Borel v. Fibreboard Paper Products Corporation

• Decision Date: 13 May 1973
• Docket Number: No. 72-1492.,72-1492.
• Citation: 493 F.2d 1076
• Parties: Clarence BOREL, Plaintiff-Appellee, v. FIBREBOARD PAPER PRODUCTS CORPORATION et al., Defendants-Appellants, National Surety Corporation, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 1076 (1973)

Clarence BOREL, Plaintiff-Appellee, v. FIBREBOARD PAPER PRODUCTS CORPORATION et al., Defendants-Appellants, National Surety Corporation, Intervenor-Appellee.

No. 72-1492.

United States Court of Appeals, Fifth Circuit.

September 10, 1973.

Rehearing and Rehearing Denied May 13, 1973.

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George E. Duncan, Beaumont, Tex., for Pittsburg Corning Corp; W. Page Keeton, Austin, Tex., of counsel.

W. N. Arnold, Jr., Houston, Tex., for Philip Carey Corp. and Armstrong Cork Corp.

John G. Tucker, Gordon R. Pate, Beaumont, Tex., for Johns Manville Prod. Corp.

Ward Stephenson, Orange, Tex., for Clarence Borel.

George E. Murphy, Beaumont, Tex., for Nat'l Surety Corp.

Robert E. Barnes, Beaumont, Tex., for Ruberoid Co.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied May 13, 1973.

WISDOM, Circuit Judge:

This product liability case involves the scope of an asbestos manufacturer's duty to warn industrial insulation workers of dangers associated with the use of asbestos.

Clarence Borel, an industrial insulation worker, sued certain manufacturers of insulation materials containing asbestos to recover damages for injuries caused by the defendants' alleged breach of duty in failing to warn of the dangers involved in handling asbestos. Borel alleged that he had contracted the diseases of asbestosis and mesothelioma as a result of his exposure to the defendants' products over a thirty-three year beginning in 1936 and ending in 1969. The jury returned a verdict in favor of Borel on the basis of strict liability. We affirm.

I.

Clarence Borel began working as an industrial insulation worker in 1936. During his career, he was employed at numerous places, usually in Texas, until disabled by the disease of asbestosis in 1969. Borel's employment necessarily exposed him to heavy concentrations of asbestos dust generated by insulation materials. In his pre-trial deposition, Borel testified that at the end of a day working with insulation material containing asbestos his clothes were usually so dusty he could "just barely pick them up without shaking them." Borel stated: "You just move them just a little and there is going to be dust, and I blowed this dust out of my nostrils by handfuls at the end of the day, trying to use water too, I even used Mentholatum in my nostrils to keep some of the dust from going down in my throat, but it is impossible to get rid of all of it. Even your clothes just stay dusty continually unless you blow it off with an air hose."

Borel said that he had known for years that inhaling asbestos dust "was bad for me" and that it was vexatious and bothersome, but that he never realized that it could cause any serious or terminal illness. Borel emphasized that he and his fellow insulation workers thought that the dust "dissolves as it hits your lungs". He said:

A. Yes, I knew the dust was bad but we used to talk about it among the insulators, about how bad was this dust, could it give you TB, could it give you this, and everyone was saying no, that dust don\'t hurt you, it dissolves as it hits your lungs. That was the question you get all the time.

Q. Where would you have this discussion, in your Union Hall?

A. On the jobs, just among the men.

Q. In other words, there was some question in your mind as to whether this was dangerous and whether it was bad for your health?

A. There was always a question, you just never know how dangerous it was. I never did know really. If I had known I would have gotten out of it.

Q. All right, then you did know it had some degree of danger but you didn\'t know how dangerous it was?

A. I knew I was working with insulation.

Q. Did you know that it contained asbestos?

A. Yes, sir, but I didn\'t know what asbestos was.

When asked about the use of respirators, Borel replied that they were not furnished during his early work years. Although respirators were later made available on some jobs, insulation workers usually were not required to wear them and had to make a special request if they wanted one. Borel stated that he and other insulation workers found that the respirators furnished them were uncomfortable, could not be worn in hot weather, and — "you can't breathe with the respirator." Borel further noted that no respirator in use during his lifetime could prevent the inhalation of asbestos dust. As an alternative precaution, therefore, he would sometimes wear a wet handkerchief over his nostrils or apply mentholatum, but these methods were also unsatisfactory and did not exclude all the dust.

Borel stated that throughout his early working life and until the mid-1960's he was in good health, except for pains caused by lung congestion that his doctor attributed to pleurisy. In 1964, a doctor examined Borel in connection with an insurance policy and informed him that x-rays of his lung were cloudy. The doctor told Borel that the cause could be his occupation as an insulation worker and therefore advised him to avoid asbestos dust as much as he possibly could.

On January 19, 1969, Borel was hospitalized and a lung biopsy performed. Borel's condition was diagnosed as pulmonary asbestosis. Since the disease was considered irreversible, Borel was sent home. Borel testified in his deposition that this was the first time he knew that he had asbestosis.

Borel's condition gradually worsened during the remainder of 1969. On February 11, 1970, Borel underwent surgery for the removal of his right lung. The examining doctors determined that Borel had a form of lung cancer known as mesothelioma, which had been caused by asbestosis. As a result of these diseases, Borel later died before the district case reached the trial stage.

The medical testimony adduced at trial indicates that inhaling asbestos dust in industrial conditions, even with relatively light exposure, can produce the disease of asbestosis.¹ The disease is difficult to diagnose in its early stages because there is a long latent period between initial exposure and apparent effect. This latent period may vary according to individual idiosyncrasy, duration and intensity of exposure, and the type of asbestos used. In some cases, the disease may manifest itself in less than ten years after initial exposure. In general, however, it does not manifest itself until ten to twenty-five or more years after initial exposure. This latent period is explained by the fact that asbestos fibers, once inhaled, remain in place in the lung, causing a tissue reaction that is slowly progressive and apparently irreversible. Even if no additional asbestos fibers are inhaled, tissue changes may continue undetected for decades. By the time the disease is diagnosable, a considerable period of time has elapsed since the date of the injurious exposure. Furthermore, the effect of the disease may be cumulative since each exposure to asbestos dust can result in additional tissue changes. A worker's present condition is the biological product of many years of exposure to asbestos dust, with both past and recent exposures contributing to the overall effect. All of these factors combine to make it impossible, as a practical matter, to determine which exposure or exposures to asbestos dust caused the disease.

A second disease, mesothelioma, is a form of lung cancer caused by exposure to asbestos. It affects the pleural and peritoneal cavities, and there is a similarly long period between initial contact and apparent effect. As with asbestosis, it is difficult to determine which exposure to asbestos dust is responsible for the disease.²

At issue in this case is the extent of the defendants' knowledge of the dangers associated with insulation products containing asbestos. We pause, therefore, to summarize the evidence relevant to this question.

Asbestosis has been recognized as a disease for well over fifty years.³ The first reported cases of asbestosis were among asbestos textile workers. In 1924, Cooke in England discovered a case of asbestosis in a person who had spent twenty years weaving asbestos textile products.⁴ In the next decade, numerous similar cases were observed and discussed in medical journals. An investigation of the problem among textile factory workers was undertaken in Great Britain in 1928 and 1929.⁵ In the United States, the first official claim for compensation associated with asbestos was in 1927.⁶ By the mid-1930's, the hazard of asbestosis as a pneumoconiotic dust was universally accepted.⁷ Cases of asbestosis in insulation workers were reported in this country as early as 1934.⁸ The U.S. Public Health Service fully documented the significant risk involved in asbestos textile factories in a report by Dreessen et al., in 1938.⁹ The authors urged precautionary measures and urged elimination of hazardous exposures.

The first large-scale survey of asbestos insulation workers was undertaken in the United States by Fleischer-Drinker et al., in 1945.¹⁰ The authors examined insulation workers in eastern Navy shipyards and found only three cases of asbestosis. They concluded that "asbestos covering of naval vessels is a relatively safe operation." Significantly, ninety-five percent of those examined had worked at the trade for less than ten years. Since asbestosis is usually not diagnosable until ten to twenty years after initial exposure, the authors' conclusion has been criticized as misleading.¹¹ Perhaps recognizing this possibility, the authors cautioned that the study did not "give a composite picture of the asbestos dust that a worker may breathe over a period of years", and that "if pipe coverers had worked steadily under conditions where the amount of asbestos dust in the air was consistently high, the incidence of asbestosis among these workers would have been considerable greater." The authors stated that "the suggestions relative to exhaust ventilation and...