Adkins v. GAF Corp.

• Decision Date: 21 February 1991
• Docket Number: Nos. 89-3537,89-3538,s. 89-3537
• Citation: 923 F.2d 1225
• Parties: Prod.Liab.Rep.(CCH)P 12,710 Curtis ADKINS and Mary Adkins, his wife, Plaintiffs-Appellees (89-3537), Cross Appellants (89-3538), v. GAF CORPORATION, et al., Defendants, Asbestos Corporation, Ltd., Defendant-Appellant (89-3537), Cross Appellee (89-3538).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1225

923 F.2d 1225

Prod.Liab.Rep.(CCH)P 12,710

Curtis ADKINS and Mary Adkins, his wife Plaintiffs-Appellees (89-3537), Cross Appellants (89-3538), v. GAF CORPORATION, et al., Defendants Asbestos Corporation, Ltd., Defendant-Appellant (89-3537) Cross Appellee (89-3538).

Nos. 89-3537, 89-3538.

United States Court of Appeals Sixth Circuit.

Argued Nov. 13, 1990.

Decided Jan. 23, 1991.

Rehearing Denied Feb. 21, 1991.

M. Catherine Lacinak, Kircher & Phalen, Scott E. Knox, Adams, Thienhaus & Knox, Cincinnati, Ohio, Robert L. Jennings, Jr. (argued), Henderson & Goldberg, Pittsburgh, Pa., for Curtis & Mary Adkins.

Michael D. Eagen, Bloom & Greene, Cincinnati, Ohio, for GAF Corp. and Carey Canada, Inc.

Jane E. Garfinkel (argued), John T. Sunderland, Sandra P. Kaltman, Thompson, Hine & Flory, Cincinnati, Ohio, for Asbestos Corp., Ltd.

Before KRUPANSKY, GUY and SUHRHEINRICH, Circuit Judges.

KRUPANSKY, Circuit Judge.

This appeal by the defendant-appellant Asbestos Corporation, Ltd. (ACL) follows a judgment and award of damages to the plaintiffs-appellees Curtis Adkins and Mary Adkins (Adkins). The stock of ACL is owned by a Canadian crown corporation, and, thus, ACL is an instrumentality of a foreign government and not subject to jury trials in the United States. 28 U.S.C. Sec. 1603; 28 U.S.C. Sec. 1330. Since various claims were submitted to the jury with respect to the other defendants-appellees who were subject to jury trials, the trial court decided to submit all issues with respect to ACL to the jury on an advisory basis. The jury returned a special verdict in favor of Adkins and against ACL. The trial court adopted the advisory jury's verdict and entered its findings of fact and conclusions of law. It also adopted, without elaboration, the advisory jury's damages award. For the reasons that follow, we affirm the trial court's determination of ACL's liability, but vacate and remand the damages award for findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

I.

The trial court made the following findings of fact, which are reported in Adkins v. GAF Corp., 706 F.Supp. 559 (S.D. Ohio 1988).

ACL mines chrysotile asbestos, which is a naturally occurring fibrous mineral. It is mined from rock formations and then crushed, processed and packaged for resale to users. The chrysotile asbestos sold by ACL is processed raw asbestos.

From at least 1945, it was general knowledge in the State of Ohio that asbestos exposure causes asbestosis, which is an interstitial lung disease involving primarily the parenchyma of the lung. At all times relevant to this case, asbestos use in Ohio was regulated by the Ohio Department of Health's Legal Requirements for the Prevention and Control of Industrial Health Hazards, which specified a maximum allowable concentration for exposure to dust containing asbestos fiber. Regulation 247 of the Legal Requirements for the Prevention and Control of Industrial Public Health Hazards expressly stated that the maximum allowable concentration for asbestos exposure in Ohio was five million particles of dust containing asbestos per cubic foot of air ("5MPPCF") or below for an eight hour period. This level of asbestos is not visible to the naked eye. Pursuant to the 1946 Ohio regulations, asbestos exposure levels in workplaces were to be measured in the so-called "breathing zone" of the worker, which is the immediate cubic area around the head and face of the worker. At all times relevant to this case, it was the prevailing scientific and medical opinion that asbestos could be used safely for its ordinary and intended industrial applications if limitations on exposure were observed.

Prior to 1951, the mining companies located in Thetford Mines, including ACL, funded a medical clinic known as the Thetford Industrial Clinic and hired Dr. Paul Cartier as its director. During his tenure at the clinic, Dr. Cartier was engaged in medical research on asbestos related diseases. As director of the clinic, Dr. Cartier participated in meetings of the leading doctors, scientists and industrial hygienists on the subject of asbestos and asbestos related diseases. From 1949 until the mid-1970s, Dr. Cartier published articles on asbestos in widely distributed medical journals. ACL was aware of Dr. Cartier's activities and of his findings regarding asbestos related diseases. Some of Dr. Cartier's research was conducted on ACL's own mining employees. In addition, based on the available medical and scientific evidence in the 1940s, 1950s, 1960s and 1970s, exposure to asbestos fiber in certain concentrations was known by the defendants to cause asbestosis.

In 1951, Mr. Adkins began his employment at the Celotex plant in Lockland where he worked until 1987. Celotex manufactures products used in the construction industry. Many of its products, such as cement, millboard, cement board, insulation, shingles, and roofing paper, contained asbestos. During his employment he worked at different jobs, including positions in the cement plant, the felt mill, and the plant house. He also unloaded railroad cars which transported ACL's processed asbestos fiber in burlap or paper bags to Celotex. While he worked at Celotex, asbestos containing dust was visible in the air of his breathing zone, including the interior of the railroad cars. As an exposure level of 5MPPCF (5,000,000) of air is not visible to the naked eye, where heavy dust concentrations are visible, fiber exposure may be as high as eight hundred million (800,000,000) fibers per cubic foot. At no time did Celotex or ACL specifically advise Mr. Adkins that asbestos could be hazardous to his health. One of the suppliers of asbestos fiber to the Celotex plant was ACL. Other suppliers were Johns-Manville, GAF, and Carey Canadian Mines. The latter supplied approximately 50 percent of the raw asbestos fiber used by Celotex at the plant.

During the 1950s and 1960s, processed raw asbestos fiber was sold by the mining companies in burlap and paper bags. All the mining companies sold raw asbestos fiber in the same manner. At all time relevant to this case, ACL gave no warning of any kind on its bags of processed raw asbestos fiber or otherwise that excessive exposure to asbestos fiber caused asbestosis. In addition, ACL knew in detail how the Celotex Lockland plant was operated. Its sales personnel visited the Celotex plant once every two months for years.

Mr. Adkins, who smoked cigarettes from 1962-1982, has asbestosis. He was exposed to processed asbestos fibers sold by ACL to Celotex during his employment at Celotex.

ACL presents three arguments on appeal. First, that the trial judge improperly applied principles of strict liability. Second, that it is not subject to negligence liability because Celotex knew of the hazards associated with asbestos and because Celotex failed to maintain a safe workplace for its employees. And finally, that the damages award is excessive and unsupported by the evidence.

II.

A.

ACL claims that the trial judge improperly based its imposition of strict liability upon ACL's failure to warn of asbestos's dangerous qualities and upon its defective packaging of asbestos. ACL also claims that raw asbestos fiber, as a natural substance, cannot be considered a defectively designed "product" for purposes of strict liability.

The trial court applied the consumer-expectation test in determining that ACL was strictly liable for the design defect in the processed asbestos. The court stated that the "asbestos product sold by ACL to the Celotex Lockland facility during the period of Mr. Adkins' employment was in a defective condition unreasonably dangerous in that it was more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." 706 F.Supp. at 564. Ohio recognizes that product defects may be proven by applying the consumer-expectation standard. State Farm Fire & Casualty Co. v. Chrysler Corp., 37 Ohio St.3d 1, 523 N.E.2d 489 (1988); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977) (adopting section 402A of the Restatement (Second) of Torts (1965)).

The trial court correctly noted that ACL could not be held strictly liable based upon the failure to warn. However, the failure to warn, as well as the defective packaging, were part of "the totality of the circumstances which make [the] product defective." 706 F.Supp. at 565. The presence or absence of a warning is a factor to consider when evaluating what an ordinary consumer would expect when using the product. Leichtamer v. American Motors Corp., 67 Ohio St.2d 456, 424 N.E.2d 568, 578 (1981) (noting that comment j to section 402A of the Restatement provides that a warning or directions as to the use of a product may prevent it from being unreasonably dangerous); Krosky v. Ohio Edison Co., 20 Ohio App.3d 10, 484 N.E.2d 704 (1984) (failure to provide warning of dangerous condition is defect which is unreasonable and gives rise to strict liability cause of action). ¹ The packaging of a product is also an element to consider when determining whether the consumer would reasonably expect the content of the package to pose the danger it did. See, e.g., Leichtamer, 67 Ohio St.2d at 464, 424 N.E.2d at 578 (the admission of television commercials was highly relevant to the formulation of consumers' expectations of safety and intended use). Thus, the court was correct in considering these factors in evaluating the totality of the circumstances from which the consumers' expectation would have been formed. Knitz v. Minster Machine Co., 69 Ohio St.2d 460, 432 N.E.2d 814, cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982).

The asbestos sold by ACL was clearly a product for purposes of strict liability. Strict liability extends "to any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate consumer or user." Restatement (Second) of Torts Sec....