782 F.2d 1156 (4th Cir. 1986), 84-1323, Lohrmann v. Pittsburgh Corning Corp.

Docket Nº:84-1323.
Citation:782 F.2d 1156
Party Name:Frederick O. LOHRMANN, Appellant, v. PITTSBURGH CORNING CORP., a Pennsylvania Corporation; Celotex Corporation, a Delaware Corporation; Keene Corporation; G.A.F. Corporation, a Delaware Corporation; Eagle-Picher Industries, Inc., an Ohio Corporation; Raybestos-Manhattan, Inc., a New Jersey Corporation and A.C. and S., Inc., formerly known as Armstr
Case Date:January 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1156

782 F.2d 1156 (4th Cir. 1986)

Frederick O. LOHRMANN, Appellant,

v.

PITTSBURGH CORNING CORP., a Pennsylvania Corporation;

Celotex Corporation, a Delaware Corporation; Keene

Corporation; G.A.F. Corporation, a Delaware Corporation;

Eagle-Picher Industries, Inc., an Ohio Corporation;

Raybestos-Manhattan, Inc., a New Jersey Corporation and A.C.

and S., Inc., formerly known as Armstrong Contracting and

Supply Corporation, a Delaware Corporation, Appellees,

and

Johns-Manville Corporation, a New York Corporation;

Johns-Manville Sales Corporation, a Delaware Corporation;

Unarco Industries, Inc., formerly known as Union Asbestos &

Rubber Company, an Illinois Corporation; Owens-Corning

Fiberglass Corporation, a Delaware Corporation;

Owens-Illinois, Inc., an Ohio Corporation; Owens-Illinois

Glass Company, an Ohio Corporation; Forty-Eight Insulation,

Inc., an Illinois Corporation; Amchem Products, Inc., a

Pennsylvania Corporation; Nicolet Industries, Inc., a

Pennsylvania Corporation; Southern Textile Corporation,

formerly known as Southern Asbestos Corporation, a Delaware

Corporation; H.K. Porter Company, Inc., a Delaware

Corporation; Amatex Corporation, formerly known as American

Asbestos Textile Corporation, a Pennsylvania Corporation;

Armstrong Cork Company, a Delaware Corporation, Defendants.

No. 84-1323.

United States Court of Appeals, Fourth Circuit

January 30, 1986

Argued Oct. 9, 1985.

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[Copyrighted Material Omitted]

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Donald I. Marlin, New York City (Stanley J. Levy, Levy, Phillips & Konigsberg, New York City, Carl E. Tuerk, Jr., Cooper, Beckman & Tuerk, Harry Goldman, Jr., Goldman & Skeen, Baltimore, Md., on brief), for appellant.

F. Ford Loker, Baltimore, Md. (Niles, Barton & Wilmer, Baltimore, Md., on brief), Stephen J. Sfekas, Baltimore, Md. (Ruth Newman Fahrmeier, Tydings & Rosenberg, E. Dale Adkins, III, M. Bradley Hallwig, Anderson, Coe & King, Baltimore, Md., William R. Spellbring, Jr., Samuel J. DeBlasis, II, O'Malley, Miles, McCarthy & Harrell, Upper Marlboro, Md., Michael B. Mann, Dennis C. Whelley, Merriman & Mann, P.A., Richard R. Jackson, Jr., Robert L. Ehrlich, Jr., Ober, Kaler, Grimes & Shriver, Baltimore, Md., on brief), for appellees.

Before HALL and CHAPMAN, Circuit Judges and HAYNSWORTH, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

Appellant was a pipefitter from 1940 to 1979 at Bethlehem Steel Corporation's Key Highway shipyard in Baltimore. He claims that he now has asbestosis resulting from exposure to various asbestos-containing products of nineteen named defendants. Prior to trial, three of the defendants were severed due to being under the jurisdiction of United States bankruptcy courts. Other defendants either settled or made successful motions for summary judgment until only seven remained: Raymark Industries, Inc., Celotex Corporation, Pittsburgh Corning Corp., Keene Corporation, Eagle-Picher Industries, Inc., G.A.F. Corporation and A.C. & S., Inc. At the conclusion of plaintiff's case in chief, the trial judge directed verdicts in favor of Raymark, Celotex and Pittsburgh Corning. At the conclusion of the trial, the jury found in favor of the remaining four defendants. Appellant now claims error of the district court in certain evidentiary rulings, in certain of its jury instructions, and in the standard used by the court in granting verdicts to the three defendants. We affirm.

I

Lohrmann was born in 1919 and worked as a pipefitter at Key Highway Ship Yard for thirty-nine years. He claims that he was exposed to asbestos dust from insulating materials throughout his employment. He admitted that he had smoked and inhaled unfiltered cigarettes since 1940 and was still doing so against the advice of his physician. He retired in 1979, and at that time his personal physician found that he was disabled as a result of chronic obstructive pulmonary disease, but this physician did not diagnose asbestosis. Later, another doctor gave the diagnosis of asbestosis, and this diagnosis was an issue of dispute between the experts at trial.

Plaintiff pursued two theories of liability: negligence and strict liability in tort. He contended that the product was defective and unreasonably dangerous because of the absence of adequate warnings that exposure to asbestos dust was dangerous and could produce asbestosis and other related diseases. In the negligence claim he asserted that in addition to the failure to warn, the defendants failed to test the product and failed to develop a safe substitute for asbestos.

The trial followed the usual course of the plaintiff attempting to prove contact with asbestos-containing products of all defendants. There were the medical witnesses, those who had actually examined and treated Lohrmann and those who testified as to the state of the art--what and when doctors,

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mine owners, and manufacturers knew or should have known about the dangers of asbestos, not only to persons working in mines and manufacturing plants, but also to those coming in contact with the product, such as insulators, pipefitters, and others working in close proximity to the installation or removal of asbestos-containing products. At the conclusion of the plaintiff's case, the trial judge directed verdicts in favor of Raymark Industries, Inc., Celotex Corporation, and Pittsburgh Corning Corp. This left Keene Corporation, Eagle-Picher Industries, Inc., G.A.F. Corporation, and A.C. & S, Inc., as the four defendants remaining of the original nineteen. These four defendants contended that Lohrmann did not have asbestosis, but had emphysema, chronic bronchitis, and shortness of breath due to cigarette smoking. They also presented witnesses on the state of the art and on when manufacturers first became aware of the potential harm to men working in trades outside the mining and manufacturing of asbestos products.

SUMNER SIMPSON PAPERS

Sumner Simpson was President of Raybestos Manhattan from 1929 to 1948 and was Chairman of the Board of that corporation from 1945 until his death in 1953. Raybestos Manhattan has since become Raymark. During his years as President and later as Chairman of the Board of Raybestos Manhattan, Mr. Simpson kept various letters, newspaper clippings, articles from publications, correspondence, and other documents relating to the health hazards of asbestos to workers in the mining and manufacture of asbestos products. These documents were found in a box in a storage area at Raybestos Manhattan in the early 1970s, and an additional group of papers, consisting of approximately 600 documents, were found in an old safe at the Raybestos Manhattan plant in North Charleston, South Carolina, in 1979. There are approximately 6,000 documents included in the Sumner Simpson papers. The papers were produced through discovery proceedings in an early asbestosis case, and since then the admissibility of various documents included in the Sumner Simpson papers has become an issue in the continuing asbestosis litigation.

In the present action the plaintiff offered a number of Sumner Simpson documents against defendant Raymark and on the issues of Raymark's knowledge of asbestos hazards and the proper standard of care to be exercised by Raymark in view of its knowledge. The documents were not introduced against the other six defendants. The trial judge...

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