Karjala v. Johns-Manville Products Corp.

• Decision Date: 24 September 1975
• Docket Number: No. 74-1797,JOHNS-MANVILLE,74-1797
• Citation: 523 F.2d 155
• Parties: John A. KARJALA, Appellee, v.PRODUCTS CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 155

523 F.2d 155

John A. KARJALA, Appellee, v. JOHNS-MANVILLE PRODUCTS CORPORATION, Appellant.

No. 74-1797.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1975.

Decided Sept. 24, 1975.

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' 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 Corp., 479 F.2d 766, 769 (5th Cir. 1973); Centraal Stikstof Verkoopkanter, N.V., v. Walsh Stevedoring Co., 380 F.2d 523, 528 (5th Cir. 1967); Cowger v. Arnold, 460 F.2d 219, 222 (3d Cir. 1972), Quoting Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2d Cir. 1970). We hold that there was evidence upon which a jury, properly instructed, could have returned a verdict in favor of the plaintiff. ²

Our inquiry does not stop here, however, because appellant contends that the District Court ³ in its charge to the jury (1) held appellant to an erroneous standard or duty and (2) misstated the law on the applicable statute of limitations. ⁴

II.

Appellant contends that the instruction given by the District Court on strict liability misstates the law by requiring a manufacturer to advance the state of medical knowledge and to warn of unforeseeable risks.

Judge Lord instructed the jury that:

A manufacturer has a duty to test and inspect his products, and the extent of such research and experiment must be commensurate with the dangers involved. A product must not be made available to the public without disclosure of those dangers that the application of reasonable foresight would reveal. A manufacturer is held to the knowledge and skill of an expert in determining whether or not his product is defective or otherwise dangerous. It is admitted that Johns-Manville knew as early as 1942 that asbestos would cause asbestosis when inhaled by factory workers. Mr. Karjala, however, is not a factory worker. He is an insulation installer. It is for you to decide whether or not Johns-Manville knew in fact of the danger to Mr. Karjala of contracting asbestosis. And that just goes to the question of the warning, whether or not they should have warned him, if you conclude that that might be an additional laxity on their part as to impose liability.

In reaching your decision you may consider the knowledge which Johns-Manville had relative to factory workers and whether or not this knowledge would put Johns-Manville on notice of the danger to Mr. Karjala as an installation worker.

Well, of course, the damages must have been directly caused by the use of the product. I mentioned that a little bit earlier. A direct cause is a cause which had a substantial part in bringing about the harm.

Now, the defendant claims that they didn't know that installation workers could be harmed by this material in 1964, when Dr. Selikoff put out his report.

Under Minnesota law, a manufacturer has a duty to warn users of its products of all dangers associated with those products of which it has actual or constructive knowledge. Failure to provide such warnings will render the product unreasonably dangerous and will subject the manufacturer to liability for damages under strict liability in tort. Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 38, 171 N.W.2d 201, 205 (1969). Cf. Land O'Lakes Creameries, Inc. v. Hungerholt, 319 F.2d 352, 359-60 (8th Cir. 1963); McCormack v. Hankscraft Co., 278 Minn. 322, 332, 154 N.W.2d 488, 496 (1967). See also Sterling Drug, Inc. v. Yarrow, 408 F.2d 978, 992-93 (8th Cir. 1969). See generally Restatement (Second) of Torts §§ 388, 394, 402A (1965); ⁵ 2 R. Hursh & H. Bailey, American Law of Products Liability § 8:3 (2d ed. 1974). Asbestos insulation is a product that has been held to be susceptible to this standard. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), Cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).

As Judge Wisdom pointed out in Borel, "a product is unreasonably dangerous only when it is 'dangerous to an extent beyond that contemplated by the ordinary consumer who purchases it.' " 493 F.2d at 1088 (Quoting Restatement (Second) of Torts § 402A, Comment i). Thus, a product may be unreasonably dangerous because the manufacturer has failed to give adequate warnings of known or knowable dangers involved.

Of course, a manufacturer is only required to warn of foreseeable dangers. O'Hare v. Merck & Co., 381 F.2d 286, 291 (8th Cir. 1967); Westerberg v. School District No. 792, 276 Minn. 1, 7-8, 148 N.W.2d 312, 317 (1967). ⁶ As Judge Matthes wrote in O'Hare v. Merck & Co., supra, 381 F.2d at 291, a Minnesota diversity case:

A manufacturer is held to the skill of an expert in its particular field of endeavor, and is obligated to keep informed of scientific knowledge and discoveries concerning that field. * * * The manufacturer is held accountable as an expert in its field only for those dangers of which it has knowledge or those which it could discover through the exercise of reasonable care. Liability will not attend those injurious consequences resulting from the use of a product, the harmful effects of which 'no developed human skill or foresight can afford knowledge.' Ross v. Philip Morris & Company, 328 F.2d 3, 6 (8th Cir. 1964).

The manufacturer's duty to...