GARLOCK SEALING TECHNOLOGIES LLC APPELLANT v. AVA NELL DEXTER INDIVIDUALLY JAMES DEXTER EXECUTOR OF THE ESTATE OF JAMES DEXTER DECEASED APPELLEES AND NO 2006 CA 000962 MR

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Court of Appeals of Kentucky.

GARLOCK SEALING TECHNOLOGIES, LLC APPELLANT v. AVA NELL DEXTER, INDIVIDUALLY;  JAMES M. DEXTER, EXECUTOR OF THE ESTATE OF JAMES G. DEXTER, DECEASED APPELLEES AND NO.2006–CA–000962–MR

AVA NELL DEXTER, INDIVIDUALLY;  JAMES M. DEXTER, EXECUTOR OF THE ESTATE OF JAMES G. DEXTER, DECEASED APPELLANTS v. GARLOCK SEALING TECHNOLOGIES, LLC APPELLEE AND NO.2006–CA–001025–MR

GARLOCK SEALING TECHNOLOGIES, LLC CROSS- APPELLANT v.

NO. 2006–CA–000918–MR

Decided: March 23, 2012

BEFORE:  CLAYTON, DIXON, AND KELLER, JUDGES. BRIEF FOR APPELLANTS/ CROSS–APPELLEES:  Kenneth L. Sales Joseph D. Satterley John R. Shelton Louisville, Kentucky BRIEF FOR APPELLEE/CROSS–APPELLANT:  John K. Gordinier Stanley W. Whetzel, Jr. Louisville, Kentucky

OPINION

AFFIRMING

We address these appeals on remand from the Kentucky Supreme Court pursuant to an order of that Court entered November 23, 2011.   In CertainTeed Corp. v. Dexter, 330 S.W.3d 64 (Ky.2010), the Supreme Court vacated a decision of this Court, which had reinstated a jury verdict in favor of Ava Nell Dexter and James M. Dexter, executor of the estate of James G. “Dayton” Dexter (collectively the Dexter Estate).   In our original opinion, we did not reach the claims of error asserted by Garlock Sealing Technologies, LLC (Garlock);  consequently, we now address these claims on remand. Double

Dayton Dexter worked as a pipefitter from 1946 until 1984.   During the course of his employment, Dayton was exposed to various products and materials that contained asbestos.   Dayton was ultimately diagnosed with lung cancer, which was attributed to a combination of his occupational exposure to asbestos and his long-term cigarette smoking.   In July 2002, Dayton and his wife filed a lawsuit in Marshall Circuit Court against nineteen corporate defendants, including Garlock, based on strict products liability and common-law negligence theories relating to Dayton's exposure to asbestos during the course of his employment.   Following Dayton's death in March 2004, his son, James M. Dexter, as executor of his estate, was substituted as a party in this litigation.

A jury trial commenced in May 2005, against the only two remaining defendants, Garlock and CertainTeed. Double The jury found in favor of the Dexter Estate on the strict products liability claim and found in favor of Garlock and CertainTeed on the negligence claim.   The jury apportioned fault between Dayton Dexter, Garlock, and CertainTeed.   Following entry of the judgment, the trial court granted Garlock and CertainTeed a new trial pursuant to CR 59.01 due to the jury's failure to apportion any fault among the empty-chair defendants.

The second trial commenced in late January 2006, and lasted three weeks.   The jury returned a verdict in favor of the Dexter Estate on both strict products liability and negligence.   Damages were returned as follows:  $63,005 for past medical expenses;  $1,500,000 for pain and suffering;  $6,744 in funeral expenses;  and $15,000 for lost of consortium.   In addition, the jury assessed $100,000 in punitive damages against CertainTeed, and $600,000 in punitive damages against Garlock.   Thus, the total verdict for damages in the second trial was $2,314,749.   Fault was apportioned as follows:  Dayton Dexter, 60%;  CertainTeed, 2%;  Garlock, 17%;  remaining companies, 21%.   On February 22, 2006, the trial court entered judgment in accordance with the jury verdict.   The trial court subsequently denied Garlock's and CertainTeed's motions for judgment notwithstanding the verdict, and the parties filed appeals and cross-appeals in this Court.

In an opinion rendered August 8, 2008, this Court found the Dexter Estate's direct appeal to be dispositive, and we reversed the trial court's judgment and remanded with instructions to reinstate the original jury verdict rendered June 19, 2005.   Garlock and CertainTeed were each granted discretionary review in the Kentucky Supreme Court. Double In CertainTeed Corp. v. Dexter, 330 S.W.3d 64 (Ky.2010), the Supreme Court vacated this Court's opinion and remanded the case for consideration of the remaining claims of error on appeal.

We note the Dexter Estate's theory of the case was premised on a failure to warn theory in both strict products liability and negligence.   First, Garlock contends that the trial court erred by issuing a jury instruction on strict products liability and negligence, because the court had earlier granted a partial directed verdict finding that Garlock's products were not of defective design or defective manufacture.   Second, Garlock argues the trial court erred in issuing a jury instruction on punitive damages because there was insufficient evidence of reprehensible conduct to support the instruction;  consequently, Garlock asserts the punitive damage award was a violation of its right to due process.

Both of Garlock's arguments ultimately challenge the jury instructions issued by the trial court.   According to CR 51(3), “No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.”

Unfortunately, in its appellate brief, Garlock failed to comply with CR 76.12(4)(c)(v).  In the “argument” portion, Garlock did not set forth a citation to the record indicating where and how it preserved these issues for appeal;  likewise, Garlock failed to include citations to the evidence in the record that supported its arguments.   The record in this case is massive.   This Court cannot scour a nearly 8,000–page written record or view a three-week trial to determine whether Garlock properly preserved these issues by bringing the alleged errors to the judge's attention during trial.  Elwell v. Stone, 799 S.W.2d 46, 47–48 (Ky.App.1990).   Nor are we persuaded manifest injustice occurred or that the punitive damage award was unconstitutional;  in sum, we decline to further address any issues not presented in accordance with CR 76.12(4)(c)(v).  Id. at 48.

For the reasons stated herein, we affirm the judgment of the Marshall Circuit Court.

ALL CONCUR.