2009 WL 276734
Opinion by Judge Thompson; Judge Stumbo and Senior Judge Guidugli concurred.
The Court affirmed a judgment entered in favor of the appellee spouse and estate for the deceased’s death caused by exposure to asbestos.
The Court first held that the complaint was not untimely filed. It was well within reason for the jury to find that appellees exercised due diligence to discover that appellant was the source of the asbestos by launching a massive discovery effort to ascertain the identity of any unnamed tortfeasors. Only a post-death tissue analysis discovered the presence of talc, and appellant misrepresented that its talc contained asbestos – a fact which was exclusively within appellant’s knowledge.
The Court then held, although the sanctions imposed pursuant to CR 37.02 were harsh, the trial court did not abuse its discretion in imposing the sanctions for appellant’s failure to comply with discovery orders. Appellant’s non-compliance was willful, the requests were legitimately related to the subject matter of the litigation, appellant was repeatedly warned that sanctions would be imposed, the sanction was appropriate in light of the information withheld, and the trial court made detailed findings of fact sufficient to support the sanction imposed.
The Court next held that, although an instruction to the jury reflecting the sanctions imposed was prejudicial and assumed an essential fact, as a result of the sanctions imposed the prejudice was unavoidable based on the sanctions.
The Court also held that the trial court did not abuse its discretion by admitting expert testimony without a Daubert. The court was aware of the expert’s proposed testimony, the basis for the claims against the defendants, the paper relied on by the expert, that the paper had been peer reviewed, that the expert testified in five prior cases, that the expert’s opinions had been published in professional journals, and that tissue digestion study was an accepted methodology.
The Court then held that documents drafted by a third-party defendant were highly relevant to the knowledge of the mining industry that talc contained asbestos and were admissible under the business records exception KRE 803(6). The Court also held that testimony of an industrial hygienist was properly admitted under KRE 602, as he testified to matters within his personal knowledge. The Court finally held that the trial court did not abuse its discretion in failing to reduce the statutory interest rate.