744 P.2d 605 (Wash. 1987), 53061-1, Lockwood v. AC & S, Inc.

Docket Nº53061-1.
Citation744 P.2d 605, 109 Wn.2d 235
Opinion JudgeDURHAM
Party Name(CCH) P 11,579 Albert LOCKWOOD and Dorothy Anna Lockwood, husband and wife, Respondents, v. AC & S, INC., et al., Defendants, Pittsburgh Corning Corporation, Respondent, Raymark Industries, Inc., successor in business to Raybestos-Manhattan, Inc., Petitioner.
AttorneyKarr, Tuttle, Koch, Campbell, Mawer, Morrow & Sax, P.S., John J. Soltys, Allen R. Sakai, Philip A. Talmadge, Seattle, for petitioner. Schroeter, Goldmark & Bender, P.S., William S. Bailey, Seattle, for respondents.
Judge PanelPEARSON, C.J., and UTTER, DORE, DOLLIVER, ANDERSEN, CALLOW, GOODLOE and BRACHTENBACH, JJ., concur.
Case DateOctober 15, 1987
CourtUnited States State Supreme Court of Washington

Page 605

744 P.2d 605 (Wash. 1987)

109 Wn.2d 235

(CCH) P 11,579

Albert LOCKWOOD and Dorothy Anna Lockwood, husband and wife,

Respondents,

v.

AC & S, INC., et al., Defendants,

Pittsburgh Corning Corporation, Respondent,

Raymark Industries, Inc., successor in business to

Raybestos-Manhattan, Inc., Petitioner.

No. 53061-1.

Supreme Court of Washington, En Banc.

October 15, 1987

Page 606

[Copyrighted Material Omitted]

Page 607

[109 Wn.2d 237] Karr, Tuttle, Koch, Campbell, Mawer, Morrow & Sax, P.S., John J. Soltys, Allen R. Sakai, Philip A. Talmadge, Seattle, for petitioner.

Schroeter, Goldmark & Bender, P.S., William S. Bailey, Seattle, for respondents.

DURHAM, Justice.

Albert and Dorothy Lockwood brought this action against a number of manufacturers of asbestos products, including petitioner Raymark Industries (Raymark), seeking damages for injuries resulting from Albert Lockwood's exposure to asbestos products while he worked at various Seattle shipyards. A jury returned a verdict of $183,372 in favor of the Lockwoods. Raymark appealed and the Court of Appeals affirmed the trial court's judgment on the verdict. Lockwood v. A C & S, Inc., 44 Wash.App. 330, 722 P.2d 826 (1986). In this petition for review, Raymark argues that Lockwood failed to present sufficient evidence that his injury was caused by exposure to Raymark's product in order to take the question of Raymark's liability to the jury. Raymark also contends that the trial court erred in admitting certain evidence, in deciding that Raymark had a duty to warn Lockwood of the danger of asbestos products after his exposure to asbestos had ceased, and in refusing to grant a new trial because of juror misconduct. We uphold the Court of Appeals decision affirming the trial court's judgment.

Page 608

Albert Lockwood worked in shipyards in the Puget Sound region from 1942 until 1972. In the first 2 years of this period, he worked on the construction of new vessels. After that, he was employed primarily as a rigger repairing [109 Wn.2d 238] and overhauling older vessels. This work involved moving heavy machinery aboard ships.

In his employment as a rigger, Lockwood was exposed to asbestos. 1 When moving heavy equipment, he used a chain fall, a kind of block and tackle with an endless chain. As the chain moved, it would rub against and cut into asbestos insulation which covered pipes overhead, creating asbestos dust which would fall on the riggers.

At the same time as Lockwood was working on board ship, insulation workers also were employed on the ships, putting asbestos insulation on pipes and steam turbines. Ordinarily, Lockwood did not work along with the insulation workers while they were installing asbestos. However, sometimes he worked in the same areas after the insulation workers had finished their tasks. Generally, in doing repair work, insulation workers removed old asbestos insulation as well as installing new material.

Until 1952, Lockwood worked in a number of different shipyards in the Puget Sound area. During this period, his exposure to asbestos was similar from one job to the next.

In 1952, Lockwood began working at Lake Union Drydock, where he was employed continuously for the next 20 years. Because of the time pressures involved in ship repair, he sometimes worked 24 hours a day. While at Lake Union, Lockwood was exposed to asbestos in the same way as he had been Before . He was also exposed during meal times in that asbestos was stored in a compartment next to the area where he ate. Asbestos dust from the compartment entered the eating area and was present while he ate there. Lockwood never saw a warning on asbestos packages in the shipyards and no one ever told him to wear a mask.

In 1972, at the age of 63, Lockwood took a disability [109 Wn.2d 239] retirement. In 1979, he was diagnosed as having asbestosis. 2

Lockwood had smoked hand-rolled cigarettes from his teen years until 1972. In 1972, he quit regular smoking but occasionally smoked a cigarette thereafter. Lockwood also had a history of asthma and emphysema.

During the time when Lockwood was employed in the shipyards, Raymark's predecessor firm, Raybestos-Manhattan, was a manufacturer of asbestos textiles, including asbestos cloth. Raymark's asbestos cloth was used in the Puget Sound area during the period when Lockwood was employed in the shipyards.

The complaint in the present action was filed in 1982 and named 19 defendants. Lockwood's claims, as summarized later to the jury, were that: (1) the defendants were negligent in failing to test their products, remove them from the market, inform users of handling methods, and warn foreseeable users of the dangers of asbestos; and (2) the defendants were strictly liable for manufacturing or selling products that were not reasonably safe because they contained asbestos and did not contain adequate warnings of the dangers involved with asbestos use.

Pretrial proceedings were held Before a special asbestos motions judge pursuant to

Page 609

procedures established for pending asbestos cases. Raymark brought a motion for summary judgment of dismissal on grounds of insufficient evidence of exposure to its product. The court denied Raymark's motion.

Raymark also brought pretrial motions to exclude certain documents from introduction into evidence. These documents included papers from a collection known as the [109 Wn.2d 240] "Sumner Simpson papers". This collection consists primarily of correspondence and reports from the 1930's and 1940's which were assembled by Sumner Simpson, the president of Raybestos-Manhattan from 1929 to 1948. The collection includes papers addressing research about health hazards of asbestos to workers in asbestos mines and factories. The motions judge admitted many of the challenged documents from the Sumner Simpson papers.

Raymark also sought the exclusion of documents of the Asbestos Textile Institute (ATI), a trade association of which Raymark was a member. These documents consist primarily of records and minutes of meetings of the ATI. They include discussions of health hazards of exposure to asbestos dust. The motions judge permitted the introduction of the challenged ATI documents.

Trial began in September 1983 and lasted for over 2 months. The case was tried to a jury. The evidence Before the jury included expert testimony on asbestos and the disease of asbestosis, the dangerousness of asbestos to individuals in general and to shipyard workers, and the effects of combining smoking with asbestosis. Lockwood presented witnesses who testified as to which manufacturers' products were being used in the shipyards generally and in some of the shipyards and vessels where Lockwood worked.

Evidence was also presented regarding the knowledge of the asbestos industry and of certain defendants about the dangers of asbestos beginning in the 1930's. Three letters from the Sumner Simpson papers were admitted into evidence over Raymark's objection. These letters indicate that Raymark knew of possible health problems related to asbestos in the 1930's. Several of the ATI documents were introduced at trial. These documents, dating from 1954 to 1971, indicate that the asbestos industry knew of the hazards of asbestos, was reluctant to pursue studies of the effects of asbestos on health and was concerned about unfavorable publicity. In addition, several documents dating from 1974 on, which were prepared by Raymark officials and concerned asbestos health issues, were introduced into [109 Wn.2d 241] evidence.

After the plaintiffs rested, Raymark moved for a directed verdict and dismissal based on insufficiency of the evidence. The trial court denied Raymark's motion.

Each of the trial court's instructions to the jury designated whether it applied to Lockwood's product liability claim, his negligence claim, or both. 3 The court instructed the jury that with respect to his product liability claim, Lockwood had the burden of proving that the defendant supplied a product which was not reasonably safe at the time it left defendant's control or that defendant failed to give an adequate warning necessary to make the use of the product reasonably safe; that Lockwood was injured; and that the unsafe condition of the product and defendant's failure to warn proximately caused his injury. With respect to his negligence claim, Lockwood had the burden of proving that the defendant failed to test the product, to remove the product from the market, to inform users of handling methods, or to warn foreseeable product users of the dangers of asbestos; that its conduct was negligent; that Lockwood was injured; and that the negligence was a proximate cause of his injury.

The jury began its deliberations on October 18. On the morning of October 26, the jury foreman sent the trial court a note which said:

One of the jurors, Dale Lewis, has stated this morning that he "looked up"

Page 610

the defendant companies on the New York Stock Exchange early in the trial. He related this to the jury in the present stages of our deliberations.

The court responded with a note asking the foreman if Lewis had said anything to the other jurors about what he had learned. The court also told the foreman not to talk about this matter with other jurors and not to allow Lewis to discuss it further. The foreman replied to the court by note, explaining that the jury was deliberating the damages [109 Wn.2d 242] due the plaintiff and Lewis was discussing an amount to be awarded, when he stated that the defendants could well afford to pay, that they were all listed on the stock exchange, and that he had looked them up.

That morning, the court informed the parties of this development. Raymark brought a motion for a mistrial. The trial court denied Raymark's motion but gave the jury this supplemental instruction:

The jury is instructed that should there be a finding of...

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182 practice notes
  • 31 Cal.App.4th 1409, A060263, Lineaweaver v. Plant Insulation Co.
    • United States
    • California California Court of Appeals
    • January 31, 1995
    ...exposed, the type of injury suffered by plaintiff, and other possible sources of plaintiff's injury. (Lockwood v. AC & S, Inc. (1987) 109 Wn.2d 235 [744 P.2d 605, 613]; see Rest.2d Torts, § 433 [listing considerations important in determining causation].) "Ultimately, the sufficien......
  • 554 N.E.2d 468 (Ill.App. 1 Dist. 1990), 1-89-1864, Leng v. Celotex Corp.
    • United States
    • Illinois United States Appellate Court of Illinois
    • March 30, 1990
    ...has since commented on that same theory of liability in an asbestos case. In Lockwood v. AC & S, Inc. (1987), 109 Wash.2d 235, 744 P.2d 605, that court stated that the use of a market share theory in asbestos cases was a substantial and complex issue, which it declined to address "......
  • 603 N.E.2d 449 (Ill. 1992), 72095, Thacker v. Unr Industries, Inc.
    • United States
    • Illinois Supreme Court of Illinois
    • September 21, 1992
    ...approach to fiber drift evidence was taken by the Washington Supreme Court in Lockwood v. A C & S, Inc. (1987), 109 Wash.2d 235, 744 P.2d 605. Lockwood specifically claimed that he was exposed to asbestos from working in areas where asbestos insulation had recently been installed, from ......
  • 686 A.2d 250 (Md. 1996), 92, ACandS, Inc. v. Asner
    • United States
    • Maryland Court of Appeals of Maryland
    • October 11, 1996
    ...the evidence presented as to medical causation of the plaintiff's particular disease.' Lockwood v. AC & S, Inc., 109 Wash.2d 235, 744 P.2d 605, 613 (1987)." Id. at 210-11, 604 A.2d at 460 (citations omitted). [3] In their memorandum, defendants said: "Without hearing the evide......
  • Request a trial to view additional results
180 cases
  • 31 Cal.App.4th 1409, A060263, Lineaweaver v. Plant Insulation Co.
    • United States
    • California California Court of Appeals
    • January 31, 1995
    ...exposed, the type of injury suffered by plaintiff, and other possible sources of plaintiff's injury. (Lockwood v. AC & S, Inc. (1987) 109 Wn.2d 235 [744 P.2d 605, 613]; see Rest.2d Torts, § 433 [listing considerations important in determining causation].) "Ultimately, the sufficien......
  • 554 N.E.2d 468 (Ill.App. 1 Dist. 1990), 1-89-1864, Leng v. Celotex Corp.
    • United States
    • Illinois United States Appellate Court of Illinois
    • March 30, 1990
    ...has since commented on that same theory of liability in an asbestos case. In Lockwood v. AC & S, Inc. (1987), 109 Wash.2d 235, 744 P.2d 605, that court stated that the use of a market share theory in asbestos cases was a substantial and complex issue, which it declined to address "......
  • 603 N.E.2d 449 (Ill. 1992), 72095, Thacker v. Unr Industries, Inc.
    • United States
    • Illinois Supreme Court of Illinois
    • September 21, 1992
    ...approach to fiber drift evidence was taken by the Washington Supreme Court in Lockwood v. A C & S, Inc. (1987), 109 Wash.2d 235, 744 P.2d 605. Lockwood specifically claimed that he was exposed to asbestos from working in areas where asbestos insulation had recently been installed, from ......
  • 686 A.2d 250 (Md. 1996), 92, ACandS, Inc. v. Asner
    • United States
    • Maryland Court of Appeals of Maryland
    • October 11, 1996
    ...the evidence presented as to medical causation of the plaintiff's particular disease.' Lockwood v. AC & S, Inc., 109 Wash.2d 235, 744 P.2d 605, 613 (1987)." Id. at 210-11, 604 A.2d at 460 (citations omitted). [3] In their memorandum, defendants said: "Without hearing the evide......
  • Request a trial to view additional results
1 firm's commentaries
  • Innovator Liability at 100
    • United States
    • LexBlog United States
    • July 18, 2014
    ...of action, the plaintiff must identify the particular manufacturer of the product that caused the injury.” Lockwood v. AC & S, Inc., 744 P.2d 605, 612 (Wash. 1987). Further, a “manufacturer’s duty to warn is restricted to warnings based on the characteristics of the manufacturer’s own p......
1 books & journal articles
  • The insubstantiality of the "substantial factor" test for causation.
    • United States
    • Missouri Law Review Vol. 73 Nbr. 2, March - March 2008
    • March 22, 2008
    ...which asbestos producers were responsible or whether he had no occupational exposure to asbestos. (75.) See Lockwood v. AC & S, Inc., 744 P.2d 605 (Wash. 1987) (accepting a version of the "fiber drift" theory). (76.) See also Blackstone v. Shook & Fletcher Insulation Co., ......

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