Exxon Mobil Corporation v. Minton

PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Koontz, S.J.

EXXON MOBIL CORPORATION
OPINION BY
v. Record No. 111775 JUSTICE LEROY F. MILLETTE, JR.
JANUARY 10, 2013
CONNIE MINTON, EXECUTOR OF THE
ESTATE OF RUBERT E. MINTON

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Timothy S. Fisher, Judge

This appeal arises out of a jury verdict against Exxon

Mobil Corporation (Exxon) based on injuries that Rubert E.

Minton suffered as a result of developing mesothelioma from

exposure to asbestos while working on Exxon ships during his

employment at the Newport News Shipbuilding and Dry Dock

Company (Shipyard).

On appeal, Exxon assigns error to: (1) the circuit court's

finding that the evidence was sufficient to show that Exxon

either actively controlled Minton's work or that Exxon failed

to intervene to protect him in the face of actual knowledge

that the Shipyard was ignoring an obvious risk to his safety;

(2) the circuit court's finding that the evidence was

sufficient to show that Minton's mesothelioma was proximately

caused by Exxon's breach of a maritime law duty; (3) the

circuit court's exclusion of all evidence that the Shipyard

knew of the relevant hazard and had asbestos controls in place;
and (4) the award of punitive damages. For the reasons stated

herein, we reverse and remand.

I. Facts and Proceedings

Minton was employed at the Shipyard from 1956 until 1993,

except for two years spent in the Army Reserves. From 1956 to

1960, Minton worked as an apprentice shipfitter in the

construction of new ships. When he returned from the Reserves

in 1962, he worked as a shipfitter and became a supervisor of

other shipfitters. During this time period Minton worked on

the construction of new vessels and never worked aboard any

Exxon vessels. He was regularly exposed to asbestos from

asbestos-containing materials as well as from asbestos dust

from a dusty worksite and does not claim that Exxon is liable

for this asbestos exposure.

In 1966, Minton was promoted to ship repair staff

supervisor and was responsible for supervising and coordinating

the repair of vessels. As the position did not involve hands-

on participation in the vessels' repair work, Minton did not

personally handle asbestos products. Nonetheless, Minton spent

approximately half of his day walking through vessels on which

repairs were being made with each vessel's repair supervisor or

port engineer, to start new jobs and to inspect the repair work

that was being done or that was recently completed. During

these inspections, Minton and the ship's port engineer viewed

2
various rooms in which asbestos was used, including the boiler

and engine rooms.

Between 1966 and 1977, Exxon frequently brought their

vessels to the Shipyard's facilities for repair. Over Minton's

eleven years as repair supervisor, Exxon owned seventeen of the

approximately two hundred vessels repaired by the Shipyard.

In 2009, sixteen years after the conclusion of his

employment with the Shipyard, Minton was diagnosed with

malignant mesothelioma, a form of cancer caused by exposure to

asbestos. Minton filed suit against Exxon under the federal

Longshore and Harbor Workers' Compensation Act (LHWCA), 33

U.S.C. § 905(b), for failure to warn Minton of, and protect him

from, the dangers associated with asbestos. The jury found in

favor of Minton and awarded him $12,000,000 in compensatory

damages, $430,963.70 in medical expenses, plus punitive damages

in the amount of $12,500,000. Exxon's motions to set aside the

verdict, for a new trial, and for remittitur were denied,

except that the punitive damage award was reduced to

$5,000,000, the amount sought in Minton's ad damnum clause.

Exxon timely filed its appeal.

II. Analysis

A. Sufficiency of the Evidence to Show Duty of Care

Exxon first challenges the sufficiency of the evidence to

establish that it violated the requisite duty of care. We

3
review the sufficiency of evidence on appeal by "examin[ing]

the evidence in the light most favorable to . . . the

prevailing party at trial, and the trial court's judgment will

not be disturbed unless it is plainly wrong or without evidence

to support it." Nolte v. MT Tech. Enters., LLC, 284 Va. 80,

90, 726 S.E.2d 339, 345 (2012) (internal quotation marks

omitted); see also Code § 8.01-680.

Under 33 U.S.C. § 905(b) of the LHWCA, a vessel owner must

use ordinary care in maintaining the vessel and its equipment

so that an expert and experienced stevedore can load and unload

cargo with reasonable safety. Included under the protection of

the LHWCA are ship repairmen and shipbuilders. 33 U.S.C.

§ 902(3). Under the version of the LHWCA in effect prior to

1972, liability could be imposed upon a vessel owner by showing

either that the vessel owner negligently caused the worker's

injuries, or that the vessel itself was unseaworthy. Green v.

United States, 700 F.Supp.2d 1280, 1296 (M.D. Fla. 2010).

Unseaworthiness did not require a showing of fault by the

vessel owner, because the creation of an unsafe condition was

enough to create liability. Id. In 1972, Congress amended the

LHWCA to "shield shipowners from strict liability," imposing a

negligence standard and removing the ability of a worker to

bring a claim against the vessel owner for unseaworthiness.

Id. (internal quotation marks omitted); see also LHWCA

4
Amendments of 1972, Pub. L. No. 92-576, 86 Stat. 1263 (codified

as amended at 33 U.S.C. § 905(b)). As a result, an injured

worker seeking to sue a vessel owner must now show that the

owner of the vessel "violated a duty owed to the injured

worker" before liability can be established under the Act.

Lormand v. Superior Oil Co., 845 F.2d 536, 541 (5th Cir. 1987).

In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.

156 (1981), the United States Supreme Court established the

standard of care owed by a vessel owner to shipyard workers

such as Minton under the current version of the LHWCA. The

three separate duties set forth in Scindia have been termed the

"turnover duty," the duty of "active control," and the "duty to

intervene." Howlett v. Birkdale Shipping Co., S.A., 512 U.S.

92, 98 (1994) (citing Scindia, 451 U.S. at 167-78).

Exxon argues on appeal that the evidence presented at

trial was not sufficient to prove a violation of any of the

duties of care established by Scindia to create liability for a

vessel owner under the 1972 amendments to the LHWCA. We

disagree and conclude that the evidence was sufficient for a

reasonable jury to find that both the active control duty and

the duty to intervene were owed to Minton and subsequently

breached.

5
 1. Turnover Duty

Exxon contends that Minton waived the turnover duty, which

relates to the condition of the ship at the commencement of

stevedoring operations. Howlett, 512 U.S. at 98. We agree, as

the turnover duty was not argued at trial, and Minton expressly

withdrew his argument as to the presence of a turnover duty

pre-trial.

2. Active Control

Under the active control duty, a "vessel may be liable if

it actively involves itself in the cargo operations." Scindia,

451 U.S. at 167. Exxon argues that there was no active

involvement because its supervision did not extend beyond

general oversight. Using the language of the court in Dow v.

Oldendorff Carriers GMBH & Co., 387 Fed. Appx. 504, 507 (5th

Cir. 2010), Exxon claims that Minton was required to prove that

Exxon actively controlled the "methods and operative details"

of the Shipyard workers' repair work. Exxon argues that Minton

provided no evidence to show that Exxon told the Shipyard

workers how to complete their repair jobs on its vessels.

Exxon also contends that Minton did not present any

evidence to show that Exxon employees worked with asbestos in

the vicinity of Minton, with Minton's witnesses testifying only

that some of the Exxon employees' work might have included work

with asbestos. Exxon argues that Minton was unable to put

6
forward concrete evidence that any asbestos was being used in

repair work without the necessary controls while Minton was on

board the vessel. We disagree.

a. Control Over Specific Activities

In order to establish the duty of active control, "the

vessel must have substantially controlled or been in charge of

(i) the area in which the hazard existed; (ii) the

instrumentality which caused the injury; or (iii) the specific

activities the stevedore undertook." Davis v. Portline

Transportes Mar. Internacional, 16 F.3d 532, 540 (3rd Cir.

1994). Sufficient evidence of any one of the three components

triggers the duty of active control.

Regarding Exxon's control over the specific activities

that the Shipyard undertook, C. Lloyd Ware, a former estimating

supervisor for the Shipyard, testified that Exxon's port

engineer maintained "overall authority," leaving the Shipyard

unable to tell Exxon's crew working on the vessel what to do.

This exercise of authority was part of Exxon's designated

procedure, evidenced by a portion of Exxon's 1974 Repair

Procedures:

The Repair Inspector[, with the assistance of the
officers and crew,] has the responsibility of
supervising the overhaul. He issues all necessary
instructions to the shipyard foremen, inspects the
work to see that it is properly done and
coordinates the necessary . . . inspections.

7
 Moreover, Julian Draper, the Shipyard's pipefitter

foreman, explained in his testimony that the Shipyard's trade

foreman would contact Exxon's chief engineer, chief mate, or

port engineer after receiving the job orders for repairs on

Exxon's vessels to make sure that the Shipyard's personnel

understood the job order, and to assure that the job would be

completed to Exxon's satisfaction. Sometimes, as Draper

explained, the job orders would specifically require

consultation with the chief or port engineer before a job order

was commenced. When no such requirement was in place, the job

repair specifications, such as the 1975 job order which was

presented to the jury, nevertheless provided detailed

specifications for each step of each individual repair to be

completed by the Shipyard.

The evidence presented at trial as to Exxon's control over

the repair work was sufficient for a reasonable jury to find

that Exxon had a duty to Minton based on its control of the

specific activities undertaken by the Shipyard employees.

b. Presence of the Hazard

Not only was the evidence sufficient to show that Exxon

actively controlled the activities on its vessels, but the

evidence also supports the jury's finding that the hazard at

issue, asbestos, was present in the areas under Exxon's

control. Despite Exxon's argument that manufacturers were

8
using asbestos substitutes as early as 1971 because of

widespread knowledge of the health risks surrounding the use of

asbestos-containing materials, Minton presented evidence that

Exxon's vessels contained asbestos during the period of time

when Minton worked with Exxon at the shipyard. Notably, Minton

produced for the jury piecework orders for the Exxon New

Orleans, the newest vessel that Minton worked on during his

time as ship repair staff supervisor. In the orders, asbestos

blankets, asbestos plaster, and asbestos cloth are all listed

with frequency.

Multiple witnesses, including Draper, also testified to

the use of asbestos-containing materials on Exxon vessels

through the mid-1970s. Draper recounted the methods and

processes of using asbestos in the Exxon vessels, stating that

the use of asbestos and the methods of using asbestos was "the

way you did business" on the Exxon ships during the time he

worked with Minton. The evidence was therefore sufficient to

establish that Exxon had active control of the asbestos, a

hazard present on Exxon vessels during the 1966-1977 period

during which Minton was employed as ship repair staff

supervisor.

3. Duty to Intervene

The duty to intervene applies when a shipyard's judgment

is "obviously improvident," and the vessel owner both "knew of

9
the defect [or hazard] and that [it] was continuing to [be]

use[d]," and "should have realized the defect [or hazard]

presented an unreasonable risk of harm to the longshoremen."

Scindia, 451 U.S. at 175-76. In order to establish the duty to

intervene, Minton needed to show that:

the vessel owner ha[d] (1) actual knowledge that
a dangerous condition exist[ed] and (2) actual
knowledge that the stevedore or independent
contractor, or its employees, [could not] be
relied upon to remedy the condition, and that if
unremedied it [would] pose a substantial risk of
injury.

Lormand v. Superior Oil Co., 845 F.2d at 542.

Exxon claims that no evidence was presented to show that

any Exxon employee had actual knowledge that Minton was working

amid conditions that were obviously dangerous. Exxon argues

that Minton proved only that Exxon should have known about the

danger, but that this is not the standard to be applied to

establish a duty to intervene.

a. Actual Knowledge of the Dangerous Condition

The first step in establishing the presence of a duty to

intervene requires an evaluation of whether Exxon had actual

knowledge that a dangerous condition existed. James W.

Hammond, Exxon's director of industrial hygiene, testified that

the danger of pulmonary injury to humans from asbestos exposure

was known by 1934. Dr. Neill Kendall Weaver, Exxon's associate

medical director, stated in a deposition presented to the jury

10
that industrial hygienists were aware of the dangers of

asbestos exposure as early as the 1930s. He indicated that,

not only did Exxon know of the danger in the 1930s, but it also

took precautionary measures in its refineries to protect

workers from the harmful effect of asbestos.

Dr. Weaver testified that in the 1950s he became aware

that high exposures of asbestos were present in the

shipbuilding industry. According to Dr. Weaver, during the

1950s, Exxon's industrial hygienists took voyages on Exxon

vessels and reported their observations, including measurements

of the amount of asbestos dust present on the vessels during

the voyage.

Dr. Weaver further testified that the scientific community

was aware of the causal connection between asbestos and

mesothelioma by 1964. Significantly, Dr. R.E. Eckhardt,

Exxon's director of medical records, attended a three-day

conference in October, 1964, on the "Biological Effects of

Asbestos," sponsored by the Section of Biological and Medical

Sciences of the New York Academy of Sciences. The conference

would later come to be known as the Selikoff asbestos

conference. When he returned, Dr. Eckhardt wrote a summary of

the conference for Exxon, which was presented to the jury as

evidence of Exxon's knowledge. In this summary, after devoting

five pages to the many presentations detailing the harmful

11
effects of asbestos exposure, Dr. Eckhart gives his own

opinion:

I would say that this three-day conference
clearly suggests that exposure to asbestos is a
most serious situation [and] it is very important
to eliminate all unnecessary exposure to asbestos
dust in the future. . . . Certainly this appears
to be a problem that cannot be taken lightly, and
certainly it would seem that very careful control
of exposures to asbestos throughout refinery
operations should be instituted.

(Internal quotation marks omitted.) In his summary, he also

specifically recognized the danger asbestos posed to

bystanders, such as Minton, stating that "the foreman whose

exposure is presumably quite light does not develop asbestosis

but may in subsequent years go on to develop mesothelioma."

Not only did Minton's evidence show that Exxon was aware

that asbestos-containing products created dangerous working

conditions, Minton's evidence as discussed in Part II.A.2.b.,

supra, also established that Exxon's vessels did contain

asbestos throughout the period at issue, 1966-1977.

b. Actual Knowledge That the Shipyard Would Not Act,
and That the Condition, if Unremedied, Would Pose a
Substantial Risk of Injury

Minton also presented evidence of Exxon's actual knowledge

that the Shipyard could not be relied on to protect Minton,

thereby exposing him to the dangerous conditions present in an

asbestos-containing environment without the protection of

safety controls. A 1972 letter from T.J. McTaggart, Exxon's

12
head port engineer, to captains and chief engineers on Exxon

vessels prohibits the use of asbestos-containing materials on

vessels, mandating that "[p]ersons packing the cartons . . .

wear dust masks," and that "supplies of asbestos insulating

materials . . . be packed in . . . sealed [boxes] and marked

'Asbestos[:] Not To Be Used On This Vessel – Do Not Open Unless

A Dust Mask Is Worn.' "

Draper, the Shipyard's pipefitter foreman, testified that

he did not, however, see any Exxon crew members use asbestos

safety measures in the 1960s and 1970s, nor did he ever receive

a warning from the Exxon crewmembers that asbestos was

hazardous. Ware, the former estimating supervisor for the

Shipyard, testified that at no time prior to the late 1970s did

he see any signs warning against asbestos exposure or any

effort by Exxon crew members to isolate areas so that the

Shipyard workers would not be exposed to asbestos dust, to take

air samples, or to employ wet-down methods to hold down the

dust. Ware also testified that the Shipyard workers did not

have showers or clean clothes provided to them when they worked

around asbestos, nor did he see anyone, Exxon worker or

Shipyard worker, wearing a respirator when working with or

around asbestos products. Nor did he see any warnings or

barriers to protect the Shipyard workers. The testimony of Dr.

David Egilman, Minton's treating physician, emphasized the

13
extent of the danger created by these working conditions that

existed without any warning to the Shipyard workers,

analogizing the situation to a fire in a theatre to which no

one speaks a word of warning.

If accepted by the jury, the evidence of Exxon's knowledge

regarding the dangers of asbestos both before and during

Minton's employment at the Shipyard and the Shipyard's failure

to warn its workers or protect individuals such as Minton in

the presence of the danger was sufficient to establish Exxon's

actual knowledge of the failure of the Shipyard to take the

requisite steps to protect their employees. Thus, if Minton's

evidence was accepted by the jury, it would have been

sufficient for the jury to conclude that Exxon failed

unreasonably to protect Minton when the Shipyard had failed to

do so.

B. Sufficiency of the Evidence to Show Proximate Cause

Exxon's second challenge is to the sufficiency of the

evidence presented to establish that Exxon's breach of its duty

of care caused Minton's injury. The aforementioned standard of

review for a challenge to the sufficiency of the evidence

supporting a jury finding requires an "examin[ation of] the

evidence in the light most favorable to . . . the prevailing

party at trial" that is not to be disturbed unless "plainly

wrong or without evidence to support it." Nolte, 284 Va. at

14
90, 726 S.E.2d at 345 (internal quotation marks omitted); see

also Code § 8.01-680.

In arguing that the evidence was not sufficient to support

a finding of causation, Exxon claims that the inability of

Minton's medical experts to testify that Minton's prior

exposure to asbestos could not have, on its own, caused

Minton's mesothelioma precluded a finding that Exxon caused

Minton's injury. According to Exxon, because the experts

testified that Minton's prior work in vessel construction was

sufficient exposure to cause mesothelioma, any breach by Exxon

could not be established as the cause of Minton's subsequently-

diagnosed mesothelioma. Exxon argues that any finding of

causation would be based on mere conjecture.

We disagree with Exxon's argument and find that the

evidence was sufficient for a reasonable jury, as instructed,

to find that Exxon's actions were a substantial contributing

factor in causing Minton's injury. Although Minton's experts

did testify that Minton's prior exposure to asbestos could have

been, on its own, enough to cause mesothelioma, it is

established maritime law that "an injured party [may] sue a

tortfeasor for the full amount of damages for an indivisible

injury that the tortfeasor's negligence was a substantial

factor in causing." Edmonds v. Compagnie Generale

Transatlantique, 443 U.S. 256, 260 (1979). This is true "even

15
if the concurrent negligence of others contributed to the

incident." Id. Based on this principle, the jury was not

precluded from finding that Minton's exposure to asbestos

materials on Exxon's ships was a cause sufficient to establish

liability for Minton's resulting indivisible harm.

The question before the jury was therefore whether the

evidence was sufficient to show that Minton's exposure to

asbestos while on Exxon's vessels was a substantial

contributing factor in the development of Minton's injury,

mesothelioma. 1 To answer this question, the jury was given an

instruction that defined substantial, "not . . . by quantity

but [by] quality[, meaning] that the exposure aboard Exxon's

vessels was not an imaginary or possible factor or having only

an insignificant connection with the harm."

Based on this definition contained within an uncontested

instruction, the evidence regarding the presence of

1
We have today rejected the substantial contributing
factor analysis of proximate causation in cases tried under
Virginia law when multiple sufficient causation is alleged.
Ford Motor Co. v. Boomer, 285 Va. ___, ___, ___ S.E.2d ___, ___
(2013) (this day decided). In the case at bar, however, the
appropriate theory of causation is not before us. At trial,
the substantial contributing factor theory of causation was
presented to the jury in a jury instruction without objection
by either party to the case. In the absence of a
contemporaneous objection, "[r]ight or wrong, the instruction
given [becomes] the law of the case on that point, and [is]
binding upon both the parties and the jury." Hilton v. Fayen,
196 Va. 860, 867, 86 S.E.2d 40, 43 (1955). It cannot be
questioned on appeal. Id.

16
uncontrolled asbestos aboard Exxon vessels and the testimony by

Minton's medical experts regarding the effect of such levels of

asbestos were sufficient to support a finding of causation. As

noted in Part II.A.2.b., supra, the evidence made clear that

asbestos, and repairs involving asbestos, were present on Exxon

vessels in the 1960s and 1970s. There was also evidence that

Minton visited the Exxon ships in the course of his employment

with the Shipyard, spending approximately half of every day

walking through the vessels. Exxon had seventeen vessels

docked at the Shipyard during the eleven year period that

Minton served as ship repair staff supervisor, when Minton

spent over one thousand days walking through the asbestos-

containing area. The evidence shows that Minton was not

protected from asbestos exposure through the use of safety

controls on any of those days, nor that he was aware of the

risk.

The testimony also included the details of daily repairs,

including a description of work on asbestos-containing areas of

the engine rooms of a vessel, which would include asbestos

insulation being "thrown on the deck," after which cleaners

would sweep the material, allowing the dust particles to

repeatedly fly into the air. Evidence was also presented

regarding the "taking out of valves" on the vessel, which

would, on a "case-by-case basis" require the removal of

17
asbestos insulation to reach the valve. Based on this

testimony and the extensive lists of asbestos-containing

materials installed on the vessels, there was sufficient

evidence to support a finding of significant asbestos exposure

to Minton, who was frequently present on the ships while

repairs were being completed.

Dr. Egilman and Dr. John Coulter Maddox, a pathologist who

has studied asbestos-related disease since the 1970s, testified

as to the link between the prevalence of asbestos on Exxon's

vessels and the injury to Minton. Both Dr. Egilman and Dr.

Maddox opined that the exposure to asbestos on Exxon's vessels

when work was performed on pumps insulated with asbestos

materials was a substantial contributing factor in Minton's

injury. Dr. Egilman opined that such work caused fibers of

asbestos to circulate around the vessel, reaching bystanders at

the time of repair. Dr. Egilman attributed Minton's injury, at

least in part, to his exposure as a frequent bystander during

the repair work.

Based therefore on the evidence of asbestos-containing

materials on the Exxon vessels in the 1960s and 1970s, Minton's

daily exposure to the asbestos, and the danger present in such

exposures, we agree with Minton that there was sufficient

evidence for a reasonable jury to find that Exxon's actions

were a substantial contributing factor in Minton's injury.

18
 C. Exclusion of Evidence on the Shipyard's Knowledge

Exxon also assigns error to the circuit court's exclusion of

evidence regarding the Shipyard's knowledge of the danger of

asbestos exposure and its policies in place to protect the

Shipyard workers from the hazard. Exxon contends that, due to

the court's denial of its requests to introduce evidence about

the Shipyard's knowledge and safety measures, the jury was

given the false impression that Exxon had unique knowledge and

was therefore the only actor with the ability to protect Minton

from harm. Exxon argues that this error was highly prejudicial

and therefore warrants reversal.

Minton contends that the evidence is not relevant. He

argues that the sole purpose for admitting evidence of the

Shipyard's knowledge of the danger of exposure to asbestos-

containing materials was to direct blame at a statutorily

immune employer. 2 Furthermore, even if attributing blame to the

immune Shipyard was permitted, Minton claims that it would not

be relevant to Exxon's duty of care. Minton argues that the

two elements he needed to prove were that the Shipyard's

conduct was obviously improvident and that Exxon did nothing to

remedy it. As the Shipyard's knowledge was not relevant to

2
The Supreme Court has held, consistent with the
Congressional intent underlying 33 U.S.C. § 905(b), that no
attribution of liability may be made, either directly or
indirectly, against a longshoreman's statutory employer.
Edmonds, 443 U.S. at 263, 270 n.8.

19
either of these two elements of proof, Minton contends that it

was properly excluded. We disagree.

When reviewing the discretionary exclusion of evidence by

a trial court, the decision "will not be overturned on appeal

absent evidence that the trial court abused [its] discretion."

May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690, 692 (2002)

(citation omitted). An abuse of discretion can occur when "a

relevant factor that should have been given significant weight

[was] not considered." Landrum v. Chippenham & Johnston-Willis

Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)

(internal quotation marks omitted).

As described in Part II.A., supra, the 1972 amendments to

the LHWCA as interpreted by the Supreme Court of the United

States in Scindia established the standard of care owed by a

vessel owner to an injured worker. The three duties are the

aforementioned "turnover duty," duty of "active control," and

"duty to intervene." Howlett, 512 U.S. at 98; see also

Scindia, 451 U.S. at 167-78.

The turnover duty is violated by the actions of the vessel

owner, applicable when the owner fails to turn the vessel over

free of "hidden dangers" and without any warning of dangers

that do exist. Scindia, 451 U.S. at 167. The second duty, the

active control duty, is also based on the vessel owner's

actions. It is violated if the vessel owner fails to "exercise

20
reasonable care to prevent injuries to longshoremen in areas

that remain under the active control of the vessel." Howlett,

512 U.S. at 98 (internal quotation marks and citation omitted).

The duty to intervene, the third duty, requires that the vessel

owner have "actual knowledge that an unsafe condition exists

and that the stevedore is allowing that condition to continue,"

leaving the vessel owner under a duty to intervene if the

stevedore, or shipyard, is "obviously improvident" in failing

to remedy the danger. Elberg v. Mobil Oil Corp., 967 F.2d

1146, 1150 (7th Cir. 1992) (internal quotation marks and

citation omitted).

Although all three duties are based in whole or in part on

a vessel owner's acts or omissions, the duty to intervene

stands alone in relying in part on the acts or omissions of the

plaintiff's employer in improvidently allowing an unsafe

condition to go unremedied. In order for a jury to determine

whether the evidence was sufficient to show that the vessel

owner unreasonably failed to intervene in the face of a

shipyard's failure to act, evidence is admissible to show that

there was a basis for the vessel owner not to rely on the

shipyard to provide the necessary protective measures. This is

a crucial consideration because the shipyard has the duty to

"provide a reasonably safe place to work and to take safeguards

necessary to avoid injuries," and a vessel owner may rely upon

21
the shipyard's concomitant responsibility to avoid exposing its

employees to unreasonable hazards. Howlett, 512 U.S. at 101

(citing Scindia, 451 U.S. at 170); see 33 U.S.C. § 941. The

vessel owner can rely upon the shipyard's "expertise and

reasonableness," Duplantis v. Zigler Shipyards, Inc., 692 F.2d

372, 374 (5th Cir. 1982), as the shipyard is "in the best

position to avoid accidents during cargo operations." Howlett,

512 U.S. at 101 (internal quotation marks omitted). The

shipowner has "justifiable expectations that those duties" will

be performed by the repair company without the shipowner's

supervision. Scindia, 451 U.S. at 176.

In order to establish a vessel owner's duty to intervene,

a jury must be able to consider evidence of the employer's

knowledge of the danger and ability to protect the employee.

Until it is shown that the employer, who is presumed to have a

higher level of expertise than the vessel owner, lacked the

knowledge, intent, or ability to protect the employee, no duty

to intervene can be attributed to the vessel owner, who "has no

duty to anticipate inaction or carelessness of a ship

repairer." Bergeron v. Main Iron Works, Inc., 563 So.2d 954,

957, 959 (La. Ct. App. 1990) (citation omitted). It is only if

there is sufficient evidence that the vessel owner could not

rely on the employer or its expertise that the vessel owner,

"if it has actual knowledge, is required to overrule the ship

22
repairer's judgment and correct the hazard." Id. (citation

omitted).

The circuit court found the Shipyard's knowledge of the

danger of exposure to asbestos and its ability and intent to

remedy that danger irrelevant. We hold, however, that evidence

tending to show the Shipyard's knowledge of the danger and its

ability and intent to remedy the danger is relevant in the

determination of whether Exxon had a duty to intervene to

protect Minton. Exxon's proffered evidence of the Shipyard's

knowledge, intent, or ability to protect Minton through

programs created by the Shipyard included: annual physicals

for workers, the use of respirators when working with

insulation projects, and the application of wet-down techniques

to keep asbestos fibers from becoming airborne. Such evidence

was relevant to the jury's determination of whether the

existence of these programs supported Exxon's argument that it

had no duty to intervene because Exxon would have been acting

reasonably in relying upon the Shipyard to adequately protect

the Shipyard's own workers.

We therefore hold that the trial court erred in refusing

to admit evidence of the Shipyard's knowledge of the dangers of

asbestos exposure and its procedures regarding precautions to

be taken around asbestos, whether or not implemented. Although

we have determined that the evidence that Minton presented, if

23
accepted by the jury, was sufficient to support a verdict for

Minton based upon a violation of Exxon's duty to intervene, we

cannot say that the jury would still have concluded that Exxon

violated the duty if it was presented with the excluded

evidence. Whether Exxon violated its duty to intervene was one

of the two potential bases for the verdict in favor of Minton.

Because we cannot determine from the record whether the jury

found in favor of Minton based upon the duty to intervene

without the opportunity to consider the excluded evidence, or

because of Exxon's violation of the active control duty, we

will reverse the judgment of the circuit court.

D. Punitive Damages

Finally, Exxon challenges the award of punitive damages,

basing its argument on the language of 33 U.S.C. § 905(b),

which it argues forecloses the remedy. Exxon contends that, by

stating that the allowance under the LHWCA for recovery against

a vessel owner for negligence is "exclusive of all other

remedies against the vessel," 33 U.S.C. § 905(b), the statute

eliminates the ability of a court to supplement the statute's

provided remedies.

Minton argues that the award of punitive damages was not

contrary to the statutory language of 33 U.S.C. § 905(b), which

he claims does not address damages at all. Without any express

language departing from the common law understanding, Minton

24
argues that the common law must be applied. As a result,

Minton contends that punitive damages, which were available at

common law and have been extended to federal maritime claims,

should be affirmed in the case at hand.

We recognize that a number of courts have allowed punitive

damages in accordance with Minton's reading of the statute,

holding that 33 U.S.C. § 905(b) is silent as to availability of

punitive damages. See, e.g., Kahumoku v. Titan Mar., LLC, 486

F.Supp.2d 1144, 1151 (D. Haw. 2007) (finding the language of 33

U.S.C. § 905(b) silent "as to punitive damages[,] indicat[ing]

Congress' intent for the remedy to remain available under

maritime law"); Wheelings v. Seatrade Groningen, BV, 516

F.Supp.2d 488, 496 (E.D. Pa. 2007) (stating that "[because] the

LHWCA is silent on the availability of punitive damages, the

court follows general maritime law").

We reject this interpretation of 33 U.S.C. § 905(b) as

contrary to the statute's plain language. In making this

determination, we review this question of law de novo. David

White Crane Serv. v. Howell, 282 Va. 323, 327, 714 S.E.2d 572,

575 (2011). The Supreme Court of the United States has

established that "the general rule that punitive damages were

available at common law extended to claims arising under

federal maritime law." Atlantic Sounding Co. v. Townsend, 557

U.S. 404, 411 (2009). This remedy was applied with frequency

25
in lower federal courts "for tortious actions of a particularly

egregious nature," thereby establishing itself as a recognized

and often-applied remedy. Id. at 411-12. Accordingly, the

common law remedy of punitive damages in the context of federal

maritime law claims can be denied only if "Congress has enacted

legislation departing from this common-law understanding." Id.

at 415.

The LHWCA constitutes legislation that explicitly departs

from the general rule under common law that punitive damages

are an available remedy in federal maritime law claims. The

language of 33 U.S.C. § 905(b) states, in relevant part:

In the event of injury to a person covered under
this chapter caused by the negligence of a
vessel, then such person, or anyone otherwise
entitled to recover damages by reason thereof,
may bring an action against such vessel as a
third party in accordance with the provisions of
section 933 of this title. . . . The remedy
provided in this subsection shall be exclusive of
all other remedies against the vessel except
remedies available under this [Act].

(Emphasis added.) The plain language of the statute clearly

limits the remedies available for a negligence action under the

LHWCA to those included within the terms of the statute. We

have previously held that "[w]here the legislature has used

words of plain and definite import the courts cannot put upon

them a construction which amounts to holding the legislature

did not mean what it has actually expressed." Barr v. Town &

26
Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674

(1990). Consequently, as punitive damages are not a remedy

made available within the terms of the LHWCA, and the language

plainly restricts the damages to those remedies explicitly made

available, they are extinguished as a category of recovery in

LHWCA claims. See Miller v. American President Lines, Ltd.,

989 F.2d 1450, 1457 (6th Cir. 1993) (stating that "[t]his

statute creates a worker's compensation scheme for certain

maritime workers which is exclusive of other remedies and does

not provide for punitive damages"); McConville v. Reinauer

Transp. Cos., 835 N.Y.S.2d 711, 713 (N.Y. App. Div. 2007)

(indicating that "[p]unitive damages are not available in an

action brought pursuant to the LHWCA"); Welsh v. Fugro

Geosciences, Inc., 804 So.2d 710, 716-17 (La. Ct. App. 2001)

(recognizing the "trend in federal jurisprudential and

statutory law to bar claims for nonpecuniary loss," including

punitive damages) (internal quotation marks omitted).

Thus, we hold that the award of $12,500,000 in punitive

damages was inappropriately granted because punitive damages

are a remedy prohibited by the terms of LHWCA.

III. Conclusion

For the aforementioned reasons, we will reverse the

judgment of the circuit court based on its exclusion of

relevant evidence regarding the Shipyard's knowledge of the

27
danger of asbestos exposure and its ability to remedy the

danger, and remand for further proceedings consistent with this

opinion. We will also reverse the circuit court's award of

punitive damages and enter final judgment as to that claim.

Reversed and remanded.

JUSTICE MCCLANAHAN, with whom JUSTICE POWELL joins, concurring
in part and dissenting in part.

I agree with the majority's holdings that Minton presented

sufficient evidence to prove Exxon violated the second and

third Scindia duties, i.e., the active control duty and the

duty to intervene. I disagree with the majority's conclusion,

however, that the trial court erred in excluding evidence of

the Shipyard's purported "knowledge of the dangers of asbestos

exposure and its policies in place to protect the Shipyard

workers from the hazard." In light of Minton's proof that

Exxon had a duty to intervene, the Shipyard's asbestos-related

knowledge and policies were irrelevant to Exxon's duty to

protect shipyard workers on its ships.

I also disagree with the basis for the majority's reversal

of Minton's award of punitive damages. Title 33 U.S.C. 905(b)

of the Longshore and Harbor Workers' Compensation Act (LHWCA)

does not preclude as a matter of law a shipyard worker from

seeking to recover punitive damages in a negligence action

against a shipowner.

28
 1. Shipyard's Knowledge and Policies

The Scindia duty to intervene is violated if the shipowner

(i) fails to intervene when it knows of an unreasonably

dangerous condition that has developed during the course of an

independent contractor's shipboard operations; and (ii) it

knows that the contractor "improvident[ly]" intends to continue

those operations in the face of the danger and thus cannot be

relied upon to protect its workers. Scindia Steam Navigation

Co. v. De Los Santos, 451 U.S. 156, 175-76 (1981).

I agree with the majority's conclusion in Part II.A. of

its opinion that Minton presented sufficient evidence to prove

Exxon violated this duty based on evidence of the following:

(i) Exxon's knowledge, dating back to the 1930's, of the

hazards posed by asbestos exposure from asbestos-containing

products like those located throughout its ships; and (ii)

Exxon's knowledge that, during the eleven year period Minton

worked aboard Exxon's ships, the Shipyard took no asbestos

control measures, and "could not be relied on," to protect its

workers, including Minton, from asbestos exposure when

conducting repairs on Exxon's ships.

However, after reaching that conclusion, the majority

concludes in Part II.C. that the Shipyard's asbestos-related

knowledge and policies, which were excluded from evidence, were

29
relevant to "whether Exxon had a duty to intervene." Those two

conclusions are, in my opinion, patently inconsistent.

Evidence of such knowledge or policies of the Shipyard

would not have changed the uncontroverted fact at trial that

the Shipyard did not act for eleven years to protect its

workers, including Minton, from the hazards of asbestos

exposure when aboard Exxon's ships. And, it was that course of

Shipyard inaction that triggered Exxon's ongoing duty to

intervene to protect those workers in light of the jury's

necessary finding regarding Exxon's own knowledge of the

hazardous circumstances. That duty could not then be negated

by Exxon pointing to evidence of what the Shipyard may have

known about the hazards of such exposure, or policies the

Shipyard may have had "to protect the Shipyard workers from the

hazard" when no such policies were being implemented by the

Shipyard. To be relevant, evidence must have a logical

tendency to prove a fact at issue in the case. Harrell v.

Woodson, 233 Va. 117, 122, 353 S.E.2d 770, 773 (1987). On the

facts here, the Shipyard's actual asbestos-related knowledge

and policies had no logical relation to the issue of Exxon's

own knowledge of the circumstances giving rise to its duty to

intervene. Exxon's proffered evidence of the Shipyard's

knowledge and policies was, therefore, irrelevant relative to

Exxon's duty to act.

30
 In deciding the relevancy of the proffered evidence, the

majority correctly states that a shipowner has no duty to

anticipate inaction on the part of a shipyard regarding the

protection of its workers. The majority further asserts,

however, that no duty to intervene can be attributed to the

shipowner until it is shown that the shipyard "lacked the

knowledge, intent, or ability to protect" its own workers. No

part of that assertion is consistent with the Scindia standard

for the duty to intervene. In the face of the shipyard's

inaction to protect its workers from an unreasonably dangerous

condition that has developed during shipboard operations, it

matters not whether the shipyard had the knowledge, intent or

ability to protect its workers. In that instance, it is self-

evident that the shipyard cannot be relied upon to do so, thus

triggering the shipowner's duty to intervene on behalf of those

workers to the extent the shipowner becomes aware of the

hazardous circumstances. At that point, the fact that the

shipowner initially had no duty to anticipate the shipyard's

inaction is not a relevant consideration.

I would therefore hold that the trial court did not abuse

its discretion in excluding Exxon's proffered evidence

regarding the Shipyard's asbestos-related knowledge and

policies. See John Crane, Inc. v. Hardick, 283 Va. 358, 367,

722 S.E.2d 610, 614 (2012) ("[W]e will not disturb a trial

31
court's evidentiary ruling absent an abuse of discretion."

(citation and internal quotation marks omitted)).

2. Punitive Damages Award

Contrary to the majority, I would hold that a shipyard

worker such as Minton, i.e., a worker covered under the LHWCA

(33 U.S.C. §§ 901-950), is permitted as a matter of law to seek

punitive damages under 33 U.S.C. 905(b) in a negligence action

against a shipowner such as Exxon.

Section 905(b), which was added by amendment in 1972,

provides in pertinent part:

Negligence of vessel. In the event of injury to a
person covered under this chapter caused by the negligence
of a vessel, then such person, or anyone otherwise
entitled to recover damages by reason thereof, may bring
an action against such vessel as a third party in
accordance with the provisions of section 933 of this
title, and the employer shall not be liable to the vessel
for such damages directly or indirectly. . . . The
liability of the vessel under this subsection shall not be
based upon the warranty of seaworthiness or a breach
thereof at the time the injury occurred. The remedy
provided in this subsection shall be exclusive of all
other remedies against the vessel except remedies
available under this [Act].

33 U.S.C. § 905(b).

Prior to 1972, a covered worker had a maritime law claim

"against the shipowner if [his] injury was caused by the ship's

unseaworthiness or negligence," Scindia, 451 U.S. at 164.

While the addition of § 905(b) to the LHWCA by the 1972

amendments "abolished" the worker's right to recover for

32
unseaworthiness, "his right to recover from the shipowner for

negligence was preserved in § 905(b)." Id. at 165 (emphasis

added).

A " 'tort of negligence' " claim under general maritime

law has been recognized " 'for more than a century.' " Atlantic

Sounding Co. v. Townsend, 557 U.S. 404, 421 (2009) (quoting

Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811,

820 (2001)). At the same time, federal courts have recognized

that punitive damages are "available in maritime actions for

tortious acts of a particularly egregious nature." Id. at 411.

See Lake Shore & Michigan Southern Ry. Co. v. Prentice, 147

U.S. 101, 108 (1893) ("[C]ourts of admiralty . . . proceed, in

cases of tort, upon the same principles as courts of common

law, in allowing exemplary damages . . . ."); see also Powers

v. Bayliner Marine Corp., 855 F.Supp. 199, 202-03 (W.D. Mich.

1994) ("In admiralty jurisdiction, where Congress has not

spoken, the general maritime law, 'an amalgam of traditional

common law rules developed by the judiciary, applies.' "

(quoting East River S.S. Corp. v. Transamerica Delaval, Inc.,

476 U.S. 858, 864-65 (1986)).

Congress did not indicate in § 905(b), when preserving the

shipyard worker's negligence action against the shipowner, that

it was nevertheless excluding the right of the worker to seek

punitive damages as part of that claim. Indeed, § 905(b) is

33
silent as to the type of damages that may be recovered; it

merely states: "In the event of injury to a person covered

under this Act caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover damages by

reason thereof, may bring an action against such vessel[.]"

Furthermore, the House Report accompanying the 1972

amendments to the LHWCA did not give any such indication. The

House Report stated that "nothing in this bill is intended to

derogate from the vessel's responsibility to take appropriate

corrective action where it knows or should have known about a

dangerous condition." H.R. Rep. No. 92-1441 (1972). The House

Report then explained that the issue of whether the vessel was

negligent "can only be resolved through the application of

accepted principles of tort law and the ordinary process of

litigation - just as they are in cases involving alleged

negligence by land-based third parties." Id. (Emphasis

added.)

We are also aided in our construction of § 905(b) by a

long-standing principle of statutory construction under federal

law: "No statute is to be construed as altering the common law,

farther than its words import." Shaw v. Railroad Co., 101 U.S.

557, 565 (1879). Reflective of this principle, the United

States Supreme Court recently held in Townsend that punitive

damages are available under general maritime law except where

34
they have been eliminated by "legislation departing from [the]

common-law understanding" that punitive damages extend to

maritime claims. Townsend, 557 U.S. at 414-15. Consistent

with Townsend, at least one federal court addressing the

instant statutory construction issue has held that punitive

damages are allowable under § 905(b). Kahumoku v. Titan Mar.,

LLC, 486 F.Supp. 2d 1144, 1151-52 (D. Haw. 2007). See also

Thomas J. Shoenbaum, Admiralty and Maritime Law § 5-10 at 439-

40 (5th ed. 2012) (indicating that punitive damages are

allowable under § 905(b)).

The majority points to the last sentence of § 905(b) as

the basis for concluding that punitive damages are precluded

under this subsection as a matter of law. Without dispute, the

last sentence of § 905(b) does limit a covered worker's

"remedy" against a shipowner to a negligence action. That

sentence expressly states: "The remedy provided in this

subsection [a negligence action] shall be exclusive of all

other remedies against the vessel except remedies available

under this Act." But that language does not limit in any way

the damages that the covered worker may seek when bringing his

negligence tort action against the shipowner. A statutory

"restriction on the remedies available" to an injured party is

not a restriction on "damages." Kosar v. Chesapeake and Ohio

Rwy. Co., 449 F.2d 1238, 1240 (6th Cir. 1971). "There is an

35
important distinction between a 'remedy' which Bouvier's Law

Dictionary defines as 'the means employed to enforce a right or

redress an injury,' and 'damages' which are defined as 'the

indemnity recoverable by a person who has sustained an injury

. . . and the term includes not only compensatory, but also

exemplary or punitive or vindictive . . . damages.' " Id. It

is thus a "misuse of the legal terminology" to refer to

punitive damages as a remedy or right of action. Id.

Section 905(b) does not contain language that should be

construed as an explicit departure from the common law

tradition of allowing a party to pursue punitive damages in a

maritime claim; and the legislative history, in fact, indicates

that courts are to continue to adhere to the common law of

torts in adjudicating such claims under § 905(b). I would

accordingly allow Minton to seek punitive damages upon the

remand of this case for further proceedings if he be so

advised.

36