Menne v. Celotex Corp.
| Decision Date | 28 August 1986 |
| Docket Number | No. 85-1929-K.,85-1929-K. |
| Citation | 641 F. Supp. 1429 |
| Parties | Donald R. MENNE, Plaintiff, v. CELOTEX CORPORATION, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Paul H. Hulsey, Topeka, Kan., Thomas H. Hart, III, Barnwell, S.C., for plaintiff.
James Borthwick, David Larson, Kansas City, Mo., for defendants.
Plaintiff Donald R. Menne brought this action against defendants Celotex, Eagle-Picher Industries, Fibreboard, Keene Corporation, Owens-Illinois, Inc., and Raymark, Inc. to recover damages sustained as a consequence of certain personal injuries suffered from excessive exposure to asbestos dust and fibers, inhaled at his work place. He claimed that asbestos was a known hazardous substance and excessive exposure to it caused his condition.
Plaintiff further claimed that while working as a pipefitter during the years 1942-1948 at the Puget Sound Naval Shipyard near Seattle, Washington, his job continuously placed him in direct proxixmity to asbestos dust. He claimed each of the defendant manufacturers supplied asbestos-related products to the work site, and over time he was exposed to each defendant's product, and that exposure substantially contributed to his ultimate condition.
Plaintiff brought the action on the basis of two separate claims: strict liability in tort, and negligence.
With respect to strict liability in tort, plaintiff claimed each defendant manufactured and sold products which were not reasonably safe for use because they contained asbestos not reasonably safe to human life and health; that the products contained no adequate warnings of the dangers involved with use of asbestos, and that defendants failed to provide adequate directions to the users for proper handling, application and/or removal of the products.
With respect to the negligence claim, plaintiff contended the defendants were negligent in one or more of the following respects: they failed to test the asbestos products for their dangerous propensities; they failed to warn foreseeable users such as plaintiff of the dangers of asbestos; they failed to advise users of the proper methods of safe usage and/or removal; and they failed to remove the products from the marketplace and/or remove the asbestos from the products.
Plaintiff further claimed that even prior to 1949 each of these defendants knew, or reasonably should have known, of the products' dangerous propensities, and the defendants were not excused from their duties to test and warn.
Plaintiff claimed he could recover under one or both of the above theories.
Plaintiff claimed that as a consequence of his exposure he suffers a cancerous lung disease, diagnosed as mesothelioma, and his condition is incurable and terminal.
Defendants each admitted they or their predecessors were manufacturers and suppliers of asbestos products. For the purposes of the case, each defendant was considered responsible for the acts of its respective predecessor.
Each defendant denied plaintiff suffers from any asbestos-related disease. Specifically, defendants denied plaintiff ever had mesothelioma or asbestosis. To the extent plaintiff currently had any lung disease, defendants claimed it was caused in part by smoking tobacco products rather than exposure to asbestos.
Each defendant denied plaintiff inhaled or was otherwise exposed to asbestos particles, fibers, or bodies as a result of working near any of defendants' products. Each defendant contended that to the extent plaintiff was exposed to asbestos-related products, that exposure was the result of actions by or products of others, either others that are parties to this action or those that are not parties.
Defendant Raymark contended plaintiff's exposure, if any, to any product manufactured by it was inconsequential and incapable of causing plaintiff's claimed condition. Raymark also contended its asbestos products were made of only one type of asbestos, i.e., Chrysotile, which is not known to be capable of causing the disease plaintiff contended he contracted from his exposure.
Lastly, defendants contended that at the time of the manufacture and distribution of any of their asbestos products, such manufacture, testing and distribution was consistent with the state of the art at that time, and therefore no liability should attach to any defendant on any of the claims raised by plaintiff.
On June 10, 1986, following full jury trial, the jury answered certain special interrogatories as follows:
Consistent with the findings of the jury, on June 10, 1986, the court directed the clerk to enter judgment in favor of plaintiff and against defendants Celotex Corporation, Eagle-Picher Industries, Fibreboard, and Raymark Industries, Inc. in the amount of $2,500,000.00, together with interest from that date, and for costs of the action.
Now defendants Celotex, Eagle-Picher, Fibreboard and Raymark have filed their respective motions for judgment notwithstanding the verdict, or in the alternative for new trial, or in the alternative for remittitur. The court has reviewed the motions, the briefs of all counsel, pertinent portions of the trial transcript, trial notes, and memorandums. On August 1, 1986, the court took up extensive oral argument addressing each of the numerous issues raised by these defendants. Following argument, and consistent with findings of fact and conclusions of law announced as to each, all of the defendants' motions were overruled. The court further announced that a supplanted memorandum would issue as quickly as practicable with regard to the court's findings and reasons for imposing the doctrine on alternative liability in this case.
Since the hearing on August 1, plaintiff has moved the court for a hearing in aid of enforcement of judgment, or alternatively, if a stay of execution is entered, for the giving forthwith of a supersedeas bond. Defendants have moved for a stay of execution pending appeal. The court has taken the matter up with counsel by conference call, and consistent with findings made then, execution of the judgment is stayed for 30 days from the filing of this order. A supersedeas bond is not required until such time as defendants timely file a notice of appeal.
Consistent with the memorandum and order of August 19, 1986, overruling all of the defendants' post-trial motions, I assured the litigants that this memorandum would issue regarding my findings and reasons for imposing the doctrine of alternative liability as contemplated in the Restatement (Second) of Torts § 433B (1965). Before proceeding, however, some history regarding this case is in order.
The court file reflects that the plaintiff, a resident of Nebraska, filed his complaint for recovery of personal injuries by reason of exposure to asbestos, naming as defendants several suppliers of asbestos products. His claim necessarily invoked the comparative fault doctrine of Kansas, and, should his evidence support it, a claim for punitive damages. The case proceeded through the discovery process and in due course reached the jury trial docket. On the very eve of trial, I was confronted with the collective motion of defendants to decide this case under the law of the State of Nebraska. Inasmuch as plaintiff's counsel agreed to the motion, I gave little thought to its significance, sustained defendants' motion, and prepared for trial. At that moment, I had no information with regard to the state of the law in Nebraska other than understanding defendants would claim the doctrine of joint and several liability was involved, as opposed to the concepts of comparative fault. This presented little problem, and I awaited supplemental briefs from the litigants while beginning some initial research. Throughout the entire course of trial, respective counsel for the litigants were of little benefit to me, as all appeared to be in doubt as to the state of the law of Nebraska. The court's research and inquiry into this area was such that I was convinced there simply is no present Nebraska law addressing circumstances similar to those present in this case. I am convinced that as of this moment the Nebraska Supreme Court has not addressed a case such as this, and thus, rather than simply attempt to interpret and apply the present state of Nebraska law, I was required first to identify what is the law of Nebraska.
As this case evolved, these defendants contended it was incumbent upon plaintiff to establish his exposure to a particular defendant's product at a particular time gave rise to his condition. Failing that, plaintiff's case must fall. Defendants' counsel particularly emphasized the requisites of establishing direct and certain evidence that a certain act caused his injury. They repeatedly urged reliance upon Borland...
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Menne v. Celotex Corp.
...("Eagle-Picher"), and Fibreboard Corporation ("Fibreboard")--challenge the denial of a judgment notwithstanding the verdict ("JNOV"), 641 F.Supp. 1429, contending that the evidence of their strict liability or their allegedly negligent failure to test, warn, or otherwise control for asbesto......
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Wysocki v. Reed, 1-90-2266
...(1990), 99 N.C.App. 448, 393 S.E.2d 298. The rule has been considered in a number of federal jurisdictions. In Menne v. Celotex Corp. (D.Kan.1986), 641 F.Supp. 1429, the district judge predicted "with confidence" that the Nebraska Supreme Court would adopt the doctrine of alternative liabil......
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Mullen v. Armstrong World Industries, Inc.
...; Case v. Fibreboard Corp., supra, 743 P.2d 1062; Vigiolto v. Johns-Manville Corp., supra, 643 F.Supp. 1454; but see Menne v. Celotex Corp. (D.Kan.1986) 641 F.Supp. 1429 [applying Nebraska law to find market share liability].) II 9 The judgment of dismissal is affirmed. ANDERSON, P.J., and ......
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Poole v. Alpha Therapeutic Corp.
...by the alternative liability doctrine. When all defendants are present, courts have adopted the theory. E.g., Menne v. Celotex Corp., 641 F.Supp. 1429, 1436-37 (D.Kan.1986) (upholding alternative liability theory in asbestos case); Agent Orange, 597 F.Supp. at 828 (upholding alternative lia......