Hagen v. Celotex Corp.
| Decision Date | 10 September 1991 |
| Docket Number | No. 73520,73520 |
| Parties | Prod.Liab.Rep. (CCH) P 12,923 Charles HAGEN, et al., Plaintiffs-Respondents, v. The CELOTEX CORPORATION, Defendant, Fibreboard Corporation and Owens-Illinois, Inc., Defendants-Appellants. |
| Court | Missouri Supreme Court |
W. Russell Welsh, Joel A. Poole, Dennis J. Dobbels, Kansas City, for defendants-appellants.
Mark I. Bronson, St. Louis, for plaintiffs-respondents.
The husband and children of Gloria Hagen seek damages for her death in 1981 from mesothelioma, a rare malignant condition usually associated with exposure to asbestos fibers. 1 See generally Stedman's Medical Dictionary (5th Unabridged Lawyers' Edition 1982). Her husband, Charles, had been an asbestos worker since the time of their marriage in 1941, and she was constantly exposed to asbestos dust as she washed his coveralls each Saturday. The defendants concede that asbestos exposure was the underlying cause of her illness and death, but argue that the plaintiffs have not established that defendants' products directly contributed to her disease. Twelve asbestos manufacturers were named as defendants but settlements and bankruptcies reduced the number to three by the time of the trial, at which the jury returned a verdict in favor of the plaintiffs for $2,000,000. 2 Following trial defendant Celotex Corporation was excused from the case after seeking Chapter 11 protection, leaving only defendants Fibreboard Corporation and Owens-Illinois, Inc., as appellants. The Court of Appeals, Eastern District, reversed as to Owens-Illinois but affirmed as to Fibreboard, and, as a part of its initial opinion, transferred the case here because of the importance of the question whether the defendants were entitled to an instructional definition of "unreasonably dangerous." We stand possessed of the entire case, and now reverse and remand for further proceedings, concluding that points other than the one highlighted by the court of appeals are dispositive.
Owens-Illinois was the proprietor of the asbestos-containing insulation product "Kaylo" until April 30, 1958, when it sold its Kaylo division to Owens-Corning Fiberglass. It has not manufactured or distributed any product containing asbestos since then. The parties stipulated that Owens-Illinois was not liable for exposure to Kaylo occurring after May 1, 1958.
Plaintiff Charles Hagen presented a list showing his various job locations, the time periods during which he worked at each, and the products used at each job. The exhibit contained only one mention of Kaylo prior to 1958, as follows:
1954, 1959"1971 Lambert Airport Pabco Insulation
Johns"Manville 85% Mag Cement
Kaylo
Webers 48
Eagle"Picher One Cote Cement
Keene Super Powerhouse Cement
While the exhibit indicates that Charles Hagen worked with Kaylo at Lambert Airport it does not establish whether this use took place in 1954, when Owens-Illinois manufactured Kaylo, or during the period 1959-1971, when Owens-Corning was the manufacturer. 3
In an attempt at clarification counsel for the appellants asked Mr. Hagen several questions on cross-examination about his work at Lambert Airport in 1954. He mentioned five products he used during that time but made no mention of Kaylo. Thus, the only evidence connecting him with Kaylo was the ambiguous reference in the list. The exhibit provides no more than equal support for two inconsistent and contradictory propositions and so is insufficient to sustain the plaintiffs' burden of establishing either. 4 The judgment against Owens-Illinois must be reversed.
Asbestos is a mineral product which once was widely used in insulation materials. Over a period of years distressing symptoms appeared in persons who had had substantial exposure to asbestos. Perhaps the most common ailment is asbestosis, which is a nonmalignant scarring of lung tissue. There are also malignant conditions attributable to asbestos exposure, of which mesothelioma is one. Mesothelioma is actuated by asbestos fibers which make their way to the pleural cavity.
Asbestos exists in different forms and is used in products in different concentrations and consistencies. The most dangerous is crocidolite, which was not used in Fibreboard's products. Those products, rather, contained asbestos in the chrysotile and amosite (amoebocyte) forms. Plaintiffs' experts testified that all asbestos products are dangerous but agreed that the several forms of asbestos have different properties and that crocidolite is the most dangerous.
Charles Hagen testified to having worked with asbestos products of at least nine manufacturers over a period of thirty years. The greater part of his work was with Johns-Manville products; his use of other products is not quantified. Fibreboard argues that the plaintiffs have failed to prove that its products were a substantial causative factor in Mrs. Hagen's illness.
The plaintiffs, in order to recover against any defendant, must establish that that defendant's products directly contributed to the death. This requires evidence that the product of each defendant sought to be held liable was a "substantial factor" in causing the harm. 5 In a case of this kind the plaintiff must establish the causal relationship by expert testimony. Kircher v. Purina Mills, Inc., 775 S.W.2d 115 (Mo. banc 1989); Missouri Farmers Association v. Kempker, 726 S.W.2d 723 (Mo. banc 1987). Of the plaintiffs' expert witnesses only the treating internist, Dr. Dew, expressed a competent opinion as to the relationship between asbestos products and Gloria's death. 6 He testified that, to a "reasonable degree of medical certainty," dust from products containing asbestos directly caused or directly contributed to her cancer and death. He did not identify particular products at this point. He said that the dosage is not particularly significant in causing mesothelioma and that the material circumstance is the fact of exposure.
Fibreboard used the brand name "Pabco" for its asbestos products. As Dr. Dew concluded his direct examination the following exchange occurred:
Q And in your opinion, is there a difference regarding their causal effect of mesothelioma from one to the other?
A I think there might be some physical difference that most announce that all asbestos can cause problems. As reviewed information, one of the textbooks, Brown's, for all practical purposes all fibers would be viewed the same. I don't think there is good evidence that you can extricate from the type of fibers as to the presentation of the cancer. The problem with it is asbestos is not single standing. Asbestos has many substances, so there's very seldom a pure asbestos anywhere in the products that we have.
At no point was Dr. Dew asked about the peculiar properties of the Pabco products Mr. Hagen used. Nor was his opinion sought as to whether these particular products contributed to the death from mesothelioma. On cross-examination he testified as follows:
Q In fact, I represent a company called Owens-Illinois, Incorporated, and I also represent Fibreboard. Let me ask you this question. You can't sit here and tell us today that Owens-Illinois' fibers hit the pleura and caused the mesothelioma?
A I cannot.
Q And I could ask you the same question about Fibreboard, and your answer would be the same?
A Right.
Thus the record is barren of expert opinion that Fibreboard's product directly contributed to the illness and death. Dr. Dew disavowed a hypothesis of cumulative effect, suggesting instead that Mrs. Hagen probably had a hypersensitivity to asbestos fibres. His concluding testimony on cross-examination is as follows:
Q You also mentioned about the asbestos floating around in the air in an urban area. Do you agree that the asbestos floating around in the air here in the St. Louis area as opposed to the asbestos that Mrs. Hagen may have gotten from washing her husband's clothes may have caused this mesothelioma?
A Again, I'm not sure which fiber caused this. I think it is possible that asbestos may have played a part. I don't know how you can separate that, under the circumstances. It's there. It's in the air we breathe. We all get it in. So I don't know that the examination is such that you can get down and say this is the one that did it.
MR. WELSH: Thanks, Doctor.
The redirect continued as follows:
Q Doctor, in your opinion what is the most probable and likely cause of her mesothelioma?
A I think it's related to the cleaning of the clothes, the shaking is known to be particularly common and leads to inhalation of a good dose at the time you do that. So that when people shake out their clothes, that's probably when she got a reasonably good dose from inhalation.
Thus the plaintiffs have failed to establish any more than that the death was caused by exposure to asbestos dust and that Fibreboard's products may have supplied the fatal exposure. This does not establish causation under the standards of our law. The problem differs only in degree and not in kind from the one we considered in Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. banc 1984), which holds that the element of causation must be established as to each defendant sought to be held. There we declined to follow decisions of other states that seem to have relaxed the traditional causation standards. See Schoening v. Claus, 363 Mo. 119, 249 S.W.2d 361 (1952). The plaintiffs' cited cases do not support a contrary conclusion.
The plaintiffs first rely on Elam v. Alcolac, Inc., 765 S.W.2d 42, 173 (Mo.App.1988). There the plaintiffs claimed that they had been harmed by toxic emissions from a chemical plant. The defendants argued that the evidence was not sufficient to show...
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