Menne v. Celotex Corp.

• Decision Date: 28 November 1988
• Docket Number: No. 86-2350,86-2350
• Citation: 861 F.2d 1453
• Parties: , Prod.Liab.Rep.(CCH)P 11,973 Mary K. MENNE, Personal Representative of the Estate of Donald R. Menne, deceased, Plaintiff/Appellee, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., and Fibreboard Corporation, Defendants/Appellants, Keene Corporation, Owens-Corning Fibreglas Corporation, Owens-Illinois, Inc., Pittsburg Corning Corporation, and Raymark Industries, Inc., Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1453

861 F.2d 1453

57 USLW 2404, Prod.Liab.Rep.(CCH)P 11,973

Mary K. MENNE, Personal Representative of the Estate of Donald R. Menne, deceased, Plaintiff/Appellee, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., and Fibreboard Corporation, Defendants/Appellants Keene Corporation, Owens-Corning Fibreglas Corporation Owens-Illinois, Inc., Pittsburg Corning Corporation, and Raymark Industries Inc., Defendants.

No. 86-2350.

United States Court of Appeals Tenth Circuit.

Nov. 28, 1988.

Rehearing Denied Jan. 26, 1989.

Rehearing Denied Jan. 26, 1989.

Paul H. Hulsey, Blatt, & Fales, P.A., Charleston, S.C. (Dan L. Wulz, Bryan Lykins Hejtmanek & Wulz, P.A., Topeka, Kan., with him on the brief), for plaintiff/appellee.

Paul E. Vardeman, Polsinelli, White, Vardeman and Shalton, Kansas City, Mo. (James Borthwick, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, Mo., and James D. Griffin, Blackwell Sanders Matheny Weary & Lombardi, Overland Park, Kan., on the briefs), for defendants/appellants.

Before LOGAN, ANDERSON and TACHA, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

This case is another in the series of personal injury, diversity cases involving asbestos exposure of naval shipyard employees. The case is confined to the question of manufacturer liability for plaintiff's exposure during and just after World War II. It is a case of first impression in the Tenth Circuit and requires our review of a jury trial in the federal district of Kansas, tried by stipulation under Nebraska law.

The appellant asbestos manufacturers--The Celotex Corporation ("Celotex"), Eagle-Picher Industries, Inc. ("Eagle-Picher"), and Fibreboard Corporation ("Fibreboard")--challenge the denial of a judgment notwithstanding the verdict ("JNOV"), 641 F.Supp. 1429, contending that the evidence of their strict liability or their allegedly negligent failure to test, warn, or otherwise control for asbestos hazards was insufficient to support a jury verdict against them. Alternatively, they allege a number of prejudicial errors in the jury instructions, especially with respect to their state-of-the-art defense and the burden of proving proximate cause under Nebraska law.

After careful consideration of the complexities of this case, we remand for a new trial. The jury instructions erroneously suggest at least two different interpretations of the causation standards, rendering the jury's verdict against the appellants essentially unreviewable and unreliable. If the jury used traditional Nebraska standards suggested by one part of the instructions, then the evidence is insufficient to support the jury's finding that certain of the defendants proximately caused the plaintiff's asbestos-related disease. If the jury's finding was based on the special

burden-shifting rule suggested by other parts of the instructions, we might have been able to uphold it but for the fact that we are unable to determine that the jury applied the correct threshold proof of causal relationship before shifting the burden. We also conclude that the trial court misinstructed the jury with respect to Nebraska's state-of-the-art defense.

BACKGROUND

Asbestos is a naturally occurring mineral fiber with fireproof and corrosion-resistant properties that have made it valuable as an insulator. Unfortunately, it is also hazardous to one's health. The fibers are breathable and can cause asbestosis (a scarring of the lungs), mesothelioma (a cancer of various linings of body organs, notably of the lungs or abdomen), and lung cancer. Asbestosis is a type of pulmonary fibrosis produced by infiltration of microscopic asbestos fibers into lung tissue. It is a progressive disease for which there is no cure; the asbestos fibers are essentially indestructible and their scarring effect is cumulative over time. The latency period can be anywhere from five to thirty years, R.Vol. 5 at 217, depending on the intensity and duration of the exposure. Mesothelioma is an incurable cancer that can be caused by as little as an intense two to three month episode of breathing asbestos dust. R.Vol. 6 at 714. The latency period is typically 30 years or more, R.Vol. 5 at 367, but can range from less than twenty to more than fifty years, R.Vol. 6 at 751. Of the three basic kinds of asbestos fibers--amosite, crocidolite, and chrysotile--the straight, solid amosite and crocidolite fibers are less likely to break up in the lungs and more likely to cause mesothelioma than are the curly, hollow chrysotile fibers. Chrysotile is used in textile and friction products, while amosite and crocidolite are used in pipe-covering. R.Vol. 6 at 742.

The plaintiff Don Menne ("Menne"), now deceased, ¹ had a forty year history of on-the-job exposure to asbestos fibers. As a teenager in the 1930s he worked part time for his father installing and insulating heating and plumbing pipes. For approximately four and a half years from June 1941 through late 1945 or early 1946 he worked at the Puget Sound Naval Shipyard ("Shipyard") in Bremerton, Washington, first as a pipe-installer trainee for six months, then as a lay-out man for about two years, and then as a pipefitter. As a pipefitter he worked in particularly close proximity to insulators who were installing asbestos products and generating asbestos dust on board ships docked in the Shipyard.

After World War II Menne returned to his native Nebraska and briefly attempted to farm. In late 1946 he returned to the Shipyard and worked there in an undisclosed capacity for approximately a year. For the next thirty years or so he worked in plumbing and heating jobs primarily in private industry, where he had various exposures to the asbestos products of multiple manufacturers. He retired in 1980 and then worked part time until 1985 as a school janitor.

In 1983, at the age of approximately sixty-six, Menne sought medical treatment for increasing shortness of breath, fatigue, and leg aches. Discovery of a large tumor attached to the pleura (lining) of the lung prompted surgical removal of his entire left lung along with portions of the diaphragm and the pericardium (the sac surrounding the heart). Upon examination of the removed tissue, the pathologist diagnosed the tumor as malignant mesothelioma and reported evidence of asbestosis secondary to the mesothelioma. Prior to surgery, however, pulmonary function tests on Menne had not revealed clinical evidence of asbestosis. R.Vol. 5 at 327.

Menne claimed that his mesothelioma ² had been proximately caused by the defendants' negligent failure to test adequately, warn, or otherwise protect him from the known dangers of asbestos exposure during the period from 1942 to 1948 when his exposure to asbestos dust was its most intense. Alternatively, he claimed that defendants' failure to issue warnings made their products unreasonably defective under a theory of strict liability. ³

The original defendants included the following manufacturers of asbestos products: Celotex, Eagle-Picher, Fibreboard, Keene Corporation, Owens-Illinois, Inc., and Raymark Industries, Inc. Asbestos products of these manufacturers or their predecessor companies had been identified as among those installed by pipe insulators on the ships at the Shipyard during the decade from 1940 to 1950. Not before the court were Johns-Manville, Mundet, Unarco, and Keasbey & Mattison, whose products also had been identified as used on the ships during the time period in question. ⁴ At trial the jury found Keene and Owens-Illinois not liable. ⁵ The jury returned a two and a half million dollar verdict against the remaining four defendants. After trial and entry of judgment, Raymark settled in the amount of $150,000, thus leaving Celotex, Eagle-Picher, and Fibreboard as the appellants in this case.

For the limited purposes of this trial, Celotex and Fibreboard accepted responsibility for the acts of their predecessor companies, Philip-Carey and Plant respectively. Those predecessors (designated as Celotex and Fibreboard throughout this opinion) manufactured and supplied the Shipyard with pre-formed asbestos pipe covering and with asbestos "blocks" (large sheets) for insulation of large equipment such as boilers and turbines. R.Vol. 6 at 607, 609. Celotex, along with Eagle-Picher, also supplied the Shipyard with cement products containing asbestos. R.Vol. 6 at 604, 609. No actual evidence (but instead only assumptions) as to the physical properties of the Celotex asbestos block and pipe covering is in the record, but its cement products consisted of both asbestos cements and magnesia cements (15% asbestos). Id. at 609, 629. The Fibreboard and Eagle-Picher products contained only a small percentage of asbestos, id. at 630, in contrast to the products of some of the manufacturers such as Johns-Manville and Unarco, who were not before the court.

At trial Menne presented evidence that he was exposed to asbestos dust as both a lay-out man and a pipe and valve installer (pipefitter) at the Shipyard. His primary exposure came during the years he was pipe fitting. He estimated that 75-80% of his time as a pipefitter was spent on board ships which were either under construction or repair, and that about 80% of his time on the ships was spent working side by side with insulators in stagnant and hazy air that was full of suspended asbestos dust. R.Vol. 7 at 905-06. In other words, he alleges that from three-fifths to nearly two-thirds of his working time as a pipefitter was spent breathing air that contained visible asbestos dust. The significance of the dust's visibility, according to the record, is that when the dust particles are visible they have exceeded what was considered in the 1940s to be the safe threshold level of five million particles per cubic foot. R.Vol. 5 at 234-36.

Menne could not identify any particular asbestos products to which he was exposed during his time at the Shipyard. His key witness, Maurice Lane, however, was able to identify...