O'Banion v. Owens-Corning Fiberglas Corp., OWENS-CORNING

Citation968 F.2d 1011
Decision Date30 June 1992
Docket NumberOWENS-CORNING,No. 90-5175,90-5175
Parties36 Fed. R. Evid. Serv. 220, Prod.Liab.Rep. (CCH) P 13,226 Stanley John O'BANION and Louise O'Banion, Plaintiffs-Appellants, v.FIBERGLAS CORP. and the Celotex Corporation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Mark H. Iola, Ungerman & Iola, Tulsa, Okl. (David L. Weatherford and Randall L. Iola, with him on the brief), for plaintiffs-appellants Stanley John O'Banion and Louise O'Banion.

Frances E. Patton, Pierce Couch Hendrickson Johnston & Baysinger, Oklahoma City, Okl. (D. Lynn Babb and Larry G. Cassil, Jr., with her on the brief), for defendants-appellees Owens-Corning Fiberglas Corp. and the Celotex Corp.

Before ANDERSON and SETH, Circuit Judges, and SAFFELS, District Judge *.

SAFFELS, District Judge.

This is a products liability and negligence action brought under Oklahoma law. Plaintiff-appellants alleged that Stanley O'Banion suffered from asbestos-related disease as a result of exposure to the defendant-appellees' asbestos-containing products. 1 Plaintiff Stanley John O'Banion worked from 1962 through 1980 as a plumber and pipefitter. Following a one week trial, beginning on June 21, and ending on June 29, 1990, a verdict for the defendants was rendered.

On appeal, plaintiff-appellants contend that the district court erred in its pre-trial rulings which resulted in the exclusion of evidence relating to cancer and in striking plaintiffs' civil conspiracy claim. Appellants also contend that the trial court erred in admitting into evidence trial testimony given by an expert witness at a previous trial in a different case. Appellants also contend that the trial court erred in instructing the jury on "state of the art" as it relates to plaintiffs' products liability claim.

I. Exclusion of evidence relating to Cancer

Appellants first contend on appeal that the district court erred in excluding evidence relating to "cancer" during the trial. Appellants argue that this evidence is relevant to the following issues: (1) whether the manufacturers have fulfilled their duty to test for toxic effects of their products; (2) whether they have satisfactorily informed and warned foreseeable users of all the hazards associated with asbestos use; and (3) whether the hazards of asbestos, taken together are so great that they outweigh the utility of the substance so that asbestos is an ultra hazardous product which should not have been marketed at all.

Prior to commencing the trial below, which was one of approximately 600 asbestos-related cases arising out of the Northern District of Oklahoma, Chief Judge Dale Cook, Judge Brett, and Judge Ellison (the presiding judge in the instant case) issued a Master Order in which numerous pretrial motions were addressed and ruled upon. One of these motions was the defendant-appellees' motion to preclude the mention of the word "cancer" or the presentation of any evidence relating to cancer in "non-cancer" asbestos cases. See Master Order, filed July 28, 1989 (Case No. 87-C-522-B) (Appellants' Brief in Chief, Attachment 4, at 6). In the Master Order, the court granted defendant Owens-Fiberglas Corporation's motion in limine to exclude evidence relevant to plaintiffs' claim for damages "(1) No Oklahoma authority supports admissibility of such evidence;

                due to increased risk of cancer or fear of cancer in cases where no diagnosis of carcinogenic asbestos-related disease or evidence of a reasonable medical probability of same exists.  (Appellants' Brief in Chief, Attachment 4, at 21-22).   In reaching this conclusion, the court found as follows
                

(2) It is too speculative; and

(3) Because of (2) above, even if relevant, such should not be admitted in evidence because of danger of unfair prejudice or confusion of the issues to the jury as provided in Federal Rule of Evidence 403."

Id. 2

Plaintiffs later moved to permit the mention of cancer in reports of qualified experts regarding whether defendants had notice of the increased risk of cancer thereby creating a duty to warn. (Appellants' Brief in Chief, Attachment 2). The court denied plaintiffs' request and further defined a "noncancer case" as "one in which no admissible evidence is offered on behalf of the Plaintiff from a qualified medical expert stating that there is a reasonable medical probability the Plaintiff will have a cancer condition from his asbestos related disease." Id. n. 1.

Whether the trial court erred in precluding plaintiffs from mentioning cancer and from introducing evidence relating to cancer on grounds that its prejudicial value outweighs its probative value pursuant to Fed.R.Evid. 403 is reviewed under an abuse of discretion standard. See C.A. Assoc. v. Dow Chemical Co., 918 F.2d 1485, 1489 (10th Cir.1990). In this regard, "[t]he trial court is given broad discretion in the Rule 403 balancing analysis." Durtsche v. American Colloid Co., 958 F.2d 1007, 1012 (10th Cir.1992).

We affirm the district court's ruling on this issue. A review of the record reflects that this case does not involve mesothelioma or other carcinogenic disease, nor did the plaintiff proffer expert testimony that there was a reasonable medical probability of his developing cancer from his alleged exposure to asbestos. Further, to date there is no Oklahoma case law which addresses whether damages may be recovered for the fear of an increased risk of developing cancer later in life. However, generally under Oklahoma law, damages which are purely speculative are nonrecoverable. See St. John's Hosp. & School of Nursing, Inc. v. Chapman, 434 P.2d 160, 175 (Okla.1967); Maples v. Bryce, 429 P.2d 741, 743 (Okla.1967); Tom P. McDermott, Inc. v. Birks, 395 P.2d 575, 576 (Okla.1964). Thus, to the extent that plaintiffs did not make a proffer of expert medical testimony that there was a reasonable medical probability that plaintiff Stanley O'Banion would develop a cancerous condition from his exposure to asbestos, references to cancer were properly excluded due to lack of relevance.

To the extent that this evidence is arguably relevant to whether the defendant manufacturers had a duty to test and a duty to warn, see Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 409 (5th Cir.) (en banc ), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986), we agree with those courts which have held that evidence of cancer is so prejudicial that in the absence of expert medical testimony that a "reasonable degree of medical certainty" exists that the plaintiff will develop cancer, such evidence should be excluded. See Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir.1986) (under Maryland law, evidence is not admissible to prove damages where there is less than a reasonable probability that plaintiff will develop cancer) Adams v. Johns-Manville Sales Corp., 783 F.2d 589 (5th Cir.1986) (same); Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1319-21 (5th Cir.1985) (en banc ) (plaintiff had greater than fifty-percent chance of contracting

                asbestos-related cancer in the future so cancer-related evidence was admissible);  Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir.1985) (evidence properly admitted where plaintiff proffered medical testimony that a reasonable medical probability existed that he would develop asbestos-related cancer).   Accordingly, we conclude the district court did not abuse its discretion in excluding such evidence in this case under Fed.R.Evid. 403 where plaintiff failed to offer proof that a reasonable medical probability exists that he will develop asbestos-related cancer
                
II. Admission of Former Testimony

Appellants next contend that the district court erred in admitting trial testimony given by an expert during another asbestos-related case arising out of the Western District of Texas. Appellants contend admission of the testimony was erroneous because the conditions of Fed.R.Evid. 804(b)(1) were not met. Thus, the appellants contend, this testimony should have been excluded under the hearsay rule.

Once again, the trial court's admission of evidence is reviewed for an abuse of discretion. The trial court allowed this testimony to be introduced under Fed.R.Evid. 804(b)(1) which provides in relevant part:

(b) Hearsay exceptions.--The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony.--Testimony given as a witness at another hearing of the same or a different proceeding ..., if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Appellants contend that the district court abused its discretion in admitting the former trial testimony of Dr. Hans Weill who testified on the issue of the state of the art in another case. This issue was first addressed in the court's Master Order in which the court denied both parties' request to admit the former testimony of witnesses in other personal injury cases unless this evidence could qualify as an admission against interest, the parties stipulate to its admission or it qualifies under Fed.R.Evid. 804(b)(1). (Appellants' Brief in Chief, Attachment 4, at 4-5).

Subsequently, the trial court addressed this issue at a final pretrial conference, in which the court clarified its previous ruling for purposes of this case, and several other cases. At this conference the trial judge stated:

"[t]here has been possibly a misinterpretation of the application of that order. In any case in which Baron & Budd appeared, that testimony would be admissible even in the Iola cases (plaintiffs' counsel in this case). The feeling of the court was that you have a compatibility of interest, commonalty of interest, you have reliability of representation; and that was the intent of the court's previous order, and that's not just in the...

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    ...causation")(quoting Woods v. Brumlop, 1962-NMSC-133, ¶ 15, 71 N.M. 221, 377 P.2d 520, 523 and citing O'Banion v. Owens Corning Fiberglass Corp., 968 F.2d 1011, 1013 (10th Cir. 1992)) (affirming an order that excluded evidence of cancer where plaintiff presented no evidence "from a qualified......
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  • Kirk v. Raymark Industries, Inc.
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    ...to admit former testimony into evidence under Rule 804(b)(1) without a finding of unavailability. See O'Banion v. Owens-Corning Fiberglas Corp., 968 F.2d 1011, 1014 (10th Cir.1992) (district court abused its discretion in admitting former testimony of expert where there was no showing of un......
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1 books & journal articles
  • Ghostbusting prejudicial evidence: no haunting the manufacturer.
    • United States
    • Defense Counsel Journal Vol. 70 No. 4, October 2003
    • October 1, 2003
    ...to testify. See, e.g., Kirk v. Raymark Industries Inc., 61 F.3d 147, 165 (3d Cir. 1995); O'Banion v. Owens-Corning Fiberglass Corp., 968 F.2d 1011, 1014 (10th Cir 1992). The burden of establishing the unavailability of a declarant falls on the party seeking to introduce the former testimony......

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