Allen v. Owens-Corning Fiberglas Corp.

• Decision Date: 12 September 1997
• Docket Number: Docket No. 190696,OWENS-CORNING
• Citation: 225 Mich.App. 397,571 N.W.2d 530
• Parties: Lynn ALLEN, Copersonal Representative of the Estate of James R. Upham, Deceased, Plaintiff-Appellee, v.FIBERGLAS CORPORATION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 530

571 N.W.2d 530

225 Mich.App. 397

Lynn ALLEN, Copersonal Representative of the Estate of James R. Upham, Deceased, Plaintiff-Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant.

Docket No. 190696.

Court of Appeals of Michigan.

Submitted March 4, 1997, at Detroit.

Decided Sept. 12, 1997, at 9:25 a.m.

Released for Publication Dec. 23, 1997.

Jo Ann M. Carlson, Detroit, for plaintiff-appellee.

Kitch, Drutchas, Wagner & Kenney P.C. by Linda M. Garbarino and Mark A. Wisniewski, Detroit, for defendant-appellant.

Before MARK J. CAVANAGH, P.J., and REILLY and WHITE, JJ.

PER CURIAM.

Defendant, Owens-Corning Fiberglas Corporation, appeals as of right the jury verdict in favor of plaintiff in this products liability action. We affirm.

The decedent, James Upham, filed this action in December 1993, shortly after he was diagnosed with mesothelioma. After he died in February 1994, his daughter, Lynn Allen, was appointed copersonal representative of his estate and was substituted as party plaintiff.

The decedent was a welder at the General Motors Buick plant in Flint from 1952 to 1988. Testimony at trial established that the decedent had been exposed to "Kaylo," a product manufactured and distributed by defendant, ¹ during the course of his employment. Kaylo was a pipe covering and block insulation product that contained approximately fifteen percent asbestos. In 1972, all asbestos was removed from the Kaylo product line.

Shortly before trial, plaintiff moved in limine to preclude defendant from presenting any evidence regarding the decedent's alleged exposure to other sources of asbestos. Defendant opposed the motion, arguing that exposure to other products was pivotal to the issue of causation. Defendant further maintained that a jury could not determine whether its product was a substantial factor in causing the decedent's injury if it were given no information concerning the decedent's exposure to other manufacturers' asbestos products.

The trial court initially ruled that evidence of the decedent's exposure to other manufacturers' products was admissible. However, after the close of proofs, plaintiff brought a motion to strike the testimony regarding the decedent's exposure to other asbestos products. Plaintiff argued that defendant had failed to produce any evidence that exposure to asbestos products other than those of defendant was the sole cause of the decedent's mesothelioma. The trial court granted plaintiff's motion. In addition, the trial court instructed the jury as follows:

[Y]ou are instructed that as a matter of law I have found that you should disregard any and all testimony or proof regarding James Upham's exposure to other asbestos-containing products not manufactured or distributed by the defendant, Owens-Corning Fiberglas. Such testimony and proof is stricken and should be disregarded and not considered by you in deciding the issues in this case.

The jury found that defendant was negligent and that defendant's negligence was the cause of the decedent's injury. The jury awarded damages of $1 million to the decedent's estate and $250,000 to each of his two daughters.

I

A

Defendant argues that the trial court erred in striking all the evidence of the decedent's exposure to the asbestos products of other manufacturers. Defendant notes that the decedent testified at deposition that he had worked with the products of various other companies, and his co-workers testified about the use of other companies' products as well.

We review a trial court's evidentiary rulings for an abuse of discretion. An abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences perversity of will or the exercise of passion or bias rather than the exercise of discretion. Mina v. General Star Indemnity Co., 218 Mich.App. 678, 687-688, 555 N.W.2d 1 (1996).

To prove that defendant is liable for the injury to plaintiff's decedent, plaintiff must show that defendant's conduct was a proximate cause of the injury. See Moll v. Abbott Laboratories, 444 Mich. 1, 16, 506 N.W.2d 816 (1993). In order to show proximate cause, plaintiff must prove that the injury was a probable, reasonably anticipated, and natural consequence of the defendant's negligence. See McLean v. Rogers, 100 Mich.App. 734, 736, 300 N.W.2d 389 (1980). A plaintiff in a products liability action need not offer evidence that positively excludes every other possible cause. It is enough that a plaintiff establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories. Skinner v. Square D Co., 445 Mich. 153, 179, 516 N.W.2d 475 (1994).

There may be more than one proximate cause of an injury. Two causes frequently operate concurrently so that both constitute a direct proximate cause of the resulting harm. Therefore, a defendant cannot escape liability for its negligent conduct simply because the negligence of others may also have contributed to the injury suffered by a plaintiff. When a number of factors contribute to produce an injury, one actor's negligence will be considered a proximate cause of the harm if it was a substantial factor in producing the injury. Brisboy v. Fibreboard Corp., 429 Mich. 540, 547, 418 N.W.2d 650 (1988).

In challenging the trial court's refusal to allow the jury to consider testimony regarding the decedent's exposure to other asbestos products, defendant relies on Laney v. Celotex Corp., 901 F.2d 1319 (C.A.6, 1990). Laney was also a personal injury case arising from asbestos exposure. In that case, the federal Court of Appeals for the Sixth Circuit held that the trial court had erred in excluding evidence proffered by the defendant about the plaintiff's exposure to other asbestos products. The Laney court reasoned:

[E]vidence of Plaintiff's exposure to other asbestos products goes to the fundamental question of cause. A jury may consider all evidence of contributing factors to determine which, if any, were substantial factors in causing Plaintiff's injury. The substantial factor analysis cannot be made in a vacuum. [Id. at 1321.]

Although this Court is not bound by a federal court decision construing Michigan law, it may follow the decision if the reasoning is persuasive. See Royalite Co. v. Federal Ins. Co., 184 Mich.App. 69, 75, 457 N.W.2d 96 (1990). We are persuaded that the decision in Laney is correct. To exclude evidence of other exposures to asbestos is to force the jury to decide whether the defendant's product was a substantial factor in producing the plaintiff's injury "in a vacuum." See Laney, supra at 1321.

Under Michigan law, a defendant may introduce evidence that the plaintiff's injury is attributable to another's negligence, even if the alleged negligent actor is not a party to the action. Mitchell v. Steward Oldford & Sons, Inc., 163 Mich.App. 622, 627, 415 N.W.2d 224 (1987). Thus, defendant's attempt to attribute the decedent's illness to other manufacturers' asbestos products was a legitimate effort to rebut plaintiff's claim.

Proximate cause is usually a factual issue for the jury to determine. Alar v. Mercy Memorial Hosp., 208 Mich.App. 518, 537, 529 N.W.2d 318 (1995). When multiple factors contribute to produce the plaintiff's injury, one actor's negligence will be considered a proximate cause of the harm if it was a substantial factor in producing the injury. Brisboy, supra. One of the considerations in determining whether negligent conduct is a "substantial factor" in producing an injury is "the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it." 2 Restatement Torts, 2d, § 433(a), p. 432. Thus, in order to determine whether a particular factor was a substantial factor in causing a plaintiff's injury, a jury should be permitted to weigh evidence of other contributing factors. In the present case, whether the decedent's "exposure to defendant's product was significant in terms of intensity and when viewed in the scope of [the decedent's] entire work history" was a question for the jury. See Brisboy, supra at 550, 418 N.W.2d 650.

Plaintiff argues that allowing defendant to introduce evidence of the decedent's exposures to other asbestos products would have been more prejudicial than probative and would only have served to confuse the jury. Under MRE 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Unfair prejudice exists when marginally relevant evidence might be given undue or preemptive weight by the jury or when it would be inequitable to allow use of such evidence. Haberkorn v. Chrysler Corp., 210 Mich.App. 354, 361-362, 533 N.W.2d 373 (1995).

Contrary to plaintiff's argument, evidence of the decedent's exposure to the asbestos products of other manufacturers would not have been more prejudicial than probative. Proximate cause is an essential element of plaintiff's case. See Moll, supra. In order for the jury to determine whether defendant's product was a substantial factor in producing the decedent's injury, and therefore a proximate cause of the injury, it must be permitted to consider the number of other factors that contributed to produce the harm. See Restatement, supra. Accordingly, we find that the trial court abused its discretion in excluding evidence of the decedent's exposures to other manufacturers' asbestos products.

B

We have concluded that the trial court erred in excluding evidence of the decedent's exposure to other asbestos products. Nevertheless, we find that the error was harmless because plaintiff presented sufficient evidence to establish that exposure to defendant's product was a substantial cause of the decedent's mesothelioma. Cf. Fibreboard Corp. v. Pool, 813 S.W.2d 658, 695 (Tex.App., 1991), cert. den. 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993) (finding that the trial court's error in...