Lockwood v. AC & S, Inc.

• Decision Date: 14 July 1986
• Docket Number: Nos. 14422-7-,14475-8,14444-8,14478-2,14504-5 and 14573-8,s. 14422-7-
• Citation: 722 P.2d 826,44 Wn.App. 330
• Court: Washington Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 11,225 Albert LOCKWOOD and Dorothy Anna Lockwood, husband and wife, Respondents, v. AC & S, INC.; American Asbestos Textile Corp., a/k/a Amatex; Carey Canada, Inc.; Armstrong Cork, Inc.; the Celotex Corporation, Successor in Interest to Philip Carey Manufacturing Co., Philip Carey Corp., Briggs Manufacturing Co., and Panacon Corp.; Eagle-Picher Industries, Inc.; Fibreboard Corporation; Forty-Eight Insulation, Inc.; GAF Corporation, Successor by Merger With the Ruberoid Company, f/k/a General Analine and Film Corporation; Garlock, Inc.; H.K. Porter Co., Inc.; Johns-Manville Sales Corporation; Keene Corporation, Successor by Merger With Baldwin-Ehert-Hill, Inc., a/k/a Asten Hill; Nicolet Industries, Inc.; Owens-Corning Fiberglas Corporation; Owens-Illinois Corporation, a/k/a Owens Illinois Glass Co.; Standard Asbestos and Insulation Co.; Union Asbestos and Rubber Co., a/k/a Unarco, Defendants, Pittsburgh Corning Corporation, Respondent, Raymark Industries, Inc., successor in business to Raybestos-Manhattan, Inc., Appellant.

Page 330

44 Wn.App. 330

722 P.2d 826, Prod.Liab.Rep. (CCH) P 11,225

Albert LOCKWOOD and Dorothy Anna Lockwood, husband and wife Respondents, v. AC & S, INC.; American Asbestos Textile Corp., a/k/a Amatex; Carey Canada, Inc.; Armstrong Cork, Inc.; the Celotex Corporation, Successor in Interest to Philip Carey Manufacturing Co., Philip Carey Corp., Briggs Manufacturing Co., and Panacon Corp.; Eagle-Picher Industries, Inc. Fibreboard Corporation; Forty-Eight Insulation, Inc.; GAF Corporation, Successor by Merger With the Ruberoid Company f/k/a General Analine and Film Corporation; Garlock, Inc. H.K. Porter Co., Inc.; Johns-Manville Sales Corporation; Keene Corporation, Successor by Merger With Baldwin-Ehert-Hill, Inc., a/k/a Asten Hill; Nicolet Industries, Inc.; Owens-Corning Fiberglas Corporation; Owens-Illinois Corporation, a/k/a Owens Illinois Glass Co.; Standard Asbestos and Insulation Co.; Union Asbestos and Rubber Co., a/k/a Unarco, Defendants, Pittsburgh Corning Corporation, Respondent, Raymark Industries, Inc., successor in business to Raybestos-Manhattan, Inc., Appellant.

Nos. 14422-7-I, 14444-8, 14475-8, 14478-2, 14504-5 and 14573-8.

Court of Appeals of Washington, Division 1.

July 14, 1986.

John R. Allison, Betts, Patterson & Mines, P.S., Jeffrey Keane, Carney, Stephenson, Siqueland, Badley, Smith & Mueller, John J. Soltys, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, P.S., Paul C. Gibbs, Williams, Lanza, Kastner & Gibbs, Seattle, Barry Mesher, Billett, Comfort & Rosenow, Tacoma, for AC & S, Inc., et al.

William S. Bailey, Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, Seattle, for Albert Lockwood.

GROSSE, Judge.

This is an appeal by Raymark Industries, Inc. (hereinafter Raymark) from a jury verdict in favor of the plaintiffs Albert and Dorothy Lockwood (hereinafter Lockwood) for injuries resulting from Albert Lockwood's prolonged exposure during the course of his employment to asbestos products of which Raymark was a principal manufacturer. On appeal, Raymark's primary assignments of error are directed to the admission or sufficiency of evidence but, nevertheless, raise difficult and novel legal issues relating to the application of products liability law to asbestos products and exposure thereto. ¹

Lockwood worked in Seattle shipyards for 30 years, from 1942 until 1972. After 2 years, during which he was employed in the construction of new vessels, his principal employment was as a rigger and boilermaker repairing and Asbestos was widely used on ships for insulation purposes. Lockwood's first exposure to asbestos occurred after the shipyards changed from construction of new vessels to repair work. This occurred at the conclusion of World War II. Lockwood was exposed to asbestos dust in his work as a rigger which involved using chains to move heavy equipment on the ships. The equipment was hauled by chain falls, a kind of mechanized block and tackle with a continuous chain. As the chain moves it rubs against and cuts through the insulation covering the overhead pipes creating dust.

                renovating older vessels.   In 1972, at the age of 63, Lockwood took disability retirement having been diagnosed as having asbestosis. 2
                

Until 1952, Lockwood worked virtually every shipyard in the area. His exposure to asbestos was similar from one job to the next. In 1952, Lockwood moved to Lake Union Drydock where he worked for the next 20 years. He had similar exposure there. He also had exposure in using the lunch room which was next to a compartment where asbestos was stored. Substantial dust from the storage area entered the lunch room.

Lockwood testified that work at Lake Union Drydock Lockwood had a history of cigarette smoking from his early teen years until 1972 when he was able to quit with only minor lapses thereafter. He also had a history of asthma and emphysema although neither were disabling. It was argued but not established that Lockwood was rejected for duty in the armed services in 1942 because of lung problems.

                was often on a very tight schedule requiring many trades to work simultaneously and in close quarters, sometimes up to 24 hours per day.   His work included direct contact with insulation workers who actually installed or ripped out asbestos materials.   Lockwood also testified that no warnings were ever given as to the possible dangers of working with asbestos nor were any warnings printed on any of the boxes of asbestos.
                

Raymark's predecessor firm, Raybestos-Manhattan, was one of the principal manufacturers of asbestos textiles from the 1920's on, particularly insulating cloth. Its products were used in the Seattle area during the period of Lockwood's employment in the shipyards. Cross respondent Pittsburgh Corning Corporation manufactured a pipe insulation containing 65 percent asbestos which was sold to a subcontractor between 1962 and 1972 when that subcontractor, E.J. Bartells, was using asbestos insulation at Lake Union Drydock. Lockwood identified a color photograph of a box of Pittsburgh Corning insulation as the same as ones he had seen during his shipyard work.

The original complaint in this matter was filed in 1982 and named 19 defendants. As with asbestos litigation occurring throughout the country, it represented only one of many similar cases involving a multitude of defendants, extensive discovery, and a long trial. Pretrial proceedings were held before a special asbestos motions judge pursuant to procedures adopted for the many cases pending. Trial commenced in September of 1983 and lasted over 2 months. Of the original 19 defendants named in the Lockwood complaint, all save three have been dismissed or have settled with Lockwood prior to this appeal. This is the first The primary claims of Lockwood were that the asbestos manufacturers negligently failed to warn of known dangers inherent in their products, or dangers of which they should have been aware; and that the manufacturers were strictly liable for placing on the market a product which was unreasonably dangerous since it was not accompanied by an adequate warning. Expert testimony comprised the bulk of the evidence before the jury. It included testimony as to the nature of asbestos and asbestosis as a disease, its dangerousness to individuals in general as well as to workers in factories making asbestos, and to shipyard workers in particular; and as to the complications of combining smoking with asbestosis. Substantial testimony was presented as to the knowledge of the asbestos industry and of particular defendants of the dangers of asbestos beginning in the 1930's. Lockwood also produced testimony as to whose products were being used in the shipyards generally and on some of the specific jobs sites at which Lockwood worked. The jury found for Lockwood on both negligence and strict liability theories. It awarded $183,372 to Albert Lockwood but nothing to his wife on her separate loss of consortium claim. The Lockwoods had requested $748,000 in damages.

                of the asbestos cases filed in King County Superior Courtto be considered on appeal after a full trial.   As noted, Raymark is the principal actor on appeal. 3
                

Challenged Evidence

The evidence to which appellant objects is as follows:

1. Sumner Simpson Papers: The "Sumner Simpson papers" are a collection of letters and reports relating to the health hazards of asbestos to workers who mined or manufactured asbestos products dating from the 1920's to the 1940's and numbering approximately 6,000 documents. These documents were collected by Sumner Simpson, president of Raybestos-Manhattan, predecessor to Raymark.

                Most were found in a storage area at Raybestos-Manhattan in the early 1970's with some additional papers found in an old Raybestos-Manhattan plant safe in South Carolina in 1979.   See Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986);   Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1498 n. 13 (11th Cir.1985).   The principal documents admitted in this case were correspondence between Sumner Simpson and the counsel of the Johns-Manville Corporation between 1935 and 1940.   Correspondence with other parties is included, particularly the editors of the "Asbestos" magazine.
                

The thrust of this evidence was that Raymark was acutely aware of potential health problems stemming from asbestos dust beginning in the 1930's, suppressed the dissemination of studies completed on the dangers of asbestos dust conducted in England in the 1930's, and also, during the 1950's, suppressed testing and/or dissemination of information on the results of testing on the dangers of asbestos dust.

2. Post-Exposure Evidence : This evidence came in two parts: American Textile Institute documents and documents prepared by the former director of environmental affairs for Raymark. As to the former, many of the documents were not postexposure evidence but Raymark has directed its arguments on appeal primary to that aspect of the evidence.

The American Textile Institute (ATI) documents are minutes and records of the institute which was formed in 1944 and of which Raymark was a member. These documents number more than 7,000 pages, of which only a few were admitted at trial. The ATI documents gave summaries of the proceedings of the meetings. The challenged documents begin in 1954 and end in 1971. They chronicle the industry's reactions to the increasingly severe scientific reports of the dangers of asbestos textile products. The gist of the evidence was that the industry was generally resistant to any scientific evidence of the dangers of asbestos but was acutely aware of that danger.

The post-exposure evidence also includes handwritten notes from 1974 and a post-1974 review of asbestos health literature from 1906 through 1973 prepared by Raymark's Director of Environmental Affairs, John Marsh, and a paper by the corporate medical director for Raybestos-Manhattan, dated 1977, on the medical aspects of occupational exposure to asbestos....