Dartez v. Fibreboard Corp., No. 83-2504

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, GOLDBERG, and RUBIN; CLARK
Citation765 F.2d 456
Parties19 Fed. R. Evid. Serv. 137, Prod.Liab.Rep.(CCH)P 10,873 James M. DARTEZ, Plaintiff-Appellee, v. FIBREBOARD CORPORATION, Celotex Corporation, Pittsburgh Corning Corporation and Owens-Illinois, Inc. and Raymark Industries, Inc., Defendants-Appellants.
Decision Date15 July 1985
Docket NumberNo. 83-2504

Page 456

765 F.2d 456
19 Fed. R. Evid. Serv. 137, Prod.Liab.Rep.(CCH)P 10,873
James M. DARTEZ, Plaintiff-Appellee,
v.
FIBREBOARD CORPORATION, Celotex Corporation, Pittsburgh
Corning Corporation and Owens-Illinois, Inc. and
Raymark Industries, Inc., Defendants-Appellants.
No. 83-2504.
United States Court of Appeals,
Fifth Circuit.
July 15, 1985.

Page 459

Weller, Whellus & Green, George A. Weller, Beaumont, Tex., for fibreboard.

Benckenstein, Norvell & Bernsen, Lipscomb Norvell, Jr., Beaumont, Tex., for Celotex.

Baker & Botts, F. Walter Conrad, Jr., Arthur Stamm, Houston, Tex., for Owens-Corning.

Page 460

Butler & Binion, Elizabeth M. Thompson, Houston, Tex., for Raymark industries.

Grodon R. Pate, Joe Michael Dodson, Beaumont, Tex., for Pittsburgh Corning.

Kronzer, Abraham, Watkins, Nichols, Ballard & Friend, Grant Kaiser, Robert E. Ballard, Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before CLARK, Chief Judge, GOLDBERG, and RUBIN, Circuit Judges.

CLARK, Chief Judge:

Appellants challenge the judgment for Dartez on his claim that he was injured by exposure to the asbestos-containing products they manufactured. We vacate the judgment and remand for a new trial against all appellants except Raymark Industries. The judgment against Raymark is reversed and that corporation is dismissed.

I

James Dartez began working as an insulator using asbestos-containing products in 1957. Except for the year 1959, he continued in that occupation until 1966. He then followed other pursuits until 1980 when he returned to the insulating trade. In 1982 Dartez filed the present action against fourteen corporations alleging that he had been injured by exposure to their asbestos products between 1957 and 1966. His complaint, which was based on the theories of negligence and product liability, did not allege any injury after his return to work in 1980. Prior to trial Dartez settled with three of the defendants. Two others, Johns-Manville Sales Corp. and Unarco Industries, Inc., were severed from this action when they commenced voluntary bankruptcy proceedings. One defendant was dismissed upon Dartez's own motion.

After a three day trial, the jury returned a verdict in favor of three defendants, but found the remaining five corporations to be liable to Dartez under both theories in the amount of $200,000. The five defendants held liable were Celotex Corp., Fibreboard Corp., Owens-Illinois, Inc., Pittsburgh Corning Corp., and Raymark Industries, Inc. (formerly Raybestos-Manhattan). Defendants filed motions to amend and correct the judgment, for judgment notwithstanding the verdict, for a mistrial, and for a new trial, but all motions were denied.

II

On appeal the defendants challenge the district court's decision to admit the following evidence: (1) the deposition of Dr. Kenneth Smith, a physician formerly employed by Johns-Manville; (2) the deposition of Edward Ames, a public relations director for Owens-Corning Fiberglas; (3) the minutes of a committee meeting of the Asbestos Textile Institute; (4) several medical articles discussing the dangers of asbestos; and (5) evidence pertaining to the relationship between asbestos exposure and the diseases of cancer and mesothelioma. They also argue that the record does not contain sufficient evidence to support the jury's verdict. In addition, they assert that they were denied a fair trial because of remarks made to defense counsel by the trial judge in the jury's presence. Finally, they contend that the judge used the wrong formula to adjust the jury's award to account for the payment Dartez had received from the settling defendants.

III. THE EVIDENTIARY RULINGS

A. Dr. Smith's Deposition

Dr. Smith, who is now deceased, was employed by Johns-Manville between 1944 and 1966. During most of this period he was the only physician in the company's full-time employ. He served as Medical Director for approximately thirteen years. In 1976 Smith was deposed in another asbestos case, De Rocco v. Forty-Eight Insulations, Inc., No. 7880 (Allegleny Cty. PA Ct. C.P.1974). He testified about the knowledge of the relationship between asbestos exposure and disease which he had obtained while working for Johns-Manville, the scientific

Page 461

studies on the subject, and the extent to which this information was disseminated throughout the industry. Portions of this deposition were read into evidence at Dartez's trial.

Defendants assert that Dr. Smith's testimony is inadmissible because it is irrelevant, unduly prejudicial, and hearsay. Their assertion is not correct.

Under the Federal Rules, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Defendants contend that Smith's testimony is irrelevant because it relates only to Johns-Manville. Their contention reflects a misunderstanding of a critical issue in any product liability action: the state of the art pertaining to any possible risks associated with the product. Dartez was required to establish that the dangers of asbestos were reasonably foreseeable or scientifically discoverable at the time of his exposure before these defendants could be found liable. Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1088 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).

Borel holds all manufacturers to the knowledge and skill of an expert. They are obliged to keep abreast of any scientific discoveries and are presumed to know the results of all such advances. Moreover, they each bear the duty to fully test their products to uncover all scientifically discoverable dangers before the products are sold. Id. at 1089-90. The actual knowledge of an individual manufacturer is not the issue. If the dangers of asbestos were known to Johns-Manville at the time of Dartez's exposure, then the same risks were scientifically discoverable by other asbestos corporations. Therefore, the testimony of the medical director of the industry's largest member is relevant to plaintiff's attempt to meet the evidentiary burden defined by Borel.

Even relevant evidence may be excluded if its probative value is outweighed by the danger that it will unfairly prejudice or confuse the jury. Fed.R.Evid. 403. However, because Rule 403 permits the exclusion of probative evidence, it is an extraordinary remedy that must be used sparingly. United States v. Thevis, 665 F.2d 616, 633 (5th Cir.), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982).

Smith's testimony has a significant probative value in the jury's assessment of the state of the art. Dartez used only those portions of the deposition that were relevant to this issue. Defendants assert that this testimony was prejudicial because it allowed the jury to find these defendants liable for the knowledge and conduct of Johns-Manville. But this argument misses the point of Borel --the knowledge of one manufacturer can be a proper basis for concluding that another manufacturer should have warned of a specific danger. Rule 403 is designed to exclude evidence that has an "undue tendency to suggest decision on an improper basis ...." Fed.R.Evid. 403 advisory committee note. Smith's testimony, while contrary to defendants' interest, cannot be construed as unfairly prejudicial under this standard.

Finally, defendants object to the Smith deposition on the grounds that it is inadmissible hearsay. Plaintiff asserts that the deposition is admissible under Fed.R.Evid. 804(b)(1) which provides:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

Former Testimony

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Page 462

The application of the former testimony exception is problematical in this case. Although Celotex and Pittsburgh Corning were represented at Smith's deposition, the other defendants were not. Therefore a decision to admit the deposition under this rule would require us to determine whether the asbestos companies present when Smith was deposed constitute "predecessors in interest" for all other asbestos producers, despite the absence of any direct legal connection between them.

The Sixth Circuit, when confronted with the identical question, answered in the affirmative and permitted the use of this same deposition against asbestos companies not represented in De Rocco. Clay v. Johns-Manville Sales Corp., 722 F.2d 1289, 1294-95 (6th Cir.1983). The court reasoned that the De Rocco defendants satisfied Rule 804(b)(1)'s predecessor in interest requirement because they had a full opportunity to cross-examine Smith and to register any objections to his testimony and because their motive to confront Smith was similar to that of the Clay defendants. Id. at 1295. See Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1185 (3d Cir.), cert. denied, 439 U.S. 969, 99 S.Ct. 461, 58 L.Ed.2d 428 (1978).

It is not necessary to decide in today's case whether we agree with the Sixth Circuit's broad definition of predecessor in interest. Even if the Smith deposition is not admissible under the former testimony exception, it is encompassed within the residual exception to the rule against hearsay, Fed.R.Evid. 804(b)(5) which admits:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a...

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100 practice notes
  • Potter v. Firestone Tire & Rubber Co., No. S018831
    • United States
    • United States State Supreme Court (California)
    • December 27, 1993
    ...testify that the plaintiff's exposure to asbestos resulted in a 43 percent chance of cancer. In Dartez v. Fibreboard Corp. (5th Cir.1985) 765 F.2d 456, 466 (hereafter Dartez ), an expert testified that a person employed as insulator, who smoked moderately and was exposed to asbestos, would ......
  • Lebron v. Sec'y of the Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 3, 2014
    ...authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice”); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985) (admission of medical articles improper where plaintiff's medical expert did not testify about the disputed articles); Willi......
  • Lebron v. Sec'y of Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 3, 2014
    ...authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice”); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985) (admission of medical articles improper where plaintiff's medical expert did not testify about the disputed articles); Willi......
  • Lebron v. Sec'y of the Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 3, 2014
    ...authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice”); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985) (admission of medical articles improper where plaintiff's medical expert did not testify about the disputed articles); Willi......
  • Request a trial to view additional results
102 cases
  • Potter v. Firestone Tire & Rubber Co., No. S018831
    • United States
    • United States State Supreme Court (California)
    • December 27, 1993
    ...testify that the plaintiff's exposure to asbestos resulted in a 43 percent chance of cancer. In Dartez v. Fibreboard Corp. (5th Cir.1985) 765 F.2d 456, 466 (hereafter Dartez ), an expert testified that a person employed as insulator, who smoked moderately and was exposed to asbestos, would ......
  • Lebron v. Sec'y of the Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 3, 2014
    ...authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice”); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985) (admission of medical articles improper where plaintiff's medical expert did not testify about the disputed articles); Willi......
  • Lebron v. Sec'y of Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 3, 2014
    ...authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice”); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985) (admission of medical articles improper where plaintiff's medical expert did not testify about the disputed articles); Willi......
  • Lebron v. Sec'y of the Fla. Dep't of Children & Families, No. 14–10322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 3, 2014
    ...authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice”); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985) (admission of medical articles improper where plaintiff's medical expert did not testify about the disputed articles); Willi......
  • Request a trial to view additional results
1 books & journal articles
  • Making the Case for Causation in Toxic Tort Cases: Superfund Rules Don't Apply
    • United States
    • Environmental Law Reporter Nbr. 40-7, July 2010
    • July 1, 2010
    ...a daily human dose of a 11. See, e.g., Hagerty v. L&L Marine Servs., Inc., 788 F.2d 315 (5th Cir. 1986); Dartez v. Fibreboard Corp., 765 F.2d 456, 467 (5th Cir. 1985); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137-38 (5th Cir. 1985); Laswell v. Brown, 683 F.2d 261, 269 (8th Cir.......

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