Strickland v. Owens Corning
| Decision Date | 18 June 1998 |
| Docket Number | No. 96-6169,96-6169 |
| Citation | 142 F.3d 353 |
| Parties | Prod.Liab.Rep. (CCH) P 15,231 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. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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.
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.
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.
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 boxes. Similarly, Owens-Illinois neither put a warning on the boxes, nor otherwise informed Kaylo users of the risks.
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 to Defendant, while the remaining thirty percent "was attributable to Hagan's exposure to asbestos-containing product [sic] manufactured by those other than the Defendant." (Jury Instructions). The jury computed total compensatory damages of $1,767,462, consisting mostly of $1,500,000 for Hagan's pain and suffering during the last six months of his life. Punitive damages were not available. 1 A judgment of $1,237,223, or seventy percent of the total damage award, was entered against Defendant.
Defendant filed a timely motion seeking a new trial, or alternatively, "a remittitur of the award by reduction of the amount of compensatory damages and/or remittitur of the percentage of fault assessed against Owens Corning." The district court rejected the motion, and in a brief memorandum and order, stated that "the apportionment to Defendant, though unexpectedly high, is supported by sufficient evidence for it to withstand these post-trial motions."
Defendant contends that it was clearly unreasonable to allocate seventy percent of the fault for Hagan's illness to Owens Corning, given that Defendant was merely a distributor of Kaylo during the 1953-58 period for which the jury found Defendant liable. The crux of Defendant's argument is that, since every box of Kaylo it distributed during that period was manufactured by Owens-Illinois, Defendant's fault can be no greater than that of Owens-Illinois. Yet the jury fixed Defendant's fault at more than twice the combined fault of all other companies selling asbestos-containing products, including Owens-Illinois.
The allocation of fault is governed by Kentucky law in this diversity case. Under Kentucky law, when "determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed." Ky.Rev.Stat. § 411.182(2) (emphasis added). However, Plaintiff points to no evidence which distinguishes Defendant's conduct in such a way as to support a greater allocation of fault to Defendant than to Owens-Illinois. 2 Indeed, during oral argument before this court, Plaintiff's counsel was asked at least five times to provide a basis for distinguishing Defendant's conduct as more blameworthy, yet he could not suggest any basis for making such a distinction.
Instead, Plaintiff defends the jury's allocation of fault by repeatedly pointing to Defendant's awareness of and failure to warn about the dangers of asbestos. As Plaintiff correctly asserts, Defendant was aware of the health risks posed by asbestos long before the 1953-58 period in question. However, that awareness was based on public information. Plaintiff can point to no evidence that Defendant had any additional private knowledge about the dangers of asbestos. Moreover, the question before the jury was whether Kaylo was a defective product, rather than whether asbestos in general was hazardous, and any knowledge about the specific risks posed by Kaylo was held by Owens-Illinois. Owens-Illinois commissioned Saranac Lake Laboratories to test Kaylo and did not share the results with Defendant until 1958, despite the fact that the Laboratories issued a final report in 1952.
Owens-Illinois is also legally charged with having at least as much knowledge about the risks posed by Kaylo as did Defendant. Under the strict liability standard applicable to this products liability case, a manufacturer is presumed to be "aware of the condition of and potentialities inhering in the product." Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197, 200 (Ky.1976); accord Nichols v. Union Underwear Co., 602 S.W.2d 429, 433 (Ky.1980) (). In fact, the jury was explicitly instructed to make that presumption with regard to a manufacturer. In contrast, the jury was instructed that "when Defendant was only a distributor or retailer of [Kaylo], Defendant is liable ... [only if] Defendant knew or should have known ... that...
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