Champagne v. Raybestos-Manhattan, Inc.

• Decision Date: 08 August 1989
• Docket Number: No. 13496,INC,RAYBESTOS-MANHATTA,13496
• Citation: 212 Conn. 509,562 A.2d 1100
• Court: Connecticut Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 12,247 Cecelia CHAMPAGNE, Administratrix (ESTATE OF Wilfred CHAMPAGNE), et al. v.

Page 1100

562 A.2d 1100

212 Conn. 509, Prod.Liab.Rep. (CCH) P 12,247

Cecelia CHAMPAGNE, Administratrix (ESTATE OF Wilfred CHAMPAGNE), et al. v. RAYBESTOS-MANHATTAN, INC.

No. 13496.

Supreme Court of Connecticut.

Argued Jan. 12, 1989.

Decided Aug. 8, 1989.

James E. Coyne, Bridgeport, for appellant-appellee (defendant).

Matthew Shafner, with whom were Frank N. Eppinger, Groton and, on the brief, Mark Oberlatz, Norwich, for appellee-appellant (plaintiff).

Before ARTHUR H. HEALEY, CALLAHAN, GLASS, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal arises out of an action brought by the plaintiff, Cecelia Champagne, individually and on behalf of Wilfred Champagne as administratrix of his estate, for the injury and death of Wilfred Champagne as a result of his exposure to asbestos while employed by the General Dynamics Corporation, Electric Boat Division (Electric Boat) in Groton. The case began as an amendment, dated February 22, 1980, to an existing multiparty complaint filed on behalf of past and present employees of Electric Boat. In the two counts of the amended complaint concerning the plaintiff, one sought compensatory and punitive damages on behalf of Wilfred Champagne and the other sought compensatory damages for Cecelia Champagne for loss of consortium.

The final amended complaint, no longer part of the complaint involving many other employees, dated November 18, 1987, contained three counts. In the first count the plaintiff sought compensatory damages on behalf of Wilfred Champagne as administratrix of his estate. The second count sought punitive damages. The third count sought damages for Cecelia Champagne individually for loss of consortium. After a jury trial and decisions on posttrial motions, the trial court, Koletsky, J., rendered judgment in the amount of $163,361.52 with costs. From this judgment, the defendant appeals and the plaintiff cross appeals. We discuss the claims on the appeal and the cross appeal, which are in large measure interrelated, in their natural sequence as opposed to discussing the appeal first and the cross appeal second. We find error in part on the appeal and no error on the cross appeal.

The jury reasonably could have found the following facts, which we supplement as the issues require. Wilfred Champagne (decedent) worked at Electric Boat as a pipe coverer from 1959 to 1979. Pipe coverers at Electric Boat, such as the decedent, were responsible for insulating various systems during the construction and overhaul of submarines. This insulation process often involved the handling of products containing asbestos. Although there was no testimony from any of the witnesses that they specifically recalled seeing the decedent handling such products manufactured by the defendant, there was testimony that in performing their duties all pipe coverers did indeed handle such products on a regular basis. During both the installation and replacement of the insulation, the pipe coverers were subject to a work environment that was filled with dust that, at least in part, was created by work with the products containing asbestos. There was testimony that the decedent often returned home from work covered with this dust that contained asbestos.

From 1959 to 1975, the defendant supplied asbestos cloth to Electric Boat for use in its submarines. During that time, Electric Boat constructed approximately fifty to fifty-five submarines, each utilizing about 90,000 square feet of asbestos cloth. The defendant sold at least $130,000 worth of asbestos-containing products to Electric Boat between 1959 and 1973. In comparison, a former salesman from Eastern Refractory Company, Inc., testified that during the years that he sold asbestos-containing products for that company, which included the years that the decedent was employed as a pipe coverer, his company had annual sales of up to $350,000 to Electric Boat. Eastern Refractory sold asbestos-containing products that were manufactured by companies other than the defendant. ¹ A former sales manager from Cummings Insulation testified that from 1962 or 1963 to the early 1970s, his company annually sold approximately $250,000 worth of asbestos-related products to Electric Boat that were not manufactured by the defendant. Through a deposition of the former national sales manager of the defendant corporation that was introduced at trial, the jury was presented with testimony that the asbestos-containing products that the defendant sold to Electric Boat generally were comprised of 75 to 90 percent asbestos. ²

In 1972, after the Occupational Safety and Health Administration issued certain regulations, the defendant placed health warnings on its asbestos-containing products. These warnings, however, were placed on the outer wrappings of the products and may not have been seen by many of the pipe coverers at Electric Boat.

On or about March 25, 1975, Electric Boat received a "claim" from the decedent for workers' compensation benefits under the Longshore Harbor Workers' Compensation Act. In the space on the compensation form where the injury is described there appears only the word "asbestos." The former union steward for the pipe fitters local 620 that included the pipe coverers at Electric Boat, Charles Ballato, testified that in 1975 one of their members was informed by his doctor that he had asbestosis. As a result of this, the union contacted Dr. Irving J. Selikoff at Mount Sinai Hospital in New York and asked Selikoff and his staff to examine all of the union pipe coverers at Electric Boat. Before Selikoff examined the workers, the union had each worker fill out the Department of Labor's workers' compensation form. On the form that the decedent allegedly filled out, plaintiff's exhibit 56, either Ballato or James Sweet, the pipe coverers' steward at the time, wrote in "asbestos" in the space of the form that said "describe in full how the accident occurred." ³ Ballato stated that he or Sweet wrote the word "asbestos" in because "[w]e were concerned, you know, that other members in that department, another member in that department had an asbestos-related disease and we wanted to make sure that everyone had one filled out in case they were--had the same problem."

Following this examination by Selikoff and his staff, the decedent received a letter dated October 23, 1975, that stated, "Some changes were found in your chest x-ray. We advise you to discuss these plans with your personal physician so that adequate follow-up may be planned." In light of the decedent's response to a questionnaire at the time of the examination in which he stated that he had smoked one to one and one-half packs of cigarettes a day for thirty years, the letter also stated: "It is strongly advised that you discontinue cigarette smoking."

In the fall of 1978, the decedent received a letter from Dr. Edward A. Gaensler of the Boston University Medical Center dated September 25, 1978, which advised him that he had "a moderate degree of asbestosis." This letter also advised the decedent to stop smoking. In 1979, the decedent stopped working at Electric Boat.

In late 1984 or early 1985, the decedent developed lung cancer. Dr. Nagi Kamireddy testified that, in his view, the cancer was the result of "asbestos exposure along with the incidence of smoking." On May 3, 1985, at the age of sixty, the decedent died. The cause of death noted on his certificate of death was squamous cell carcinoma of the right middle and right lower lobe.

The decedent and the plaintiff were married on August 21, 1948. The couple had three daughters. The plaintiff testified that in 1979, after the decedent had become ill, he moved out of the house at 52 Carver Avenue in Norwich that he and the plaintiff had occupied together until that time. According to the plaintiff, the decedent moved out to live with friends and he occasionally returned home. In contrast, the defendant introduced the testimony of Katherine Davis who stated that, during the period from 1975 to 1977, the decedent had been dating her mother and during that time the decedent lived for a time at his brother's house. Additionally, Davis testified that from 1977 until the time that he died, the decedent had lived with her mother at 13 Marjorie Street in Mystic. Davis said that the decedent kept his clothes at her mother's house, that her mother and the decedent lived as husband and wife, and that the decedent died at 13 Marjorie Street in Mystic. The plaintiff and the defendant introduced evidence indicating that the decedent received mail at 52 Carver Street and 13 Marjorie Street, respectively. Also, the plaintiff testified that, although she and the decedent filed separate tax returns from 1979 to 1985, his tax forms were mailed to 52 Carver Street. Finally, the plaintiff testified that she paid the decedent's medical and funeral bills.

This case proceeded to trial before a jury on December 1, 1987. The final amended complaint upon which the case was based was dated November 18, 1987, and sounded in three counts. Prior to trial, counsel agreed to try the case under the common law theory of strict product liability with the exception that statutory "comparative responsibility" would apply.

On December 15, 1987, the jury returned the following verdicts:

"PLAINTIFF'S VERDICT ON FIRST COUNT

In this case the Jury finds the issues on the first count for the Plaintiff Cecelia Champagne, Administratrix, as against the Defendant Raybestos-Manhattan, Inc. and finds the 100 percent value of the Plaintiff's claim on said first count to be $144,673.

The Jury further finds the Plaintiff to be 75 percent contributorily negligent and Plaintiff's net damages to be $36,168.25.

P.R. Marblo [signed]

Foreperson

N.B. Foreperson must sign name in ink.

Ordered, accepted, and recorded.

Koletsky, J.

12/15/87

4:45 P.M."

"PLAINTIFF'S VERDICT ON SECOND COUNT

In this case the Jury finds the issues for the Plaintiff Cecelia...