Opinion
No. 2008 CA 2365.
May 13, 2009.
APPEALED FROM THE 22ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF WASHINGTON, LOUISIANA CASE NO. 74,729 THE HONORABLE ROBERT J. BURNS, JUDGE PRESIDING AD HOC
Judge Robert J. Burns, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
Edward Robinson, III, Mark E. Robinson, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants Jerome Milton Short et al.
Robert E. Kerrigan, Jr. Jonathan M. Walsh New Orleans Louisiana And Richard M. Simses Paul M. Lavelle Houston, Texas, Counsel for Defendant/Appellee Andrews Transport Inc
Robert E. Tarcza Michael A. Triay New Orleans, Louisiana, Counsel for Defendant/Appellee TMI Enterprise, Inc.
BEFORE: KUHN, GUIDRY, AND GAIDRY, JJ.
The plaintiffs in this matter appeal a trial court's denial of their motion for a judgment notwithstanding the verdict (from a unanimous jury verdict finding no liability on the part of the defendants) as well as their alternative motion for a new trial. After a complete and thorough review of the record, we affirm.
At the outset, given that we find no merit in any of the appellants' assignments of error and affirm the judgment on appeal, we pretermit the issues of res judicata and prescription raised by TMI Enterprise, Inc., (TMI). We have reviewed the entire record before us, which contains much of the interwoven class action suit including evidentiary documents and testimony related to those, and other issues not pertinent to the appeal. Accordingly, the factual and procedural history presented in this opinion references those proceedings and evidence only to the extent necessary to a complete understanding of the chemical release as it relates to the issues and defendants in this particular appeal.
FACTUAL BACKGROUND
In brief summary, the events leading up to the explosion were as follows: Gaylord Chemical Company (Gaylord), which uses nitrogen tetroxide (N2O4) in its industrial process, obtains the chemical from Vicksburg Chemical Company (Vicksburg), which produces it and delivers it to Gaylord in a railroad car manufactured and owned by Union Tank Car. In September 1995, a Gaylord employee noticed that the Union Tank railcar was leaking and he sprayed water on it in an effort to suppress the vapors. Unbeknownst to Gaylord and its employee, several thousand gallons of water entered the railcar at that time. What was thought to be an empty railcar was returned to Vicksburg.
Although Vicksburg noticed a weight discrepancy in the railcar, it nonetheless filled the railcar, which already contained water, with thousands of gallons of N2O4 and delivered it back to the Gaylord facility. On October 12, 1995, Gaylord began loading the chemical from the railcar to its onsite storage tank while simultaneously loading the material in the onsite storage tank into the plant. While this process was taking place, safety interlocks shut down Gaylord's chemical reactor. Investigations led Gaylord employees to believe the N2O4 to be the likely cause of the shutdown. Gaylord contacted Vicksburg, who tested the product and discovered it was contaminated with water, creating a corrosive and toxic nitric acid.
In an emergency response, Gaylord contacted Andrews Transportation Company (Andrews), seeking to obtain the use of stainless steel trailer/tankers in which to unload the water-contaminated N2O4, and prevent the corrosive effect it would have on Gaylord's storage tank. Andrews had no stainless tankers available. Gaylord then contacted TMI, which had sufficient stainless steel tankers for use, but no way to transport them. Gaylord then re-contacted Andrews and contracted with it to pick up the empty tankers from TMI and deliver them to the plant. Four brand new and clean tankers ultimately were picked up by Andrews from TMI and delivered to Gaylord's plant on October 12 and 13, 1995. Gaylord then began to transfer the contaminated contents from the railcar to TMI's stainless steel tankers.
The record refers to these stainless steel cars interchangeably as trailers and tankers. For purposes of this opinion and for the sake of consistency, they will be referred to hereinafter simply as tankers.
However, the transfer did not go as successfully as planned; the Gaylord mechanics began experiencing leaks from the Gaylord totalizers used to load the TMI tankers. Meanwhile, the pressure inside the TMI tankers became elevated and vapors were escaping. (Apparently, instead of being equipped with Teflon gaskets required for loading N2O4, the TMI tanks delivered by Andrews from TMI to Gaylord had rubber gaskets, which melted allowing the release of contaminated N2O4 into the air.) In an effort to vent these vapors, Gaylord employees sprayed water on them, which ultimately entered the tankers themselves. Gaylord also created makeshift 55-gallon drum scrubbers to vent the trailers, which were also being vented through the main Gaylord scrubber.
On the afternoon of October 23, 1995, as the loading process was nearing completion, pressure continued to rise in the railcar, believed to be empty by this point in time. A yellowish-brown vapor was observed leaking from the dome of the railcar, which ultimately exploded approximately one hour later, releasing large amounts of toxic fumes and contaminated N2O4 into the air.
PROCEDURAL HISTORY
This suit originally was filed by plaintiffs, Jerome Milton Short and Gurvis Porter, on October 11, 1996, as a petition seeking class action relief and damages allegedly suffered by them and "all others similarly situated," i.e., employees at the Gaylord Chemical Plant in Bogalusa, Louisiana, as a result of having been exposed to toxic fumes from a chemical release at the Gaylord plant. Specifically, the petition alleged the plaintiffs were exposed to contaminated N2O4 that had been leaking at the plant site from October 12, 1995 through October 23, 1995, the date a Union Tank railcar exploded on site at the Gaylord plant. During post-explosion investigations, the TMI tankers were weighed, revealing that only a small amount of N2O4 had actually been loaded into the tankers because the contents of the railcar (the water-contaminated N2O4) had eroded the dip tubes inside the car, preventing a full download into the tankers.
Short and Porter's original petition named as defendants Andrews, one of the two defendants herein, its insurer, Nobel Insurance Company (Nobel), together with numerous other defendants including Cedar Chemical Company (d/b/a Vicksburg Chemical Company), Illinois Central Railroad, Union Tank Car, the tanker manufacturer, Kansas City Southern Railroad and Scott Aviation, as well as others "to be named at a later time." (These other defendants, including Gaylord, which was added by amended petition will be referred to hereinafter collectively as the "class action defendants.")
Numerous other suits were also filed as a result of the chemical release. The multiple suits, including those originally filed by the plaintiffs herein, including but not limited to actions numbered 73,341, 74,731, and 74,729 were consolidated and subsequently certified as a class action, entitled In Re Chemical Release at Bogalusa. The plaintiffs herein, Short, Porter, and Tate, all opted in to the class action. However, by way of consent judgment dated May 13, 1998, between Short, Porter, and Andrews, and its insurer Nobel and the class action defendants, the parties agreed that Andrews and Nobel were no longer defendants in the class action and plaintiffs agreed not to seek class action relief against them, but reserved the right to maintain this action, number 74,729, on their own behalf, outside of the class action against Andrews and Nobel.
As noted later herein, James EdwardTate was added as a plaintiff in a subsequent amending petition.
By joint motion, Nobel was subsequently dismissed from the suit.
A class action trial on the common issues of fault was held between September 2, 2003 and December 10, 2003. A jury returned a verdict allocating 100% fault to class defendants, Gaylord (35%), Vicksburg (45%), Illinois Central (5%), Kansas City Railroad (5%) and Union Tank Car (10%). Judgment was entered on the jury verdict on December 9, 2003 and was designated as final. An appeal was taken of that judgment; however, it was dismissed by joint motion of the parties on October 2, 2008, upon the completion of a global settlement agreement among the parties. ( In Re Chemical Release at Bogalusa, 2005-0882 (La.App. 1st Cir. 10/2/08) (unpublished action).
In accordance with the aforementioned consent judgment, an amended petition was filed in Short and Porter's originally filed suit adding as plaintiff, James Edward Tate; adding as defendant, TMI, and alleging numerous negligent acts and strict liability against both Andrews and TMI.
Specifically, as to Andrews, plaintiffs alleged it was liable in tort for negligence in failing to provide safe equipment for the plaintiffs to conduct their work, including but not limited to the failure to have gaskets which could contain and handle the materials at issue (N2O4) and further alleged strict liability under La.C.C. art. 2317, because the tank cars that caused plaintiffs' injuries were in the care, custody, and control of Andrews.
Plaintiffs alleged that TMI was liable in tort for the same acts of negligence alleged as to Andrews, and also that it was strictly liable because the tank cars that were in the care, custody and control of Andrews were "owned by TMI."
This matter commenced as a jury trial on January 22, 2008, and lasted approximately five to six weeks. The trial concluded with the jury rendering a unanimous verdict, on February 26, 2008, in favor of Andrews and TMI, finding no liability on their part. Judgment in accordance with the jury verdict was signed on March 5, 2008, dismissing all of plaintiffs' claims with prejudice. Notice of judgment was issued on March 7, 2008.
On March 14, 2008, the plaintiffs filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and alternatively, a motion for new trial. These post-trial motions were heard by the court on April 3, 2008, and judgment denying both motions was signed on April 18, 2008. This appeal by the plaintiffs followed.
ASSIGNMENTS OF ERROR
Plaintiffs essentially raise two issues on appeal: first, whether the trial court erred in denying the JNOV when the "evidence clearly outweighed the verdict" and it was clear that "the jury had acted improperly so that impartial justice had not been done." Related to the alleged jury misconduct, plaintiffs also assert the trial court erred in No. granting the JNOV based on the trial court's refusal to poll the jury regarding a newspaper article that was published in a local newspaper during the pendency of the trial. For the following reasons, we find no merit in any of these assignments of error.
JNOV/NEW TRIAL
Louisiana Code of Civil Procedure article 1811 provides the procedural guidelines and authority for a JNOV. This article provides that a JNOV may be granted on the issue of liability or on the issue of damages or on both issues. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 4 (La. 11/28/00), 774 So.2d 84, 89. The strict criteria for JNOV is predicated on the rule that when there is a jury, the jury is the trier of fact. Smith v. State, Dept. of Transp. Dev., 2004-1317, 2004-1594, pp. 12-13 (La. 3/11/05), 899 So.2d 516, 525.
When a JNOV is denied, as in this case, the appellate court simply reviews the record to determine whether there is legal error or whether the trier of fact committed manifest error. Autin's Cajun Joint Venture v. Kroger Co., 93-0320, p. 10 (La.App. 1st Cir. 2/16/94), 637 So.2d 538, 544, writ denied, 94-0674 (La. 4/29/94), 638 So.2d 224; see also, Peterson v. Gibraltar Savings and Loan, 1998-1601, p. 6 (La. 5/18/99), 733 So.2d 1198, 1203.
NEWSPAPER ARTICLE
On Sunday February, 10, 2008, The Sunday News publication in Bogalusa and Franklinton, Louisiana contained a front page article related to the pending class action judgment/settlement negotiations, entitled: "Trial could mark end for spill settlement." The following Monday morning, at the opening of the ongoing trial, plaintiffs' counsel brought the "matter" of the newspaper article to the court's attention "out of due concern for the sanctity of the jury deliberations and the proceedings." The trial court read the article and allowed plaintiffs' counsel fully to articulate and argue his concerns outside the presence of the jury. Counsel argued that the newspaper article implied that the current suit was hindering the completion of settlement negotiations in the class action suit. He voiced concern that certain jurors who had either personal or relative's claims awaiting settlement disbursements in the class action may have been prejudiced by their personal desire to complete those settlement negotiations. Counsel further argued that the article "sends a message to the jury that the plaintiffs are holding them up and delaying them from getting back to their families." However, counsel specifically asserted that he was not urging a mistrial, but rather he sought only an admonishment to the jury, and an order of the court barring the defense attorneys from making any more statements to the press during the trial's proceedings.
The trial court granted counsel's request, ordered defense counsel to cease making comments to the press, and agreed to admonish the jury that they are not to read newspaper accounts related to the ongoing trial. Counsel then appealed to the trial court's wisdom as to whether it felt the jury needed to be polled to see if indeed they had read the article, and if so, to state whether they had been thereby influenced or prejudiced in any way. The trial court rejected this suggestion, primarily noting that his reading of the article actually revealed information very favorable to the plaintiffs. Additionally, as to any implications in the article about any kind of delay, the trial court noted, "[a] member of the jury reading that, it seems to me, would not hold it against your clients, they would hold it against the whole system that (sic) why in the world do class actions take more than 12 years?" The trial court concluded that it just did not see any way that any juror who may have read the article could have been prejudiced by it against the plaintiffs. The court also articulated, based on many years of experience in conducting trials, its concern that polling the jury, instead of just giving an admonishment would open a can of worms.
Upon review, we not only agree with the trial court, but we find its concerns very valid. Ultimately, the plaintiffs were unable to show any prejudice by the article and they were granted the requested and adequate admonishment to the jury. Accordingly, we find based on the thorough reasons given by the trial court, no error in its decision to admonish but not poll the jury.
DENIAL OF JNOV/NEW TRIAL
At the inception of the hearing on the post trial motions, plaintiffs' counsel stated his belief that the jury's verdict was erroneous "because either inexcusable ignorance or I think it was inexcusable jury revolt or rebellion to the learned instructions given by this learned court." Counsel maintained that the evidence established that both Andrews, physically, and TMI, by virtue of ownership, had custody, care and control of a defective thing (allegedly, the tankers with rubber, not Teflon, gaskets), therefore, the jury ignored the jury instructions that bound them to impose strict liability.
This argument, as a matter of law, is flawed as it is based on assumptions that are contrary to the evidence, i.e., that Andrews and TMI had legal custody of the tankers at the time that the leakage occurred; and that the tankers were defective outright, because they had rubber, rather than Teflon, gaskets. Further, while we agree with the plaintiffs that there was "overwhelming" evidence that the TMI tankers leaked, that fact has been wholly undisputed throughout the entire history of this and the class action litigation. Moreover, plaintiffs' argument that the fact of leakage alone gave rise to the imposition of strict liability against Andrews and TMI as a matter of law by virtue of their custody and ownership is also fundamentally flawed. The critical issue germane to imposition of liability in this matter relate to whether Andrews or TMI had a responsibility to prevent the tankers from leaking at the Gaylord plant; whether Andrews or TMI had legal custody, care, and control of the tankers; whether Andrews or TMI breached a duty or committed any acts that either directly or indirectly caused the leakage; and whether the tankers were indeed defective. La.C.C. arts. 2315 and 2317.
As detailed below, our review of this entire record reveals evidence so overwhelmingly in support of the jury's verdict such that reasonable jurors of like mind could not have reached a different verdict. The evidence also supports the jury's apparent fact findings that are clearly contrary to the "assumed facts" asserted by the plaintiffs.
In brief summary, the evidence indisputably established: (1) TMI leased and Andrews transported clean, new and empty trailer/tankers to the Gaylord plant; (2) the actual transport and delivery of the trailers were without incident; (3) neither Andrews nor TMI employees had anything to do whatsoever with the loading/unloading processes taking place at the Gaylord plant; and (4) the Andrews' driver moved the trailers approximately 100 yards within the plant site at the direction and instruction, and under the complete supervision by, Gaylord. And although disputed, there is overwhelming evidence to establish that (1) neither defendant had any duty to inquire about the intended use of the trailers; (2) neither defendant was told that the tankers would be used to store N2O4, in fact, it was misrepresented to Andrews that the tankers would be storing a much lesser toxic chemical, DMSO; (3) neither defendant had a responsibility to ensure that the rubber gaskets were sufficient for the intended use of the tankers; and (4) the mere fact that the gaskets needed replacement did not indicate that they were defective, as there was testimony of many legitimate reasons they could have needed replacing. Moreover and most significantly, the evidence strongly established that Gaylord had the sole responsibility under the circumstances to ensure the tankers were properly equipped for their intended use and that this duty had clearly been breached.
Specifically, the record contains class action testimony of the following individuals that was read to the jury in this case: Mr. William Dean Householder, the plant manager at Gaylord in 1995; Mr. Buddy Hall, the vice president of manufacturing at Gaylord in 1995; and Mr. Toby Frierson, assistant plant manager at Gaylord in 1995. Also, Mr. Bruce Hartzog, a Gaylord mechanic in 1995, testified at the trial. Each of these witnesses was questioned largely in relation to customary policy and procedures and Gaylord's failure to weigh the cars, without which failure, the incident would not have occurred. All of these witnesses provided consistent testimony replete with factual evidence establishing negligence and fault on the part of Gaylord, Vicksburg, Union Tank Car and the railroads. Significantly, not one of these witnesses attributed liability, either direct or implicit, to Andrews or TMI throughout their testimony.
Mr. Householder acknowledged that according to Gaylord's written procedures, the railcar should have been weighed at the Gaylord plant to ensure it was empty prior to being sent to Vicksburg. He also testified, however, that for years, pursuant to verbal agreements the written procedure had not been followed, instead, Gaylord's tank cars were routinely weighed only at Vicksburg. Mr. Householder also acknowledged that the bill of lading, inspected by Toby Frierson, reflected that the railcar had 9,500 pounds of material in it when it arrived at Vicksburg, yet he was unable to explain why Gaylord had failed to note and question such a blatant discrepancy with their belief that the car was empty when it left the plant. He testified that, instead, he first became aware of the fact that the railcar was not empty on October 12, 1995. He testified that they (Gaylord employees) then concluded that the 9,500 pounds of water in the railcar had come from a water hose that had been attached previously by Gaylord employees to the valve and had been inadvertently left on, running continuously and unnoticed for seven days, evidently dumping water into the car.
Mr. Householder acknowledged he was aware of a memo dated October 15, 1995, informing Gaylord employees that diluted concentrations of N2O4 cause "catastrophic corrosion." Nevertheless, he claimed that the first sign of vapor was a brown cloud that was observed on October 20, 1995, and that was when he knew the valves could have been corroding from the water-contaminated chemical. Mr. Householder was not questioned regarding the transport of the trailers No. any involvement by Andrews or TMI.
Similarly, Mr. Hall testified that Gaylord could have, but did not weigh the tank trailers to ensure they contained a full offload from the railcar, a discrepancy that was, therefore, not noted until much later. He also acknowledged that he was unaware whether Gaylord sought advice from Union Tank Car, the builder of the railcar, even after having knowledge of a potential contamination therein as early as October 12, 1995. Mr. Hall was questioned regarding his failure to have knowledge that the "Monel excess flow valve" in the Union Tank railcar was incompatible with N2O4 and would cause severe corrosion, despite that this information was contained in a Process Hazard Analysis that he signed as having read in 1994. Moreover, Mr. Hall candidly admitted that, pursuant to the written policy, it was a mistake for Gaylord to have not weighed the railcar before sending it to Vicksburg as "empty." Again, neither Andrews nor TMI were mentioned in his testimony.
Bruce Hartzog, the Gaylord mechanic who was called as a witness at trial, provided testimony consistent with the foregoing regarding the obvious breaches of duty by Gaylord to weigh the railcar and by Vicksburg to ignore the discrepancy. He confirmed that when Gaylord employees attempted to transfer the railcar liquid (not known to be water-contaminated at this point) on October 12, 1995, they encountered seepage and leaks of visible brown puffs. After deloading, he testified that the trailers were driven, as directed by Gaylord employees, by either an Andrews or TMI employee to a parking site within the plant. However, he admitted that he never personally observed any Andrews or TMI employee on site throughout the duration of the project. He also admitted that Andrews or TMI employees were not in any way involved in the entire process, save to drive the trailers that short distance as directed by Gaylord employees. He testified that on October 14, 1995, they witnessed plumes of brown smoke leaking from one or more of the trailers at which time it was discovered that the manway and relief valve gaskets had corroded and needed replacement with Teflon gaskets. He further testified that once the Teflon gaskets arrived, he replaced the corroded ones and the tanker ceased leaking. Although he was unaware of a documented leak from another of the trailers on October 22, 1995, he testified that the vapor vent relief valve was replaced on that trailer as well.
Finally, even the deposition testimony of plaintiffs' expert witness, scientist and chemical engineer, Vasilis Fthenakis, Ph.D., which was read into the record, failed to implicate Andrews or TMI in any way. He testified that he "could go on and on" regarding all of the failures on the part of Gaylord that caused the releases and ultimate explosion because there were so many. He characterized Gaylord's acts as "inexcusable ignorance" in the operation of a chemical facility, "reckless conduct," and testified that the ultimate incident was "all predictable" based on the numerous negligent acts committed.
Based on these witnesses alone, the jury could have reasonably found that the entirety of the fault for the incident at issue had been correctly and previously assessed to the class action defendants based on the numerous breaches of duty proven to have caused the explosion. However, the record contains further evidence presented by plaintiffs that supports the jury's additional conclusion that no negligent acts were committed by either defendant that caused the release, and that neither defendant had the legal custody of a defective thing required for the imposition of strict liability.
One of the few witnesses whose testimony elicited at trial implicated Andrews and TMI in any way was that of Jodee Robinson, the customer service representative who arranged shipment orders for Gaylord in 1995 and who personally arranged the negotiations of lease and transport with Andrews and TMI. However, this testimony was flatly contradicted by the testimony of other witnesses. Robinson testified that she always informed the transporters what they would be transporting, the type of tankers they needed, including the types of gaskets needed. She also testified that it was standard practice for Gaylord to require Teflon gaskets. She stated that she was never told, and therefore, never told Andrews that the trailers were needed specifically to offload N2O4 from the railcar. However, on cross examination, this testimony was noted to be inconsistent with an earlier deposition in which she stated that she told Andrews the specific need for a trailer compatible with N2O4.
Moreover, Robinson's testimony was directly contradicted by the testimony of Andrews' truck driver, Harris Reams, Jr., who confirmed that he delivered an Andrews bill to Gaylord, signed by himself and a Gaylord employee reflecting that the transport was of trailers to be used to store DMSO. Mr. Reams also testified to his understanding that it was the responsibility of Gaylord to ensure that the tankers delivered contained gaskets compatible with the intended use. Robinson's testimony was also contradicted by that of Morial Boutte, rentals manager for TMI, who admitted that he did not point out to anyone that the trailer had rubber gaskets because it was not his duty to ensure compatibility. He further testified that the trailers were leased not for any specific chemical but for use "within trailer specification" and that it was the duty of the shipper/lessee to ensure compatibility with certain chemicals. Ms. Robinson's testimony was further contradicted by that of the owner of TMI, Mr. Louie Vielee, who personally negotiated with her for the lease of the trailers. Mr. Vielee testified that he was not told the specific intended use of the tankers being leased, only that they were going to be used to store "products" on site at the Gaylord plant. He further stated that it is the lessee's (Gaylord) sole responsibility to ensure that the trailer is proper and compatible for the use intended, and that it falls with the specifications for what the trailer is designed. Mr. Vielee also testified that it is TMI's standard practice that trailers "come in" clean and empty, and "go out" the same way. Finally, he testified that he never received any complaints from Gaylord regarding the tankers that were delivered and specifically no complaints related to improper gaskets.
Perhaps the only testimony in the entire record implicating Andrews and TMI as having some fault related to the injuries claimed by the plaintiffs was that of Barry L. Brunstein, accepted as an expert in transportation safety. On direct examination, he testified that Andrews violated Hazmat regulations when it moved trailers approximately 100 yards on the plant site without knowing what was contained therein. However, this statement was called into question on cross examination when he admitted that for purposes of the Federal Hazmat Materials Transportation Law, "transport" ends once the cosignee takes physical delivery, which had already occurred in this matter; therefore, movement after storage in this case was not the responsibility of the transporter (Andrews). Brunstein also opined that he believed TMI should have ascertained what was going to be put in the trailers before leasing, and that Andrews should have asked for the same information before transporting them. He testified that he considered such failure on their part to constitute "reckless, wanton and grossly deficient" actions. He also opined that TMI was careless in failing to inquire why replacement gaskets were subsequently needed. However, again on cross examination, he was forced to admit that, even if these failures on the part of Andrews and TMI had indeed occurred, it was the actions and failures of Gaylord, Vicksburg and the railroads that actually caused the incident, and not the transport of clean, new and empty trailers. He also admitted that the journey from TMI to Gaylord, given that the trailers were empty, was simply not governed by Hazmat regulations. He also admitted that according to federal regulations, the shipper (Gaylord) has the nondelegable duty to ensure that the lading is compatible with the gaskets.
CONCLUSION
Based on the totality of the relevant and pertinent evidence in the record, we are convinced that it falls far short of meeting the stringent requirements for a JNOV. Not only do we find no error in the trial court's denial of both of plaintiffs' post-trial motions, we agree with the trial court that "there are no grounds under our law" based on this record to grant either one. Finding no merit to this appeal, we affirm the trial court's judgment, denying the JNOV and the motion for new trial. All costs of this appeal are assessed to the plaintiffs.