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

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore OAKES, Chief Judge, and LUMBARD and WINTER; WINTER
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.
Docket NumberNos. 291,486,D
Decision Date04 September 1991

Page 69

944 F.2d 69
Angelina 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.
Nos. 291, 486, Dockets 89-9111, 89-9117.
United States Court of Appeals,
Second Circuit.
Argued March 28, 1991.
Decided Sept. 4, 1991.

Page 70

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

Page 71

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

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.

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...

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44 practice notes
  • U.S. v. Blue Ribbon Smoked Fish, Inc., No. CV-01-3887 (CPS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 19, 2001
    ...(2d Cir.1990). While the court views the evidence in the light most favorable to the nonmoving party, see O'Brien v. National Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported mo......
  • Lineaweaver v. Plant Insulation Co., No. A060263
    • United States
    • California Court of Appeals
    • January 31, 1995
    ...Accordingly, decisions finding evidence of causation in suits of mesothelioma victims (e.g. O'Brien v. National Gypsum Co. (2d Cir.1991) 944 F.2d 69; Hoffman v. Allied Corp. (11th Cir.1990) 912 F.2d 1379) should be viewed with caution as precedents in asbestosis 6 E.g., Ingram v. Acands, In......
  • US v. Shonubi, No. CR 92-0007.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 4, 1995
    ...App.1955). The belief that only direct evidence suffices in criminal cases is a shibboleth. See, e.g., O'Brien v. National Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991) ("It is beyond any doubt that circumstantial evidence alone may suffice at trial.") (citation omitted); Holland v. United Stat......
  • Signorile By and Through Signorile v. City of NY, No. 91-CV-3324 (JS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 6, 1995
    ...posing a danger to the officer or others." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1095, 108 L.Ed.2d 276 (1990); Medina, 944 F.2d at 69 (citations omitted). Moreover, officers may make a warrantless seizure under the plain view doctrine to the extent they are "`lawfully located......
  • Request a trial to view additional results
44 cases
  • U.S. v. Blue Ribbon Smoked Fish, Inc., No. CV-01-3887 (CPS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 19, 2001
    ...(2d Cir.1990). While the court views the evidence in the light most favorable to the nonmoving party, see O'Brien v. National Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported mo......
  • Lineaweaver v. Plant Insulation Co., No. A060263
    • United States
    • California Court of Appeals
    • January 31, 1995
    ...Accordingly, decisions finding evidence of causation in suits of mesothelioma victims (e.g. O'Brien v. National Gypsum Co. (2d Cir.1991) 944 F.2d 69; Hoffman v. Allied Corp. (11th Cir.1990) 912 F.2d 1379) should be viewed with caution as precedents in asbestosis 6 E.g., Ingram v. Acands, In......
  • US v. Shonubi, No. CR 92-0007.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 4, 1995
    ...App.1955). The belief that only direct evidence suffices in criminal cases is a shibboleth. See, e.g., O'Brien v. National Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991) ("It is beyond any doubt that circumstantial evidence alone may suffice at trial.") (citation omitted); Holland v. United Stat......
  • Signorile By and Through Signorile v. City of NY, No. 91-CV-3324 (JS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 6, 1995
    ...posing a danger to the officer or others." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1095, 108 L.Ed.2d 276 (1990); Medina, 944 F.2d at 69 (citations omitted). Moreover, officers may make a warrantless seizure under the plain view doctrine to the extent they are "`lawfully located......
  • Request a trial to view additional results

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