FILE NO. 05C-11-257 ASB


Plaintiff, Roland Grenier, respectfully submits this brief in support of his opposition to Defendants’ motion for a new trial, or in the alternative for remittitur, and would respectfully show this Court as follows:

Table Of Contents


During the course of his lifelong career as a mechanic, Mr. Grenier was exposed to asbestos-containing products, particularly asbestos-containing brakes manufactured by Defendants Ford and General Motors. As a result of this exposure, Mr. Grenier developed mesothelioma, a fatal cancer caused by asbestos exposure. The evidence presented at trial showed that GM, Ford, and others in their industry had long known about the dangers of asbestos in their brakes. For example, in 1948, the Assistant Head of the GM Industrial Hygiene Department published an article noting that “[A]sbestos used in the formulation of brake lining is a potentially harmful compound . . . [D]ust exposures to asbestos . . . exist when the dry materials are handled and emptied into the mixers and in the subsequent operations of slitting, grinding or surfacing.” V.J. Castrop, Recognition and Control of Fume and Dust Exposure, 57 National Safety News 20 (February 1948), Trial Exhibit 4. Nevertheless, GM never warned Mr. Grenier about the dangers of asbestos, even though he was certified as a GM mechanic in the 1940’s and continued to attend annual GM training classes throughout his career. In fact, GM waited until 1975 to issue any warnings, and Ford waited even later – until 1980, fully eight years after OSHA requirements regarding asbestos.

The jury spent two and a half weeks listening to the parties’ presentation of the case, and nearly a day and a half deliberating on their verdict. Despite the jury’s commitment of substantial time and energy and their careful deliberation in rendering their verdict, Defendants allege that the award rendered “was nothing more than a game to the jury.”[1] Defendants’ Brief at 15. Defendants’ accusation is irresponsible, unwarranted, and illustrative of Defendants’ other unfounded attacks upon this Court’s rulings and the jury’s findings.


Standard of Review

“Under Delaware law, enormous deference is given to jury verdicts.” Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997). See also Storey v. Castner, 314 A.2d 187, 193 (Del. 1973) ( “It is well established in Delaware that a jury verdict is presumed to be correct and just.”). Accordingly, “[i]n the face of any reasonable difference of opinion, courts will yield to the jury’s decision.” Id. at 1236-37. “A verdict should not be set aside unless it is so grossly excessive as to shock the Court’s conscience and sense of justice and unless the injustice of allowing the verdict to stand is clear.” Storey, 314 A.2d at 193. Thus, on a motion for a new trial, the court should not disturb a jury verdict as excessive “unless it is so clear as to indicate that it was the result of passion, prejudice, partiality, or corruption; or that it was manifestly the result of disregard of the evidence or applicable rules of law.” Id. Nor should the court order a remittitur simply because the court perceives it to be excessive. Rather, it should set aside a verdict only where, “under the attendant facts, a grossly excessive verdict is clearly manifest.” Id.

The Court’s Correct Response to the Jury’s Question About Reviewing Documents Does Not Warrant a New Trial.

During its deliberations, the jury asked to have “Mr. Grenier’s work history” and “any of the studies or published papers.” Trans. at 3 (Mar. 2, 2007) (Ex. __). After discussion with counsel, the Court sent the jury a note stating, “No, these documents have not been admitted as evidence.” Id. at 6. This statement was correct. In fact, the Court’s response to the jury bore no significant difference from defense counsel’s own proposed response – “something along the lines of, these documents have not been admitted into evidence because, under the Court’s rule, they can not be admitted into evidence.” Id. at 6-7. Thus, Defendants are not and cannot contend that the Court’s response was incorrect.

Defendants’ argument is premised on the illogical belief that the Court’s correct statement of fact somehow led the jury to think that they should disregard all information regarding these documents, including the experts’ testimony. There is no basis to conclude that the jury made this assumption, as the jury was asking about the documents themselves, not about testimony regarding the documents. Nor is there grounds to conclude that the jury otherwise misunderstood the Court’s answer to their question. Rather, there is every reason to believe that had the jury been in any way confused by this response, it would have submitted another question to the Court, just as it had done on other matters. But since the Court’s answer was simple, clear, and accurate, there was no need to request clarification.

Even accepting Defendants’ claim that the Court’s response led the jury to fail to consider other evidence, there simply is no harm. First, Plaintiffs would have been equally effected, as their experts likewise relied on various articles to support some of their opinions. Second, the experts’ opinions were presumably based on other factors besides inadmissible documents, such as their knowledge, experience, and training. Thus, the jury had other grounds to weigh the bases for the experts’ opinions.

Defendants contend that the “great weight of the scientific evidence and the majority of the requested scientific articles addressed the fact that mechanics are not at an increased risk of developing mesothelioma from automotive work.” Defendants’ Brief at 3-4. This simply is not true, and there was ample evidence to support Plaintiffs’ position. For example, pathologist Dr. Eugene Mark testified that he has seen cases such as Mr. Grenier’s, where an individual exposed to friction asbestos products developed mesothelioma. Dr. William Longo described tests which confirmed that asbestos dust was released from standard work performed by mechanics on friction products such as those manufactured by Defendants. Plaintiffs also presented evidence that OSHA had mandated precautions for those working with asbestos brakes, and the EPA was so concerned about the hazards of asbestos to mechanics working with friction products that it published its “Gold Book.” See Asbestos Action Program, U.S. EPA, Guidance for Preventing Asbestos Disease Among Auto Mechanics, at 1, 5 (June 1986), Trial Exhibit 14. Thus, even if the Court’s response had been erroneous, confusing, or misleading (and it was not), Defendants’ only claim of prejudice is unfounded, rendering such alleged error harmless. See Del. R. Civ. Pro. 61.

The Court Did Not Err in Precluding Evidence of Kent Cigarettes.

During his deposition, Mr. Grenier stated that he had smoked Kent cigarettes in the 1950s. See Roland Grenier Depo. at 180 (Mar. 1, 2006) (Ex. A to Defendants’ Brief). He recalled that the cigarettes were filtered, but he did not recall whether the filters were of a special type. Id. He also recalled a filter named “Micronite,” but he did not know whether he smoked Kent cigarettes containing micronite filters. Id. This inconclusive testimony is the totality of Defendants’ proposed evidence regarding Mr. Grenier’s alleged exposure to asbestos in cigarettes. Admission would have been misleading. Among other deficiencies, Defendants did not know how many types of Kent cigarettes were available during the pertinent time, and what percentage had Micronite filters, although they were attempting to obtain such information from information “obtained off the Internet.” Trial Trans. at 6-7 (Feb. 13, 2007 morning) (Ex. ___).

This Court providently denied defendants’ efforts to put such speculative evidence before the jury. The connection Defendants attempted to make – that Mr. Grenier smoked the specific type of Kent cigarette that contained a specific type of filter, despite Mr. Grenier’s uncertain testimony on the same and Defendants’ absence of any other supporting evidence – lacked foundation and was unreliable. To allow this evidence to go to the jury would have been prejudicial. Defendants bore the burden to prove alternative sources of Mr. Grenier’s asbestos exposure. Although they were permitted to put on evidence of numerous other potential sources, they simply did not meet their burden to justify presenting this issue to the jury, as there was no reliable grounds upon which the jury could have concluded by a preponderance of the evidence that Mr. Grenier smoked Kent micronite filtered cigarettes, which exposed him to asbestos to such a degree as to constitute a substantial cause of his mesothelioma. This Court’s exclusion of this evidence and line of speculative argument was proper.

The Court Did Not Err in Permitting the Issue of Punitive Damages to Go to the Jury.

Defendants’ argument that the submission to the jury of the determination of punitive damages is curious, given that the jury failed to find punitive damages. Thus, Defendants can show no harm. Further, Defendants do not point to any evidence that was erroneously admitted as a result of this submission. Indeed, evidence relevant to punitive damages is relevant to establishing liability – a point which Defendants concede in arguing that the evidence relating to both issues of negligence and punitive damages is “inextricably tied together.” Defendants’ Brief at 9.

Defendants suggest that the Court used the wrong law. See Defendants’ Brief at 8 (citing Atlantic Coast Line R.R. Co. v. Bennett, 251 F.2d 934 (4th Cir. 1958), in which the court held that the trial judge had applied the wrong state’s substantive law when instructing the jury on punitive damages). However, this Court’s ruling was explicitly and correctly based on the Rhode Island standard for punitive damages, pursuant to which Plaintiffs presented a prima facie case. As this Court summarized, Plaintiffs presented direct and extensive evidence that Defendants had early knowledge of the hazards of asbestos, knew that their products were hazardous, knew that the way in which mechanics used their products were dangerous, yet failed to timely warn or take other prophylactic measures. Trial Trans. 134-36 (Feb. 21, 2007 p.m.) (Ex. __).

This Court’s decision to let the jury decide whether or not Defendants should be subject to punitive damages was correct as a matter of Delaware procedural law. The Court correctly ruled that the question of intent is a fact question for which a jury is uniquely qualified to resolve. See id.; see also Schueler v. Austin, 674 A.2d 882, 884-85 (Del. Super. Ct. 1996). As this Court properly instructed the jury, the propriety of punitive damages in Rhode Island requires a finding that Defendant acted with malice, wantonness, or willfulness as to amount to conduct bordering on criminality. Palmisano v. Toth, 624 A.2d 314, 320 (R.I. 1993) (cit. om.). The question of wanton conduct, like intent, is ordinarily one for the trier of fact. Eustice v. Rupert, 460 A.2d 507, 509 (Del. 1983). Thus, the issue of punitive damages was properly submitted to the jury. Even if the submission was erroneous, which Plaintiffs deny, it was harmless, as the jury ruled in Defendants’ favor.

The Jury’s Award is Well Founded; Remittitur is Unwarranted.

1.The Compensatory Award for a Man Dying of Cancer Is Not Shocking.

“[I]n the absence of exceptional circumstances, the validity of damages determined by the jury should [] be presumed.” Young v. Frase, 702 A.2d 1234, 1236-37 (Del. 1997). Accordingly, “[a] verdict should not be set aside unless it is so grossly excessive as to shock the Court’s conscience and sense of justice and unless the injustice of allowing the verdict to stand is clear.” Storey v. Castner, 314 A.2d 187, 193 (Del. 1973). The jury’s award in this case does not even come close to this threshold. The award was not excessive in light of Mr. Grenier’s tremendous suffering, nor is it excessive when compared with other verdicts in Delaware.

For nearly two years, Mr. Grenier has suffered mesothelioma, a painful, progressive, and fatal disease caused by exposure to asbestos. Mr. Grenier is so physically incapacitated by this disease that he could not attend his own trial; instead he was transported by ambulance to a center from where he could appear via video. The jury saw Mr. Grenier’s pain and suffering and heard his description of the total change in his life due to this incurable disease. Despite his significant toll this disease has taken on his life, Mr. Grenier “did not overstate or in any way exaggerate his injuries.” Galindez v. Narragansett Housing Assocs., No. 04C-05-073-JRJ, 2006 Del. Super. LEXIS 476 (Nov. 28, 2006) (denying motion for new trial or remittitur, and noting that plaintiff testified convincingly about his pain) (Ex. ___).

Mr. Grenier was diagnosed with mesothelioma in June 2005, when he went to the doctor because he kept choking and could not breathe. Since then, Mr. Grenier has been hospitalized several times, has had fluid drained from his lungs, and has undergone chemotherapy. The chemotherapy caused many side effects, including a rash all over his body that constantly itched and kept him from sleeping or even resting. He also has to take 16 different medications, which cause other symptoms, such as dizziness. By the time of trial, Mr. Grenier was largely confined to his bed and virtually paralyzed on one side. He suffers from pains in his back and stomach, sharp pains when he breathes, and pains with every breath. Some pains are like an ice pick. He feels worse and worse each day.

The impact of this disease on Mr. Grenier’s life has been tremendous. After retiring, Mr. Grenier moved to Florida, where he had never been, and hoped to enjoy his retirement traveling and spending time with his grandchildren. Those hopes have been dashed, and his “loss of the ability to enjoy retirement is a significant and substantial loss.” Esry v. St. Francis Hosp., Inc., No. 99C-02-209-JEB, 2002 Del. Super. LEXIS 316 (April 15, 2002) (holding that the jury did not err by placing a high value on plaintiff’s loss of ability to enjoy retirement) (Ex. ___). The hardest thing for Mr. Grenier is having to depend so fully on other people. In particular, he worries that he is a burden on his son.

Mr. Grenier’s son, Roland Grenier, Jr., testified that two months before his dad’s diagnosis, his family had visited Florida, and his dad had a great time walking, going to the beach, eating out, spending time with his eleven grandchildren — things he can no longer do. Mr. Grenier has to let his son take care of everything, including helping him in the bathroom. Roland testified that in addition to his dad’s physical suffering, his mental state has declined – he gets confused and does not understand things.

There is no question that Mr. Grenier has already suffered tremendous damage as a result of his mesothelioma, and his suffering will only worsen until this disease takes his life. Based on the overwhelming evidence, the jury’s award of $2,000,000 (including $133,535.22 in medical expenses) was fair and reasonable.

2.The Award Was Not the Result of Passion, Prejudice, Partiality or Corruption.

Defendants contend that the jury’s verdict was improperly influenced by statements of counsel. As an initial matter, in failing to object contemporaneously to the allegedly offensive comments, Defendants waived this argument. See, e.g., Walker v. State, 790 A.2d 1214, 1220 (Del. Supr. 2002) (“Generally, counsel’s failure to make a contemporaneous objection to improper closing arguments constitutes a waiver of the right to raise such alleged error on appeal.”); Johnson Controls, Inc. v. Wooleyhan, Civ.A. 98A-01-009JOH, 1998 WL 737985, at *3 (Del. Super. Aug. 13, 1998) (even if counsel’s statements were disparaging or not related to the evidence, failure to make a contemporaneous objection can amount to a waiver) (Ex. __); Koutoufaris v. Dick, 604 A.2d 390 (Del. Supr. 1992) (alleged improprieties in closing argument in personal injury action were waived, where no contemporaneous objection was made to comments). See cf. Morris v. Maternity & Gynecology Assocs., No. 99C-07-320-FSS, 2001 Del. Super. LEXIS 501 (Dec. 10, 2001) (defense counsel waited to object until plaintiffs’ closing argument was over and until just before defendants’ closing argument began, such that most appropriate time for a cautionary instruction had passed) (Ex. ___). Further, if any comments had truly inflamed the jury, then surely the jury would have found in Plaintiffs’ favor on punitive damages. But the statements cited by Defendants were neither improper nor erroneous in the first place.

For example, Defendants claim that counsel should not have referred to the $19 million that Ford and GM spent fighting asbestos-related claims, because such figure allegedly includes funds spent by DaimlerChrysler. See Defendants’ Brief at 13. However, Defendants’ interrogatory responses, which were read into the record on February 16, show that only Ford and GM combined had spent a total of $20,942,517.08 on asbestos case-related payments. Accordingly, this Court properly found that there was ample evidence from which the jury could reach its own conclusion regarding this factual matter. The Delaware Supreme Court has recognized that the trial court’s ruling on such matters is paramount:

The prejudicial effect of an objectionable question, or an improper comment by counsel, must be measured in the trial setting. Unless the question itself has introduced an indelible inference which taints the fairness of the trial, a mistrial is not required. The determination of whether a mistrial will be granted by reason of the improper comments of counsel is within the discretion of the trial judge who is best suited to gauge the impact and setting of the statement in question.

Koutoufaris v. Dick, 604 A.2d 390, 400 (Del. Supr. 1992).

Defendants also complain that counsel’s reference to Mr. Grenier’s gravesite was unduly calculated to evoke the jury’s sympathy. This is ironic, given that the comment was made in the context of plaintiffs’ counsel’s caution to the jury that the jury should not make its decision based on sympathy. Defendants’ complaints regarding counsel’s references to the Grenier family are likewise unfounded. The instruction to the jury explained that it should determine liability and compensatory damages with respect to Roland Grenier only, not the whole family. The jury was also cautioned that the attorneys’ argument does not constitute evidence, and “[i]t is presumed that the jury complied with the trial judge’s instruction.” Fuller v. State, 860 A.2d 324, 329 (Del. 2004). In Reinco, Inc. v. Thompson, the Delaware Supreme Court reversed a trial court’s order granting a defendant’s motion for new trial, and held that it could not simply “assume that the jury ignored the trial judge’s instruction.” Id., 906 A.2d 103, 112 (Del. 2006). Because Defendants’ argument presupposes that the jury ignored the Court’s instructions and is completely unfounded, it should be rejected.

3.The Jury’s Award Is Within the Range of Other Delaware Cases.

Much of Defendants’ argument regarding the reasonableness of the quantum of damages is based on Mr. Grenier’s age and prior health conditions. No court has ever held that a person cannot be fully and fairly compensated because he is elderly or sick. Nor does a person experience less pain and suffering, less enjoyment of life, less mental anguish because he is elderly or sick. Even taking these factors into account, the jury’s award in this case was well within the range of prior verdicts in similar cases, notwithstanding the fact that Delaware “juries tend to be conservative with damage awards….” Porter v. Ferrence, No. C.A. 97C-04-019-JOH, 1998 WL 465140, at *1 (Del. Super. Ct. July 22, 1998) (Ex. D to Defendant’s Brief).

Delaware juries have granted awards well in excess of the one at issue here, even for plaintiffs who are neither young nor well. For example, in Bailey v. Beebe Med. Ctr., Inc., No. 03C-04-013, 2005 Del. Super. LEXIS 292 (Aug. 31, 2005), aff’d, 913 A.2d 543 (Del. 2006) (Ex. ___), the trial court rejected defendant’s challenge to an award of $4,000,000 to the estate of a 62-year old woman who was afflicted with Alzheimer’s disease and who suffered for one month before her death. The court rejected defendant’s arguments that this award was “shocking,” “out of proportion to other large personal injury verdicts,” or “the result of allegedly unduly prejudicial evidence supporting the plaintiffs’ claim for punitive damages.” Id. at *2.

The cases relied upon by Defendants are easily distinguished. See Defendants’ Brief at 10 n.24. For example, in Porter v. Ferrence, C.A. 97C-04-019-JOH, 1998 WL 465140 (Del. Super. Ct. July 22, 1998) (Ex. D to Defendant’s Brief), the court granted a remittitur where the plaintiff suffered “no permanent injury after a five week recuperation” from a “highly successfully surgery” and was “essentially healed.” In Yancey v. Bolen, Civ.A. 98C-03-238-JOH, 2000 WL 706931 (Del. Super. Ct. Mar. 22, 2000) (Ex. F to Defendants’ Brief), the plaintiff suffered injuries to her head, knees, shoulder, back and neck from a car accident, but her doctor testified that such injuries were primarily an exacerbation of injuries from a prior car accident. As a final example, in Mays v. Henry, 98C-11-038-JOH, 2001 WL 1448503 (Del. Super. Ct. Sept. 21, 2001) (Ex. G to Defendants’ Brief), the court refused to grant additur, where plaintiffs’ doctors relied upon the subjective complaints of the plaintiff, whose credibility was suspect.

In contrast to the cases relied upon by Defendants, the following cases are more analogous to Mr. Grenier’s case and indicate that the jury’s compensatory damage award in this case is in the middle of a range of similar awards upheld by Delaware courts.

CaseCompensatory AwardNature of Case
Morris v. Maternity and Gynecology Assocs., No. 99C-07-320-FSS, 2001 Del. Super. LEXIS 501 (Dec. 10, 2001) (Ex. ___) $5.1 million Motion for new trial or remittitur denied. Defendant doctor failed to diagnose a 51-year-old plaintiff with breast cancer, with likely result that plaintiff would die prematurely.
McCredie v. Howard, No. 02-04-007-ESB, 2004 Del. Super. LEXIS 265 (July 28, 2004) (Ex. ___) $4.0 million (including $1.0 million loss wages) Motion for new trial or remittitur denied. As a result of medical malpractice, 46-year-old plaintiff suffered shoulder injury that caused the shoulder to droop, impaired ability to function, and required surgeries.
Bailey v. Beebe Med. Ctr., Inc., No. 03C-04-013, 2005 Del. Super. LEXIS 292 (Aug. 31, 2005), aff’d, 913 A.2d 543 (Del. 2006) (Ex. ___) $4.0 million Motion for new trial due to size of verdict denied. Awarded to estate of a 62-year-old plaintiff with Alzheimer’s disease who walked into the freezer at her convalescent center, suffered extreme hypothermia and frostbite, and died 24 days later.
Ellenberger v. Van Vorst, No. 88-C-DE-122, 1991 Del. Super. LEXIS 212 (May 30, 1991), aff’d, No. 243, 1991, 1991 Del. LEXIS 294 (Del. 1991) (Ex. ___) $3.5 million general damages Motion for new trial or remittitur denied. Car accident injuries to 43-year-old plaintiff caused neurological damage that resulted in loss of motor function in lower extremities and constant pain.
Galindez v. Narragansett Housing Assocs., No. 04C-05-073-JRJ, 2006 Del. Super. LEXIS 476 (Nov. 28, 2006) (Ex. ___) $3.0 million Motion for new trial or remittitur denied. 30-year old man suffered permanent damage to his hand, including amputation of two fingers, and continuing pain that occasionally radiates into his arm.
McNally v. Eckman, 466 A.2d 363 (Del. 1983) $2.9 million Car accident injuries left plaintiff paralyzed below the waist.
Cowee v. Wilmington Country Club, No. 95C-10-216 SCD, 1998 Del. Super. LEXIS 272 (March 24, 1998), verdict aff’d, 747 A.2d 1087 (Del. 2000) (Ex. ___) $2.39 million Plaintiff suffered closed head injury from car accident.
Brown v. Capital Mgmt. Co., No. 99C-10-210 RCC, 2002 Del. Super. LEXIS 133 (Feb. 28, 2002), aff’d, 813 A.2d 1094 (Del. 2002) (Ex. ___) $2.25 million Fire escape accident caused paralysis on the left side causing plaintiff to limp, neck and back pain, headaches, and occasional seizures.
Rowlands v. Lai, No. 95C-06-006 (JTV), 2000 Del. Super. LEXIS 175 (Feb. 23, 2000) (Ex. ___) $2.0 million Motion for new trial or remittitur denied. Doctor perforated plaintiff’s bowel, requiring surgery and temporary colostomy, and causing incontinence.
Esry v. St. Francis Hosp., Inc., No. 99C-02-209-JEB, 2002 Del. Super. LEXIS 316 (April 15, 2002) (Ex. ___) $1.74 million Motion for new trial due to size of verdict denied. 71-year-old fell in hospital and suffered fractured jaw and concussion, resulting in balance problems, short term memory loss, and headaches that impaired his ability to enjoy retirement.

In sum, Delaware courts have upheld awards in the range of the jury’s award in this case where the circumstances of the injuries warrant such an award. Del. Elec. Co-Op, Inc. v. Duphily, 703 A.2d 1202, 1210-1211 (Del. 1997) (refusing to grant remittitur with respect to “substantial” award where trial evidence rendered $3,000,000 verdict “understandable”). Given the circumstances of Mr. Grenier’s injury – the suffering he has already endured and the bleak outlook for his remaining days – the jury’s award of $2,000,000 was fully justified and should be upheld.


For the foregoing reasons, Plaintiffs respectfully request that the Court DENY Defendants’ Motion for a New Trial and DENY Defendants’ alternative motion for remittitur.

Respectfully submitted,

Date: March 30, 2007

  1. Defendants drew this conclusion from the Court’s statement that the jury had asked whether their verdict was “in the ballpark,”a term not uncommon in the context of assessing the quantum of damages. See, e.g., Bailey v. Beebe Med. Ctr., Inc., No. 03C-04-013, 2005 Del. Super. LEXIS 292 (Aug. 31, 2005), aff’d, 913 A.2d 543 (Del. 2006) (Ex. ___) (explaining that a comparison with other verdicts can, at most, reveal whether or not the verdict is “so to speak, in the ballpark or not and, given the test for setting aside a jury’s verdict it is a rather large ballpark”).