        IN THE SUPREME COURT OF THE STATE OF DELAWARE

R.T. VANDERBILT                        §
COMPANY INC.,                          §     No. 510, 2013
                                       §
      Defendant Below-                 §     Court Below: Superior Court
      Appellant, Cross-Appellee,       §     of the State of Delaware in and
                                       §     for New Castle County
v.                                     §
                                       §     C.A. No. N10C-10-315
DARCEL GALLIHER, individually          §
and as special administrator for the   §
ESTATE OF MICHAEL                      §
GALLIHER, deceased,                    §
                                       §
      Plaintiff Below-                 §
      Appellee, Cross-Appellant.       §
                                       §

                            Submitted: May 14, 2014
                             Decided: July 24, 2014

Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

Upon appeal from the Superior Court. REVERSED and REMANDED.


Nicholas E. Skiles, Esquire, Joseph Naylor, Esquire, Swartz Campbell LLC,
Wilmington, Delaware for Appellant / Cross-Appellee.

Of Counsel: Pratik A. Shah, Esquire (argued), Patricia A Millet, Esquire,
Ruthanne M. Deutsch, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.,
for Appellant / Cross-Appellee.

David W. deBruin, Esquire, The deBruin Firm LLC, Wilmington, Delaware for
Appellee / Cross-Appellant.

Of Counsel: William A. Kohlburn, Esquire (argued), of Simmons Browder
Gianaris Angelides & Barnerd LLC, Alton, Illinois for Appellee / Cross-
Appellant.
RIDGELY, Justice:

      In    this   personal   injury    and    wrongful    death    case,    Defendant-

Below/Appellant/Cross-Appellee R.T. Vanderbilt Company, Inc. (“Vanderbilt”)

appeals from a Superior Court judgment on a jury verdict of $2,864,583.33 plus

interest to Plaintiff-Below/Appellees/Cross-Appellant Darcel Galliher (“Galliher”),

individually and on behalf of the Estate of Michael Galliher.            The decedent,

Michael Galliher (“Michael”), contracted and died from mesothelioma as a result

of exposure to asbestos or asbestiform material while employed by Borg Warner1

at a bathroom fixtures facility. Vanderbilt provided industrial talc to Borg Warner,

which is alleged to be the source of the substance that caused Michael’s

mesothelioma. At trial, Vanderbilt denied causation and claimed that Borg Warner

was responsible because it did not operate the facility in a manner that was safe for

employees like Michael.

      Vanderbilt raises two claims on appeal. First, Vanderbilt contends that the

trial court erred when it failed to instruct the jury on the duty of care required of

Borg Warner, as Michael’s employer. Second, Vanderbilt argues that the trial

court erred when it failed to grant a new trial based on the admission of unreliable

and inflammatory evidence that previously was ruled inadmissible. Among other


1
  The facility originally owned by Borg Warner became known as Artesian Industries in the
1970s and Crane Plumbing in the early 1990s. For simplicity, we refer to these entities
collectively as “Borg Warner.”
                                           2
things, a witness for Galliher introduced hearsay, not subject to cross-examination,

that Vanderbilt employees were “liars” and that Vanderbilt had spent millions of

dollars “buying senators.”

       Galliher raises one claim on cross-appeal. Galliher contends that the trial

court erred as a matter of law when it disallowed post-judgment interest for a

certain period of months.

       Vanderbilt introduced evidence at trial to show that Borg Warner breached

the relevant standard of care. The trial court erred when it failed to provide any

instruction to the jury on Borg Warner’s duty of care to Michael, despite

Vanderbilt’s request that it do so. The trial court also abused its discretion when it

denied Vanderbilt’s motion for a new trial based upon the substantial prejudice

resulting from the admission of evidence, not subject to cross-examination, that it

had engaged in criminal conduct.2 Accordingly, we must reverse the judgment and

remand for a new trial. Because there will be a new trial, it is not necessary for us

to address Galliher’s cross-appeal concerning post-judgment interest.

                              Facts and Procedural History

       From 1966 to 1968 and 1970 to 2005, Michael was employed primarily in

the cast shop filling ceramic molds at Borg Warner, a plant that manufactured

bathroom fixtures in Mansfield, Ohio. Borg Warner used the NYTAL brand

2
  As a matter of federal law, 18 U.S.C. § 201 criminalizes the bribery of public officials, which
includes Members of Congress.
                                               3
industrial talc—which Vanderbilt mined, sold, and distributed to Borg Warner—to

dust molds for the ceramics that were manufactured in the cast shop where Michael

worked. Borg Warner used NYTAL talc in the cast shop until the late 1970s.3 The

cast shop was described as “dirty” and “hot.”4 A former Borg Warner employee

testified that when he left the cast shop at the end of the work day his arms and

clothes would be white from the dust. That former employee also testified that

Borg Warner did not require its employees to wear masks in the cast shop until the

mid- to late-1980s.

       Michael was diagnosed with malignant mesothelioma in August 2010 and

died from that condition in February 2011. In 2011, Galliher filed a wrongful

death suit against Vanderbilt, alleging that Michael contracted mesothelioma as a

result of exposure to Vanderbilt’s NYTAL industrial talc, which contained

asbestiform fibrous materials.          Vanderbilt conceded that the industrial talc

contained asbestiform minerals but denied that the talc contained actual asbestos or

caused mesothelioma. Instead, Vanderbilt alleged that Borg Warner and a third

party, CertainTeed Corporation, were responsible for Michael’s death. Vanderbilt

further alleged that Michael was negligent for failing to protect himself.


3
  By 1984, the talc used in the cast shop where Michael worked was Montana Treasure Talc,
which, the parties agree, did not contain fibers that could have contributed to Michael’s
mesothelioma. NYTAL was used in the facility again from the mid-1980s until 1992 to make
glaze in an area of the facility that was adjacent to Michael’s work area. But the parties agree
that Michael was not exposed to NYTAL after 1992.
4
  Appellant’s Opening Br. Appendix at A308.
                                               4
      At trial, three different witnesses for Galliher made statements that

previously were ruled inadmissible. Vanderbilt moved for a mistrial based on

these statements and also moved for a judgment as a matter of law. Both motions

were deferred until after the jury’s verdict. In a prayer conference, Vanderbilt

provided proposed jury instructions on Borg Warner’s duty of care as Michael’s

employer. The trial court ultimately declined to include Vanderbilt’s proposed

instructions.

      After deliberations, the jury returned a verdict in favor of Galliher, awarding

$2,864,583.33 in damages. The jury further found Vanderbilt was one hundred

percent liable for Galliher’s damages, that Borg Warner bore no responsibility, and

that Michael had not been negligent. Following the verdict, Vanderbilt renewed its

motions for a new trial and for judgment as a matter of law, which were denied by

the trial court. Galliher moved for costs and interest, which were granted except

that post-judgment interest was deferred for nearly six months.         This appeal

followed.

                                    Discussion

      Vanderbilt contends that the trial court erred when it failed to instruct the

jury on Borg Warner’s appropriate duty of care and abused its discretion when it

refused to order a new trial because of the admission of unreliable and

inflammatory evidence.     This Court reviews the denial of a requested jury


                                         5
instruction de novo.5 We review for an abuse of discretion the trial court’s denial

of a motion for new trial.6

       “A party is not entitled to a particular jury instruction but does have the

unqualified right to have the jury instructed on a correct statement of the substance

of the law.”7 “A trial court may not, sua sponte, refuse to instruct the jury on

claims that have been pleaded and upon which evidence has been presented.”8

Rather, “[t]he trial court must ‘submit all the issues affirmatively to the jury’ and

must not ignore a requested jury instruction applicable to the facts and law of the

case.”9 “A trial court’s charge to the jury will not serve as grounds for reversible

error if it is ‘reasonably informative and not misleading, judged by common

practices and standards of verbal communication.’”10

       Vanderbilt argues that the trial court failed to adequately instruct the jury on

the duties Borg Warner owed to Galliher.                The trial court’s instruction on

comparative negligence provided:




5
   Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 540 (Del. 2006) (quoting
Manlove v. State, 867 A.2d 902, 2005 WL 277929, at *1 (Del. 2005)).
6
  Cuonzo v. Shore, 958 A.2d 840, 844 (Del. 2008) (citing Young v. Frase, 702 A.2d 1234, 1236
(Del. 1997)).
7
  Koutoufaris v. Dick, 604 A.2d 390, 399 (Del. 1992) (citing Culver v. Bennett, 588 A.2d 1094,
1096 (Del. 1991)).
8
   North v. Owens-Corning Fiberglas Corp., 704 A.2d 835, 838 (Del. 1997) (citing Asbestos
Litig. Pusey Trial Grp. v. Owens-Corning Fiberglas Corp., 669 A.2d 108, 111–12 (Del. 1995)).
9
  Id. (quoting Alber v. Wise, 166 A.2d 141, 143 (Del. 1960)).
10
   Bishop v. State, 593 A.2d 589, 1991 WL 78470, at *3 (Del. 1991) (quoting Probst v. State, 547
A.2d 114, 119 (Del. 1988)).
                                               6
                Defendant claims that non-party Borg Warner/Artesian was
             at fault and that its fault caused or contributed to causing
             Michael Galliher’s mesothelioma and death. Defendant also
             claims that Michael Galliher was at fault and that his fault
             caused or contributed to causing his mesothelioma and death.

                Defendant, not Plaintiff, bears the burden of proof to show,
             by a preponderance of the evidence:

                (1) that Borg Warner / Artesian was at fault and that its fault
             caused or contributed to causing Mr. Galliher’s mesothelioma
             and death; and/or

                (2) that Mr. Galliher was at fault and that Mr. Galliher’s
             fault caused or contributed to causing his mesothelioma and
             death.
                 If you determine that damages should be awarded to the
             Plaintiff, you will consider and assign percentage of fault
             among Defendant and those above whom you find to have been
             at fault and whose fault contributed to causing Mr. Galliher’s
             mesothelioma and death, as follows:
                 (1) the percentage of fault of the defendant;

               (2) the percentage of fault that is attributable to Borg
             Warner / Artesian;
               (3) the percentage of fault that is attributable to Michael
             Galliher.

             The sum of these percentages must equal 100%.11
         Vanderbilt claims that the trial court also erred when it failed to instruct the

jury—as requested12—on Borg Warner’s duty of care to its employees. At the


11
     Appellant’s Opening Br. Appendix at A1055.
12
     Vanderbilt’s proposed instructions provided:
         26 DUTY OF EMPLOYER—DEFENSE PROPOSED
             Every employer shall furnish employment which is safe for the employees
             engaged therein, shall furnish a place of employment which shall be safe for
                                                7
prayer conference, the trial court indicated that it believed that Vanderbilt’s

proposed jury instruction related to Borg Warner’s duty of care as Michael’s

employer was too long and that it would tailor them, stating “I’ll think of

something for you.”13 But the final jury instructions did not include an instruction

on Borg Warner’s duty of care. And when Vanderbilt pointed out that there was

no instruction on Borg Warner’s duty of care, the trial court said, “I deliberately

have removed those from the charge.”14 Because the trial court refused to provide

any instruction to guide the jury in its deliberations on the responsibility of Borg

Warner as a premise owner and employer, Vanderbilt argues that the trial court

committed reversible error. We agree.




             the employees therein and for frequenters thereof, shall furnish and use safety
             devices and safeguards, shall adopt and use methods and processes, follow
             and obey orders, and prescribe hours of labor reasonably adequate to render
             such employment and places of employment safe, and shall do every other
             thing reasonably necessary to protect the life, health, safety, and welfare of
             such employees and frequenters.
         27. DUTY OF EMPLOYER—DEFENSE PROPOSED
             No employer shall require, permit, or suffer any employee to go or be in any
             employment or place of employment which is not safe, and no such employer
             shall fail to furnish, provide, and use safety devices and safeguards, or fail to
             obey and follow orders or to adopt and use methods and processes reasonably
             adequate to render such employment and place of employment safe. No
             employer shall fail to do every other thing reasonably necessary to protect the
             life, health, safety, and welfare of such employees or frequenters. No such
             employer or other person shall construct, occupy, or maintain any place of
             employment that is not safe.
Appellant’s Opening Br. Appendix at A1025.
13
   Id. at A300.
14
   Id. at A312.
                                                  8
       The parties agree that Ohio law governs substantive issues in this case. The

Ohio Judicial Conference has developed model jury instructions that it encourages

trial courts to use.    In relevant part, Civil Chapter 617.11 of the Ohio Jury

Instructions provides an instruction on the general duty of care of a premises

owner:

          The owner of the premises owes a duty to a frequenter to use
          ordinary care for the frequenter’s safety, to keep the premises in
          a reasonably safe condition, and to use ordinary care to provide
          notice of any concealed dangers of which the owner of the
          premises has knowledge, or which by using ordinary care
          should have discovered.15

Similarly, Ohio Revised Code §§ 4101.11 and 4101.12 impose an affirmative duty

on employers to furnish a safe work environment and to prevent an employee from

working in an unsafe environment.16 This duty of care under Ohio law “is no more

than a codification of the common-law duty owed by an owner or occupier of

premises to invitees, requiring that the premises be kept in a reasonably safe

condition, and that warning be given of dangers of which he has knowledge.”17 If

the trial court believed that Vanderbilt’s proposed jury instruction was too long, it

could have done as it promised and narrowed the instructions Vanderbilt submitted

or given a general instruction, similar to the one found in the Ohio Judicial

15
   Ohio Judicial Conference, Frequenter, 1 CV Ohio Jury Instructions 617.11(2) (2002).
16
   See Ohio Rev. C. § 4101.11 (providing that employers have a duty to protect employees and
frequenters); id. § 4101.12 (providing that employers have a duty to furnish a safe work
environment for employees and frequenters).
17
   Eicher v. U.S. Steel Corp., 512 N.E.2d 1165, 1167 (Ohio 1987) (citing Westwood v. Thrifty
Boy Super Mkts., Inc., 278 N.E.2d 673, 674 (Ohio 1972)).
                                             9
Conference’s model instruction. The trial court also could have asked counsel for

Vanderbilt to submit a more tailored instruction on the subject themselves.

      But the jury instructions ultimately given did not provide any statement of

the law as to Borg Warner’s duty of care under Ohio law even though Vanderbilt

contended that Borg Warner breached its duty of care to Michael. Rather, the trial

court’s instructions only asked the jury to determine if Borg Warner was “at fault”

without giving the jury any guidance on what acts or omissions would establish

fault on the part of an employer as a matter of law. This material omission

regarding the substance of Ohio law left the jury without a correct statement of the

applicable law and requires a new trial.

      In its second claim on appeal, Vanderbilt contends that the trial court abused

its discretion when it denied Vanderbilt’s motion for a new trial because of four

different statements involving three witnesses. The first statement occurred when

defense counsel questioned Dr. Barry Castleman, an expert for Galliher, on various

topics during cross-examination. Defense counsel asked Dr. Castleman about his

book and any references to Vanderbilt:

         [Defense Counsel]. Does your book mention RT Vanderbilt?
         [Dr. Castleman]. Yes.

         [Defense Counsel]. Is that the one paragraph, there’s one
         paragraph on RT Vanderbilt?



                                           10
             [Dr. Castleman]. The paragraph where Johns-Manville people
             are calling RT Vanderbilt liars.18
Then defense counsel asked Dr. Castleman about Vanderbilt’s efforts to obtain

favorable reports and regulatory rulings.

             Q. And RT Vanderbilt has been studying talc since the 1970s;
             correct?

             [Dr. Castleman]. Well, since government regulatory officials
             started to impose duties on them. Yes, Vanderbilt has reacted
             by coming forth with studies and statements of various kinds.
             They spent millions of dollars on that.

             [Defense Counsel]. How do you know they spent millions of
             dollars?

             [Dr. Castleman]. Just the volume of studies, as well as
             testimony that’s emerged in the course of this history and
             unearthing this history. I figure 16 million dollars, I believe,
             was used in one document.
             [Defense Counsel]. Who gave the 16 million dollars, who was
             that testimony by?
             [Dr. Castleman]. I think it was by a worker at Vanderbilt
             talking about [what] one of the Vanderbilt family told the
             workers.

             [Defense Counsel]. So a talc worker, a miner or miller; right?

             [Dr. Castleman]. Right.

             [Defense Counsel]. Is reporting how much Vanderbilt spent on
             this?

             [Dr. Castleman]. How much the company owners told him they
             spent buying senators and lobbying the government, yes.19


18
     Appellant’s Opening Br. Appendix at A182.
                                                 11
After this second statement, Vanderbilt objected, and the trial court told the jury to

“disregard the statement about buying senators and governors.”20

       Vanderbilt claims that Dr. Castleman’s statements, along with statements by

Sean Fitzgerald, an expert for Galliher,21 and Thomas Rogers, a Vanderbilt

employee,22 were sufficiently prejudicial to require a mistrial. As we explain

below, Dr. Castleman’s statement about Vanderbilt engaging in bribery is

especially egregious and requires a new trial. Even the trial court openly worried

whether “any amount of curative instructions” would “erase from the minds of the

jury” the statements made by Dr. Castleman.23 Therefore, we need not examine

other testimony beyond Dr. Castleman’s to reach our decision that the trial court

abused its discretion when it denied Vanderbilt’s motion for a mistrial.

       To establish an abuse of discretion in the denial of a motion for a new trial, a

party must demonstrate that a witness’s improper comments were “significantly


19
   In re Asbestos Litigation (Michael Galliher v. R.T. Vanderbilt Co., Inc.), No. N10C-10-315,
slip op. at 11 (Del. Super Ct. Aug. 27, 2013) [hereinafter Op.].
20
   Appellant’s Opening Br. Appendix at A183.
21
   At trial, Fitzgerald used a chart to illustrate for the jury certain studies that he had reviewed
before reaching his conclusions that Michael’s mesothelioma was caused by NYTAL talc. The
chart included findings from a report that the trial court had deemed inadmissible. When
Fitzgerald was cross-examined about the mathematical calculations in the chart he stated, “[t]he
math isn’t going to work because the math that I used included an analysis that I was -- I was
told could not be a part of this.” Appellant’s Opening Br. Appendix at A233. Vanderbilt argues
that the introduction of this excluded report was prejudicial.
22
   Rogers testified that there were rumors at the mine where NYTAL talc was mined that the
materials they were mining contained asbestos. The trial court had previously ruled that
testimony about the rumors was inadmissible hearsay. Vanderbilt argues that this hearsay was
prejudicial.
23
   Op. at 12.
                                                12
prejudicial so as to deny them a fair trial.”24 Where a party can establish that the

statements were improper and prejudicial, the issue then becomes “whether the

improper comments caused sufficient prejudice to the complaining party to warrant

reversal or whether the prejudice was cured by the cautionary instructions given by

the Trial Court.”25 In gauging the effect of admission of improper evidence, this

Court—like the trial court below—considers “(1) the closeness of the case, (2) the

centrality of the issue affected by the error, and (3) the steps taken in mitigation.”26

       It is undisputed that Dr. Castleman’s hearsay testimony that Vanderbilt

employees were lying about the company’s product and that Vanderbilt engaged in

illegal conduct of bribing senators was improper. Our analysis thus centers on the

prejudicial effect of this evidence. Under the first prong of the test, the case was

close. Vanderbilt presented scientific studies which found that Vanderbilt’s talc

did not contain asbestos and had not been scientifically shown to cause

mesothelioma.       Galliher, on the other hand, presented expert testimony that

Vanderbilt’s talc did contain asbestos and that it had caused Michael’s

mesothelioma.      Thus, whether Vanderbilt’s talc contained asbestos that could




24
   DeAngelis v. Harrison, 628 A.2d 77, 80 (Del. 1993) (quoting Shively v. Klein, 551 A.2d 41, 44
(Del. 1988)).
25
   Joseph v. Monroe, 419 A.2d 927, 930 (Del. 1980) (citing Univ. of Delaware v. Munson, 316
A.2d 206, 208 (Del. 1974)).
26
   DeAngelis, 628 A.2d at 81 (citing Hughes v. State, 437 A.2d 559, 571 (Del. 1981)).
                                              13
cause mesothelioma was a hotly contested issue with evidence presented going

both ways on that dispositive question.

       Under the second prong, the erroneous admission of the statements by Dr.

Castleman was especially problematic because the statements went to the core of

Vanderbilt’s case.27 Dr. Castleman’s comments included impermissible character

evidence that discussed the credibility and motivations of Vanderbilt as a

company. Even though the central issue at trial was a scientific question—i.e.,

whether Vanderbilt’s talc contained substances that caused mesothelioma—the

answer to that question implicitly depended on the credibility of Vanderbilt as a

company. In order for the jury to determine that Vanderbilt’s industrial talc did not

contain asbestos or otherwise cause Michael’s mesothelioma, the jury would have

to believe Vanderbilt’s statements and official company reports.                   Thus, the

inadmissible testimony provided by Dr. Castleman impermissibly undermined

Vanderbilt’s credibility on a key factual dispute at trial.

       Finally, under the third prong, the trial court’s curative response was

insufficient to mitigate the prejudice caused by the impermissible testimony. The

trial court failed to provide any curative instruction regarding the hearsay evidence

about Johns-Manville employees. And while the trial court did instruct the jury to

disregard Dr. Castleman’s statement about “buying senators,” it later worried that

27
  The trial court “expressed serious concerns” with Dr. Castleman’s testimony and characterized
his comments as “regrettable.” Op. at 11–12.
                                              14
“no amount of curative instructions will erase [it] from the minds of the jury.”28

That worry was fully justified because the inadmissible testimony was so

derogatory that a simple admonishment to ignore that aspect of Dr. Castleman’s

testimony, while leaving the jury to accept the rest of his views as an expert

witness, was clearly insufficient.           Further, there was no curative instruction

regarding the hearsay statements alleging that Vanderbilt spent sixteen million

dollars on studies to undermine government regulatory action. Thus, the trial

court’s corrective action was insufficient to mitigate the prejudice caused by the

admission of the evidence.

       Galliher argues that Dr. Castleman’s statements were not prejudicial because

the inappropriate remarks occurred during cross-examination.                     But the record

amply supports the inference that the trial court itself drew that Dr. Castleman

intended to make his inadmissible statements regardless of defense counsel’s

inquiries.29

       Because the trial court erred in instructing the jury and abused its discretion

in denying Vanderbilt a new trial, we reverse the judgment of the Superior Court

28
 Op. at 12.
29
 The trial court explained:
        I will tell you that . . . one of the things that troubles me most is Dr. Castleman’s
        volunteering, what I believe to be volunteering, about the senators in the hip
        pocket or – I think the words were that [Vanderbilt] bought senators, plural. I
        don’t think that was invited by the question. I think, frankly, Dr. Castleman was
        intent on getting that to the jury and seized upon the moment that he could to put
        it before the jury.
Op. at 12 (omission in original).
                                                15
and remand the case for a new trial. It is therefore unnecessary to consider

Galliher’s cross-appeal concerning the calculation of post-judgment interest.

                                    Conclusion

      The judgment of the Superior Court is REVERSED, and this matter is

REMANDED for a new trial.




                                        16
