142 F.3d 353 (6th Cir. 1998), 96-6169, Strickland v. Owens Corning

Docket Nº:96-6169.
Citation:142 F.3d 353
Party Name:Joann STRICKLAND, Executrix of the Estate of John Hagan, Plaintiff-Appellee, Travelers Insurance Company, Intervening Plaintiff-Appellee, v. OWENS CORNING, formerly known as Owens Corning Fiberglas Corporation, Defendant-Appellant, W.R. Grace and Company, et al., Defendants.
Case Date:April 23, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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142 F.3d 353 (6th Cir. 1998)

Joann STRICKLAND, Executrix of the Estate of John Hagan,


Travelers Insurance Company, Intervening Plaintiff-Appellee,


OWENS CORNING, formerly known as Owens Corning Fiberglas

Corporation, Defendant-Appellant,

W.R. Grace and Company, et al., Defendants.

No. 96-6169.

United States Court of Appeals, Sixth Circuit

April 23, 1998

Argued Jan. 29, 1998.

Rehearing Denied June 18, 1998.

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Kenneth L. Sales (argued and briefed), Segal, Isenburg, Sales, Stewart, Cutler & Tillman, Louisville, KY, Marc P. Weingarten, Greitzer & Locks, Philadelphia, PA, for Plaintiff-Appellee.

Judson Fuller Devlin, Fulton & Devlin, Louisville, KY, for Intervenor-Appellee.

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Donald K. Brown, Jr. (argued and briefed), John L. Dotson (briefed), Eric A. Paine (briefed), O'Bryan, Brown & Toner, Louisville, KY, for Defendant-Appellant.

Before: NELSON, SUHRHEINRICH, and GILMAN, Circuit Judges.


SUHRHEINRICH, Circuit Judge.

This appeal arises from a products liability and wrongful death action against Appellant Owens Corning, a former manufacturer and distributor of Kaylo, an asbestos-containing insulation product. The action was brought in federal district court by the estate of John Hagan, who died of an asbestos-related form of lung cancer. At trial, a jury found Kaylo to be a defective product, determined Hagan's damages to be $1,767,462, and allocated seventy percent of the fault for his illness to Defendant Owens Corning. As a result, a judgment of $1,237,223, or seventy percent of the total damage award, was entered against Defendant. Owens Corning moved for a new trial, or alternatively, a remittitur of the judgment, and the district court denied the motion.

Owens Corning now appeals the denial of the motion, arguing that the jury's apportionment of fault is clearly against the weight of the evidence, given that Defendant was merely the distributor of Kaylo during the period for which the jury found Defendant liable. Owens Corning contends that the product's manufacturer during that period shares at least an equal percentage of fault. Defendant also maintains, on appeal, that the jury's verdict was the result of improper remarks made by Plaintiff's counsel during his closing argument. We find that the jury's allocation of fault was, indeed, against the weight of the evidence. Therefore, we REMAND this case for a new trial limited to the issue of fault apportionment, unless Plaintiff accepts a remittitur of the judgment reflecting a reasonable apportionment of fault.

I. Facts

From 1948 through 1989, John Hagan was employed as an installer of insulation materials. As a result, he was exposed to asbestos-containing insulation products. In 1989, Hagan was diagnosed with mesothelioma, a rare form of lung cancer, which caused his death six months later. There is no dispute that Hagan's illness was caused by occupational exposure to asbestos.

In 1953, Defendant Owens Corning became one of the distributors of Kaylo, an asbestos-containing heat insulation product which was manufactured by Owens-Illinois Glass Corporation. In 1958, Defendant became the manufacturer of the product when it bought the Kaylo product line from Owens-Illinois, and Defendant continued to manufacture the product into the 1970's. Although there were multiple distributors of Kaylo from 1953 to 1958, the period for which the jury found Defendant liable, testimony at trial established that Hagan was exposed, in part, to Kaylo distributed by Defendant during that period. However, there was no evidence that Kaylo distributed by Defendant, or even Kaylo in general, accounted for most of Hagan's exposure to asbestos during that period or any period.

It is clear that Owens Corning was aware by at least 1942 of numerous published reports linking asbestos with lung disease. Given the public nature of this information, Owens-Illinois was assumedly also aware of the health risks posed by asbestos. A separate issue is whether either company was aware of specific risks posed by Kaylo, which contained fifteen percent asbestos. Owens-Illinois had knowledge of some such risks prior to the 1953-58 period in question, because it had commissioned Saranac Lake Laboratories to test Kaylo. The Laboratories issued a final report on their testing in 1952, but Defendant did not receive a copy of that report until 1958, when it purchased the Kaylo product line from Owens-Illinois. As the district court instructed the jury, "prior to [1958], ... there's no evidence that anyone at Owens-Illinois advised anyone at Owens Corning about this ongoing research." Nonetheless, despite its awareness of the general risks posed by asbestos, Defendant did not put any warning on the boxes of Kaylo which it distributed between 1953 and 1958, even though it added its name to those

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boxes. Similarly, Owens-Illinois neither put a warning on the boxes, nor otherwise informed Kaylo users of the risks.

II. District Court Proceedings

In 1989, John Hagan filed a products liability diversity action in United States District Court for the Western District of Kentucky, naming nineteen defendants involved in the manufacture and distribution of asbestos-containing products. Shortly thereafter, Hagan died. JoAnn Strickland, Hagan's daughter and the executrix of his estate, amended the complaint to revive his action and bring a wrongful death action on behalf of his estate. Eventually, eighteen of the nineteen defendants either settled with Plaintiff or were dismissed from the suit. Owens-Illinois was among those defendants who settled.

A jury trial was held in 1996, and the jury found Defendant liable as a distributor of Kaylo for the period from 1953 to 1958. However, the jury found Defendant not liable for the period, beginning in 1958, during which it manufactured Kaylo. The jury determined that seventy percent of Hagan's illness was attributable...

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