COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1064
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
HAROLD P. BETTINGER,
Plaintiff-Appellant,
S. DARLENE BETTINGER,
Plaintiff,
v.
THE ANCHOR PACKING
COMPANY,
a Delaware
corporation,
Defendant-Respondent,
THE A.P. GREEN
REFRACTORIES CO.,
a Delaware
corporation,
ARMSTRONG WORLD
INDUSTRIES, INC.,
a Pennsylvania
corporation,
BABCOCK & WILCOX,
a Louisiana corporation,
CAREY CANADA, a
Canadian corporation,
THE CELOTEX
CORPORATION, a Delaware corporation,
CERTAINTEED
CORPORATION, a Maryland corporation,
CLEAVER BROOKS CO.,
INC., a Wisconsin corporation,
COMBUSTION
ENGINEERING, INC., a Delaware corporation,
EAGLEPICHER
INDUSTRIES, INC., an Ohio corporation,
FIBREBOARD
CORPORATION, a Delaware corporation,
THE FLINTKOTE COMPANY,
a Delaware corporation,
GAF CORPORATION, a
Delaware corporation,
GARLOCK, INC., a New
York corporation,
KEENE CORPORATION, a
New York corporation,
NATIONAL GYPSUM
COMPANY, a Delaware corporation,
OWENS-CORNING
FIBERGLASS CORPORATION,
a Delaware
corporation,
OWENS-ILLINOIS, INC.,
an Ohio corporation,
PITTSBURGH CORNING
CORPORATION,
a Pennsylvania
corporation,
Defendants.
APPEAL from a judgment
of the circuit court for Dane County:
WILLIAM D. JOHNSTON, Judge. Affirmed.
Before Gartzke, P.J., Sundby and Vergeront, JJ.
PER
CURIAM. Harold P. Bettinger appeals from a judgment dismissing
his personal injury complaint. We
affirm.
Bettinger alleged that
he was injured by asbestos contained in the defendants' products. The first question on the special verdict
was: "Does Harold P. Bettinger
have mesothelioma?" The jury
answered "no." The special
verdict then directed the jury to skip the next 103 questions if it answered
"no" and determine what damages would compensate Bettinger. Based on the jury's answer to the first
question, the trial court dismissed the complaint.
Bettinger argues that
the trial court erred in asking the verdict question quoted above because it
was unnecessary. He argues that the only
evidence submitted showed that he did, in fact, suffer from mesothelioma and
therefore the jury could have reached no other conclusion. While the defendants did not present expert
medical evidence of their own, on cross-examination they elicited evidence
suggesting that Bettinger actually suffered from adenocarcinoma, rather than
mesothelioma. The parties agreed to
give the jury the standard instruction on expert testimony, which states that
the jury is not bound by the opinion of any expert. Wis J I—Civil 260. Therefore, the jury could properly disregard
the diagnosis of Bettinger's experts, even if not rebutted by a defense expert.
Bettinger argues that
the special verdict was improperly phrased.
He argues that the first question precluded the jury from finding that
he had adenocarcinoma, which, like mesothelioma, may be caused by
asbestos. Instead, Bettinger proposed
at the instructions' conference that the question be: "Does Mr. Bettinger
have an asbestos-related injury?"
Bettinger does not point to any testimony by his expert witnesses
stating that he suffered from adenocarcinoma, or that adenocarcinoma was an
alternative diagnosis if the diagnosis of mesothelioma was incorrect. Such testimony would have been necessary to
meet his burden of proof.[1] Without it, the jury could not properly have
found that Bettinger had adenocarcinoma, regardless of whether it was so asked
in the special verdict. Therefore, the
phrasing of the question was not erroneous.
Bettinger argues that
the trial court improperly limited his closing arguments. By his count, the court sustained
fifty-seven out of sixty objections made during his closing argument and
rebuttal. Several of these related to
Bettinger's efforts to comment on the fact that the defendants did not produce
any experts to counter the diagnosis of mesothelioma. Bettinger asserts that such argument was proper because a party
may comment on the failure of the opposing party to produce evidence in its
possession that would ordinarily be introduced. We reject the argument.
The trial court did not erroneously exercise its discretion. The remainder of the closing argument issues
are mooted by the jury's answer to the special verdict question.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.