Gideon v. Johns-Manville Sales Corp.

• Citation: 761 F.2d 1129
• Decision Date: 03 June 1985
• Docket Number: No. 83-2626,JOHNS-MANVILLE,83-2626
• Parties: 18 Fed. R. Evid. Serv. 296, Prod.Liab.Rep.(CCH)P 10,820 Howard Eugene GIDEON, et al., Plaintiffs-Appellees, v.SALES CORPORATION, et al., Defendants, Raymark Industries, Inc., Keene Corporation, Standard Insulations, Inc., et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1129

761 F.2d 1129

18 Fed. R. Evid. Serv. 296, Prod.Liab.Rep.(CCH)P 10,820

Howard Eugene GIDEON, et al., Plaintiffs-Appellees, v. JOHNS-MANVILLE SALES CORPORATION, et al., Defendants Raymark Industries, Inc., Keene Corporation, Standard Insulations, Inc., et al., Defendants-Appellants.

No. 83-2626.

United States Court of Appeals Fifth Circuit.

June 3, 1985.

Butler & Binion, Elizabeth M. Thompson, Houston, Tex., for Raymark industries.

Mehaffy, Weber, Keith & Gonsoulin, O.J. Weber, Sandra F. Clark, Beaumont, Tex., for Keene Corp. & Standard Insulations, Inc.

Weller, Wheelus & Green, George A. Weller, David L. Tolin, Beaumont, Tex., for Fibreboard Corp.

Bean & Manning, Andrew McKinney, Frank Bean, Houston, Tex., for Eagle-Picher Industries, Inc.

Benckenstein, Norvell & Bernsen, Lipscomb Norvell, Jr., Beaumont, Tex., for Celotex Corp.

Baker & Botts, F. Walter Conrad, Susan Roehm, Houston, Tex., for Gaf Corp.

Wellborn, Houston, Perry & Adkinson, Rex Houston, Paul L. Sadler, Henderson, Tex., for plaintiffs-appellees.

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

Before CLARK, Chief Judge, GOLDBERG and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

This suit for personal injuries allegedly caused by the inhalation of asbestos fibers is one of 25,000 ¹ pending in federal and state courts. After a ten-day trial, the jury returned a verdict against seven of the seventeen defendants originally named and fixed the compensatory damages at $500,100. The judge reduced the amount of the judgment to reflect the effect of the settlement that the plaintiffs had reached with three of the original defendants.

The judgment entered on that verdict is based in part on one jury's resolution of issues that are common to all or most of the cases in this mass litigation. These issues include whether the asbestos products of various manufacturers were unreasonably dangerous, whether the manufacturers knew or should have known them to be dangerous when sold, and whether an asbestosis plaintiff may adduce evidence of an alleged increased risk of contracting cancer in the future. It is also based on the resolution of issues specific to this plaintiff and these defendants, which include the nature and extent of the plaintiff's We discuss each issue in turn and conclude that the evidentiary rulings were correct, the instructions adequate, and the evidence sufficient to support the judgment against five of the seven defendants. We, therefore, affirm the judgment as to five defendants. We reverse the judgment as to two defendants because the evidence adduced in this case was insufficient to establish that their products were a producing or aggravating cause of Gideon's injuries. We remand and direct the district judge to redetermine the sum to be awarded the plaintiffs now that the total number of defendants cast in judgment together with those who had effected compromises is changed.

exposure to the products of each defendant, whether the plaintiff failed to mitigate his damages, and whether the district court erred in prohibiting the named defendants from producing evidence of the plaintiff's exposure to products of two manufacturers who have filed for bankruptcy. The appeal also raises issues concerning evidentiary rulings at trial and the district court's jury instructions.

RESUME OF THE RECORD

Howard E. Gideon, who was fifty-nine years old at the time of trial, worked for Standard Insulations, Inc. (Standard) as an insulation warehouseman from 1944, when he was 20 years old, until 1969. During this period he handled asbestos products daily as a major part of his work. In 1969, he began working for P & R Insulations as an estimator and he has since continued to do that work. Working principally in an office, Gideon estimates the costs of doing a proposed insulation job, prepares a bid for the work, and, if his employer is awarded the work, orders the material and follows the work on the job to ensure that the costs do not exceed the budget.

Gideon claims that he suffers from asbestosis and is likely to develop mesothelioma or some other form of cancer as a result of his inhalation of asbestos fibers. He sued seventeen manufacturers of asbestos products, contending that he worked with products made by each and that each contributed to his present condition. Before trial, Gideon settled his claims against three defendants and dismissed his claim against one without prejudice. The court severed the claims against two defendants, Johns-Manville Sales Corporation and Unarco Industries, Inc., for later trial because these defendants had filed petitions for reorganization under Chapter 11 of the Bankruptcy Act and the bankruptcy court had stayed proceedings against them.

The jury returned a verdict against seven defendants for $500,000, rejected Gideon's claims against four defendants, awarded him exemplary damages of $1,000 against Raymark Industries, Inc. (Raymark), and awarded his wife $100 for loss of consortium. The district court ordered a pro rata reduction of $150,030 in the compensatory damages to account for the prior settlement with three defendants, thus reducing the verdict to $350,070.

This appeal raises the following issues:

(1) whether the district court erred in admitting the expert testimony of a medical doctor because he was neither an expert nor impartial and in admitting the testimony of a biostatistician-epidemiologist because he was not a medical doctor; discussed at I, below;

(2) whether, because Gideon does not now suffer from any form of cancer, the district court should have excluded evidence of the risk of his developing cancer in the future, and whether the district court erred in refusing to instruct the jury that Gideon could not recover for his fear of contracting or dying from cancer; discussed at II, below;

(3) whether the court properly instructed the jury on the issues raised by evidence of Gideon's continued smoking and his failure to exercise after he was advised by doctors to stop smoking and to engage in a regular exercise program; discussed at III, below;

(4) whether the district court should have allowed the defendants to introduce evidence of Gideon's exposure to products of the two defendants who are in (5) whether the court properly instructed the jury on whether the defendants' asbestos products were defectively designed; discussed at V below;

reorganization proceedings, Johns-Manville and Unarco; discussed at IV, below;

(6) whether there was insufficient evidence that the defendants' products were unreasonably dangerous; discussed at VI, below;

(7) whether there was insufficient evidence to support the verdict against two defendants, Raymark and Standard, discussed at VII, below.

The history of litigation concerning asbestos-related diseases, the nature and cause of asbestosis, mesothelioma, and other lung diseases that may be caused by inhalation of asbestos fibers, and the legal principles governing products-liability litigation have been discussed by us many times in the more than 25 cases in which we have considered such matters. ² We, therefore, do not review these matters further.

I.

The district court's admission of testimony by two expert witnesses is challenged. The defendants contend that the medical doctor who testified in support of Gideon's claims was but an advocate, not an expert, and that a biostatistician-epidemiologist was improperly permitted to give a medical opinion.

Federal Rule of Evidence 702 permits the trial court to admit the testimony of "a witness qualified as an expert by knowledge, skill, experience, training, or education" if his expert testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Whether a witness is qualified to testify as an expert is left to the sound discretion of the trial judge, who is in the best position to determine both the claimed expertise of the witness and the helpfulness of his testimony. ³

Gideon's principal medical witness, Dr. Comstock, is assailed as being an advocate for his patient rather than a practitioner of the healing arts, and his testimony is deprecated because his specialty "in the limited field of toxicology" was not recognized by the American Medical Association. He is sought to be impeached because he has allegedly seen 673 asbestos exposure patients since 1978 almost all of whom have been referred to him by plaintiff's attorneys. Dr. Comstock's credentials, however, passed the threshold of admissibility. He is a doctor of medicine with an earlier M.A. degree in bacteriology and biochemistry; he received his M.D. twenty-seven years ago, has been a research assistant The district court also acted within the bounds of discretion in admitting the testimony of Dr. Joseph K. Wagoner. Wagoner is not a doctor of medicine, but of philosophy. He is a biostatistician and epidemiologist specializing in the study of the causes of disease and its effects upon individuals and the public.

in bacteriology and virology, and an assistant research toxicologist, and he has in addition done other medical work. Since 1970 he has been an adjunct associate professor of toxicology at the University of Texas School of Public Health and has devoted considerable time to the study of the toxic effects of industrially-used substances, especially asbestos. Dr. Comstock's expertise and impartiality were vigorously attacked, but the degree to which his testimony was thus impugned was for the jury to evaluate.

The objection to his testimony is based on the assumption that he gave medical testimony. Dr. Wagoner, however, did not testify about Gideon's physical condition or prognosis. He testified only on matters of epidemiology: the risk of cancer and reduced life expectancy associated with asbestosis. As an epidemiologist, he was also competent to testify that the toxic effects of inhaling asbestos were known prior to the 1940s....