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Krivanek v. Fibreboard Corp.12/13/1993
Carol Krivanek appeals a judgment for damages. She claims that based on the evidence presented at trial, the jury's damage award was inadequate, and the trial court abused its discretion in denying her motion for a new trial. Owens-Corning Fiberglas (OCF) assigns error to the court's failure to give OCF's proposed instructions to the jury that it could consider the asbestos industry's customs and technological feasibility evidence.
Facts
Ben Krivanek began working at the Puget Sound Naval Shipyard (PSNS) in March 1953. He married Mrs. Krivanek in 1963; the couple have eight children. In June 1986, Mr. Krivanek retired from PSNS; in August 1987, he went to work for a private firm with contracts at PSNS.
In December 1987, Mr. Krivanek was diagnosed as having malignant mesothelioma, a cancer of the pleura (the lining of the inside of the chest cavity). He was referred to a thoracic surgeon; after consultation, he decided that he should undergo surgical treatment. From February 21 to March 1, 1988, he was hospitalized for an extrapleural pneumonectomy, surgery in which a lung is removed and the diaphragm is rebuilt. Subsequently, he had radiation therapy; he returned to work in mid-April. On June 13, 1988, he was readmitted to the hospital. Doctors found a palpable mass in his paraspinal area which was progressive mesothelioma. On July 10, 1988, while still in the hospital, he died; he was 58 years old.
Prior to his death, Mr. Krivanek had filed suit against several corporations, alleging negligence and product liability. He contended that these corporations had manufactured the asbestos-containing products to which he was exposed at
PSNS. After he died, Mrs. Krivanek, as personal representative of Mr. Krivanek's estate, was substituted as the plaintiff and was permitted to amend the complaint to allege her and the Krivanek children's wrongful death and survival claims.
Prior to trial, Mrs. Krivanek settled with several of the corporations, and the trial proceeded with OCF as the sole defendant. At trial, Mrs. Krivanek and Mr. Krivanek's friend and fellow shipyard worker , Mr. Stremmel, testified that Mr. Krivanek had planned to work until his youngest son, Jason, was out of college. Mr. Krivanek was also a member of the Army Reserve, and Mrs. Krivanek's share of his military pension, as his surviving spouse, was reduced by 60 percent, to $309 per month. She also received a share of Ben Krivanek's civil service retirement pension, which was reduced by approximately 35 percent to $1,165 per month.
Dr. Finch, an economist, testified as to Mrs. Krivanek's and her children's economic losses. Considering Mr. Krivanek's work life expectancy for wages, life expectancy for pensions, personal consumption, and home services, Dr. Finch arrived at a total loss to Mrs. Krivanek of $401,919. For Mr. Krivanek's negligence and product liability claim, Mrs. Krivanek also presented evidence of $16,601 in physician bills, $50,899.74 in hospital bills, and $5,245.43 in funeral costs.
The jury found that OCF was not negligent but that its product was not reasonably safe and that this unsafe condition was a proximate cause of Mr. Krivanek's illness and death. The jury awarded Mr. Krivanek's estate $90,000 on his product liability claims. On their respective wrongful death and survival claims, Mrs. Krivanek was awarded $30,000, and her children together were awarded $30,000. The court offset the $150,000 verdict by the total amount of the settlements paid to Mrs. Krivanek prior to trial, $100,300, awarding a judgment against OCF of $49,700.
Product Liability Act
OCF claims that the court erred in i
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