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Hoskins .v Business Men's Assurance6/30/2003
Opinion Vote: AFFIRMED IN PART; REVERSED IN PART.
Ellis, C.J., and Newton, J., concur.
Opinion:
Forest "Dino" Hoskins and his wife, Judy Hoskins (Plaintiffs), sued the owners of the building where Mr. Hoskins worked and the manufacturer and its successor of an asbestos-containing fireproofing material used in the building's construction for personal injuries and loss of consortium. Plaintiffs maintained that Mr. Hoskins' mesothelioma, a rare form of lung cancer, resulted from his exposure to the asbestos in the building.
A jury entered verdicts for Plaintiffs for actual and punitive damages. Manufacturer and its successor appealed to the Missouri Supreme Court, which declared section 537.675 constitutional in Hoskins v. Business Men's Assurance , 79 S.W.3d 901 (Mo. banc 2002), and transferred the case to this court for resolution of Defendants' remaining points on appeal. Those points involve: (1) the submissibility of punitive damages, (2) the propriety of and prejudicial nature of Plaintiffs' closing argument, (3) the trial court's exclusion of all evidence except that of Defendants' financial condition in the second punitive damage phase of the bifurcated trial, and (4) the trial court's award of prejudgment interest on punitive damages.
For the reasons set forth below, we affirm the trial court's judgment in part and reverse that portion of the judgment awarding prejudgment interest on punitive damages.
Factual Background
We begin with a factual background of the dispute now on appeal, viewing all facts and reasonable inferences therefrom in a light most favorable to the Plaintiffs while disregarding contrary evidence and inferences . Lewis v. FAG Bearings Corp. , 5 S.W.3d 579, 584 (Mo. App. S.D. 1999). Where necessary, we include additional facts and evidence adduced at trial in our discussion of the issues on appeal.
The "BMA Tower," a nineteen-story office building in Kansas City, Missouri, was constructed in 1962 and 1963. As a part of that construction, "Sprayed Limpet Asbestos" (Sprayed Limpet), a fire retardant consisting of 60% asbestos fibers, 38% Portland cement, and 2% mineral oil, was applied by spraying the product on the structural steel throughout the building. Sprayed Limpet was manufactured by J.W. Roberts, Ltd., a subsidiary of Defendant Turner and Newall (T&N;, which was acquired by Defendant Federal-Mogul Corporation in 1998.
In September of 1978, approximately fifteen years after the BMA Tower's construction, Plaintiff Forest Hoskins began working as an operating engineer at the building. Mr. Hoskins regularly worked on the first eighteen floors in the area between the suspended ceiling tiles and the floor above, known as the "soffit area" or the "return air plenum," the height of which ranged from 2 ½ to 4 feet. He was responsible for installing and maintaining the electrical, heating, ventilation and air-conditioning equipment in this area. He also regularly worked on the nineteenth floor, known as the "machine" or "mechanical room." The nineteenth floor did not have a suspended ceiling and contained "all of [the building's] major air systems." The steel pipes and Sprayed Limpet were exposed throughout this floor. Each time Mr. Hoskins worked in these areas, he came in regular contact with the Sprayed Limpet material, much of which had fallen from the steel beams onto the ceiling tiles or floor, causing dusty conditions. Mr. Hoskins also sometimes had to remove portions of the still-remaining Sprayed Limpet in order to attach clamps on the steel beams to support and hold in place the electrical conduits. In addition, when installing large machinery on the nineteen
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