owens-Illinois, Inc, 897 F.2d 94 (CA 2, 1990). In Raney, the plaintiff's decedent had died from asbestos-related lung cancer after working for several years as an asbestos installer. The plaintiff sought to recover on the theory of failure to warn. The jury found in favor of the plaintiff. On appeal, the defendants contended that the plaintiff had failed to introduce sufficient evidence to demonstrate that the decedent would have heeded a warning had one been given.
Interpreting New York law, the court noted that a plaintiff in a failure-to-warn case must present evidence that the failure to warn was the proximate cause of the injury. However, the court also noted that, in some cases, causation may be inferred with respect to whether a warning would have been heeded. The court held that, under the circumstances of that case, the jury could reasonably infer that a warning would have been heeded, concluding that what an asbestos worker would have done if confronted with the danger of his work is within the range of reasonable dispute that makes the question appropriate for the jury. Id., 96.
We adopt the reasoning in Raney. In certain situations such as this one, where the consequences of the exposure are severe, the lack of warning is undisputed, and the person exposed is dead, the jury may be permitted to infer that a warning would have been heeded and that the failure to warn was a proximate cause of the injury. Not only would it be virtually impossible to prove what the decedent would have done had he been warned, but, as a practical matter, nothing more is added in this case by having a witness merely state that, had the danger been known to Mr. Tarnosky, he would have acted to avoid the danger. As in Raney, what Mr. Tarnosky would have done if warned was properly left to the jury.
IV
Defendant next contends that it was entitled to a mistrial because the trial was interrupted for the trial judge's vacation. Whether to grant or deny a mistrial is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion resulting in a miscarriage of justice. McCarthy v Belcher, 128 Mich. App. 344; 340 N.W.2d 848 (1983); see also Blake v Consolidated Rail Corp, 176 Mich. App. 506, 522-523; 439 N.W.2d 914 (1989). Further, the conduct of a trial is within the control of the presiding judge and does not result in error warranting reversal unless there is some proof of prejudice. Van Oordt v Metzler, 375 Mich. 526, 530; 134 N.W.2d 609 (1965); see also Bates v Detroit, 66 Mich. App. 701; 239 N.W.2d 716 (1976).
In this case, the trial judge informed the parties at the beginning of the trial that he would be taking a three-week vacation four weeks from then. Defendant contends that the delay confused the jury, as evidenced by the jury's request when the trial resumed that certain testimony be reread. There is no indication, however, that the jury request was prompted by the delay, or that it was prejudicial to defendant. Absent proof of prejudice, the trial court did not abuse its discretion in refusing to grant a mistrial.
V
Defendant also contends that it was entitled to a mistrial or a curative instruction because plaintiff's counsel made inaccurate comments during his opening statement. Defendant has failed to demonstrate that the statements were inaccurate or that defendant was prejudiced by the allegedly inaccurate statements. The trial court therefore did not abuse its discretion in denying defendant's motion for a mistrial or for a curative instruction.
Affirmed.