This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Thomas Edmund Doten, et al.,



ACandS, Inc., et al.,



Owens-Corning Fiberglas Corporation,

defendant and third-party plaintiff,



Owens-Illinois, Inc.,

Third-Party Defendant.

Filed March 18, 1997

Affirmed in part reversed in part, and remanded

Toussaint, Chief Judge

Ramsey County District Court

File No. 9417461

Michael R. Strom, Scott J. Hertogs, Sieben, Polk, Laverdiere, Jones & Hawn, 999 Westview Dr., Hastings, MN 55033 (for respondents)

Bruce G. Jones, Faegre & Benson LLP, 2200 Norwest Center, 90 S. Seventh St., Minneapolis, MN 55402 (for appellants)

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.


TOUSSAINT, Chief Judge

Appellant challenges the denials of its motion for a new trial (JNOV) or alternatively a new trial as to both compensatory and punitive damages and of its motion for reallocation of compensatory damages. Because there was (1) evidence supporting the jury's findings, (2) no abuse of discretion in the trial court's evidentiary rulings, and (3) no erroneous application of the law, we affirm the denial of the motion for JNOV. However, we conclude the trial court erroneously applied the law in denying appellant's motion for reallocation and reverse that denial.


In 1953, appellant Owens-Corning Fiberglass (OCF) began selling Kaylo, an asbestos-containing insulating material manufactured by OCF's parent corporation, Owens-Illinois (OI). Appellant began to manufacture Kaylo in May 1958.

Respondent Thomas Doten used Kaylo from June 1957 to June 1958, when he worked for Armstrong Cork Company (later Armstrong Contracting and Supply, or ACandS) as a helper to journeymen insulators. In 1994, Doten was diagnosed with mesothelioma, an asbestos-caused fatal cancer in the exterior lining of the lung.

Doten and his wife then brought an action against the entities associated with his use of asbestos-containing insulation. Prior to trial, all defendants except MacArthur Corporation and appellant either settled with Pierringer releases or were dismissed. Respondents moved to amend their complaint to include a claim for punitive damages; their motion was granted.

The bifurcated trial resulted in a jury assessing respondents' compensatory damages at $1,000,000 and apportioning negligence 24% to appellant, 44% to settling defendants and nonparties (40% to OI, 2% to Johns-Manville, and 2% to A.H. Bennett Company), and 32% to other nonsettling defendants and nonparties (14% to ACandS, 14% to Armstrong World Industries (Armstrong),[1] 2% to Keasbey Mattison, and 2% to Eagle Picher). Appellant is the only entity from which a judgment is collectible. The same jury then heard a trial on the punitive damages claim and rendered a verdict assessing punitive damages of $500,000 against appellant. Doten died prior to the denial of appellant's motions for JNOV and for reallocation of damages.

Judgment in the amount of $1,060,000 (24% of $1,000,000 or $240,000 for appellant's own negligence; 32% of $1,000,000 or $320,000 for the negligence of the other nonsettling entities, and $500,000 for punitive damages) was entered. Appellant challenges both the compensatory and the punitive damage awards, arguing (1) no competent evidence supported the jury's verdict that appellant was negligent, that appellant's negligence caused Doten's injury, or that appellant acted in disregard of the rights and safety of others, (2) the trial court abused its discretion in excluding and admitting evidence and in instructing the jury, (3) the trial court erred in applying the law on reallocation, in permitting amendment of the complaint, and in applying Minnesota law on awarding punitive damages, and (4) the punitive damages award violated appellant's right to due process.


1. Jury Findings

Standard of Review

On review, answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear as to leave no room for differences among reasonable people. * * * The evidence must be viewed in a light most favorable to the jury verdict * * * . If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.

Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993) (citations omitted).

A. Negligence

The jury answered "yes" when asked if appellant

fail[ed] to use reasonable care in any one of the following respects: Design, sale or distribution of a product or failure to timely and adequately test, warn or instruct regarding the safe use of the product or, as to employers, providing of a safe workplace?[2]

Appellant argues the jury had and could have had no evidence to find appellant was negligent in failing to warn of the risk of mesothelioma because the link between asbestos and mesothelioma was not established until after respondent's injury. However, the jury heard deposition testimony from the director of the Saranac Laboratories that in 1956 he had met with appellant's scientific personnel and officials and told them Kaylo could cause asbestosis and cancer and the prolonged residence of asbestos fibers in lung tissues would result in lung cancer, mesothelioma, and gastrointestinal cancers. This evidence would support a finding that appellant failed to use reasonable care in failing timely and adequately to warn users regarding the safe use of Kaylo.

The jury needed to find that appellant had not used reasonable care in regard to only one of the alternatives mentioned in the special verdict question in order to answer "yes." Because competent evidence supported a finding of negligence with regard to appellant's failure to warn, the finding that appellant was negligent is not palpably contrary to the evidence.[3]

B. Causation

The jury answered "yes" when asked whether appellant's "failure to use reasonable care was a direct cause of Mr. Doten's injuries." Appellant argues there is no evidence that it distributed or manufactured the Kaylo that injured Doten.[4] However, the jury heard testimony that appellant supplied and "rebranded" Kaylo for Doten's employer. Further, Doten testified he repeatedly saw and used Kaylo from boxes bearing the words "made by Owens-Illinois/sold by Owens Corning Fiberglas" or with the appellant's logo at his job sites. The jury's finding that appellant's negligence was a direct cause of Doten's injuries is not palpably contrary to the evidence.

C. Appellant's disregard for the safety of others

The jury answered "yes" to the question, "Did appellant act with deliberate disregard for the safety of others?" Minn. Stat. § 549.20 subd. 1 (b) (1996) provides

A defendant has acted with deliberate disregard for the rights or safety of others if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:

(1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or

(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.

The jury heard evidence that, viewed in the light most favorable to the jury's verdict, could support a finding that appellant acted with deliberate disregard for the safety of others because appellant knew of the risks inherent in using Kaylo, yet distributed Kaylo without warning purchasers and users of those risks.

Appellant argues that because it did not know there was a high probability that Doten would contract mesothelioma, it could not have acted with deliberate disregard for his safety. However, the jury was not asked if appellant acted with disregard of the possibility of Doten contracting mesothelioma, but with disregard for the "safety of others" generally. There is no requirement that punitive damages be awarded only for disregard of a particular injury to a particular victim. See, e.g., Mrozka v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806, 812-13 (Minn. App. 1992) (holding that punitive damages were appropriate where there was evidence from which the jury could have concluded that church officials knowingly and repeatedly placed a sex offender in situations where he could abuse), review denied (Minn. May 15, 1992).

The jury's findings that (1) appellant was negligent, (2) appellant's negligence caused Doten's injury, and (3) appellant acted with disregard for the safety of others are not palpably contrary to the evidence and will not be reversed.

2. Evidentiary Issues

Standard of Review

The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.

Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citations omitted).

A. Exclusion of Evidence

The trial court excluded as hearsay the deposition testimony of three of appellant's witnesses, each of whom had worked an average of 30 years in the trade, had worked contemporaneously with Doten, had been deposed as a plaintiff in his own asbestos personal injury action, and had died prior to respondents' trial. Their testimony about the asbestos-containing products they worked with did not mention Kaylo.

The trial court based its exclusion of the testimony first on Minn. R. Civ. P. 32.01, requiring a party must have been present or represented at or notified of a deposition for the deposition to be used against that party. Respondents were not present or represented at or notified of the depositions of the three deceased witnesses. The court then held the testimony was not admissible under Minn. R. Evid. 804(b)(1), requiring that the deponent must have had substantially the same interest as the party against whom the deposition was being offered. The three deceased deponents had been trying to establish a long history of exposure to Kaylo after May 1958, while Doten was trying to establish a short period of exposure, chiefly before May 1958. Nor was the testimony admissible under Minn. R. Evid. 804(b)(5)(B), requiring the statement be more probative than any other evidence the proponent could produce through reasonable efforts. There were living witnesses who could have testified as to the presence or absence of Kaylo at the job site where Doten worked in 1957-58, but appellant chose not to call them. The exclusion of the deposition testimony of the deceased witnesses was not based on an erroneous view of the law nor was it an abuse of discretion.

The court also used Minn. R. Civ. P. 32.01 as a basis for excluding the October 7, 1981, deposition of Edward Ames, deceased, who had worked as assistant to appellant's president during the 1940's, had left to join OI in 1954, and had become an OI vice-president in 1964. Appellant argued the October 1981, deposition corrected, clarified, and in some cases contradicted Ames's March 26, 1981, deposition that respondents introduced, in which Ames testified as to his knowledge during the 1940's of the risks associated with asbestos. Appellant's counsel had been present at both depositions. Respondents had not been present or represented at or notified of the October 1981, deposition. The trial court did not abuse its discretion in excluding it.[5]

B. Admission of Evidence

Appellant challenges the admission of evidence relevant to (1) its conduct after 1958, (2) illnesses other than mesothelioma, and (3) products other than Kaylo.

Appellant argues, that appellant was prejudiced by evidence of its conduct after 1958, because Doten's exposure to Kaylo terminated in June 1958. Minn. Stat. § 549.20, subd. 3 (1994) lists factors to be considered in imposing punitive damages, including (1) the seriousness of the hazard to the public arising from a defendant's misconduct, (2) the profitability of the misconduct to the defendant, (3) the duration of the misconduct, (4) any concealment of the misconduct, (5) the degree of the defendant's awareness of the hazard and of its excessiveness, and (6) the defendant's attitude and conduct upon discovery of the misconduct. Evidence of appellant's conduct in regard to asbestos after 1958 was essential for the trial court to evaluate these factors.

Moreover, the statute is clearly framed in terms of general and lasting danger to the public rather than specific, one-time injury to an individual. Id. (concerning "rights or safety of others * * *.") Thus, appellant's objection that the evidence was not related specifically to Doten or to mesothelioma is unpersuasive. Nor are we persuaded by appellant's unsupported argument that basing punitive damages on an award of compensatory damages means that only evidence relating to the specific time and nature of the offense leading to the compensatory damages is admissible.

Appellant also challenges the admission of evidence relating to a product other than Kaylo. Evidence was introduced to show that appellant rejected the idea of placing warnings on its labels similar to the warning labels on Fyr-Cor, a product manufactured by a company that appellant acquired in 1970. Inasmuch as appellant's conduct relating to the concealment of the dangers from the asbestos in Kaylo was relevant to the punitive damages issue, this evidence was properly admitted.

We see no abuse of discretion in the exclusion or admission of evidence.

3. Jury Instructions

Where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990) (citing State Bank of Hamburg v. Stoeckmann, 417 N.W.2d 113, 116 (Minn. App. 1987) review denied (Minn.Feb. 17, 1988)), review denied (Minn. May 11, 1990). The denial of a requested instruction does not constitute grounds for a new trial if the instruction given correctly states the applicable law. Stenvik v.Constant, 502 N.W.2d 416, 421 (Minn. App. 1993) (citing Stoeckmann, 417 N.W.2d at 116), review denied (Minn.Aug. 24, 1993). A trial court has broad discretion in determining jury instructions. Id.

Plaintiffs must choose whether to submit a failure to warn claim to the jury on a strict liability theory or a negligence theory. Hauenstein v. The Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984). Respondents chose the negligence theory. The trial court instructed the jury as to the duties of manufacturers and sellers of hazardous products by reading JIG 120 and 119. These instructions provide (1) there is a duty to use reasonable care in the manufacture, inspection, packaging and testing of a product to protect those who will use it and (2) there is negligence when a manufacturer knew or could reasonably have discovered danger involved in the use of a product and the product is not accompanied by adequate instruction or warnings.[6] 4 Minnesota Practice, CIV JIG 119, 120 (1986).

Appellant requested an instruction based on JIG 124, "Strict Liability Avoidance." Because respondents had chosen to submit their claim under a negligence theory, not a strict liability theory, this instruction was not appropriate. Neither the trial court's rejection of appellant's suggested instruction nor its use of an instruction that fairly and correctly stated the applicable law provides a basis for a new trial.

4. Reallocation

The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Holding that Minn. Stat. § 604.02, subd. 2, does not apply here, the trial court denied appellant's motion for reallocation and ordered appellant to pay 56% of the verdict: 24% for its own negligence and 32% for the negligence of those who had not settled, but from whom a judgment could not be collected.

We hold that appellant is entitled to reallocation pursuant to Minn. Stat. § 604.02, subd. 2 (1996), which provides

[T]he court shall determine whether all or part of a party's equitable share of the obligation is uncollectible from that party and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault.

Hosley v. Armstrong Cork Co., 383 N.W.2d 289 (Minn. 1986), another asbestos case, involved a damages award of $350,000 and a jury's apportionment of fault among the plaintiff (7%), seven settling defendants (58%), one nonsettling, bankrupt defendant (25%), and one other nonsettling defendant, Pittsburgh Corning (10%). Id. at 290-91. The Pierringer releases of the settling defendants provided that plaintiff indemnified them for

any and all claims based on the amount of any subsequent judgment determined to be uncollectible in accordance with Minn. Stat. Sec. 604.02 (1980) and reallocated to [nonsettling defendant Pittsburgh Corning].

Id. at 294. The supreme court held that the uncollectible 25% share of the bankrupt defendant, $87,500, was not to be allocated entirely to Pittsburgh Corning in joint and several liability but was to be reduced by the share allocable to the plaintiff, i.e., 7/75 of $87,500, or $8,167, and the shares allocable to the settling defendants, i.e., 58/75, or $67,666, "which the plaintiff agreed in the Pierringer releases to pay * * *." Id. at 294. Respondents' Pierringer releases of the 40% liable OI and the 2% liable A.H. Bennett include language identical with that in Hosley. Similar language appears in the release of the 2% liable Johns-Manville. Pursuant to Hosley, respondents have agreed to pay the settling defendants' share of an uncollectible judgment. Therefore, appellant is not liable for that amount. We reverse the trial court and reallocate the uncollectible portion of the judgment.[7]

Practically, this will have one of two results, depending on the Supreme Court's decision in Georgine v. Amchem Prod., Inc., 157 F.R.D. 246 (E.D. Pa. 1994), vacated, 83 F. 3d 610 (3rd Cir.), cert. granted sub - 8.8 p. 67 nom. Amchem Prods. Inc. v. Windsor, 117 S. Ct. 379 (Nov. 1, 1996). If the Supreme Court upholds the third circuit's decision that Armstrong is not deemed to have settled with all potential asbestos plaintiffs, the uncollectible amount of the judgment in this case will remain $320,000. Appellant is not liable for the settling defendants' share, 44/68 of $320,000 or $207,059, but is liable for its own share, 24/68, or $112,941.

Alternatively, if the Supreme Court reverses the third circuit's decision and affirms the Pennsylvania district court's determination that Armstrong is deemed to have settled with all asbestos plaintiffs, the uncollectible amount of the judgment in this case would be $180,000; the share of the settling defendants (including Armstrong) would then be 58/82, or $127,317, and appellant's share would be 24/82, or $52,683.

5. Amendment of the Complaint

This court will not reverse a trial court's decision to grant or deny a motion to amend by adding a punitive damages claim absent an abuse of discretion. LeDoux v. Northwest Pub. Inc., 521 N.W.2d 59, 69 (Minn. App. 1994)(citing Metag v. K-Mart Corp., 385 N.W.2d 864, 867 (Minn. App. 1986), review denied (Minn.June 23, 1986)), review denied (Minn. Nov. 16, 1994).

The trial court permitted respondents to amend their complaint pursuant to (1) Minn. Stat. § 549.191 (1996), providing that a party may not seek punitive damages in the original complaint, but must move to amend to add a punitive damages claim, and (2) Minn. Stat. § 549.20 subd. 1 (1996), providing punitive damages are allowed in civil actions only with "clear and convincing evidence" that the defendant acted with "deliberate disregard for the rights or safety of others."

Appellant contends it was an abuse of discretion to allow amendment of the complaint because respondents did not make a prima facie case by offering clear and convincing evidence that, prior to 1958, appellant acted with deliberate disregard for the rights and safety of others. Respondents introduced two pieces of evidence on which the trial court relied in granting the motion to amend (1) the fact that OI and appellant had common board members and (2) a letter from the director of the Saranac Laboratories, who subsequently testified at trial.

OI, appellant's parent corporation, had studies done on Kaylo beginning in 1948 and knew in the early 1950's that Kaylo caused asbestosis. Appellant also knew of risks to those who used Kaylo and did nothing to inform purchasers or users of these risks. There was no abuse of discretion in finding that this was acting with deliberate disregard for the safety of others.

The February 6, 1956, letter from the director of Saranac Laboratories to appellant's director of Personnel and Industrial Relations states

In the case of our earlier glass wool, asbestos and talc studies we showed that unfavorable results sometimes ensued during the third year of exposure while they remained in abeyance previously. * * *

I suppose you already know that asbestos is fairly well incriminated as a carcinogen and the asbestos causes lung damage by virtue of the length of its fibers, a property it shares with the fiberglas.

Appellant continued to sell, and in 1958 began to manufacture, the asbestos-containing Kaylo without warning purchasers or users of the risks involved. This was evidence of appellant acting with deliberate disregard for the safety of those who purchased and used Kaylo. There is ample evidence to support the punitive damages claim. Granting respondents' motion to amend was not an abuse of discretion.

6. Punitive damage award

Standard of Review

A trial court has discretion in whether to award punitive damages. See Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 734 (Minn. 1980) (affirming punitive damage award after determining "that the trial court's findings are supported by the evidence and that its conclusions are correct"), cert. denied, 449 U.S.921 (1980).

A. Minnesota Law

Pursuant to Minn. Stat. § 549.20, subd. 4, the trial court made specific findings on the statutory factors to be considered in awarding punitive damages. As to the seriousness of the hazard to the public, the court found that appellant had exposed thousands of people to the dangers of asbestos. As to the profitability of the misconduct, the court found that Kaylo and other asbestos products were an integral part of appellant's profitable product line. As to the duration of the misconduct, the court found that appellant's misconduct lasted more than 30 years. As to concealment of the misconduct, the court found that appellant sought to suppress information on the dangers of asbestos until the general public was already aware of the hazard. As to attitude and conduct after discovery of the misconduct, the court found that appellant showed it considered profitability more important than the health and safety of those who used its products. As to number and level of employees involved, the court found that appellant's upper-management ranks, chairman, and board members were aware of the hazards of asbestos and Kaylo. As to financial condition, the court found that appellant is financially healthy and paying large salaries and bonuses to its managers. As to total effect of punishment, the court found that the punishment was insufficient in that it merely reduced appellant's profitability by a small percentage. These findings clearly demonstrate the award of punitive damages was in accord with the statutory factors and was not an abuse of discretion. See Gryc, 297 N.W.2d at 739 (holding that sufficient evidence for jury to find disregard of rights of others from analysis of statutory factors).

Appellant (1) argues the punitive damages imposed here are not necessary for its punishment or deterrence, or for the deterrence of others, and (2) notes that because it has stopped using asbestos, no punishment or deterrent is needed. We conclude the Minnesota Supreme Court's rationale in Gryc is also applicable here.

This argument ignores the fact that [the manufacturer] was shown to have acted in reckless disregard of the public for purely economic reasons in the past. A punitive damages award serves to deter [the manufacturer] from acting in a similar manner with respect to other products manufactured by it in the future. Furthermore, since the potential of compensatory damages awards and loss of sales and reputation did not serve to deter [the manufacturer] in the past, [the manufacturer] cannot now argue that these considerations act as an adequate deterrent.

Id. at 741. Gryc also rejects appellant's argument that there is a public policy reason not to award punitive damages in products liability cases where there is a potential for multiple plaintiffs. Id. at 740-741. The Minnesota Supreme Court noted there is a statutory protection provided by Minn. Stat. § 49.20, subd. 4, against disregard of a defendant's financial condition or the cumulative effect of its punishment. Id. (citation and quotation omitted). We conclude the trial court did not abuse its discretion by awarding punitive damages.

B. Due Process

Appellant cites BMW of North America Inc., v. Gore, -- U.S. --, 116 S. Ct. 1589 (1996), to argue that the punitive damage award violates due process.[8] BMW found that a $2 million punitive damages award to the purchaser of a repainted new car was "grossly excessive and therefore exceeds the constitutional limit." Id., 116 S. Ct. at 1591.

Appellant argues first that a Minnesota court cannot impose punitive damages for conduct occurring outside Minnesota. Appellant analogizes the Alabama Supreme Court's reduction of a $4 million punitive award to $2 million on the ground that it could not impose punitive damages for conduct occurring outside Alabama. Id. at 1595 (citing BMW of N. Am., Inc., v. Gore, 646 So. 2d 619, 627 (Ala. 1994)). Because the jury saw documents pertaining to sales of Kaylo outside Minnesota, appellant claims the punitive damage award is based on conduct occurring outside Minnesota. However, appellant presented no evidence that it stopped selling Kaylo in Minnesota prior to 1972, when it stopped selling throughout the country because Kaylo became illegal.

Appellant did not demonstrate that the punitive damage award was excessive in light of Minnesota's interest in protecting its citizens from the dangers of asbestos. BMW is distinguishable rather than analogous on this point: $2,000,000 to protect the citizens of Alabama from the inadvertent purchase of repainted new cars is not comparable to $500,000 to protect the citizens of Minnesota from the fatal illnesses caused by asbestos.

Moreover, BMW holds that

Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.

Id. at 1599. The plaintiff in BMW claimed damages of $4,000 because he had not been told his vehicle was repainted, in accord with BMW's policy of concealing from dealers and buyers damage to a new vehicle if the repair cost was less than 3% of the retail cost. Appellant's policy of concealing from its purchasers and users the dangers of the asbestos in its products was far more reprehensible by any standard. Unlike the award in BMW, the award here was not so grossly excessive as to exceed constitutional limits. There was no violation of due process.

In summary, we find competent evidence supporting the jury's verdict, no abuse of discretion in the trial court's evidentiary decisions and jury instructions, and no error of law in the amendment of the complaint or the punitive damages award, and affirm the denials of the motions for JNOV or a new trial. However, we hold the uncollectible portion of the judgment should be reallocated pursuant to the language of the Pierringer releases, reverse the denial of the motion for reallocation, and remand for reallocation in accord with this opinion and, after its release, with the Supreme Court's Amchem Products opinion.

Affirmed in part reversed in part, and remanded.

[ ]1The Supreme Court's pending decision in Georgine v. Amchem Prod., Inc., 157 F.R.D. 246 (E.D. Pa. 1994), vacated, 83 F. 3d 610 (3rd Cir. 1996), cert. granted sub. nom. Amchem Prod. Inc. v. Windsor, 117 S. Ct. 379 (Nov. 1, 1996) will determine whether, pursuant to a January 1993 settlement agreement in a class action suit, Armstrong is deemed to have settled with all plaintiffs in future asbestos cases. If the Supreme Court upholds the agreement in Amchem. Prod., the 14% share assigned to Armstrong in this matter will be added to the 44% apportioned to settling defendants and nonparties, which will then total 58%, and will be subtracted from the 32% apportioned to nonsettling defendants and nonparties, which will then total 18%.

[ ]2Appellant argues the alternative format of the questions on the verdict form was prejudicial error, citing Bilotta v. Kelley Co., Inc., 346 N.W.2d 616 (Minn. 1984). However, Bilotta reversed and remanded not because of the alternative format of the verdict question, but because the jury had been erroneously instructed on one alternative and there was no way for a reviewing court to know if its verdict was based on that erroneous instruction. Id. at 623. Because we see no erroneous instruction, Bilotta is distinguishable.

[ ]3Appellant argues negligent sale or distribution is not a cause of action in Minnesota. However, there are jury instructions and cases addressing the negligence of sellers and distributors. See, e.g., JIG 120; Willmar Poultry Co. v. Carus Chem. Co., 378 N.W.2d 830 (Minn. App. 1985), review denied (Minn. Feb. 14 and Feb. 19, 1986). Appellant also argues because respondents presented no evidence of negligence in the design of Kaylo, the jury could not have found appellant negligent with respect to its design. We note the jury's answer to the special verdict question does not necessarily reflect a finding of negligence with regard to the design of Kaylo; there were several other areas in which the jury could have found appellant negligent.

[ ]4In particular, appellant argues that Doten may have used only OI-manufactured Kaylo, not appellant-manufactured Kaylo, because appellant did not manufacture Kaylo until May 1958 and Doten ceased working with Kaylo in June 1958. However, the jury could have found that appellant's negligence in selling or distributing Kaylo caused Doten's injuries.

[ ]5We note that appellant has not met its burden of demonstrating what prejudice resulted from either of the challenged exclusions of evidence. Appellant simply asserts that it was prejudiced. This assertion, even if true, would not entitle it to a new trial. See Uselman v. Uselman, 464 N.W.2d at 138 (holding that entitlement to new trial based on improper evidentiary rulings rests on ability to demonstrate prejudicial error) (citing Midway Ctr. Assoc. v. Midway Ctr., Inc. 306 Minn. 352, 356, 237 N.W.2d 76, 78 (Minn. 1975)).

[ ]6Appellant contends this instruction misstates the law as applied to sellers of hazardous products, but does not explain what portions of the instruction are inaccurate.

[ ]7We note that Schneider v. Buckman, 433 N.W.2d 98 (Minn. 1988), on which the trial court relied in denying the reallocation motion, is distinguishable. There were no Pierringer releases in Schneider, the plaintiff in Schneider had not indemnified any defendants for "subsequent judgment determined to be uncollectible and reallocated to the defendants."

[ ]8BMW had not been released when posttrial motions were decided.