Rogers v. Raymark Industries, Inc.

• Decision Date: 09 January 1991
• Docket Number: No. 89-15066,89-15066
• Citation: 922 F.2d 1426
• Parties: 31 Fed. R. Evid. Serv. 1231 Hester M. ROGERS, individually and as Special Administratrix of the Estate of Clinton W. Rogers, decedent, Plaintiff-Appellant, v. RAYMARK INDUSTRIES, INC., et al., Defendants, and Fibreboard Corporation and Keene Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1426

922 F.2d 1426

31 Fed. R. Evid. Serv. 1231

Hester M. ROGERS, individually and as Special Administratrix of the Estate of Clinton W. Rogers, decedent, Plaintiff-Appellant, v. RAYMARK INDUSTRIES, INC., et al., Defendants, and Fibreboard Corporation and Keene Corporation, Defendants-Appellees.

No. 89-15066.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 1990.

Decided Jan. 9, 1991.

Gloria J. Husick, Carlson & Husick, Dublin, Cal., for plaintiff-appellant.

Steven M. Garrett and Kelly C. Wooster, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant-appellee Fibreboard Corp.

Larry C. Lowe, Morgenstein & Jubelirer, San Francisco, Cal. (argued case for defendant-appellee Keene Corp.) and J. Lawrence Judy, Shield & Smith, San Francisco, Cal. (signed the briefs), for defendant-appellee Keene Corp.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, Chief Judge, BROWNING and RYMER, Circuit Judges.

RYMER, Circuit Judge:

This is an asbestos case. The appeal raises questions about the extent of a trial judge's discretion to exclude expert and percipient witness opinion testimony under Fed.R.Evid. 403 and to permit use of third-party x-rays for demonstrative purposes even though they had not been identified in the pre-trial order.

Hester Rogers ("plaintiff"), widow of Clinton Rogers ("Rogers"), sued Fibreboard Corporation and Keene Corporation, two asbestos manufacturers ("defendants"), following her husband's death from lung cancer. Plaintiff claimed that Rogers's fatal lung cancer could be traced in part to his exposure to asbestos as a shipyard worker at the Kaiser Shipyard # 1 in Richmond, California, during World War II. Defendants countered that Rogers developed lung cancer solely from cigarette smoking. Mrs. Rogers appeals from the judgment entered on a special jury verdict in favor of defendants, challenging the district court's evidentiary rulings. We affirm.

I

Clinton Rogers worked as a welder at Kaiser Shipyard # 1 from 1942 through 1945. He primarily worked below deck building "Liberty" cargo ships. There, workers of various crafts worked side-by-side at a frantic pace to build ships for the war effort. Rogers also spent part of his time in a twenty-by-thirty foot canvas shack training new workers in a variety of skills.

Rogers was exposed to asbestos in several ways. He used asbestos cloth to shield himself and the ship from welding sparks. He frequently worked alongside insulators who stirred up asbestos dust as they covered Rogers smoked between half a pack and two packs of cigarettes a day for 45 years. He smoked during the period he worked at Kaiser. Rogers died of lung cancer in 1982.

the pipes throughout the ship. Finally, when Rogers worked in the training shack, he showed new workers a variety of tasks, including how to apply and remove asbestos from pipes.

Both sides agree that cigarette smoking was the primary cause of Rogers's lung cancer. Plaintiff claimed, however, that asbestos also contributed significantly to her husband's cancer.

Her experts testified that when a person smokes cigarettes and inhales asbestos at the same time, the two substances work together to increase the absorption of carcinogens. Opinions were in conflict about what evidence is needed to link asbestos to a particular person's cancer. Some experts thought epidemiological evidence alone was enough. Others required epidemiological evidence along with the presence of asbestosis or some other disease specifically linked to asbestos. Still others required epidemiological studies combined with the presence of pleural plaques.

Epidemiological studies showed that workers in asbestos production plants have the highest cancer rates. Workers who install insulation--for example, the pipe insulators at shipyards like Kaiser--also develop cancer at an increased rate but not as frequently as plant workers. Shipyard workers do not develop cancer at a greatly increased rate; but welders do show some increased cancer rates. Finally, there was evidence that workers exposed to asbestos during World War II have developed cancer at rates higher than similar workers before and after the War.

Plaintiff argued that Rogers should not be considered a shipyard worker for the purpose of determining his cancer risk because that group included people with jobs and exposure levels unlike Rogers's. Instead she urged that Rogers's exposure level was closer to that of insulation workers because the frenzied pace of work during World War II forced him to spend much time working alongside insulators. There was evidence that Rogers's additional task of instructing workers in installation and removal of asbestos increased his level of exposure beyond that experienced by an ordinary welder. Defendants countered that Rogers's risk could not be compared to that of insulators because he only spent a small portion of his time around insulation work, and that any increased risk of cancer could not be traced to asbestos because welders are exposed to a variety of other carcinogens, including nickel and cadmium.

The parties likewise disagreed about whether Rogers's lungs evidenced significant exposure to asbestos. It was undisputed that he did not have asbestosis or any other disease specifically associated with asbestos. Yet plaintiff claimed that Rogers had one pleural plaque, and that the presence of this plaque indicated asbestos exposure. Pleural plaques are bulges in the lining of the lung. They do not cause pain or inhibit breathing and they are not malignant, but there was evidence that plaques are frequently seen in people who have been exposed to significant doses of asbestos and may serve as markers of that exposure. Some experts opined that if a patient had true asbestos-related plaques, there would be more than one plaque, and the plaques would be found on both sides of the chest cavity. Defendants' experts testified that the abnormality in Rogers's lung was not a plaque but rather was a change related either to the lung cancer or to a previous respiratory illness, and that, even if it were a plaque, it was irrelevant because true asbestos plaques are multiple and bilateral. Finally, the defense claimed that Rogers's lungs showed the types of abnormalities and diseases specifically associated with cigarettes.

The jury returned a special verdict, finding that defendants' products contained a design defect, that defendants knew of the defect when it left their possession, and that the defect did not cause Rogers's lung cancer. Mrs. Rogers contends that the district court erred by (1) excluding testimony proffered by Buddy Ay, one of plaintiff's

expert witnesses, which would have explained how asbestos was installed on Liberty ships; (2) excluding testimony of Harry Dutton, a percipient witness, offered to show that the level of dust at Kaiser was greater than the level of dust at certain asbestos production factories for which no epidemiological studies existed; and (3) permitting defendants' expert physician to use x-rays of an unidentified person to demonstrate what a supposedly true pleural plaque would look like, when these x-rays had not been identified in the pre-trial order.

II

We review decisions regarding admission of evidence for abuse of discretion. Daily Herald Co. v. Munro, 838 F.2d 380, 388 (9th Cir.1988). In the area of admission of expert testimony, we will uphold the district court's decision unless that decision is "manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313, 317 (1962); United States v. Cuevas, 847 F.2d 1417, 1429 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1989).

The admissibility of demonstrative evidence lies largely within the discretion of the trial court. Lies v. Farrell Lines, Inc., 641 F.2d 765, 773 n. 9 (9th Cir.1981) (citing Wright v. Redman Mobile Homes, Inc., 541 F.2d 1096, 1097-98 (5th Cir.1976)). Fibreboard and Keene argue that use of demonstrative evidence should be analyzed under a lesser standard, because such evidence is never formally admitted. It is unnecessary for us to resolve this issue as no substantial injustice occurred, and we do not reverse for evidentiary errors unless refusal to do so would be "inconsistent with substantial justice." Fed.R.Civ.P. 61.

III

A. Exclusion of Expert Testimony

Plaintiff offered Buddy Ay as an expert in marine asbestos insulation techniques. Ay has worked in the field of asbestos insulation for 30 years. He worked as an insulator for the Navy from 1960 through 1981. He also served as an asbestos safety consultant for the National Cancer Society from 1977 through 1979. Ay retired from the Navy in 1981 and now runs his own insulation business. Ay has testified frequently as an expert in asbestos cases.

Rogers spent some of his time in a canvas enclosure teaching various skills, including the use of a pneumatic chipping gun to remove asbestos insulation. Plaintiff's offer of proof indicates that Ay would have explained the job of chipping and the amount of dust that would have been created in the canvas enclosure. He would have shown samples of asbestos products to the jury. Finally, Ay would have described the types of insulation that were used on World War II Liberty ships and how they were installed. He would also have identified what type of asbestos dust would become airborne in a given work setting and the type of work settings that existed in 1945.

Ay's knowledge of shipyard conditions during the War came from discussions with insulators of that period, including his father and his father's friends. In addition, although Ay did not himself build World War II Liberty ships, he did repair work on these ships in later years. By other witnesses plaintiff proposed to show that insulation practices during the War were the same as those used through the 1960's.

Rule...