Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1
JOHN CRANE, INC.
v. Record No. 062164 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
September 14, 2007
WANDA T. JONES, ADMINISTRATRIX
OF THE ESTATE OF GARLAND F. JONES, JR.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
C. Peter Tench, Judge
Garland F. Jones, Jr. was employed as an outside machinist
at Newport News Shipbuilding & Dry Dock Company from 1963 to
1967. In January 2005, he was diagnosed with malignant
mesothelioma, a fatal cancer in the lining of the lung which is
caused only by exposure to asbestos dust or fibers. On March
22, 2005, Garland and Wanda T. Jones filed an amended motion
for judgment against John Crane, Inc. (Crane) and other
companies, alleging that Crane manufactured and/or sold
asbestos-containing products to Garland Jones' employers, and
that he was exposed to these products while building and
repairing various marine vessels.2 The Joneses sought $10
1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
2
In addition to John Crane, the complaint named the
following parties as defendants: Garlock Sealing Technologies,
LLC; Dana Corporation; Metropolitan Life Insurance Company;
General Electric Company; Foster-Wheeling USA Corporation;
Warren Pumps, Inc.; Goulds Pumps, Inc.; Borg-Warner
Corporation; Honeywell International, Inc.; Pneumo Abex
million in compensatory damages and $5 million in punitive
damages. Garland Jones died in July of 2005. Wanda Jones, as
administratrix of the estate of Garland F. Jones, Jr., (the
Estate) filed a second amended motion for judgment adding a
wrongful death count.
Following a seven day trial, the jury returned a verdict
in favor of the Estate awarding $10.4 million in damages. The
jury apportioned 34 percent of the damages to Crane, and the
remaining 66 percent equally between two other defendant
companies. The trial court reduced the damage award to $10
million to conform to the amount sought in the motion for
judgment. Crane's damage liability amounted to $3.4 million.
Crane appeals to this Court asserting that the judgment
should be reversed and the case remanded on four separate
grounds. Crane first assigns error to the trial court's
refusal to set aside the jury verdict as excessive. In two
other assignments of error, Crane challenges the trial court's
evidentiary rulings regarding the testimony of a Crane employee
and two of Crane's expert witnesses. Finally, Crane asserts
that the trial court should have applied Virginia law, rather
than general maritime law. For the following reasons, we
Corporation; General Motors Corporation; and Genuine Parts
Company. None of these defendants are parties to this appeal.
2
conclude that there was no error in the challenged rulings and
we therefore will affirm the judgment of the trial court.
DISCUSSION
I. MARITIME LAW
We first address Crane's assertion that the trial court
erred in applying general maritime law to the Estate's action.3
Whether general maritime law applies to this case presents a
question of law which we review de novo.
The application of general maritime law has evolved from a
simple "location test," under which maritime law "govern[ed]
only those torts occurring on the navigable waters of the
United States," Victory Carriers, Inc. v. Law, 404 U.S. 202,
205 (1971), to a location and connection test, initially
established in Sisson v. Ruby, 497 U.S. 358 (1990), and most
recently discussed in Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527 (1995). In Grubart, the United
States Supreme Court explained that a party seeking to apply
maritime law to a case
must satisfy conditions both of location and of
connection with maritime activity. A court applying
the location test must determine whether the tort
occurred on navigable water or whether injury
suffered on land was caused by a vessel on navigable
water. The connection test raises two issues. A
3
Under general maritime law, the Estate was allowed to
recover damages for pain and suffering in addition to the
damages authorized by Code § 8.01-52 in a wrongful death
action. Sea-Land Servs. v. Gaudet, 414 U.S. 573, 583 (1974).
3
court, first, must assess the general features of the
type of incident involved, to determine whether the
incident has a potentially disruptive impact on
maritime commerce. Second, a court must determine
whether the general character of the activity giving
rise to the incident shows a substantial relationship
to traditional maritime activity.
Id. at 534 (internal quotation marks and citations omitted).
As the parties recognize, the location prong of the test
is met in this case because the incident giving rise to Garland
Jones' injury, inhalation of asbestos, occurred while repairing
and constructing ships at the Newport News Shipyards in the
James River. However, according to Crane neither prong of the
connection test is met because the inhalation of asbestos does
not have a potentially disruptive impact on maritime commerce
and because Crane's activity in the manufacture of asbestos-
containing products did not have a substantial relationship to
traditional maritime activity. We disagree.
In applying the first prong of the connection test the
impact of the incident is evaluated "at an intermediate level
of possible generality" in order to determine whether the
incident is "within a class of incidents that posed more than a
fanciful risk to commercial shipping." Grubart, 513 U.S. at
538-39 (citations omitted). The disruptive impact need only be
potential, not actual. Id.
Applying the test enunciated in Sisson and Grubart, other
courts have concluded that exposure to asbestos came within the
4
general category of the risks of unsafe working conditions that
have a potential impact on commercial shipping. In Lambert v.
Babcock & Wilcox, Co., 70 F.Supp.2d 877, 884 (S.D. Ind. 1999),
the court observed that "[u]nsafe working conditions aboard a
vessel have consistently been held to pose a potentially
disruptive impact upon maritime commerce." The Lambert Court
concluded that "asbestos exposure in the boiler room of a ship
– could potentially disrupt maritime commerce by rendering the
boiler room too hazardous to operate." Id. See also Bartel v.
A-C Product Liability Trust, 461 F.Supp.2d 600, 602 (N.D. Ohio
2006) (claim based on merchant seaman's exposure to asbestos
while aboard a vessel was governed under admiralty law); Weaver
v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 386 (7th Cir.
2001) ("[W]ithout doubt an injury to . . . crew [of a
"commercial boat"] disrupts its participation in maritime
commerce."); Alderman v. Pacific Northern Victor, Inc., 95 F.3d
1061, 1064 (11th Cir. 1996) ("Unsafe working conditions aboard
a vessel under repairs, maintenance, or conversion, therefore,
pose a potentially disruptive impact upon maritime commerce.");
Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir.
1995) ("[W]orker injuries, particularly to those involved in
repair and maintenance, can have a disruptive impact on
maritime commerce by stalling or delaying the primary activity
of the vessel.").
5
Accordingly, we conclude that Garland Jones' inhalation of
asbestos fibers while engaged in the repair and construction of
vessels on navigable waters had the potential to disrupt
maritime commerce. Injury to Garland Jones that occurred
during these activities could potentially slow or frustrate the
work being done on the vessel. Such a result could, in turn,
have a disruptive impact on maritime commerce.4
The second prong of the connection test – whether the
activity giving rise to the incident bears a substantial
relationship to traditional maritime activity – requires a
definition of the relevant activity "not by the particular
circumstances of the incident, but by the general conduct from
which the incident arose." Sisson, 497 U.S. at 364. This
inquiry demands a "broad perspective." Id. In Grubart, the
Supreme Court explained that this inquiry is guided by
principles of proximate causation, and that "[t]here is . . .
no need . . . for imposing an additional nonremoteness hurdle
in the name of jurisdiction." Id. at 538.
We applied these principles in Garlock Sealing
Technologies, LLC v. Little, 270 Va. 381, 384-86, 620 S.E.2d
773, 775-77 (2005), and determined that the defendant's acts
4
We do not address Crane's argument that Garland Jones
worked only on new ship construction which does not have a
potentially disruptive impact on maritime commerce. The record
6
of omission and commission in manufacturing asbestos-containing
material used by Little to create gaskets used on submarines
"had a significant connection with maritime activity," and held
that maritime law applied.
In the case now before us, Crane urges again that the
manufacture and sale of asbestos-containing products into the
stream of commerce is too far removed from traditional maritime
activities to create the necessary relationship. Again we
disagree. The record in this case reflects that during the
time Garland Jones was exposed to asbestos-containing products
manufactured by Crane, Crane marketed gaskets and packing
material directly for the marine industry and advertised its
products for "marine engine and general ship use." Crane also
advertised its products in publications about maritime
activity. This activity bore a substantial relationship to
traditional maritime activities. The fact that Crane did not
directly undertake any activity aboard a maritime vessel does
not obviate this connection.
In summary, for the reasons set out above, we find that
the circumstances of this case satisfied both the location and
connection tests required under Grubart and therefore, the
trial court did not err in applying general maritime law.
shows that Garland Jones' exposure to asbestos occurred while
working on new vessels and repairing existing vessels.
7
II. TESTIMONY OF TERRENCE MCNAMARA
Crane next asserts that the trial court erred in allowing
the Estate to call Terrence McNamara as a witness "solely for
the purpose of impeachment, when the substance of his testimony
was unchallenged." McNamara was Crane's custodian of records
and the designated corporate representative responsible for
reviewing and certifying responses to discovery propounded upon
Crane from 2000 until June 2004, including discovery in this
case. A number of Crane's responses to interrogatories,
submitted under McNamara's verification, were untruthful. Over
Crane's objection, the trial court allowed the Estate to call
McNamara as an adverse witness to impeach Crane's credibility.
Generally, we review a trial court's decision to admit or
exclude evidence using an abuse of discretion standard and, on
appeal, will not disturb a trial court's decision to admit
evidence absent a finding of abuse of that discretion.
Riverside Hosp. v. Johnson, 272 Va. 518, 529, 636 S.E.2d 416,
421 (2006). While a "trial court has no discretion to admit
clearly inadmissible evidence, a great deal must necessarily be
left to the discretion of the court of trial, in determining
whether evidence is relevant to the issue or not." Id., 636
S.E.2d at 421-22 (internal citations omitted). "Evidence is
relevant if it has any logical tendency to prove an issue in a
case." Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d
8
114, 127 (1996). "[R]elevant evidence may be excluded only if
the prejudicial effect of the evidence outweighs its probative
value." Id.
Crane's primary complaint is based on the legal
proposition that a party may not impeach his own witness.
While we agree that the Estate could not call McNamara for the
sole purpose of impeaching him, see Virginia Electric & Power
Co. v. Hall, 184 Va. 102, 105-06, 34 S.E.2d 382, 383 (1945),
this is not what occurred at trial. Rather, the Estate argued
to the trial court that it intended to call McNamara in order
to show the "pattern of untruthful behavior exhibited by John
Crane." Such a pattern, if it existed, was relevant, to a
primary issue in the case, whether Crane knew or had reason to
know of the health risks posed by the asbestos-containing
products it manufactured. Because McNamara's testimony
concerned an improper discovery verification procedure, it
tended to undermine the credibility of Crane’s assertion that
he employed proper procedures with respect to researching the
dangers posed by asbestos or to disseminating that information
and that Crane was forthcoming with regard to other statements
it made. Thus, McNamara's testimony did have a "logical
tendency" to prove an issue in the case, and we cannot say that
it was irrelevant.
9
Crane further argues that, because it conceded that
McNamara's actions regarding discovery were improper,
McNamara's testimony did not concern any factual issues in the
case, but was merely "calculated to inflame the passion and
prejudices of the jury." We reject this argument because
first, as stated above, McNamara's testimony was relevant to
the issue of Crane's credibility, and thus did concern a
factual issue in the case. Furthermore, the jury's allocation
of damages among the defendants belies any argument that
McNamara's testimony unduly prejudiced Crane.
Accordingly, we conclude that the trial court did not
abuse its discretion in allowing McNamara to testify.
III. TESTIMONY OF CRANE'S EXPERTS
In its third assignment of error, Crane argues the trial
court erroneously interpreted the disclosure requirement of
Virginia Supreme Court Rule 4:1(b)(4)(A)(i) resulting in a
dramatic and unfair limitation of the expert testimony of Dr.
Victor Roggli and Henry Buccigross. Rule 4:1(b)(4)(A)(i)
states:
A party may through interrogatories require any other
party to identify each person whom the party expects
to call as an expert witness at trial, to state the
subject matter on which the expert is expected to
testify, and to state the substance of the facts and
opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.
10
In reviewing the trial court's decision to exclude expert
testimony, we apply an abuse of discretion standard. Tarmac
Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458
S.E.2d 462, 465 (1995).
A. Dr. Victor Roggli
The trial court sustained the Estate's objection to Dr.
Roggli's testimony regarding his opinion on the amount of
asbestos in the ambient air and its relationship to the cause
of mesothelioma because this opinion was not disclosed pursuant
to Rule 4:1(b)(4)(A)(i). We have not previously examined the
degree of specificity required by Rule 4:1(b)(4)(A)(i).
Nevertheless, any application of this rule begins with
determining whether the opinion at issue was disclosed in any
form. See, e.g., Griffett v. Ryan, 247 Va. 465, 468, 443
S.E.2d 149, 151 (1994) (reviewing trial court decision to allow
expert testimony by first examining content of the pretrial
disclosure).
Crane made the following pretrial disclosure of Dr.
Roggli's testimony:
Dr. Roggli will testify as to the pathological
diagnosis and the testing performed by him and others
at Duke University to determine if a mesothelioma
exists. Dr. Roggli may testify as to the association
between asbestos (including the various types) and
the alleged disease process involving the plaintiff.
Dr. Roggli may testify as to the contribution, if
any, of exposures to John Crane's products and
products of other companies in the causation of
11
plaintiff's asbestos-related disease. Finally, Dr.
Roggli will testify as to the burden of asbestos
(including the various types) in plaintiff's lungs
and its contribution, if any, in causing plaintiff's
asbestos-related disease if any. Dr. Roggli's
reports have already been or will be provided.
Crane subsequently provided the Estate with a report containing
the results of Dr. Roggli's examination of tissue samples taken
from Garland Jones' lungs. The report did not contain any
reference to levels of asbestos in the ambient air. Crane
argues that in excluding Dr. Roggli's testimony, the trial
court interpreted Rule 4:1(b)(4)(A)(i) too strictly. According
to Crane, Dr. Roggli's opinions including those regarding
asbestos in the ambient air, were "well known" to the Estate
because it questioned Dr. Roggli about the opinions during his
deposition. Thus, even if the disclosures were insufficient,
according to Crane, the error was cured at Dr. Roggli's
deposition.
Nothing in Crane's disclosure reveals that Dr. Roggli
might testify about asbestos in the ambient air. Furthermore,
a party is not relieved from its disclosure obligation under
the Rule simply because the other party has some familiarity
with the expert witness or the opportunity to depose the
expert. Such a rule would impermissibly alter a party's burden
to disclose and impose an affirmative burden on the non-
12
disclosing party to ascertain the substance of the expert's
testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).
Accordingly, the trial court did not abuse its discretion
in ruling that Dr. Roggli's opinion testimony regarding
asbestos in ambient air was inadmissible because Crane failed
to comply with the disclosure requirement of Rule
4:1(b)(4)(A)(i).
B. Henry Buccigross
Prior to trial, Crane disclosed that Buccigross would
offer testimony on, among other topics, his "research and/or
his testing of various asbestos insulation products," including
"Unibestos" and "Kaylo," as well as his research and testing of
Crane products.5 Although the disclosure referenced a report by
Buccigross on his testing of Unibestos and Kaylo, Crane
admitted the report was not attached to the disclosure. The
trial court refused to allow Buccigross to testify about the
tests he had conducted on Kaylo and Unibestos products because
the Estate had not received Buccigross' report relating to this
subject. Crane assigned error to this ruling.
Crane argues, as it did to the trial court, that
regardless of its failure to provide Buccigross' report, the
Estate knew the substance of Buccigross' testimony because the
5
Unibestos and Kaylo were asbestos-containing products of
other manufacturers.
13
Estate's counsel had cross-examined Buccigross "at trial about
his reports going back to the '90s." Crane also pointed out
that the Estate had failed to depose Buccigross or to ask Crane
for representative samples of Buccigross' testimony, either of
which would have allowed the Estate to ascertain the actual
substance of the testimony.
Rule 4:1(b)(4)(A)(i) requires that the substance of
opinions to be rendered be disclosed. Here, while Crane did
disclose the topic of Buccigross' testimony, Crane did not
disclose the substance of Buccigross' opinions in the
disclosure or through Buccigross' report. Crane thus failed to
comply with the Rule and the trial court did not err by
excluding the testimony. As we stated when considering Crane's
challenge to the trial court's ruling on the admissibility of
Dr. Roggli's testimony, an opponent's ability to depose an
expert or familiarity with such expert through prior litigation
does not relieve a party from complying with the disclosure
requirements of Rule 4:1(b)(4)(A)(i).
Crane also argues that the trial court should have allowed
the testimony of both Dr. Roggli and Buccigross because the
Estate admitted that the disclosures regarding Roggli and
Buccigross were "exemplary, in comparison to Dr. Feingold's,"
another of Crane's intended expert witnesses.
14
The record shows that the Estate's statement regarding the
quality of Crane's disclosures at issue was made as a
comparison to the fact that Crane had not disclosed any of the
expected testimony of Dr. Feingold. The statement cannot be
fairly taken as a concession that Crane complied with the
requirements of the disclosure rule for all purposes.
In summary, we conclude that the trial court did not abuse
its discretion in refusing to allow the testimony at issue
because Crane did not disclose that Dr. Roggli would render an
opinion on asbestos in the ambient air and did not identify the
substance of Buccigross' opinion as required by Rule
4:1(b)(4)(A)(i).
IV. AMOUNT OF THE VERDICT
Crane asserts that the trial court erred in failing to set
aside the verdict because it was excessive when compared to
verdicts in similar cases and based on the facts of this case,
it was the product of passion and prejudice.
Citing our prior decisions in Chesapeake & Ohio Railway
Co. v. Arrington, 126 Va. 194, 101 S.E. 415 (1919), and P.
Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384 (1920), Crane
urges us to compare the verdict in this case to the verdicts
rendered in other cases involving similar facts. Crane
acknowledges that this Court has "recently declined to engage
in verdict comparison," but argues that the practice of
15
comparing verdicts does not appear to be "foreclosed" in
Virginia. In the two cases primarily relied upon by Crane the
plaintiffs sought damages for the loss of a limb. In those
cases, the Court looked to verdicts in other cases involving
the same injury as one part of its determination whether the
verdict in the case before it was excessive. Arrington, 126
Va. at 218, 101 S.E. at 423; P. Lorillard, 127 Va. at 756, 104
S.E. at 391.
Since these two cases, however, this Court has routinely
rejected the use of an "average verdict rule" in determining
whether a verdict is excessive. As early as 1925, in Farris v.
Norfolk and Western Railway Co., 141 Va. 622, 126 S.E. 673
(1925), we stated that the rule "cannot be invoked where the
injuries are internal, and have produced a condition of greatly
impaired earning capacity, continuous pain and suffering, and a
dislocated kidney that may or may not produce serious results."
Id. at 626, 126 S.E. at 674.
Subsequent cases did not use an "average verdict rule"
where issues of pain and suffering were involved. Rather, this
Court reviewed the facts and circumstances of each case to
determine whether the verdict was excessive and the product of
jury passion and prejudice or misapprehension of the case.
See, e.g., National Fruit Product Co. v. Wagner, 185 Va. 38,
40-41, 37 S.E.2d 757, 758-59 (1946); Williams Paving Co. v.
16
Kreidl, 200 Va. 196, 204, 104 S.E.2d 758, 764 (1958); Lilley v.
Simmons, 200 Va. 791, 797, 108 S.E.2d 245, 249-50 (1959);
Edmiston v. Kupsenel, 205 Va. 198, 203, 135 S.E.2d 777, 780-81
(1964); Gazette, Inc. v. Harris, 229 Va. 1, 48, 325 S.E.2d 713,
744-45 (1985) (relying on record to find that verdict bore "no
relationship to the loss actually sustained by the plaintiff"
and was excessive); Reel v. Ramirez, 243 Va. 463, 467, 416
S.E.2d 226, 228 (1992) ("we examine the record . . . to
determine if the trial judge abused his discretion" in granting
a remittitur on grounds that verdict was allegedly excessive);
Norfolk Bev. Co. v. Cho, 259 Va. 348, 354-55, 525 S.E.2d 287,
290-91 (2000) (analyzing record to determine jury verdict was
not excessive); Shepard v. Capitol Foundry of Virginia, Inc.,
262 Va. 715, 720-21, 554 S.E.2d 72, 75 (2001) (analyzing
excessiveness of verdict based on the record); Allstate Ins.
Co. v. Wade, 265 Va. 383, 394-95, 579 S.E.2d 180, 186-87 (2003)
(stating that verdict is excessive when it shocks the
conscience of the court and creates impression that jury was
improperly motivated or confused, and examining record to
determine that verdict was not excessive as a matter of law).
The "average verdict rule" was more recently rejected in
Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64 (2004). In that
case, the defendants argued the verdict was excessive in light
of other verdicts in similar cases. Declining to engage in a
17
comparison, we applied an abuse of discretion standard, based
upon the evidence in the record. Id. at 159-60, 597 S.E.2d 77.
See also Government Micro Resources, Inc. v. Jackson, 271 Va.
29, 48-49, 624 S.E.2d 63, 74 (2006). In sum, the "average
verdict rule" is not probative of whether a verdict is
excessive; rather that determination must be made based on the
facts and circumstances of each case.
In addition to urging us to consider verdicts in similar
cases, Crane contends the jury verdict in this case was not
related to the evidence presented. Crane points out that
Garland Jones suffered a stroke in 2001, was diagnosed with
mesothelioma in January 2005, and died six months later, in
June 2005. According to Crane, these facts and the fact that
jury's original award exceeded the damages requested, show that
the jury was motivated by passion or prejudice.
We find nothing in the record to support Crane's
contention that the verdict was not the product of an impartial
decision. At trial, the Estate produced evidence that medical
expenses for Garland Jones totaled $394,857.01 and that his
funeral expenses were $9,678.06. Also admitted was a statement
written by Garland Jones in which he stated he was "devastated"
to learn he had mesothelioma and described his illness as the
"bottom" falling out from underneath him and a "roller coaster
ride." Ashley Higgenbotham, one of Garland Jones' children,
18
testified that after Jones was diagnosed with mesothelioma, he
was "barely mobile" and "very depressed," which was
uncharacteristic for him. Higgenbotham testified that her
father's death in a nursing home was an "absolute nightmare."
Michael Jones, another of Garland Jones' children, testified
that Garland Jones was in the "best health of his life" and
even volunteered for Meals on Wheels after his 2001 stroke.
Michael Jones also described how Garland Jones' physical and
psychological state deteriorated after his diagnosis and until
his death.
The jury also heard evidence that Garland and Wanda Jones
had been married for 41 years and were "very loyal to one
another" and "loved each other very much." Wanda Jones
testified about the pain and sorrow she felt upon her husband's
death.
In addition, the jury heard evidence from Dr. G. Dastgir
Qureshi, Garland Jones' physician, who testified about
mesothelioma in general and about the progression of Garland
Jones' disease. Dr. Qureshi testified about the chemotherapy
performed on Garland Jones and fact that the chemotherapy
eventually caused sepsis and acute renal failure. Dr. Qureshi
also testified about several medical procedures undergone by
Garland Jones, and described Garland Jones' severely impaired
physical state at the time of his death.
19
The jury was given the following instruction on damages,
without objection from Crane:
If you find for the plaintiff, your verdict shall be
in such sum as will fully and fairly compensate such
plaintiff for her damages. In determining damages to
which she is entitled you shall include, but are not
limited to, any of the following which you believe by
the greater weight of the evidence: One, any pain
and suffering of Garland Jones. Two, any damages for
sorrow, mental anguish and solace, which may include
loss of society, companionship, comfort, guidance,
kindly offices and advice that is suffered by Wanda
Jones as a result of the injury and death of Garland
Jones. Three, compensation to Wanda Jones for the
reasonably expected loss of the services, protection,
care and assistance provided by Garland Jones. Four,
expenses for care, treatment and hospitalization of
Garland Jones that are incident to the injury
resulting in his death. And five, reasonable funeral
expenses of Garland Jones.
Based on this instruction and the evidence presented at
trial, we cannot say the trial court abused its discretion in
determining that the verdict was not excessive and not so out
of proportion to the injuries suffered as to suggest that it
was not the product of a fair and impartial decision.
V. CONCLUSION
For the reasons stated above, we will affirm the judgment
of the trial court.
Affirmed.
20