RICHARD S. THAYER & another [Note 1] vs. PITTSBURGH-CORNING CORPORATION & others. [Note 2]

WARNER, C.J. Richard Thayer (Thayer) was exposed to asbestos between 1948 and 1952, while working as a machinist helper on the U.S.S. Des Moines and the U.S.S. Salem, two ships under construction at the Fore River Shipyard, and while serving on the U.S.S. Salem during its overhaul and subsequent naval exercises. In 1992, Thayer was diagnosed with malignant mesothelioma. [Note 3] In 1993, he and his wife filed suit against several asbestos manufacturers. They subsequently reached a settlement with all defendants except Owens-Illinois, Inc., and Owens-Illinois Glass Company (Owens). [Note 4]

The claims against Owens were tried to a Superior Court jury on a theory of breach of warranty. The jury awarded $242,000 to Thayer and $3,000 to Patricia Thayer on her loss of consortium claim. The plaintiffs moved for a new trial on the issue of damages, and Owens moved for a new trial on liability. Both motions were denied, and the parties cross-appealed.

On appeal, Owens contends that the plaintiffs' claims are barred due to the lack of privity between Thayer and Owens, and argues that the judge, therefore, erred in denying its motion for partial summary judgment. Owens also maintains that the judge improperly excluded state of the art evidence which was relevant to show its knowledge of the risks associated with asbestos, and two of its proposed trial exhibits. Finally, it contends that the judge improperly apportioned the pretrial settlement the plaintiffs received from other defendants between the plaintiffs' personal injury and wrongful death claims before applying the settlement to the jury award in the present action pursuant to G. L. c. 231B, s. 4. The plaintiffs challenge the judge's instructions on loss of consortium. They also contend that the judge erred in informing the jury of the existence of a pretrial settlement with other defendants in the case and in failing to instruct the jury on the effect of inflation on Thayer's future damages. Finally, they argue that the judge's denial of their motion for a new trial on the issue of damages was error. We reverse.

We first consider the issues raised by Owens.

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Exclusion of state of the art evidence. Owens claims that in this so-called failure to warn case, state of the art evidence was relevant to its knowledge of the risks associated with exposure to asbestos. It argues, therefore, that the judge erred in denying its request for the introduction of such evidence. [Note 5] Our resolution of this issue is controlled in all material respects by the Supreme Judicial Court's recent decision in Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 , 19-23 (1998), which mandates that we vacate the judgment against Owens. [Note 6]

In Vassallo, the court reconsidered "the duty to warn under the implied warranty of merchantability" and changed Massachusetts law "to state that a defendant will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product." Id. at 20, 23. Under the authority of Vassallo, state of the art evidence was undoubtedly relevant in determining whether Owens breached its implied warranty of merchant-ability based upon a failure to warn. [Note 7] Accordingly, Owens is entitled to a new trial. [Note 8]

Additional evidentiary issues. Owens's additional claims of error with respect to evidentiary rulings do not require extended discussion. The excluded evidence was either cumulative, and

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within the judge's discretion to exclude, or irrelevant [Note 9] and, therefore, caused no prejudice to Owens. See Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748 , 752-753 (1996).

The requirement of privity. Owens maintains that the judge erred in denying its motion for partial summary judgment, thereby allowing the plaintiffs to proceed on the breach of warranty count despite the lack of privity between Thayer and Owens. At the time of Thayer's exposure (1948-1952), the Uniform Sales Act, G. L. c. 106, s. 17(2), made privity a prerequisite to the maintenance of any breach of warranty claim against a seller. In 1957, Massachusetts enacted the Uniform Commercial Code. "As it appeared originally in St. 1957, c. 765, s. 1, as part of the Commonwealth's adoption of the . . . Code, [G. L. c. 106,] s. 2-318" eliminated the privity requirement which had been necessary under the Uniform Sales Act, but only for members of the purchaser's family, household, and guests. Hoffman v. Howmedica, Inc., 373 Mass. 32 , 34 (1977). In 1971, s. 2-318 was completely rewritten to allow breach of warranty actions in the absence of privity for sales occurring on or after November 16, 1971, "if the plaintiff was a person whom the manufacturer . . . might reasonably have expected to use, consume or be affected by the goods." St. 1971, c. 670, s. 1. Hoffman, supra at 34-35. In 1973, s. 2-318 was again amended, eliminating the requirement of privity for any injuries occurring after the effective date of the amendment. St. 1973, c. 750, s.s. 1, 2. Hoffman, supra at 35.

Owens argues that because Thayer's exposure to its product occurred prior to the adoption of the Uniform Commercial Code, the Uniform Sales Act is applicable to this case. [Note 10] Accordingly,

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it contends that the plaintiffs' claims are barred and that the aforementioned amendments to s. 2-318 are irrelevant. The plaintiffs maintain that because Thayer's injury did not occur until 1993, many years after the 1973 amendment, the judge's denial of Owens's motion was proper. There was no error.

Subsequent to the 1973 amendment to G. L. c. 106, s. 2-318, our appellate courts have looked to the date of injury rather than to the date of sale or transaction in determining whether the lack of privity defense is available against a plaintiff and have permitted plaintiffs to proceed where their injuries occurred after its effective date. See, e.g., Hoffman v. Howmedica, Inc., supra at 34-35; Cameo Curtains, Inc. v. Philip Carey Corp., 11 Mass. App. Ct. 423 , 427 (1981). See also Swartz v. General Motors Corp., 375 Mass. 628 , 631 (1978) (privity a valid defense where sale and injury both occurred prior to 1973); Mansfield v. GAF Corp., 5 Mass. App. Ct. 551 , 556 (1977) (same).

Federal courts applying Massachusetts law have placed similar emphasis on the date of injury rather than on the transaction date. See, e.g., Payton v. Abbott Labs, 551 R Supp. 245, 246 (D. Mass. 1982); McCormack v. Abbott Labs, 617 F. Supp. 1521, 1524 (D. Mass. 1985). In In re Massachusetts Asbestos Cases, 639 F. Supp. 1, 3 (D. Mass. 1985), the court expressly held that "the defense of lack of privity is not available against any plaintiff whose first manifestation of physical symptoms attributable to an asbestos-related disease occurred after December 16, 1973." See Eagle-Pitcher Indus., Inc., v. Liberty Mut. Ins. Co., 682 F.2d 12, 25 (1st Cir.), cert. denied, 460 U.S. 1028 (1982) (holding that for purposes of determining coverage under insurance policy, "disease 'results' . . . when it becomes reasonably capable of medical diagnosis").

In the present case, although Thayer's exposure to asbestos occurred between 1948 and 1952, we hold that his injury did not occur until 1992, when he became ill and was diagnosed

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with malignant mesothelioma. Cf. McCormack v. Abbott Labs, supra. Because the injury occurred well after the 1973 amendment to s. 2-318 eliminating the privity requirement with respect to such injuries, Owens's motion for partial summary judgment was properly denied. The fact that Thayer was exposed to asbestos prior to the Commonwealth's adoption of the Uniform Commercial Code does not affect this result.

Apportionment of pretrial settlements. Owens's final claim of error concerns the relationship between the plaintiffs' pretrial settlement with the other defendants and the subsequent jury award. With interest, the jury award against Owens totaled $306,250. The award encompassed the personal injury and loss of consortium claims considered by the jury. The plaintiffs previously received $431,000 from the other defendants in settlement of all their claims, including any possible future claims for wrongful death.

Pursuant to G. L. c. 231B, s. 4, [Note 11] Owens is entitled to subtract the amount paid in pretrial settlements by the other defendants from the amount of any subsequent jury verdict against it. See Laveck v. Pascoe Pizza, Inc., 29 Mass. App. Ct. 935 , 938 (1990). However, it is not clear whether Owens should receive dollar-for-dollar credit against the jury verdict, with the remainder of the pretrial settlement being reserved as a set-off against an award in any future wrongful death action that may be brought against it, or whether the pretrial settlement figure must first be apportioned between the plaintiffs' claims for personal injury and loss of consortium and their potential wrongful death claims. Owens initially took the position that because the plaintiffs and the settling defendants did not make any effort to allocate the $43 1,000 settlement among the various claims, the

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jury's award and the interest thereon, totaling $306,250, should be reduced to zero, leaving Owens with a "credit" of $124,750, which could be applied against any future wrongful death award. The plaintiffs objected to this proposal and urged the judge to hold an evidentiary hearing to apportion the settlement among the various claims. At a hearing on posttrial motions, the judge directed the parties to determine whether they could arrive at a mutually agreeable apportionment and indicated that, in the alternative, he would hold another hearing to determine the proper allocation. The parties subsequently stipulated to the following apportionment, which was proposed by Owens: seventy-five percent of the pretrial settlement would be deducted from the verdicts, interest, and costs in the present action and twenty-five percent would be allocated to offset the verdict, interest, and costs of any future wrongful death action. [Note 12]

On appeal, Owens argues that because no apportionment was made by the settling parties at the time of settlement, none should subsequently have been undertaken. Although, in his memorandum and order granting Owens's motion to enforce, the judge noted Owens's objection to any allocation, it is by no means clear that the issue was properly preserved for appeal. Because this issue is likely to arise again if the plaintiffs prevail in any retrial, however, we consider it here.

Nothing in G. L. c. 231B, s. 4, prohibits a judge from apportioning pretrial settlements among the plaintiffs' various claims in circumstances such as these. Where, as here, it is undisputed that the pretrial settlement included wrongful death claims and the jury award did not, we decline to impose such a restriction. Accordingly, we conclude that the judge acted properly. If the plaintiffs prevail in any retrial, the parties should again attempt to arrive at a mutually agreeable apportionment of the pretrial settlement, and if such an agreement cannot be reached, a hearing should be held at which the judge shall determine the proper allocation.

We next consider the issues raised by the plaintiffs.

Jury instructions. The plaintiffs' first claim of error concerns the judge's instruction on loss of consortium. They maintain that the judge's failure to give their proposed instruction No.

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28 [Note 13] was reversible error. [Note 14] "A trial judge has wide latitude in framing the language to be used in jury instructions." Jacobs v. Pine Manor College, 399 Mass. 411 , 414 (1987). Accordingly, the judge did not have to instruct the jury using the exact words proposed by the plaintiffs, as long as "the subject matter thereof [was] dealt with adequately in the charge." Ibid., quoting from Campbell v. Shea, 332 Mass. 422 , 425 (1955). We conclude that the instruction, which advised the jury to consider the different ways in which Thayer's illness adversely affected and impaired the marital relationship and resulted in the alteration and diminution in the kind of companionship and assistance that he provided to his wife and in his inability to be a full husband to her, was adequate. See Olsen v. Bell Tel. Labs., Inc., 388 Mass. 171 , 177 (1983) (defining loss of consortium as the loss of "companionship, affection, and sexual enjoyment of one's spouse").

The plaintiffs next claim that the judge erroneously instructed the jury on their pretrial settlement with other defendants. In light of the fact that the plaintiffs twice failed to object to the challenged instruction, the issue has not been preserved for appeal. Weeks v. Harbor Natl. Bank, 388 Mass. 141 , 146-147 & n.3 (1983). In any event, the judge was correct to inform the jury of the existence of a pretrial settlement and to admonish them not to deduct the settlement amount from their award, if any. See Morea v. Cosco, Inc., 422 Mass. 601 , 602-603 & n.2 (1996) (rule that prohibits the jury from being informed of the "fact and the amount of [any pretrial] settlement" unless such information is relevant for some other purpose, is to be applied

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prospectively only). See also Yardley v. Rucker Bros. Trucking, Inc., 42 Or. App. 239, 243 (1979) ("in appropriate circumstances evidence of [a pretrial] settlement can be admitted . . . provided that the court then instructs the jury in unequivocal language to disregard the settlement and return a verdict for the full amount of the plaintiff's damages"). In accordance with Morea, supra, the jury at any retrial should not be informed of the existence or amount of the settlement.

The plaintiffs' third claim of error is based on the judge's failure to instruct the jury on the effect of inflation on Thayer's future medical expenses. Again, we discern no error. The only evidence of future medical expenses in this case was the deposition testimony of Dr. David Sugarbaker, Thayer's surgeon, that "after, you know, taking care of many, many patients with this disease, I would predict that [Thayer] would have need for medical care and that the need for that medical care, in the terminal stages where we know it's many times the most costly, would be in excess of several hundred thousand dollars." The total lack of testimony about inflation, coupled with the vagueness of Dr. Sugarbaker's estimate of future medical costs, justified the judge's refusal to instruct on inflation. [Note 15]

The judgment is reversed, and the verdict set aside.

So ordered.