523 F.2d 155 (8th Cir. 1975), 74-1797, Karjala v. Johns-Manville Products Corp.

Docket Nº:74-1797.
Citation:523 F.2d 155
Party Name:John A. KARJALA, Appellee, v. JOHNS-MANVILLE PRODUCTS CORPORATION, Appellant.
Case Date:September 24, 1975
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 155

523 F.2d 155 (8th Cir. 1975)

John A. KARJALA, Appellee,

v.

JOHNS-MANVILLE PRODUCTS CORPORATION, Appellant.

No. 74-1797.

United States Court of Appeals, Eighth Circuit

September 24, 1975

Submitted April 14, 1975.

Page 156

John J. Killen, Jr., Duluth, Minn., for appellant.

Paul J. Louisell, Duluth, Minn., for appellee.

Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Appellant Johns-Manville Products Corporation appeals from an adverse judgment in a jury trial in which John A. Karjala, the plaintiff below, was awarded $200,000 for damages sustained as a result of contracting asbestosis from the use of appellant's asbestos products. We affirm the judgment upon the narrow grounds discussed below.

John A. Karjala began working as an installer of asbestos insulation in 1948. Between then and June, 1966, when he quit his job, Karjala was exposed to great quantities of asbestos dust. In 1959, Karjala began to feel a shortness of breath, congestion, a loss of appetite, and general weakness. Suspecting that he might have tuberculosis, he had his chest x-rayed. The x-ray showed no evidence of tuberculosis; Karjala did not see a doctor at that time, but did remain absent from his job for one week. On a later visit to the sanatorium where the x-ray was taken, he noticed that his record showed "possible asbestosis". His shortness of breath grew worse throughout this period.

In early 1963, Karjala entered a hospital for disc surgery. In the course of his treatment, a tumor was discovered on his right lung. This tumor was removed in May, 1963. The shortness of breath nevertheless continued, and even such routine activities as walking up and down stairs became strenuous for Karjala.

After coughing up blood in June, 1966, Karjala visited his doctor. Following an examination of his body and of x-ray photographs taken of his lungs, Karjala was told that he had asbestosis and that he should quit his job. He did so, but his health steadily declined.

Karjala filed this action in 1971 against several manufacturers of asbestos insulation, charging that their products were unreasonably dangerous and that they failed to warn him of the products'

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defective condition. 1 All defendants except Johns-Manville were subsequently dismissed by stipulation.

At trial, in addition to its affirmative defense that Karjala's action was barred by the statute of limitations, Johns-Manville contended principally that since it could not in the exercise of reasonable care have foreseen the dangers to insulation installers now known to be associated with its product, it could not be held responsible for the injury to Karjala's health. In support of its contention, Johns-Manville introduced into evidence two scholarly reports, written nineteen years apart. In the first, Fleischer, Viles, Gade and Drinker, A Health Survey of Pipe-Covering Operations In Constructing Naval Vessels, 28 J.Ind.Hyg. & Tox. 9 (1946), the authors concluded that inferences drawn from other asbestos industries (I. e., that people who work with asbestos are presented with a health hazard) could not be applied to the asbestos pipe covering industry on board naval vessels and that covering pipes with asbestos insulation was not a dangerous occupation. Selikoff, Churg and Hammond, the authors of the second study, The Occurrence of Asbestosis Among Insulation Workers in the United States, 132 Annals N.Y.Acad.Sci. 139, 152 (1965), concluded that "asbestosis and its complications are significant hazards among insulation workers in the United States at this time." Johns-Manville contended that it could not be charged with notice of the hazard until after the publication of the second report.

Evidence was also adduced which showed that Johns-Manville knew by at least the 1930's that persons who worked at plants where asbestos products were manufactured were exposed to a substantial health hazard. Also introduced into evidence was testimony concerning several other pre-1950 articles in which some suggestion was made of a connection between asbestosis and those who work with asbestos fibers. The case was submitted to the jury on the theory of strict liability.

I.

We note at the outset that Johns-Manville's motion for a directed verdict was limited to its statute of limitations defense and that it failed to move for judgment notwithstanding the verdict. See Fed.R.Civ.P. 50(b). Under such circumstances, our review is strictly limited. Johnson v. New York, N.H. & H. R.R., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Tri-State Insurance Co. v. United States, 340 F.2d 542, 546 (8th Cir. 1965). See generally 5A J. Moore, Federal Practice P 50.12 (2d ed. 1974). We cannot test the sufficiency of the evidence to support the jury's verdict beyond application of the "plain error" doctrine in order to prevent a manifest miscarriage of justice. United States v. Harrell, 133 F.2d 504, 506-07 (8th Cir. 1943). See also Urti v. Transport Commercial...

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