Adkins v. GAF Corp.

• Decision Date: 17 November 1988
• Docket Number: No. C-1-85-1395.,C-1-85-1395.
• Citation: 706 F. Supp. 559
• Parties: Curtis and Mary ADKINS, Plaintiffs, v. GAF CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

706 F. Supp. 559

Curtis and Mary ADKINS, Plaintiffs, v. GAF CORPORATION, et al., Defendants.

No. C-1-85-1395.

United States District Court, S.D. Ohio, W.D.

November 17, 1988.

COPYRIGHT MATERIAL OMITTED

M. Catherine Lacinak, Kircher & Phalen, Michael D. Eagen, Cincinnati, Ohio, for plaintiffs.

Jane E. Garfinkel, Smith & Schnacke, Cincinnati, Ohio, for defendants.

ORDER

HERMAN J. WEBER, District Judge.

This matter is before the Court upon the return of the special verdict of the jury after trial on the claims of plaintiffs Curtis and Mary Adkins against defendants Carey Canada, Inc. ("Carey") and GAF Corporation ("GAF"), and pursuant to a trial to the Court, in the same proceeding, on plaintiffs' claims against defendants Asbestos Corporation, Ltd. ("ACL") and Celotex Corporation ("Celotex"). The jury made findings against Carey and GAF and advisory findings against ACL. The Court made findings on the record pursuant to cross-motions by plaintiffs and Celotex for directed verdict made at the conclusion of all the evidence on the claims against Celotex. The Court granted the Motion of plaintiffs and denied the Motion of Celotex.

First, the Court will make findings of fact and conclusions of law as to the determination of liability and damages with respect to defendant ACL. Second, in light of the most recent decisions of the Ohio Supreme Court and the United States Court of Appeals for the Sixth Circuit with regard to intentional torts, Van Fossen v. Babcock & Wilcox Company, 36 Ohio St. 3d 100, 522 N.E.2d 489 (1988); Pariseau v. Wedge Products, Inc., 36 Ohio St.3d 124, 522 N.E.2d 511 (1988); Kunkler v. Goodyear Tire & Rubber Company, 36 Ohio St.3d 135, 522 N.E.2d 477 (1988); Pratt v. National Distillers & Chemical Corporation, 853 F.2d 1329 (6th Cir.), reh'g denied September 19, 1988, this Court is required to find, contrary to its previous decision in this case, that plaintiffs retain the right to a trial by jury on their intentional tort claims against Celotex and, therefore, the Court will revisit all issues relevant to those claims.

Findings of Fact

Asbestos is a naturally occurring fibrous mineral. It is mined from rock formations, crushed, processed and packaged for resale to users.

Historically, asbestos has had wide use, owing to its high tensile strength and fire-resistance.

ACL mines chrysotile asbestos. The chrysotile asbestos sold by ACL is processed raw asbestos fiber.

Asbestos exposure causes asbestosis. This fact was general knowledge in the asbestos industry in the State of Ohio at least after 1945.

Not every exposure to asbestos, however, causes asbestosis. The incidence of asbestosis associated with asbestos exposure depends on many different factors, including the intensity of exposure, length of exposure, individual characteristics of the exposed individual, and other factors.

Asbestosis 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 Public 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. An exposure level of 5MPPCF of air 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 pertinent to this litigation, 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.

Celotex, formerly Philip Carey, is a manufacturer of products used in the construction industry. Many of its products, such as cement, millboard, cement board, insulation, shingles and roofing paper contained asbestos. At any one time during the period of time relevant to this case, the Celotex manufacturing facility in Lockland, Ohio employed over 1,000 workers, and the company's products were made in different buildings at the plant.

In 1951, Mr. Adkins began his employment at the Celotex plant in Lockland where he worked until 1987.

During the period of his employment, Mr. Adkins worked at different jobs at the Celotex Lockland plant, including positions in the cement plant, the felt mill, the paint house, and he unloaded railroad cars which transported ACL's processed asbestos fiber in burlap or paper bags to Celotex.

While Mr. Adkins worked at Celotex, asbestos containing dust was visible in the air in his breathing zone at the Celotex Lockland plant including 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.

During his work at Celotex, Mr. Adkins was exposed to processed asbestos fiber sold by ACL in amounts exceeding the levels established by Regulation 247 of the Legal Requirements for the Prevention and Control of Industrial Public Health Hazards.

At no time did Celotex or ACL ever specifically tell Mr. Adkins that asbestos might be hazardous to his health.

Regulation 254 of the Legal Requirements for the Prevention and Control of Industrial Public Health Hazards mandated that Celotex warn its employees of the hazards of using toxic substances in the workplace.

The Legal Requirements for the Prevention and Control of Industrial Public Health Hazards placed a duty on Celotex to protect Mr. Adkins from exposure to unsafe levels of asbestos fiber.

During Mr. Adkins' employment, Celotex utilized exhaust fans and ventilation equipment in some areas of the plant to reduce exposure to dust. In addition, Celotex performed air sampling and monitoring and had work rules requiring the use of respirators on certain jobs.

In 1962, Philip Carey, predecessor to Celotex, hired Dr. Thomas Mancuso, an occupational physician and former Chief of the Division of Industrial Hygiene of the Ohio Department of Health. One of his duties for Philip Carey was to study and report to Philip Carey on the asbestos exposure of the workers in the Celotex Lockland plant.

While he was the Chief of the Division of Industrial Hygiene, Dr. Mancuso, in or around 1945, drafted the regulations and standards set out in Legal Requirements for the Prevention and Control of Industrial Public Health Hazards, including the 5MPPFC limit on asbestos exposure.

In 1963, Dr. Mancuso transmitted to Philip Carey's corporate officers numerous medical articles by leading authorities in the field detailing the hazardous nature of asbestos and its deleterious effects on human health under certain conditions.

Based on his personal inspection of the Celotex Lockland plant, Dr. Mancuso concluded that workers were being exposed to levels of asbestos substantially in excess of the concentrations permitted in the Legal Requirements for the Prevention and Control of Industrial Public Health Hazards.

In 1963, Dr. Mancuso submitted a report to Philip Carey indicating the areas of the Celotex Lockland plant which required immediate attention so as to control and reduce the hazards of asbestos dust which he had found.

During the period of Mr. Adkins' employment, Celotex had knowledge of the hazards of asbestos exposure and its duty to protect employees from exposure levels exceeding the limits set by the State of Ohio.

At all times relevant to this case, Celotex could have reduced the level of asbestos exposure in the Lockland plant by better use of ventilation, housekeeping and respirator programs.

During the period of Mr. Adkins' employment, Carey Canadian Mines was a wholly-owned subsidiary of Philip Carey and later became a corporate affiliate of the Celotex Corporation.

In the 1950's, 1960's and 1970's, Philip Carey, Celotex and Carey Canadian Mines had directors and officers in common.

Prior to 1951, the mining companies located in Thetford Mines, including Carey Canadian Mines and ACL, funded a medical clinic known as the Thetford Industrial Clinic and hired Dr. Paul Cartier as its director.

During his tenure at the Thetford Industrial Clinic, Dr. Cartier was engaged in medical research on asbestos related diseases. As director of the Thetford Industrial Clinic, Dr. Cartier participated in meetings of the leading doctors, scientists and industrial hygienists on the subject of asbestos and asbestos related diseases. Dr. Cartier was a speaker at the Seventh Saranac Symposium in 1952 and at the meeting of the New York Academy of Sciences in 1964 where he spoke on asbestos related diseases. Dr. Gerritt W.H. Schepers, Dr. Thomas Mancuso and Dr. Irving Selikoff were also present at the meeting at the New York Academy of Sciences in 1964, as were many of the leading participants in the asbestos industry.

From 1949 until the mid-1970's, Dr. Cartier published articles on asbestos related diseases in widely distributed medical journals. Those journals included the Journal of the Americal Medical Association, The Archives of Industrial Hygiene and Occupational Medicine, and The Archives of Environmental Health.

Carey Canadian Mines and ACL were aware of Dr. Cartier's activities and of his findings regarding asbestos related diseases.

Owing to their common officers and directors, Carey Canadian Mines' knowledge of the dangers of asbestos fiber was known by Celotex.

Based on the available medical and scientific evidence in the 1940's, 1950's, 1960's and 1970...