[Posted March 19, 2012] I am back from my vacation, during which I provided considerable amusement to a number of trout, all of which laughed at my flies. Still, it was relaxing, and back here at home, it gave The Boss some time to do whatever she wanted, without my being in the way. As I noted before I left, I knew I wouldn’t be able to cover all of the Supreme Court’s decisions handed down in the March session. One of the stragglers is John Crane, Inc. v. Hardick, an important maritime-law case. I’ve recently been reminded with a gentle cattle prod that I need to finish the task at hand; here, then, are some thoughts on the ruling.

The primary issue here is one of damages. Specifically, the court decides whether nonpecuniary damages can be recovered by the survivor of a sailor who contracted mesothelioma from asbestos exposure, when the exposure took place part in American territorial waters and partly on the high seas.

The sailor evidently encountered asbestos from contact with gaskets at numerous times over a Navy career that spanned two decades. Asbestos, as you probably know, is useful for preventing fires, but absolutely disastrous when it gets into your lungs, and the sailor eventually developed incurable lung cancer. His widow pressed an action for damages for his wrongful death, and she included claims for things like pain and suffering and loss of consortium. The jury saw things the widow’s way and awarded $6 million in damages, including $3 million in nonpecuniary components.

The justices reverse part of this judgment. They conclude that the sailor was a seaman (the two terms aren’t synonymous), and that claims under the Death on the High Seas Act can’t include nonpecuniary components. That’s also true of wrongful-death claims brought under the Jones Act and general maritime law. Basically, the widow was allowed to recover for her husband’s death, but only for the pecuniary aspects of that death. In this case, that includes loss of income and services, plus medical and funeral expenses. The court accordingly remands the case with a direction to give John Crane half of its money back, since $3 million of the jury’s award was specifically tied to the sailor’s pain and suffering and his widow’s loss of society.

There’s another aspect of this case that’s worth mentioning. John Crane argued that the widow’s claim should be struck because her evidence failed to establish that her husband ever came into contact with asbestos-containing products manufactured by John Crane, as contrasted with a different manufacturer.

As the opinion lays out the evidence, this issue is potentially a real winner for the defendant; the decedent (in deposition testimony recorded before his death) could never say which company manufactured the gaskets that he came into contact with. For all we know, the manufacturer plausibly argued, he could have worked exclusively with the other guy’s gaskets. The widow had settled before trial with the other guy, so this is a real problem for the widow.

Except that Providence, in the form of a Rule 5:27 violation, intervenes to ensure that the widow keeps half of the verdict. The manufacturer’s assignment of error frames the issue as being that the trial court went astray “in allowing [the widow] to introduce evidence of asbestos exposure from gasket removal, where [the widow] did not prove that any gasket removed was more likely than not a gasket supplied by JCI.” But inexplicably, in its reply brief, the manufacturer states that “a plain reading of the entire Second Assignment of Error, the arguments advanced in the trial court, and JCI’s Opening Brief makes clear that JCI is challenging the sufficiency of [the widow’s] evidence.”

Okay; whoa. There are two distinct legal issues in those two statements. The first one – which is the only one that counts for appeal – is one of admissibility of evidence. The second one relates to sufficiency. As the court has repeatedly emphasized (for example, in Bitar v. Rahman in 2006), the question of whether evidence is sufficient to send the case to a jury is entirely different from whether it’s admissible in the first place. Basically, the manufacturer framed the issue as one of admissibility, and then argued a different issue on brief. Since Rule 5:27 requires that you set forth arguments in support of your assignments of error, the appellant never did that here so this highly promising issue wilts quickly.