727 F.2d 506 (5th Cir. 1984), 82-4288, Jackson v. Johns-Manville Sales Corp.

Docket Nº:82-4288.
Citation:727 F.2d 506
Party Name:James Leroy JACKSON, Plaintiff-Appellee, v. JOHNS-MANVILLE SALES CORPORATION and Raybestos-Manhattan, Inc., Defendants- Appellants.
Case Date:March 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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727 F.2d 506 (5th Cir. 1984)

James Leroy JACKSON, Plaintiff-Appellee,

v.

JOHNS-MANVILLE SALES CORPORATION and Raybestos-Manhattan,

Inc., Defendants- Appellants.

No. 82-4288.

United States Court of Appeals, Fifth Circuit

March 23, 1984

Opinion on Granting of Rehearing En Banc July 2, 1984.

Page 507

[Copyrighted Material Omitted]

Page 508

Megehee, Brown, Williams & Mestayer, Roy C. Williams, Pascagoula, Miss., Lively M. Wilson, Dorothy J. Chambers, Louisville, Ky., William N. Reed, John H. Holloman,

Page 509

III, Jackson, Miss., for defendants-appellants.

Richard F. Pate, Mobile, Ala., Cupit & Maxey, Danny E. Cupit, Jackson, Miss., Blatt & Fales, Ronald L. Motley, Barnwell, S.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, GARZA and JOLLY, Circuit Judges.

CLARK, Chief Judge:

Johns-Manville Sales Corporation (Johns-Manville) and Raybestos-Manhattan, Inc. appeal a jury verdict awarding actual and punitive damages to James Jackson, a former shipyard worker, in a strict liability action for injuries allegedly caused by the defendants' failures to warn of the hazards of exposure to their asbestos products. Finding that the trial court ruled correctly on Jackson's entitlement to a strict liability cause of action but erred in admitting evidence of the mere possibility of Jackson's developing cancer and in allowing punitive damages in this strict liability action, we affirm in part, reverse in part, and remand for a new trial.

I. FACTS AND PROCEDURAL BACKGROUND

James Jackson began working at Ingalls Shipbuilding Corporation (Ingalls) in Pascagoula, Mississippi, in 1953, when he was about twenty-seven years old. He worked there until 1971, first as a sheet-metal mechanic and after 1957 as a work leaderman or supervisor. Jackson testified that he was exposed to asbestos dust every day for the full time of his employment at Ingalls.

As a mechanic, he installed sheet metal over ducts, shelves, pipes, boilers, and other such surfaces within ships under construction. Often these surfaces previously had been covered with asbestos insulation. To attach sheet metal, Jackson had to drill holes in the asbestos insulation. He testified that he also cut and dovetailed gaskets from asbestos material. Occasionally, he would cut asbestos cloth, three or four feet wide, with his pocket knife or shears in order to wrap and protect equipment around which he was working. He alleged that all these activities generated asbestos dust in the air.

Jackson testified that he worked alongside other craftsmen who made more direct and extensive use of asbestos products. He testified, for instance, that in lagging boilers, he worked alongside insulators who would first saw and tear blocks of asbestos, then rivet the asbestos to the boilers, all of which made the air "very dusty." He testified that when he worked in engine rooms, asbestos dust would fall upon him as insulator workmen above him on catwalks or temporary scaffolds cut and installed asbestos. Jackson testified that other workers generated asbestos dust in his work area when they dumped sacks of asbestos powder into mortar boxes and mixed the powder with water to create cement, or "mud." Workers also raised dust around him as they cut asbestos cloth to wrap pipes and other surfaces, and as they sawed prefabricated wall boards containing asbestos.

Jackson alleges that after he became a supervisor, he had to move about the entire ship where these various activities were taking place. He also would go back to his duties as a mechanic when his supervisory duties were not pressing.

Jackson testified that asbestos dust in his work environment at Ingalls "was very thick. It would even go down your collar, it would get in your ears, and get in your hair and be white all over your clothes .... It would look like snow sometimes .... Sometimes it would be so thick you couldn't see twenty or thirty feet."

In 1978, Jackson first consulted his family physician about breathing problems. He was diagnosed as having asbestosis. His treating physician, Dr. McAtee, estimated Jackson's pulmonary disability to be about 15 per cent at the time of the initial diagnosis but did not recommend that he discontinue working. Evidence introduced at trial indicated that Jackson's physiological impairment

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has not progressed significantly since the time of the original diagnosis.

Jackson alleges that his asbestos-related disability has sapped his energy and stamina, made him susceptible to increased risks of infections and malignancies, impaired his ability to work, caused him mental frustration, necessitated the worry and expense of ongoing medical checkups, and reduced his life expectancy.

Before commencing work at Ingalls, Jackson held jobs with the Corps of Engineers and the Army. He also worked as an auto mechanic and in various other capacities. He testified that to the best of his knowledge these other jobs had never exposed him to asbestos, sandblasting, or toxic fumes. After quitting his job at Ingalls, Jackson worked for a natural gas company, first as a meter reader and at the time of this trial as a warehouseman.

Surveys of studies analyzing health hazards posed by excessive exposure to asbestos are readily available elsewhere. 1 We briefly sketch the more prominent developments in the ongoing scientific inquiry which are particularly pertinent to this case. Research projects dating from the 1920's, financed in part by Johns-Manville, indicated that exposure to excessive concentrations of asbestos dust over prolonged periods of time could produce asbestosis in asbestos workers. 2 A 1947 report of the American Conference of Governmental Industrial Hygienists recommended, in light of the hazards posed, threshold limit values for exposure to asbestos of five million parts per cubic foot of air. 3

In 1944, the first extensive study of the effects of asbestos on shipyard workers concluded that, because the researchers found few cases of asbestosis among the Navy shipyard workers studied, "asbestos covering of naval vessels is a relatively safe operation." 4 This report indicated, however, that most of its research subjects had been exposed to asbestos for fewer than ten years and cautioned that longer exposure would have resulted in a considerably greater incidence of asbestosis.

A 1965 study by I.J. Selikoff 5 concluded that the 1944 study was misleading. Finding evidence of asbestosis in about half the insulation workers examined, and in over 90% of the workers with over forty years experience, the Selikoff report indicated that asbestosis and related complications were "significant hazards among insulation workers" and indicated that previous threshold limit values were set too high. Other reports have confirmed these findings. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1085 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vanderbilt L.Rev. 573, 601 (1983).

In response to a preliminary report of Dr. Selikoff's study, Johns-Manville in 1964 began placing warning labels on packages of its asbestos products. 6 Raybestos-Manhattan

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first attached warning labels to its asbestos cloth in 1972.

Jackson testified that in the nineteen years he worked at Ingalls Shipyard, he was never warned that asbestos could be harmful to his health. He also testified that he could recall having seen no asbestos packaging and hence no warning labels. He alleges that the defendants knew in the 1930's of the hazards of exposure to asbestos, yet worked in concert to keep this information secret, actively avoiding research that might confirm the relationship of asbestos to cancer.

On November 21, 1978, Jackson, along with other parties, filed a class action in diversity against numerous manufacturers and sellers of asbestos products allegedly used in shipbuilding at Ingalls. After the district court denied class certification, Jackson filed an amended and supplemental complaint against twelve defendants. 7 Eight of these defendants settled before trial. One was granted summary judgment. 8 The remaining defendants were: Johns-Manville Sales Corp.; H.K. Porter Company, Inc.; and Raybestos-Manhattan, Inc.

Jackson originally based his cause of action on theories of negligence, breach of warranty, strict liability, and conspiracy to suppress facts about the risks of exposure to asbestos. In accordance with a pretrial order, Jackson abandoned all causes of action except for strict liability in tort.

The jury found that Johns-Manville and Raybestos-Manhattan were strictly liable to Jackson and assessed actual damages of $391,500. The jury also assessed punitive damages of $500,000 against Johns-Manville and of $125,000 against Raybestos-Manhattan. The jury found that H.K. Porter Co. was not liable. Jackson does not appeal the verdict in H.K. Porter Co.'s favor.

II. STRICT LIABILITY IN TORT

  1. Scope of Protection

    The defendants argue that Jackson has no cause of action in strict liability in tort, because he was not actually a "user or consumer" of their asbestos products. In this diversity case, Mississippi substantive law applies. See Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

    In the seminal case of State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118 (Miss.1966), cert. denied, Yates v. Hodges, 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784 (1967), Mississippi adopted Sec. 402A of The Restatement (Second) of Torts (1965), "insofar as it applies to a manufacturer of a...

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