Beeman v. Manville Corp. Asbestos Disease Compensation Fund

• Decision Date: 17 February 1993
• Docket Number: No. 90-1514,90-1514
• Citation: 496 N.W.2d 247
• Parties: Prod.Liab.Rep. (CCH) P 13,424 Joseph C. BEEMAN and Beverly A. Beeman, Appellees, v. MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND and Keene Corporation, Appellants.
• Court: Iowa Supreme Court

Page 247

496 N.W.2d 247

Prod.Liab.Rep. (CCH) P 13,424

Joseph C. BEEMAN and Beverly A. Beeman, Appellees, v. MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND and Keene Corporation, Appellants.

No. 90-1514.

Supreme Court of Iowa.

Feb. 17, 1993.

Rehearing Denied March 26, 1993.

Margaret S. Garvey of Freeborn & Peters, Chicago, IL, and Rebecca Boyd Parrott of Davis, Grace, Horvath, Gonnerman & Rouwenhorst, P.C., West Des Moines, for appellant Manville.

Murray E. Abowitz and Gregory J. Ryan of Abowitz & Welch, Oklahoma City, OK, and Timothy J. Walker of Whitfield, Musgrave & Eddy, Des Moines, for appellant Keene Corp.

Roxanne Barton Conlin, Des Moines, for appellees.

Considered en banc.

McGIVERIN, Chief Justice.

Defendants appeal and plaintiffs cross-appeal from a district court judgment after a jury verdict in favor of plaintiffs in this asbestos litigation. We affirm.

I. Background facts and proceedings. Based on the record, a jury could find the following facts. Plaintiff Joseph Beeman, age sixty-two, had a work history since 1953 as a plumber and pipefitter, installing copper piping and gas appliances. Although not an insulator himself, Beeman worked closely with pipe insulators throughout his career. At trial Beeman and several of his co-workers testified about the dusty conditions in which they had worked. They later discovered this dust contained asbestos. The dust was from asbestos-containing products manufactured by Johns-Manville Corporation (hereinafter JM), ¹ Keene Corporation (hereinafter Keene), ² and other companies.

As a result of his exposure to asbestos products, Beeman suffers from pleural plaques, a thickening of the lining of the lungs, and, according to some evidence, asbestosis, a scarring of the lungs caused by inhalation of asbestos fibers. Neither condition is cancerous or necessarily fatal. Expert testimony stated that asbestotics face an increased risk of lung cancer and mesothelioma, a specific form of lung cancer caused by exposure to asbestos. There was no evidence that Beeman smoked or used tobacco products except occasionally when fishing.

Beeman sued defendants JM, Keene, and numerous other manufacturers of asbestos-containing products for injuries he allegedly suffered as a result of his occupational exposure to asbestos. Theories of recovery included strict products liability, negligence, fraud, conspiracy, and breach of warranty. His wife, plaintiff Beverly Beeman, sued for loss of consortium.

By the time of trial, all defendants except JM and Keene had either settled or been dismissed. At the time of trial, Beeman was fully employed and had not missed any work because of his condition, except for his attendance at trial.

At trial, experts testified that asbestos dust does not "settle"; thus Beeman likely inhaled large amounts of asbestos during his career. There was also testimony that asbestos fibers remain in the lungs for twenty to thirty years after exposure. As the dose of exposure increases, the likelihood of developing some asbestos-related disease increases. Once an individual reaches a "threshold exposure limit," each additional asbestos fiber increases the risk and seriousness of disease.

Evidence showed that some studies were reporting possible health problems connected with exposure to asbestos as early as the 1920s and 1930s. JM itself financed asbestos hazards studies in the 1940s and 1950s. However, it was not until 1965, when the Selikoff study was published, that a clear connection between exposure to asbestos by end-users, such as Beeman, and lung problems was established.

Before trial, defendants JM and Keene moved in limine to preclude evidence that inhaling asbestos fibers causes cancer and that manufacturers conspired to conceal information from the public and end-users about the hazards of asbestos. The district court overruled these motions. The court also overruled Keene's motion for a bifurcated trial and motion in limine regarding punitive damages. The court did, however, grant JM and Keene a continuing objection based on lack of relevancy to all evidence relating asbestos exposure to cancer.

At trial, Beeman presented evidence of conspiracy and fraud concerning the dangers of asbestos only against JM, but withdrew those allegations before the case was submitted to the jury.

The jury returned a verdict for Joseph Beeman of $1,175,000 in actual damages, finding JM ninety percent at fault and Keene ten percent at fault. The jury also awarded punitive damages against Keene only of $5 million. Beeman's wife received damages for loss of consortium, the amount of which is not at issue on appeal. Defendants do contend, however, they were not at fault, and thus have no liability to Beverly Beeman.

JM and Keene filed post-trial motions for new trial and judgment notwithstanding the verdict under Iowa Rules of Civil Procedure 243 and 244. In its rulings, the district court set aside the punitive damages award against Keene and reduced Beeman's actual damage award by $669,200, decreasing the future medical expenses award and setting aside completely an award for Beeman's alleged lost opportunity to live out his full life expectancy. The net result of the post-trial rulings was judgment for plaintiff Joseph Beeman for compensatory damages only against defendant JM or the Manville Fund for $455,220 and against defendant Keene for $50,580.

JM and Keene appealed, and Beemans cross-appealed from this final judgment. For simplicity, we regard Joseph Beeman as the only plaintiff.

II. Evidence concerning failure to warn of asbestos hazards. At trial, Beeman presented evidence showing JM knew of asbestos hazards long before the 1965 Selikoff study. Beeman presented documents known as the Sumner Simpson papers, a series of letters between Sumner Simpson, late president of Raybestos (now "Raymark"), and Raybestos employees, organizations such as the Industrial Hygiene Foundation, the United States Public Health Service, Asbestos magazine, the Saranac Laboratory, and other asbestos manufacturers, including JM. These documents outline JM's knowledge of asbestos hazards and its methods of concealing this knowledge from the public.

Defendant Keene moved for bifurcation of trial as to it on this issue, but the trial court denied the motion. After Beeman had presented all such evidence, he withdrew his claims for conspiracy and fraud against JM before the case was submitted to the jury. Both JM and Keene later moved that all such evidence should have therefore been stricken from the record due to lack of relevancy. The trial court denied these motions and gave the jury limiting instructions to use the evidence only in evaluating the defendant JM's duty to warn users of the hazards of asbestos. The court also instructed the jury that this evidence against JM should not be considered against Keene.

Bifurcation of trial and allowance of withdrawal of pleadings are matters of trial court discretion. Briner v. Hyslop, 337 N.W.2d 858, 870 (Iowa 1983) (bifurcation); Brown v. Correll, 227 Iowa 659, 660, 288 N.W. 907, 908 (1939) (withdrawal of pleadings). As such, we will disturb such rulings only if the trial court abused its discretion. Other courts have held the Sumner Simpson papers are admissible in asbestos cases to show a defendant knew or should have known of the dangers of asbestos, and thus had a duty to warn product users. See Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314 (5th Cir.1985), aff'd, 781 F.2d 394 (5th Cir.1986), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). We believe the trial court in this case did not abuse its discretion in denying defendants' motion to strike the evidence of conspiracy and fraud because the evidence is relevant to show a duty to warn. Therefore, we affirm the trial court's admission of this evidence.

III. Admission of cancer evidence to prove plaintiff's fear of cancer. Over defendants' objections, the district court admitted evidence from Beeman's experts regarding cancer and the increased risks of cancer from exposure to asbestos. The court instructed the jury that this evidence was to be used only to determine defendants' duty to warn of the hazards of asbestos exposure and the reasonableness of Beeman's fear of contracting cancer. Defendants objected on the grounds that because Beeman did not presently have cancer and did not show he would probably contract cancer in the future, the evidence was irrelevant. Defendants also asserted that even if the cancer evidence was somehow relevant, its probative value was substantially outweighed by the unfair prejudice it would cause defendants under Iowa Rule of Evidence 403, and that no limiting instructions to the jury could compensate for such prejudice.

Evidence of cancer and the increased risk of developing cancer from exposure to asbestos is admissible to show: 1) a defendant's duty to warn of its product's hazards, Dartez v. Fibreboard Corp., 765 F.2d 456, 468 (5th Cir.1985); 2) the reasonableness of plaintiff's fear of cancer, Sorenson v. Raymark Industries, Inc., 51 Wash.App. 954, 756 P.2d 740, 742 (1988); and 3) plaintiff's increased risk of contracting cancer in the future, Jackson, 750 F.2d at 1321, aff'd, 781 F.2d at 410-13.

A. Duty to warn. Evidence of cancer from exposure to asbestos is admissible to show the defendant had a duty to warn plaintiff of the hazards of its asbestos products. Several courts have stated that because a manufacturer is held to have the knowledge and skill of an expert, such evidence is relevant to proving whether the manufacturer knew or should have known of the danger of its products and whether the manufacturer was negligent in failing to tell consumers of its knowledge. Dartez, 765 F.2d at 468; Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1089 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974). Similarly, this court has held a duty to warn depends...