O'Brien v. National Gypsum Co., s. 291

Decision Date04 September 1991
Docket NumberNos. 291,486,D,s. 291
Citation944 F.2d 69
PartiesAngelina O'BRIEN, Individually and as Administratrix of the Estate of Richard O'Brien, Plaintiff-Appellee-Cross-Appellant, v. NATIONAL GYPSUM CO., AC & S, Inc.; Armstrong World Industries, Inc.; The Celotex Company; Eagle-Picher Industries, Inc.; GAF Corporation; Nicolet, Inc.; Raymark Industries Inc.; Owens-Corning Fiberglass Corp.; U.S. Mineral Products Company; H.K. Porter Company, Inc.; The Flintkote Company; Carey Canada, Inc.; Fibreboard Corporation; Rock Wool Manufacturing Co., Inc.; Owens-Illinois, Inc.; Turner & Newall, PLC.; United States Gypsum Company; Dana Corporation; Certainteed Corporation; TAF International, Ltd.; Pittsburgh-Corning Corporation, Defendants, The Celotex Corporation, Defendant-Appellant-Cross-Appellee. ockets 89-9111, 89-9117.
CourtU.S. Court of Appeals — Second Circuit

Andrew T. Berry, Newark, N.J. (McCarter & English, of counsel), for defendant-appellant-cross-appellee.

Diane Paolkelli, New York City (Steven J. Phillips, Alani Golanski, Levy, Phillips & Konigsberg, of counsel), for plaintiff-appellee-cross-appellant.

Before OAKES, Chief Judge, and LUMBARD and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Following a jury trial before Judge Sifton, Celotex Corporation ("Celotex"), the successor entity to Philip Carey Manufacturing Company ("Philip Carey"), a corporation that manufactured asbestos-containing insulation materials, was found liable for the wrongful death of Richard O'Brien. Celotex appeals on two grounds: (i) that the evidence of O'Brien's exposure to Philip Carey products was insufficient to support the jury's verdict; and (ii) that the district court erred in admitting under Fed.R.Evid. 804(b)(5) hearsay statements from O'Brien's wife and a co-worker at the Navy Yard. The record supports the jury's verdict. The admission of hearsay was, if error, harmless. We therefore affirm on the appeal.

Appellee cross-appeals on the issue of damages. Celotex entered bankruptcy after the notices of appeal and cross-appeal were filed. An adjournment of the initial oral argument was granted because of the automatic stay. The bankruptcy court has allowed the appeal to go forward. The cross-appeal thus remains stayed.

BACKGROUND

In 1971, Richard O'Brien, age 44, was diagnosed as suffering from mesothelioma, a rare and incurable variant of lung cancer. In 1973, after surgery, chemotherapy and radiation treatment, O'Brien succumbed to After New York State passed the Toxic Tort Reform Act, 1986 N.Y.Laws, ch. 682, § 4 (codified at N.Y.Civ.Prac.L. & R. § 214-c (McKinney 1990)), a one-year revival statute for certain toxic torts, Angelina O'Brien, individually and as administratrix of her late husband's estate, filed the present wrongful death action. It named as defendants a host of entitles that manufactured asbestos-containing products used at the Brooklyn Navy Yard during the mid-1940s. With the exception of Celotex and Raymark Industries ("Raymark"), each of these defendants reached a settlement with O'Brien. Celotex and Raymark went to trial.

the disease, which by then had metastasized to his spinal cord.

At trial, plaintiff relied for the most part upon circumstantial evidence. She produced Navy Department employment records showing that her late husband worked at the Brooklyn Navy Yard from May 1944 through May 1945 as an apprentice electrician. She offered the testimony of several of her husband's co-workers, each of whom described the working conditions at the Navy Yard and the widespread use of asbestos-containing products. This testimony established that: (i) electricians and their apprentices typically worked on ships alongside pipe-fitters, sheet metal workers, insulators, boilermakers and other such workers, many of whom were cutting and/or installing asbestos-containing products; (ii) ventilation aboard these ships was inadequate; (iii) asbestos dust frequently covered the outdoor and indoor worksites as well as the clothing of Navy Yard workers; and (iv) apart from dusty air, electricians had direct contact with asbestos "rag" because such cloth was used to line electric piping.

In addition, Harry Brayne, a supply and acquisition officer at the Navy Yard, testified to the presence of asbestos-containing products along with their dust on virtually all Navy Yard vessels during the relevant period. As to specific product evidence, six witnesses placed Philip Carey products at the Navy Yard during the relevant period, although use of Philip Carey on a particular ship at a particular time could not be shown because asbestos-containing products were often used interchangeably.

Finally, with respect to causation, Dr. Steven Markowitz, an expert in employment-related illnesses, testified that exposure to the fibers contained in asbestos dust is presently the only known cause of mesothelioma, a rare cancer.

Plaintiff offered little specific evidence of her husband's precise activities at the Navy Yard. Although plaintiff tried to establish that O'Brien worked on the aircraft carrier U.S.S. Franklin Delano Roosevelt--a ship that one witness described as having asbestos dust "everywhere" and "on everything," including the compartments in which electricians were working--the only evidence to support this claim consisted of two hearsay declarations admitted over objection pursuant to Fed.R.Evid. 804(b)(5).

The first of these hearsay declarations, related by plaintiff herself, placed the decedent in poorly ventilated areas aboard ships:

Q ... [B]ack when you first were dating and first knew Richard O'Brien, before you were married, did he ever speak with you at all concerning his employment in the Brooklyn Navy Yard?

A Well, he did tell me that he had worked in the holds of ships when he was in the Navy Yard. Other than that I can't remember any basic names of ships or anything, but he used to say when he was in the Navy [following his apprenticeship] he would brag that he had worked on these ships.

The second hearsay declaration, related by a boyhood and Navy friend of the decedent's, Alfred Hitchcock, placed the decedent on the Roosevelt. Hitchcock testified that O'Brien had once remarked that he worked on ships and, in particular on the Roosevelt, during his apprenticeship at the Navy Yard. Hitchcock conceded on cross-examination, however, that he had no first-hand knowledge of O'Brien's activities at the Navy Yard. Hitchcock had reconstructed O'Brien's remark largely from a recollection that O'Brien, who entered the Based on this evidence, the jury returned a verdict awarding plaintiff $667,000 in compensatory damages for wrongful death. Celotex's share of liability was set at 14.28%, the same share assigned to Raymark and each of the settling defendants except for Owens-Illinois, Inc., which was assigned 0% liability. By the close of trial, Raymark had filed for bankruptcy, and all proceedings against it had been stayed. Pursuant to Fed.R.Civ.P. 54(b), therefore, the district court entered judgment solely against Celotex and ordered the company to pay $213,861, together with costs, when taxed, and interest at the statutory rate from the date of judgment.

Navy following his...

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