Ball v. Johns-Manville Corp.
| Decision Date | 18 June 1993 |
| Docket Number | OWENS-ILLINOIS,JOHNS-MANVILLE |
| Citation | 625 A.2d 650,425 Pa.Super. 369 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,617 Russell N. BALL and Ethel F. Ball v.CORP., Johns-Manville Sales Corp., Raybestos Manhattan, Inc., Forty-Eight Insulation, Inc., Nicolet, Inc., Pittsburg Corning Corp., GAF Corp., Owens Illinois Glass Co., Unarco Industries, Inc., H.K. Porter Co., J.P. Stevens Co., Eagle Picher Industries, Garlock, Inc., U.S. Rubber Co. and Uni-Royal Inc., Celotex Corp., Pacor, Inc., Amatex Corp., Asbestos Textile Institute, Owens-Corning Fiberglas Corp., Asten Hill Manufacturing Co., Keasbey Mattison Co., and Keene Corp. Appeal ofINC., Appellant. |
| Court | Pennsylvania Superior Court |
Kimberly Waldron, NJ, for appellant.
Faithe Moore, Philadelphia, for appellee.
Before BECK, JOHNSON and HOFFMAN, JJ.
This appeal raises issues relating to the quantum of evidence necessary to establish product nexus in an asbestos case. These issues arise both in the context of the plaintiff's case against non-settled defendants and in the context of the non-settling defendants' cross-claims against other defendants who either settled, filed for bankruptcy or were dismissed on summary judgment prior to trial.
Plaintiffs-appellees, Russell Ball and his wife Ethel, brought this action in the Court of Common Pleas of Philadelphia County claiming damages due to Mr. Ball's occupational exposure to asbestos. Appellant Owens-Illinois Glass Company ("Owens") was named as a defendant along with 21 other defendants who allegedly manufactured, distributed or supplied asbestos-containing products to which Mr. Ball was exposed. Owens asserted cross-claims against all other defendants.
The Balls' case was consolidated for trial with three other cases in which damages for occupational exposure to asbestos were also sought. A jury trial commenced on January 28, 1991 before the Honorable Lawrence Prattis. Owens and Keene Corporation were the only defendants remaining at the time of trial, all others having either settled, declared bankruptcy or been dismissed on summary judgment.
At the close of plaintiffs' case, the trial court denied Owens' motion for nonsuit based on plaintiffs' failure to establish a product nexus under the standard enunciated in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, alloc. denied, 520 Pa. 605, 553 A.2d 968 (1988). The trial court also denied Owens' motion for nonsuit on Mrs. Ball's loss of consortium claim. At the close of Owens' case, Owens renewed these motions, which were again denied.
Owens also requested that the trial court pose special interrogatories to the jury in which the jury would be asked to find that all the originally named defendants and several other parties who had not been sued had contributed to Mr. Ball's injuries and, further, would be asked to apportion liability among those entities. The trial court refused to submit these interrogatories to the jury. As to the bankrupt entities, the trial court decided that no findings could be made against them without violating the stay of proceedings imposed by the bankruptcy court. As to the others, the court found insufficient evidence to support the submission of their names to the jury and to permit apportionment of liability. Only Owens and Keene were placed on the verdict sheet.
The jury returned a verdict in favor of Mr. Ball in the amount of $100,000 and in favor of Mrs. Ball in the amount of $20,000 against both Owens and Keene. The trial court thereafter denied Owens' and Keene's post-trial motions and entered judgment on the verdict, after having added delay damages. 1
Mr. Ball's claim for damages arose out of his employment at the Philadelphia Naval Shipyard. Mr. Ball was employed at the shipyard from 1951 to 1952 and from 1957 to 1982. In that period, he was employed as a pipe fitter and supervisor of other pipe fitters. Mr. Ball testified that while he was employed at the shipyard, he was continuously exposed to asbestos dust generated by a great variety of asbestos containing products, either through his own use of such products or through working in the same confined areas aboard ships, such as the fire or engine rooms, where other employees, such as pipe coverers, were using such products. Mr. Ball specifically identified six asbestos products, or their manufacturers, to which he was exposed: Unibestos, Owens-Illinois, Armstrong, Flexitallic, Consalco and Garlock. He was able to identify these products because he saw them come into his work area in their original containers which bore the name of the product. Mr. Ball also stated that he was exposed to dust from many other such products, although he could not specifically identify them, and that none of the products he was exposed to contained warnings of the health hazards they posed.
In addition to Mr. Ball's testimony, the trial court also heard the testimony of Mr. George Watts. Mr. Watts was employed at the Philadelphia Naval Shipyard from 1940 to 1974. He was initially employed as a pipe coverer and, beginning in 1961, was the supervisor of all pipe coverers at the shipyard. He confirmed Mr. Ball's testimony that pipe coverers and pipe fitters worked in very close proximity, that they worked with asbestos containing materials and that their work generated large amounts of asbestos dust. He identified Mr. Ball as a friend and co-worker and conf
irmed that Mr. Ball had worked in the areas of various ships where dust-generating asbestos work was continuously performed.
Mr. Watts was able to identify a long list of manufacturers of dust producing asbestos products that were interchangeably used at the shipyard in the areas where Mr. Ball worked. Mr. Watts identified the following:
Armstrong
Baldwin-Ehret-Hill (later became Keene Corp.)
Carey (later became Celotex)
Keasbey-Mattison (later became Nicolet)
Johns-Manville Corp.
Philadelphia Asbestos
Unarco (later became Pittsburgh Corning; manufacturer of Unibestos)
Owens-Illinois Glass Co. (later became Owens-Corning)
Fibreboard
GAF
H.K. Porter
J.P. Stevens
Eagle Picher
Garlock
Flexitallic
Consalco
Raybestos-Manhattan
U.S. Rubber/Uniroyal
Asten Hill
Amatex
Forty-Eight Insulation, Inc.
Mr. Ball also presented the testimony of medical witnesses to establish that he suffered from asbestos-related pleural thickening which was a contributing factor in his shortness of breath.
Appellant Owens-Illinois raises the following issues:
1. Whether the trial court erred in denying defendant's motions for non-suit and directed verdict based upon plaintiff's failure to prove the required product nexus.
2. Whether the trial court erred by resolving the factual issue of the joint tortfeasor status of other parties and denying defendant's request to charge the jury to determine the comparative liability of all parties listed on defendant's proposed verdict sheets.
3. Whether the trial court erred in submitting the loss of consortium claim to the jury because the record is devoid of any evidence to support the claim.
In reviewing these allegations of error, we note that we are bound by two different standards of review. Issues one and three obviously are directed at the trial court's denial of judgment n.o.v. in favor of appellant on the ground of insufficient evidence. In reviewing a denial of judgment n.o.v. based on the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992); Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 398, 592 A.2d 720, 723 (1991). In contrast, issue two alleges error in the trial court's failure to grant appellant a new trial at which the appellant's proposed special interrogatories and charge on apportionment would be given to the jury. In reviewing a refusal to grant a new trial, we determine whether the trial court committed an error of law or abused its discretion in a manner that controlled the outcome of the case. Beary v. Container General Corp., 368 Pa.Super. 61, 68, 533 A.2d 716, 719 (1987), alloc. denied, 520 Pa. 586, 551 A.2d 213 (1988).
We begin with appellant's challenge to the sufficiency of the evidence supporting Mr. Ball's claim for injuries due to exposure to appellant's products. Much has been written by this court and others regarding the quantum of evidence necessary to support a claim for injuries due to exposure to a specific asbestos containing product. An en banc panel of this court has most recently addressed the legal standard applicable to this question in Ottavio v. Fibreboard, 421 Pa.Super. 284, 617 A.2d 1296 (1992) (en banc), as follows:
In order for a defendant to be held liable in a products liability action, whether under a theory of negligence or strict liability, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-191, 544 A.2d 50, 52 (1988), allocatur denied 520 Pa. 605, 553 A.2d 968 (1988), citing Berkabile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). See also: Lilley v. Johns Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991); Bushless v. GAF Corp., 401 Pa.Super. 351, 585 A.2d 496 (1990); Bilk v. Abbotts Dairies, Inc., 147 Pa.Super. 39, 23 A.2d 342 (1941). In an asbestos action this requires that a plaintiff establish more than the mere presence of asbestos in the workplace. Plaintiff must prove that he worked in the vicinity of the products' use and that, hence, he inhaled asbestos fibers shed by the product of a specific manufacturer. Lilley v. Johns Manville Corp., supra; Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989); Eckenrod v. GAF Corp., supra, citing Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985).
Id. at 287, 617 A.2d at 1297-98.
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