Clarksville-Montgomery County School System v. U.S. Gypsum Co.

• Decision Date: 21 February 1991
• Docket Number: No. 89-6325,CLARKSVILLE-MONTGOMERY,89-6325
• Citation: 925 F.2d 993
• Parties: 65 Ed. Law Rep. 1054 COUNTY SCHOOL SYSTEM, Plaintiff-Appellant, v. UNITED STATES GYPSUM COMPANY, Defendant-Appellee, National Gypsum Company, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 993

925 F.2d 993

65 Ed. Law Rep. 1054

CLARKSVILLE-MONTGOMERY COUNTY SCHOOL SYSTEM, Plaintiff-Appellant, v. UNITED STATES GYPSUM COMPANY, Defendant-Appellee National Gypsum Company, Defendant.

No. 89-6325.

United States Court of Appeals Sixth Circuit.

Feb. 21, 1991. Nunc Pro Tunc Jan. 10, 1991.

Rehearing Denied March 19, 1991.

Ross H. Hicks, Clarksville, Tenn., Daniel A. Speights (argued), Speights & Runyan, Hampton, S.C., for plaintiff-appellant.

Darryl G. Lowe, Lowe, Hogan, Shirley & Yeager, Knoxville, Tenn., Raymond T. Cullen (argued), Michael R. Libor, Morgan, Lewis & Bockius, Philadelphia, Pa., for defendant-appellee.

ORDER

The opinion originally filed on January 10, 1991 is withdrawn as inadvertently issued and a substitute opinion is filed nunc pro tunc.

Before KEITH, KRUPANSKY and SUHRHEINRICH, Circuit Judges.

KEITH, Circuit Judge.

Plaintiff Clarksville-Montgomery County School System ("Clarksville") appeals from the district court's April 17, 1989 judgment entered pursuant to a jury verdict in favor of defendant United States Gypsum Co. ("U.S. Gypsum") in this products liability action for negligence, public misrepresentation, fraudulent misrepresentation and concealment. Clarksville assigns numerous errors to the district court's evidentiary determinations and contends that the district court erred in charging the jury. Upon consideration of the issues presented by this appeal, we AFFIRM the jury's verdict.

I.

A.

From 1955 to 1972, U.S. Gypsum manufactured Audicote, a cementitious acoustical plaster sprayed onto ceilings. Four of Clarksville's buildings, ¹ constructed between 1966 and 1970, were treated with Audicote which contained approximately 8% chrysotile asbestos, perlite, talc, clay and other ingredients in a wet form. In 1982, the Environmental Protection Agency ("EPA") issued a regulation requiring every school district in the country to inspect for the existence of friable asbestos by June 1983. See 40 Fed.Reg. 23360. Clarksville subsequently employed consultants to conduct a survey of its schools and scheduled the removal of Audicote from its buildings to take place from 1983 to 1987. During renovation or demolition of buildings, all asbestos-containing materials must be separately removed with stringent precautions. See Standard for Demolition and Renovation: Procedures for Asbestos Emission Control, 40 C.F.R. Sec. 61.147. The total cost Clarksville incurred, including survey and inspection, architectural services, and removal and replacement of asbestos ceiling plaster and other contaminated material, was $1,618,135.12. ²

Clarksville filed suit on April 5, 1984, alleging that Audicote was defective ³ and unreasonably dangerous because, from the time it was installed, it created an imminent health hazard to building occupants. Clarksville also claimed that U.S. Gypsum was negligent in manufacturing Audicote because it created a health risk to building occupants. U.S. Gypsum denied that Audicote created any risk of harm and stated that Audicote was manufactured according to the state of the art and industry customs and standards. The case was tried on theories of strict liability, negligence, public misrepresentation, fraudulent misrepresentation and concealment.

Clarksville's architects, Mr. John Shaver and Mr. Robert McKay of Shaver & Company, knew Audicote contained asbestos when they specified the product for Clarksville's schools. They used it because of its acoustical properties, aesthetic appearance, high light reflectance and low cost. ⁴ Clarksville's architects also testified that use of asbestos and asbestos-containing products was required by state and local codes. Joint Appendix at 577 (McKay trial testimony). The architects testified that they referred to federal and state codes, regulations and ordinances in preparing the specifications. The architects, who had prior experience with Audicote, did not rely upon any U.S. Gypsum statements or representations in deciding to use the product. After researching technical data regarding acoustical, optical and fire proofing properties, Shaver & Company routinely included Audicote in the specifications for school construction. Asbestos was widely used in construction products in the 1960s and early 1970s.

Exposure to high levels of asbestos has been associated with certain diseases. Dr. Peter Elmes, a specialist in asbestos-related diseases, testified that when Clarksville's buildings were constructed, the medical and scientific communities did not connect any risk to occupants or workers in buildings with asbestos-containing products. Joint Appendix at 412 (Elmes trial testimony). In 1972, the general consensus of the medical and scientific communities was that any risk associated with asbestos-containing products was confined to individuals with very heavy and extended industrial exposure to asbestos. ⁵

When Clarksville's buildings were constructed, the American Conference of Governmental Industrial Hygienists had established a safety threshold limit value ("TLV") of five million particles per cubic foot (30 fibers per cubic centimeter of air) for exposure to asbestos. ⁶ The TLV was a level of asbestos to which it was believed workers could be exposed daily for their entire working lives without suffering any adverse health effects. The Occupational Safety and Health Administration ("OSHA") adopted the TLV and renamed it the permissible exposure limit ("PEL").

Dr. Elmes testified that the concentration of asbestos in the air in Clarksville's schools before the ceiling plaster was removed was up to ten thousand times lower than the TLV standard of 30 f/cc. Joint Appendix at 433. He further testified that the technology to measure and accurately identify the ultra-low levels of asbestos in air concentration found in typical buildings, which is at or near the levels found in outdoor ambient air, did not exist until the 1970s.

Dr. Ralph Smith, an industrial hygiene specialist who participated in setting the asbestos TLVs from 1960 to 1972, testified that at the time Audicote was sold, medical doctors, industrial hygienists and scientists believed that building occupants would not be at risk of asbestos-related diseases from exposure to asbestos-containing products in buildings. Drs. Smith and Elmes indicated that epidemiological and toxicological studies fail to demonstrate a correlation between asbestos-related diseases and exposure to asbestos in air concentrations typically found in buildings. The exposure of building users to asbestos-containing products is so low that medical doctors have not seen an increased incidence of asbestos-related diseases from exposure to the chrysotile asbestos-containing products used in buildings, despite the fact that such products have been used since the 1920s. Clarksville's analysis of samples of dust from vacuum cleaners and ventilation filters indicated that there had not been any contamination or release of fibers by Audicote.

B.

On April 17, 1989, the district court entered judgment pursuant to a jury verdict in favor of U.S. Gypsum. After an eight-day trial, the jury answered special interrogatories finding that: (1) U.S. Gypsum's acoustical plaster, Audicote, was neither defective nor unreasonably dangerous; (2) U.S. Gypsum was not negligent in including asbestos in Audicote, in the testing of its product, in not placing a warning on the product, or in not providing instructions concerning maintenance of its product; (3) U.S. Gypsum did not make any public misrepresentations concerning Audicote; and (4) U.S. Gypsum did not commit fraud or conceal any material facts concerning Audicote. Clarksville filed a motion for a new trial which the district court denied in its September 20, 1989 order. On October 18, 1989, Clarksville filed a timely notice of appeal.

II.

A.

Clarksville assigns error to the district court's admission of Dr. Andrew Churg's video deposition. ⁷ Clarksville argues that it was substantially prejudiced by Dr. Churg's testimony because the deposition was taken five years prior to trial. Moreover, Clarksville claims that U.S. Gypsum failed to show that other experts with similar qualifications were unavailable. U.S. Gypsum counters that Clarksville failed to object to Dr. Churg's video deposition testimony in a timely fashion; therefore, the district court properly determined that Clarksville waived any objections to the use of the testimony. We find U.S. Gypsum's argument persuasive.

During discovery, U.S. Gypsum served Clarksville with its list of witnesses which included notice that it would proffer Dr. Churg's testimony in the form of a videotape deposition. ⁸ The district court's January 27, 1989 scheduling order provided that objections or motions in limine to deposition designations were to be filed by February 24, 1989. Joint Appendix at 95 (Revised and Amended Scheduling Order). Clarksville neither objected to the use of the videotape nor redeposed Dr. Churg. ⁹ Rather, on February 6, 1989, Clarksville filed and served its counter-designations of Dr. Churg's videotape deposition, indicating that this testimony would be "edited in accordance with an agreement of the parties in this case." Joint Appendix at 108 (counter-designation of testimony of Andrew Marc Churg).

At trial, Clarksville raised its objection to the videotape deposition because Dr. Churg was not unavailable. See Fed.R.Evid. 804(b)(1). The district court overruled Clarksville's objection. Joint Appendix at 592-93 (transcript of bench conference). Clarksville again objected to Dr. Churg's testimony in its motion for a new trial. The district court ruled that Clarksville failed to make a timely objection to the admission of Dr. Churg's deposition testimony and thereby waived its right to challenge the deposition. Joint Appendix at 63 (order denying motion for new trial). We find the district court's decision to overrule Clarksville's objection to the Churg deposition to be...