Adams v. Johns-Manville Sales Corp., JOHNS-MANVILLE

• Decision Date: 23 March 1984
• Docket Number: JOHNS-MANVILLE,No. 82-4550,82-4550
• Parties: Ernest E. ADAMS, Plaintiff-Appellant, v.SALES CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 533

727 F.2d 533

Ernest E. ADAMS, Plaintiff-Appellant, v. JOHNS-MANVILLE SALES CORPORATION, et al., Defendants-Appellees.

No. 82-4550.

United States Court of Appeals, Fifth Circuit.

March 23, 1984.

Jane Saginaw, Brent W. Rosenthal, Russell W. Budd, Dallas, Tex., for plaintiff-appellant.

Thomas W. Davenport, Jr., Monroe, La., for Eagle-Picher Industries, Inc.

George A. Weller, Beaumont, Tex., for Fibreboard Corp.

Dewey J. Smith, Monroe, La., for Celotex Corp.

Orgain, Bell & Tucker, John G. Tucker, Beaumont, Tex., for GAF Corp.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, GARZA and JOLLY, Circuit Judges.

CLARK, Chief Judge:

Ernest Adams, a former commercial insulator, brought this action in diversity seeking recovery for injuries allegedly resulting from his exposure to the defendants' asbestos products. He appeals the jury verdict for the defendants on the grounds that the district court erroneously excluded evidence of his increased risk of cancer and of his future damages, and erroneously denied a new trial. We affirm.

I. Facts and Procedural Background

Adams worked full-time as a commercial insulator from 1951 through 1956 and from 1960 through 1966. During the years 1957 through 1959, he served in the Marines, doing only a "few days" insulation work while home on leave. From 1967 through 1972, he did part-time insulation work, working full-time in his family's dry-cleaning business. Currently, he is president of his own insulation contracting business and personally performs little if any insulation work.

Before starting his own business, Adams would get insulation jobs when his union referred various employers to him. He testified that he had worked on "thousands of jobs" for various contractors, sometimes doing several jobs a day and sometimes working on a single job for one or two months.

Adams testified that he had done solely commercial and industrial insulation work. He insulated heating and air conditioning systems, pipes, and boilers. Adams testified that he often worked in closed environments and that dust became very thick as insulators sawed and pounded insulation materials.

Adams testified that he regularly used asbestos blocks, premolded asbestos pipe insulation, and asbestos cement, as well as numerous other non-asbestos insulation products. He testified that he never saw any warning labels on the asbestos products. He wore no respirator or other protective gear.

Adams was unable to recall the manufacturer of every asbestos product used on every job, but he did recall using specific products on specific jobs during his insulating career. He recalled using many other asbestos products without being able to recall the specific dates and places.

On July 18, 1979, Adams filed suit against thirteen manufacturers of asbestos products, seeking recovery under theories of strict liability, negligence, and breach of warranty for injuries allegedly caused by his exposure to asbestos. The complaint alleged damages of lost earning capacity, medical expenses, and emotional and physical pain and suffering. The complaint did not specifically identify the nature of the alleged physical injury.

During the trial, Adams testified that as of the time he had filed his complaint, he had in fact lost no wages and incurred no medical expenses for treatment of any asbestos-related disease. In July, 1980, and again in October, 1981, Adams had consulted a Houston toxicologist, Dr. Eric Comstock, who appeared at trial as Adams' expert witness. The evidence indicated that at the times of these examinations, Adams had complained of none of the symptoms normally associated with asbestosis. He had no shortness of breath, chest pain, or cough. Adams had suffered some dizziness, but Dr. Comstock attributed it to Adams' recent dieting.

Dr. Comstock testified that he had detected abnormal breathing sounds in Adams' lungs ("crackling rales"), some pleural calcification, and a "minimal obstructive ventilatory defect." Dr. Comstock's diagnosis was "pleural and parenchymal fibrosis, secondary to occupational exposure to asbestos. That interprets to asbestosis." Dr. Comstock testified that it was a progressive condition.

The defendants' expert, Dr. Arthur Tillinghast, examined Adams in February, 1982. Dr. Tillinghast testified that Adams had complained of no specific symptoms of asbestos-related disease. Dr. Tillinghast testified that X rays revealed a small amount of calcification and scarring in Adams' lungs, consistent with asbestos exposure. He also noted a small amount of airway obstruction, "probably from the years of smoking." ¹ Dr. Tillinghast concluded that Adams did not meet the criteria "for being symptomatic from any kind of disease." Dr. Tillinghast was unable to predict, on the basis of his one examination, whether Adams would develop asbestos-related disease in the future.

Four defendants settled before trial. ² Raybestos-Manhattan, Inc. was dismissed from the action with prejudice. In response to special interrogatories, ³ the jury found that Adams had not been exposed to the asbestos insulation products of three of the eight remaining defendants. ⁴ With respect to Fibreboard Corp. and Celotex Corp., the jury found that Adams had been exposed to their asbestos products, but that there were no defects in their asbestos products to which Adams had been exposed. With respect to Johns-Manville Sales Corp., Eagle-Picher Industries, Inc., and GAF Corp., the jury found that Adams had been exposed to their asbestos products and that those products were defective, but that the defects were not the legal cause of any injury to Adams. The jury awarded Adams no damages.

The trial court denied Adams' motion for a new trial. Adams appeals the judgment only with respect to Eagle-Picher Industries, Inc., GAF Corp., Fibreboard Corp., and Celotex Corp. ⁵

II. Damages for Increased Risk of Future Cancer

The trial court excluded all evidence of Adams' alleged increased risk of cancer resulting from exposure to asbestos. The trial court explained its reasons for excluding the evidence:

Plaintiff Adams does not now have cancer and by whatever definition plaintiff wishes to use, any reference that he may or might have cancer in the future is only a possibility. There can be no causal link with an injury when that injury hasn't yet occurred so ... I stand by the ruling I made at the pretrial conference that no evidence regarding cancer will be submitted to this jury ....

Adams argues that the trial court erred in this ruling, because the excluded cancer evidence was admissible to prove his claim for recovery of damages for sustaining an increased risk of future injury. We affirm the trial court's exclusion of the evidence.

In Jackson v. Johns-Manville Sales Corp., 727 F.2d 506 (5th Cir. 1984), also decided today, we held that, under Mississippi substantive law, a cause of action for prospective cancer does not accrue upon the manifestation of the physically separate and distinct injury of asbestosis. We reasoned that lack of the requisite element of causation of cancer foreclosed a cause of action for prospective cancer. We also found that the equities of this situation weighed in favor of not recognizing the cause of action for cancer until the plaintiff knows or with the exercise of reasonable diligence should have discovered that he has contracted cancer.

Louisiana substantive law compels the same results. The Louisiana Supreme Court has observed that special considerations inform the accrual of a cause of action for limitations purposes where the damages result from a non-traumatic initial exposure to the source of potential harm.

In modern technology damages from industrial emissions and the like may not become apparent until some years after the occurrence. Additionally, it might be impossible for the injured party to know what or who caused the damage, until an investigation can be made after the damage in fact becomes apparent. In such cases, the prescriptive period would run only from the date the damage becomes apparent.

Dean v. Hercules, Inc., 328 So.2d 69, 73 (La.1976). See also Bordelon v. Crutcher, 430 So.2d 1107, 1109 (La.App.1983).

This court held in R.J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir.1963) that, under Louisiana law, for limitations purposes, a cause of action against a tobacco company for cancer resulting from tobacco use did not accrue until the "disease manifested itself to the point when [the plaintiff] knew, or should have known, that the damages he sustained, which were the subject of his suit, resulted from smoking the defendant's tobacco products." Id. at 786.

Likewise, in DeLaughter v. The Borden Co., 364 F.2d 624, 629 (5th Cir.1966), we distinguished times of maturity for causes of action based on traumatic and non-traumatic injuries:

We ... hold that where an act does not effect a traumatic injury but produces its ill effect by the passage of time, and it would be impossible to designate the exact moment when the act produced the requisite damage to start the running of the statute of limitations, we allow recovery for all damages sustained within one year prior to filing suit.

We observed in Jackson that, as the two issues relate to the underlying theory of causation, the determination of the time of accrual of a cause of action for limitations purposes involves identical values as the determination of when a cause of action arises for prospective injuries from exposure to asbestos. We determined that the requisite element of causation is lacking until separate prospective injuries materialize.

We found further that it would be inequitable to hold defendants presently liable for uneffected future harms, whereas the plaintiff would suffer little if any injury by being required to await manifestation of cancer before being able to sue on a claim for damages resulting from that class of...