Lohrmann v. Pittsburgh Corning Corp., No. 84-1323

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore HALL and CHAPMAN, Circuit Judges and HAYNSWORTH; CHAPMAN
Citation782 F.2d 1156
PartiesProd.Liab.Rep.(CCH)P 10,928 Frederick O. LOHRMANN, Appellant, v. PITTSBURGH CORNING CORP., a Pennsylvania Corporation; Celotex Corporation, a Delaware Corporation; Keene Corporation; G.A.F. Corporation, a Delaware Corporation; Eagle-Picher Industries, Inc., an Ohio Corporation; Raybestos-Manhattan, Inc., a New Jersey Corporation and A.C. and S., Inc., formerly known as Armstrong Contracting and Supply Corporation, a Delaware Corporation, Appellees, and Johns-Manville Corporation, a New York Corporation; Johns-Manville Sales Corporation, a Delaware Corporation; Unarco Industries, Inc., formerly known as Union Asbestos & Rubber Company, an Illinois Corporation; Owens-Corning Fiberglass Corporation, a Delaware Corporation; Owens-Illinois, Inc., an Ohio Corporation; Owens-Illinois Glass Company, an Ohio Corporation; Forty-Eight Insulation, Inc., an Illinois Corporation; Amchem Products, Inc., a Pennsylvania Corporation; Nicolet Industries, Inc., a Pennsylvania Corporation; Southern Textile Corporation, formerly known as Southern Asbestos Corporation, a Delaware Corporation; H.K. Porter Company, Inc., a Delaware Corporation; Amatex Corporation, formerly known as American Asbestos Textile Corporation, a Pennsylvania Corporation; Armstrong Cork Company, a Delaware Corporation, Defendants.
Decision Date30 January 1986
Docket NumberNo. 84-1323

Page 1156

782 F.2d 1156
Prod.Liab.Rep.(CCH)P 10,928
Frederick O. LOHRMANN, Appellant,
v.
PITTSBURGH CORNING CORP., a Pennsylvania Corporation;
Celotex Corporation, a Delaware Corporation; Keene
Corporation; G.A.F. Corporation, a Delaware Corporation;
Eagle-Picher Industries, Inc., an Ohio Corporation;
Raybestos-Manhattan, Inc., a New Jersey Corporation and A.C.
and S., Inc., formerly known as Armstrong Contracting and
Supply Corporation, a Delaware Corporation, Appellees,
and
Johns-Manville Corporation, a New York Corporation;
Johns-Manville Sales Corporation, a Delaware Corporation;
Unarco Industries, Inc., formerly known as Union Asbestos &
Rubber Company, an Illinois Corporation; Owens-Corning
Fiberglass Corporation, a Delaware Corporation;
Owens-Illinois, Inc., an Ohio Corporation; Owens-Illinois
Glass Company, an Ohio Corporation; Forty-Eight Insulation,
Inc., an Illinois Corporation; Amchem Products, Inc., a
Pennsylvania Corporation; Nicolet Industries, Inc., a
Pennsylvania Corporation; Southern Textile Corporation,
formerly known as Southern Asbestos Corporation, a Delaware
Corporation; H.K. Porter Company, Inc., a Delaware
Corporation; Amatex Corporation, formerly known as American
Asbestos Textile Corporation, a Pennsylvania Corporation;
Armstrong Cork Company, a Delaware Corporation, Defendants.
No. 84-1323.
United States Court of Appeals,
Fourth Circuit.
Argued Oct. 9, 1985.
Decided Jan. 30, 1986.

Page 1158

Donald I. Marlin, New York City (Stanley J. Levy, Levy, Phillips & Konigsberg, New York City, Carl E. Tuerk, Jr., Cooper, Beckman & Tuerk, Harry Goldman, Jr., Goldman & Skeen, Baltimore, Md., on brief), for appellant.

F. Ford Loker, Baltimore, Md. (Niles, Barton & Wilmer, Baltimore, Md., on brief), Stephen J. Sfekas, Baltimore, Md. (Ruth Newman Fahrmeier, Tydings & Rosenberg, E. Dale Adkins, III, M. Bradley Hallwig, Anderson, Coe & King, Baltimore, Md., William R. Spellbring, Jr., Samuel J. DeBlasis, II, O'Malley, Miles, McCarthy & Harrell, Upper Marlboro, Md., Michael B. Mann, Dennis C. Whelley, Merriman & Mann, P.A., Richard R. Jackson, Jr., Robert L. Ehrlich, Jr., Ober, Kaler, Grimes & Shriver, Baltimore, Md., on brief), for appellees.

Before HALL and CHAPMAN, Circuit Judges and HAYNSWORTH, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

Appellant was a pipefitter from 1940 to 1979 at Bethlehem Steel Corporation's Key Highway shipyard in Baltimore. He claims that he now has asbestosis resulting from exposure to various asbestos-containing products of nineteen named defendants. Prior to trial, three of the defendants were severed due to being under the jurisdiction of United States bankruptcy courts. Other defendants either settled or made successful motions for summary judgment until only seven remained: Raymark Industries, Inc., Celotex Corporation, Pittsburgh Corning Corp., Keene Corporation, Eagle-Picher Industries, Inc., G.A.F. Corporation and A.C. & S., Inc. At the conclusion of plaintiff's case in chief, the trial judge directed verdicts in favor of Raymark, Celotex and Pittsburgh Corning. At the conclusion of the trial, the jury found in favor of the remaining four defendants. Appellant now claims error of the district court in certain evidentiary rulings, in certain of its jury instructions, and in the standard used by the court in granting verdicts to the three defendants. We affirm.

I

Lohrmann was born in 1919 and worked as a pipefitter at Key Highway Ship Yard for thirty-nine years. He claims that he was exposed to asbestos dust from insulating materials throughout his employment. He admitted that he had smoked and inhaled unfiltered cigarettes since 1940 and was still doing so against the advice of his physician. He retired in 1979, and at that time his personal physician found that he was disabled as a result of chronic obstructive pulmonary disease, but this physician did not diagnose asbestosis. Later, another doctor gave the diagnosis of asbestosis, and this diagnosis was an issue of dispute between the experts at trial.

Plaintiff pursued two theories of liability: negligence and strict liability in tort. He contended that the product was defective and unreasonably dangerous because of the absence of adequate warnings that exposure to asbestos dust was dangerous and could produce asbestosis and other related diseases. In the negligence claim he asserted that in addition to the failure to warn, the defendants failed to test the product and failed to develop a safe substitute for asbestos.

The trial followed the usual course of the plaintiff attempting to prove contact with asbestos-containing products of all defendants. There were the medical witnesses, those who had actually examined and treated Lohrmann and those who testified as to the state of the art--what and when doctors,

Page 1159

mine owners, and manufacturers knew or should have known about the dangers of asbestos, not only to persons working in mines and manufacturing plants, but also to those coming in contact with the product, such as insulators, pipefitters, and others working in close proximity to the installation or removal of asbestos-containing products. At the conclusion of the plaintiff's case, the trial judge directed verdicts in favor of Raymark Industries, Inc., Celotex Corporation, and Pittsburgh Corning Corp. This left Keene Corporation, Eagle-Picher Industries, Inc., G.A.F. Corporation, and A.C. & S, Inc., as the four defendants remaining of the original nineteen. These four defendants contended that Lohrmann did not have asbestosis, but had emphysema, chronic bronchitis, and shortness of breath due to cigarette smoking. They also presented witnesses on the state of the art and on when manufacturers first became aware of the potential harm to men working in trades outside the mining and manufacturing of asbestos products.
SUMNER SIMPSON PAPERS

Sumner Simpson was President of Raybestos Manhattan from 1929 to 1948 and was Chairman of the Board of that corporation from 1945 until his death in 1953. Raybestos Manhattan has since become Raymark. During his years as President and later as Chairman of the Board of Raybestos Manhattan, Mr. Simpson kept various letters, newspaper clippings, articles from publications, correspondence, and other documents relating to the health hazards of asbestos to workers in the mining and manufacture of asbestos products. These documents were found in a box in a storage area at Raybestos Manhattan in the early 1970s, and an additional group of papers, consisting of approximately 600 documents, were found in an old safe at the Raybestos Manhattan plant in North Charleston, South Carolina, in 1979. There are approximately 6,000 documents included in the Sumner Simpson papers. The papers were produced through discovery proceedings in an early asbestosis case, and since then the admissibility of various documents included in the Sumner Simpson papers has become an issue in the continuing asbestosis litigation.

In the present action the plaintiff offered a number of Sumner Simpson documents against defendant Raymark and on the issues of Raymark's knowledge of asbestos hazards and the proper standard of care to be exercised by Raymark in view of its knowledge. The documents were not introduced against the other six defendants. The trial judge excluded these documents as being irrelevant. Appellant claims error in this ruling and relies primarily upon Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314 (5th Cir.1985) (en banc.) In Jackson the trial judge had admitted three of the Sumner Simpson papers against the defendants Johns-Manville and Raybestos Manhattan to show that they knew or should have known of the dangers of asbestos products to shipyard workers during the time covered by the letters and the time during which the plaintiff Jackson was employed. The Fifth Circuit found that the trial judge had not abused his discretion in admitting the three letters under the facts in that case. However, we are faced with a different factual picture. Johns-Manville is not a party in the present action, and the trial judge granted a directed verdict to Raymark because the plaintiff failed to prove contact with Raymark products. What Raymark's predecessor (Raybestos Manhattan) knew or should have known about the dangers of asbestos to workers other than asbestos mining and manufacturing employees is irrelevant if the plaintiff did not come in contact with Raymark asbestos products, and the trial judge did not err in excluding the proffered documents from the Sumner Simpson papers. The question of what the asbestos manufacturers knew and when they knew it was presented in great detail by experts produced by all parties on the issue of the development of scientific and medical knowledge concerning asbestos hazards to workers outside the asbestos industry, so this evidence

Page 1160

was extensively developed without the use of the Sumner Simpson papers.
REFERENCES TO CANCER

Appellant contends that the trial judge erred in limiting the references that could be made to the risk of cancer sustained by workers exposed to asbestos and to the various forms of cancer that have been linked to asbestos exposure. Lohrmann claims that references to and evidence of cancer risks were admissible to measure the reasonableness of the defendants' conduct given the increased risk, to measure the defendant's duty to warn, and to determine the duty to test. He also asserts that the cancer evidence was admissible on the issue of damages under Maryland law.

It is obvious from the record in this case that the plaintiff attempted at every opportunity with almost every witness to interject cancer into the case, even though Lohrmann did not have cancer and plaintiff's medical expert indicated that he could not testify with a reasonable degree of medical certainty that Lohrmann was likely to develop cancer from his exposure to asbestos. The district judge did a commendable job in...

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375 practice notes
  • Lineaweaver v. Plant Insulation Co., No. A060263
    • United States
    • California Court of Appeals
    • January 31, 1995
    ...although these considerations should not be determinative in every case. (Cf. Lohrmann v. Pittsburgh Corning Corp. (4th Cir.1986) 782 F.2d 1156, 1162-1163 [adopting "frequency-regularity-proximity" test as de minimis standard of causation].) Additional factors may also be [31 Cal.App.4th 14......
  • Taylor v. Celotex Corp.
    • United States
    • Superior Court of Pennsylvania
    • May 7, 1990
    ...or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344 (1973). See, e.g.: Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5t......
  • Richards v. Armstrong Int'l, Inc., Docket No.: BCD-CV-10-19
    • United States
    • Supreme Judicial Court of Maine (US)
    • April 5, 2012
    ...of much debate.4 A majority of jurisdictions have adopted the standard articulated by the court in Lohrmann v. Pittsburg Corning Corp., 782 F.2d 1156 (4th Cir. 1986), where the court construed the "substantial factor" test of the Restatement (Second) of Torts.5 In Lohrmann, the court announ......
  • Mahar v. Sullivan & Merritt, Inc., BCD-CV-10-21
    • United States
    • Superior Court of Maine
    • July 18, 2013
    ...of much debate. A majority of jurisdictions have adopted the standard articulated by the court in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), where the court construed the "substantial factor" test of the RESTATEMENT (Second) of Torts.[3] In Lohrmann, the court anno......
  • Request a trial to view additional results
374 cases
  • Lineaweaver v. Plant Insulation Co., No. A060263
    • United States
    • California Court of Appeals
    • January 31, 1995
    ...although these considerations should not be determinative in every case. (Cf. Lohrmann v. Pittsburgh Corning Corp. (4th Cir.1986) 782 F.2d 1156, 1162-1163 [adopting "frequency-regularity-proximity" test as de minimis standard of causation].) Additional factors may also be [31 Cal.App.4th 14......
  • Taylor v. Celotex Corp.
    • United States
    • Superior Court of Pennsylvania
    • May 7, 1990
    ...or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344 (1973). See, e.g.: Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5t......
  • Richards v. Armstrong Int'l, Inc., Docket No.: BCD-CV-10-19
    • United States
    • Supreme Judicial Court of Maine (US)
    • April 5, 2012
    ...of much debate.4 A majority of jurisdictions have adopted the standard articulated by the court in Lohrmann v. Pittsburg Corning Corp., 782 F.2d 1156 (4th Cir. 1986), where the court construed the "substantial factor" test of the Restatement (Second) of Torts.5 In Lohrmann, the court announ......
  • Mahar v. Sullivan & Merritt, Inc., BCD-CV-10-21
    • United States
    • Superior Court of Maine
    • July 18, 2013
    ...of much debate. A majority of jurisdictions have adopted the standard articulated by the court in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), where the court construed the "substantial factor" test of the RESTATEMENT (Second) of Torts.[3] In Lohrmann, the court anno......
  • Request a trial to view additional results
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