Owens-Corning Fiberglas Corp. v. Watson

• Citation: 243 Va. 128,413 S.E.2d 630
• Decision Date: 10 January 1992
• Docket Number: OWENS-CORNING,No. 910073,910073
• Court: Supreme Court of Virginia
• Parties: , Prod.Liab.Rep. (CCH) P 13,031 FIBERGLAS CORPORATION v. Jacqueline R. WATSON, Administratrix of the Estate of Wilbert G. Watson, Deceased. Record

Page 630

413 S.E.2d 630

243 Va. 128, Prod.Liab.Rep. (CCH) P 13,031

OWENS-CORNING FIBERGLAS CORPORATION v. Jacqueline R. WATSON, Administratrix of the Estate of Wilbert G. Watson, Deceased.

Record No. 910073.

Supreme Court of Virginia.

Jan. 10, 1992.

John R. Easter (John M. Fitzpatrick; Mary Ann Link, Wright, Robinson, McCammon, Osthimer & Tatum, on briefs), for appellant.

Robert R. Hatten (Jonathan A. Smith-George, Donald N. Patten, Richard S. Glasser, Patten, Wornom & Watkins, Glasser and Glasser, on brief), for appellee.

Present: All the Justices.

HASSELL, Justice.

This appeal presents questions concerning the admissibility of certain evidence, the refusal of certain jury instructions, and the sufficiency of the evidence to support a jury verdict which awarded a plaintiff compensatory and punitive damages against a manufacturer of an insulation product which contained asbestos.

I. Proceedings

Wilbert G. Watson (Watson) filed a motion for judgment in the circuit court alleging negligence and breach of warranty against ten manufacturers and distributors of insulation products which contained asbestos, including Owens-Corning Fiberglas Corporation. Watson alleged that these defendants had failed to warn him of the dangers associated with the use of these products. Watson died before trial, and his widow, Jacqueline R. Watson, administratrix of his estate (administratrix), revived and amended the lawsuit as a wrongful death action.

All the defendants, except Owens-Corning, settled the administratrix's claims. The case proceeded to trial before a jury. The jury returned a verdict which awarded Watson's estate $900,000 in compensatory and $100,000 in punitive damages. The trial court deducted the settlement sums paid by other defendants and entered a final judgment against Owens-Corning for $409,017 in compensatory and $100,000 in punitive damages, plus interest and costs. We granted Owens-Corning an appeal. ¹

II. Facts

In accordance with well-settled principles, we will review the facts and all reasonable inferences they raise in favor of the administratrix, who comes to this Court with a favorable jury verdict, confirmed by the trial judge.

Owens-Illinois Glass Company originally developed and manufactured an insulation product known as Kaylo. Kaylo contained approximately 15% asbestos by weight. ² It was made in two forms, flat blocks and pipe sections.

In 1953, Owens-Corning began to distribute Kaylo. Owens-Corning purchased the Kaylo manufacturing facility from Owens-Illinois in 1958. Owens-Corning's Kaylo products were used by employees at the Newport News Shipbuilding and Drydock Company in Newport News, Virginia.

Watson began working at the Newport News Shipbuilding and Drydock Company on May 25, 1964. During his first six months of employment there, he worked as a pipe coverer, spending the majority of his time insulating pipes and valves on the aircraft carrier America. He handled various insulation products containing asbestos, on a daily basis, insulating large pipes and valves in the reactor, engine, and boiler rooms.

John C. Scruggs, Jr. was a pipe coverer foreman on the America in 1964. He testified that Owens-Corning's Kaylo was the predominant type of asbestos block used on the America when Watson was working, and that 30 or 40 cartons of Kaylo were typically stored on the America's flight deck.

In November 1964, Watson changed jobs, and for the next 23 years he worked as a pipe fitter at the Newport News Shipbuilding and Drydock Company. As a pipe fitter, he installed and removed pipes aboard several submarines. He worked in the engine and reactor rooms in close proximity to pipe coverers, "about 100% of the time," when they cut and installed insulation products which contained asbestos. The cutting and installation of these products created dust in the confined areas where Watson worked.

David F. Peele, a pipe coverer who worked aboard the same submarines as Watson, testified that pipe coverers used asbestos block "mostly on a daily basis" during the construction and overhaul of these submarines. Kaylo comprised 45% of the asbestos block used to insulate steam generators, pressurizers, turbines, and other equipment on these submarines. Peele also testified that Kaylo block and pipe covering sections were routinely cut with hand saws, causing visible clouds of dust to accumulate in confined and poorly ventilated areas.

Watson died as a result of mesothelioma, which he contracted from inhaling asbestos fibers from insulation products, including Kaylo. Mesothelioma, a cancer of the lining of the lung, is not associated with smoking tobacco products.

III. Proposed Jury Instructions

In 1938, Dr. W.C. Dreessen, an employee of the United States Public Health Service, sought to determine a maximum safe level of exposure to dust which contained asbestos. Dreessen was unable to establish a definitive safe level of exposure because his study did not include a sufficient number of workers exposed to concentrations of asbestos dust for sufficient periods of time to enable him to evaluate the dangers of long-term exposure. Dreessen, however, selected a "tentative" danger level of exposure of five million particles per cubic foot of air sampled.

In 1946, the American Conference of Governmental and Industrial Hygienists published this tentative proposal as a threshold limit value for exposure to dust which contained asbestos. The Federal government adopted that standard in regulations promulgated under the Walsh Healey Act in 1960. See 41 U.S.C. §§ 35-45; 25 Fed.Reg. 13809.

Owens-Corning argues that during the trial it "presented overwhelming evidence of its compliance with industry and government standards regarding safe exposure levels to asbestos." Owens-Corning contends that the court erred by refusing to instruct the jury that Owens-Corning's purported compliance with these standards constituted strong and substantial evidence of due care and, at the very least, that the trial court should have instructed the jury that such compliance was evidence of Owens-Corning's due care and Kaylo's safety. We disagree.

The proposed jury instructions which Owens-Corning tendered to the trial court were improper. These instructions sought to have the court comment upon and emphasize certain evidence. We have consistently held that "an instruction is improper which singles out one portion of the evidence for special emphasis." LeVasseur v. Commonwealth, 225 Va. 564, 595, 304 S.E.2d 644, 661 (1983) (citations omitted); see also Nelms v. Nelms, 236 Va. 281, 286, 374 S.E.2d 4, 7 (1988).

IV. The Saranac Documents and the Hemeon Report

In 1943, Owens-Illinois requested that the Saranac Laboratory conduct research on its Kaylo product. The Saranac Laboratory was considered the foremost research institute in the United States for the study of dust-related diseases. A series of unpublished studies issued by the Saranac Laboratory suggested that Kaylo may be hazardous. The final Saranac report on Kaylo and interim reports were admitted in evidence.

Mr. W.C.L. Hemeon, "head engineer" for the Industrial Hygiene Foundation, wrote a report in 1947. The report was written for the Asbestos Textile Institute, a private trade association. The report expressed concern about the safety of the five million particles per square cubic foot standard and questioned then-existing dust count methods. This report was admitted in evidence.

Owens-Corning argues that the trial court erred by admitting the Saranac documents and the Hemeon report in evidence because Watson failed to show that Owens-Corning received these documents, or that it knew, or should have known, about the documents.

A manufacturer is not an insurer of its product's safety, and a manufacturer has a duty to warn only if it knows or has reason to know that its product is dangerous. Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 962, 252 S.E.2d 358, 366 (1979). In Featherall, we adopted the test set forth in the Restatement (Second) of Torts when we stated:

The manufacturer of a chattel will be subject to liability when he

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Id. at 962, 252 S.E.2d at 366, (quoting Restatement (Second) of Torts § 388 (1965)).

There is a significant legal difference between the phrases reason to know and should know.

(1) The words "reason to know" are used throughout the Restatement [ (Second) of Torts] ... to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.

(2) The words "should know" are used throughout the Restatement [ (Second) of Torts] ... to denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that such fact exists.

Restatement (Second) of Torts § 12. The comment to § 12 states:

Both the expression "reason to know" and "should know" are used with respect to existent facts. These two phrases, however, differ in that "reason to know" implies no duty of knowledge on the part of the actor whereas "should know" implies that the actor owes another the duty of ascertaining the fact in question. "Reason to know" means that the actor has knowledge of facts from which a reasonable man of ordinary intelligence or one of the superior intelligence of the actor would either infer the...