201 F.3d 815 (6th Cir. 2000), 98-5371, Barnes, Bean, Rogers v Owens-Corning Fiberglas

Docket Nº:Debbie Rogers Barnes, Lisa Bean, John Edward Rogers, Co-Executors of the Estate of Edward Doyle Rogers (98-5371); Diane Beckmann, Individually and as the Executrix of the Estate of Leroy Beckmann (98-5376), Plaintiffs-Appellants,
Citation:201 F.3d 815
Case Date:January 18, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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201 F.3d 815 (6th Cir. 2000)

Debbie Rogers Barnes, Lisa Bean, John Edward Rogers, Co-Executors of the Estate of Edward Doyle Rogers (98-5371); Diane Beckmann, Individually and as the Executrix of the Estate of Leroy Beckmann (98-5376), Plaintiffs-Appellants,


Owens-Corning Fiberglas Corporation, Defendant-Appellee.

Nos. 98-5371, 98-5376

United States Court of Appeals, Sixth Circuit

January 18, 2000

Argued: June 18, 1999

Rehearing and Suggestion for Rehearing En Banc Denied March 3, 2000

Appeal from the United States District Court for the Western District of Kentucky at Louisville, Nos. 92-00191; 90-00673--Edward H. Johnstone, District Judge.

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[Copyrighted Material Omitted]

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Kenneth L. Sales, Joseph D. Satterley, Kathleen M. Flynn, SEGAL, SALES, STEWART, CUTLER & TILLMAN, Louisville, Kentucky, Marc P. Weingarten, GREITZER & LOCKS, Philadelphia, Pennsylvania, for Appellants.

Donald K. Brown, Jr., John L. Dotson, Eric A. Paine, James P. Grohman, O'BRYAN, BROWN & TONER, Louisville, Kentucky, for Appellee.

Before: KRUPANSKY, RYAN, and SUHRHEINRICH, Circuit Judges.


RYAN, Circuit Judge.

In these asbestos exposure wrongful death cases, the plaintiffs, Barnes and Beckmann, fiduciaries for their respective decedents' estates, obtained separate jury verdicts against Owens-Corning Fiberglas Corporation, although in a consolidated trial. The jury apportioned liability against Owens-Corning at 2% in Barnes's case and 5% in Beckmann's. Both plaintiffs appeal and submit the following three issues for our review:

Whether the district court abused its discretion in denying the plaintiffs' motions for a new trial on the basis that the jury's apportionment of fault was against the great weight of the evidence;

Whether the district court improperly instructed the jury with regard to allocation of fault; and

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Whether the district court erred in allowing Owens-Corning to read portions of the plaintiffs' complaints into evidence.

For the following reasons, we affirm the district court's judgment in each case.


The decedents in these two cases, Leroy Beckmann and Edward D. Rogers, worked with asbestos for many years. Beckmann worked for Anaconda Aluminum in Louisville, Kentucky, from 1963 to 1973 as a general laborer and a maintenance machinist, and at Brown & Williamson from 1973 to 1982 as a maintenance worker. Rogers worked in the whiskey filtration department at Barton Brands Distillery in Kentucky from 1959 to 1990. Both men died of mesothelioma, an asbestos-related form of lung cancer. The plaintiffs are the personal representatives for their respective decedent's estates. For the sake of clarity, we refer to the "Barnes" case hereafter by the name of the decedent, "Rogers."

The Beckmann estate sued a total of 18 manufacturers and distributors of asbestos-containing products, while the Rogers estate sued a total of 13. One manufacturer and distributor, Johns-Manville, was joined as a third-party defendant in both cases. Owens-Corning was the only defendant who appeared at trial to defend, the plaintiffs having settled or dismissed their claims against each of the other defendants.

At trial, the district court, over the plaintiffs' objections, permitted Owens-Corning to introduce in evidence the complaints filed by each plaintiff and read the names of all the original defendants to the jury. The plaintiffs now claim error. At the close of the case, the court instructed the jury to apportion liability pursuant to Ky. Rev. Stat. Ann. § 411.182, which requires, "[i]n all tort actions . . . involving fault of more than one party," apportionment of liability among all "part[ies] to the action, including third-party defendants and persons . . . released" by "[a] release, covenant not to sue, or similar agreement." In the court's instructions to the jury regarding apportionment of liability, the jurors were told to indicate the percentages of the total fault in three categories, as follows: (1) the percentage of fault attributable to the decedents; (2) the percentage of fault attributable to Owens-Corning; and (3) the percentage of fault attributable to "others which may include," and then the court named and the verdict forms listed 13 asbestos manufacturers in the Rogers case and 15 in the Beckmann case.

The plaintiffs claim that one of the 15 in the Beckmann case, Anchor Packing Co., was voluntarily dismissed, but we find nothing in the record indicating the dismissal of Anchor Packing. Contrary to the plaintiffs' assertions, a company called Foster Wheeler never appeared on either verdict form, and we find nothing in the briefs or the record indicating that Foster Wheeler and Anchor Packing are the same company.

Two other companies, Garlock, Inc. and Keene Building Products Corporation, were never defendants in the Beckmann case, although they were defendants in the Rogers case, and did not enter into any settlement agreement with the Beckmann plaintiff. In Rogers, two of the 13 corporations listed in the "others" category, Celotex Corporation and Eagle-Picher Industries, Inc., were never defendants in the case, although they were defendants in Beckmann, and did not enter into any settlement agreement with the Rogers plaintiff.

The jury awarded the plaintiffs substantial damages in both cases, $1.76 million in Beckmann and $942,000 in Rogers. However, the jury apportioned only 5% of the liability to Owens-Corning in Beckmann and only 2% in Rogers. In a third consolidated case that is the subject of a separate appeal to this court, Becht v. Owens-Corning, No. 98-5387, the jury awarded approximately

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$1.4 million in damages and apportioned 40% of the liability to Owens-Corning.

The Beckmann and Rogers plaintiffs filed motions for a new trial on the apportionment issue, arguing that the verdicts were against the great weight of the evidence; that the court's instructions improperly provided for allocation of fault to parties against whom no evidence of fault was presented; and that the court erred in admitting the plaintiffs' complaints into evidence. The district court denied the motions, finding that the jury instructions were correct and that the apportionment was "within the realm of reason."


During the relevant time period, Owens-Corning manufactured and distributed an asbestos-based insulation product known as Kaylo that was either installed or removed in areas in which each plaintiff worked. In challenging the jury's verdicts, the plaintiffs argue that the evidence revealed that the decedents were exposed to or worked with Kaylo to a far greater extent than is reflected by the jury's verdicts. Thus, we must burden our opinion with a summary of the facts in evidence relating to each decedent's exposure to asbestos, generally, and Owens-Corning's product, Kaylo, specifically.

A. Beckmann Exposure Evidence

Two witnesses, Lowell Collard and Ronald Spainhour, testified as to the presence of Kaylo at Anaconda Aluminum. Collard testified that he was installing Kaylo at Anaconda Aluminum in the mid-1960s, and that it was very dusty. Collard did not know Beckmann and did not know whether Beckmann was in the part of the plant where asbestos products were used. Spainhour worked directly with Beckmann and testified that he could not identify any Owens-Corning asbestos-containing products that were in use during Beckmann's tenure in the 1960s. He did describe some insulation that he and Beckmann used in rebuilding industrial furnaces, but none of the asbestos products he identified was an Owens-Corning product. He did not see Kaylo at Anaconda Aluminum.

Several witnesses testified regarding Beckmann's time at Brown & Williamson. David Parker testified that he saw insulation workers taking asbestos-based insulation out of Owens-Corning boxes and that Owens-Corning was the only name he ever saw on any of the boxes. Although Parker came to know Beckmann later, he never knew him or saw him at Brown & Williamson, and he had no knowledge regarding Beckmann's exposure or lack thereof to asbestos, although he assumed Beckmann was exposed because of the nature of the work he did. Although Parker testified that he saw the name Owens-Corning on insulation boxes, he also testified that he never saw Kaylo at Brown & Williamson. He also testified that the plaintiffs' counsel suggested the name Kaylo and Owens-Corning to him, but did not mention other manufacturers.

Charles Fleischer testified that Kaylo was in use at Brown & Williamson and that it was very dusty. Fleischer also identified other asbestos products in use at Brown & Williamson that were manufactured by other defendants. However, the plaintiffs admit that Fleischer worked at Brown & Williamson from 1959-1964 and 1968-1971, whereas Beckmann did not begin working there until 1973.

Collard testified that he installed asbestos at Brown & Williamson from 1956-1962, and that the materials were usually ordered from Owens-Corning. However, he also identified other manufacturers whose products were used at Brown & Williamson--manufacturers who were also defendants. The plaintiffs' brief incorrectly states that Collard worked at Brown & Williamson in the 1970s when Beckmann was there; he did not.

Robert Kinsella testified that his company installed Kaylo at job sites listed in an exhibit he was handed at his video deposition.

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He said the list was "pretty much" accurate. The list included Brown & Williamson, but Kinsella did not provide any specific dates or times when Kaylo may have been in use.

Charles DuPont testified that he worked with Beckmann at Brown & Williamson and that they usually worked the second or third shift, whereas the...

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