Nugent v. Owens Corning Fiberglas, Inc., OWENS-CORNING

CourtCourt of Appeal of Missouri (US)
Citation925 S.W.2d 925
Docket NumberOWENS-CORNING,No. 67232,67232
PartiesMarilyn NUGENT, Plaintiff/Appellant, v.FIBERGLAS, INC., and ACandS, Inc., Defendants/Respondents.
Decision Date04 June 1996

Stephen H. Ringkamp, Mark J. Becker, The Hullverson Law Firm, St. Louis, for Appellant Marilyn Nugent.

Kurt L. Rusmussen, William T. Smith, III, Watson & Marshall, L.C., Kansas City, for Respondent Owens--Corning Fiberglas, Inc.

Joel A. Poole, Polsinelli, White, Vardeman & Shalton, St. Louis, for Respondent ACandS, Inc.

GERALD M. SMITH, Presiding Judge.

Plaintiff, Marilyn Nugent, individually and representatively for the children and parents of her husband, appeals from a judgment based on a jury verdict for defendants Owens-Corning Fiberglass Inc. and ACandS, Inc., in her wrongful death suit arising from the death of her husband from mesothelioma. We affirm.

Mesothelioma is a form of cancer primarily caused by exposure to asbestos. Plaintiff's husband, James, was an electrician by trade. During his career as an electrician, from 1954 to 1989, he was exposed to several asbestos-containing products, including "transite" a type of electrical conduit which he used in his work. Transite was not manufactured or distributed by defendants. All parties agree Nugent's exposures to Transite were substantial. Plaintiff alleged that her husband was also exposed to Kaylo, a product manufactured by Owens-Corning and used by ACandS, an insulating contractor, at two job sites where James Nugent was employed for lengths of time in dispute but not exceeding eighteen months. Nugent never directly used Kaylo. Plaintiff's theory was that asbestos dust which was generated from the insulators' use of Kaylo floated throughout the work sites and Nugent, a bystander, inhaled Kaylo dust which contributed to his contracting mesothelioma.

Plaintiff raises as error four occurrences at trial. The first involved the deposition of Willis Hazard, now deceased, which was taken in 1981 in an unrelated asbestos case. Hazard was an industrial hygienist employed by Owens-Illinois, Inc., which manufactured Kaylo until 1958 when Owens-Corning acquired the manufacturing rights from Owens-Illinois. Owens-Illinois was not a party in this lawsuit by the time of trial.

Plaintiff objected to the reading of the deposition because she was not a party to the suit in which it was taken, and was not present or represented at the deposition. She further contends on appeal that portions of the deposition were highly prejudicial and that a curative withdrawal instruction given by the trial court was insufficient to erase the prejudice. Some detailed statement of the proceedings dealing with the deposition is necessary.

In her pre-trial compliance plaintiff listed the Hazard deposition as a deposition plaintiff intended to read into evidence. Part of the Hazard deposition was exhibits. Two of the exhibits to the deposition dealt with the "Saranac" studies. Those studies were undertaken in 1943 by a laboratory employed by Owens-Illinois to study the effects of the breathing of Kaylo dust by animals, notably guinea pigs. A March 12, 1943, letter from the director of the laboratory to U.E. Bowes, the Director of Research of Owens-Illinois, contained the following paragraph: "The fact that you are starting with a mixture of quartz and asbestos would certainly suggest that you have all the ingredients for a first class hazard. However, the particle size of the former will, of course be determined." In a letter of November 16, 1948, the then director wrote to Bowes. That letter was to advise that prior reports of early tests which had tentatively concluded that Kaylo dust did not produce significant pulmonary damage when inhaled into the lungs were not correct. The letter stated:

"During the 30 to 36 months period, however, definite indication of tissue reaction appeared in the lungs of animals inhaling Kaylo dust and therefore, I regret to say, our tentative conclusion quoted above must be altered. In all animals sacrificed after more than 30 months of exposure to Kaylo dust unmistakable evidence of asbestosis has developed, showing that Kaylo on inhalation is capable of producing asbestosis and must be regarded as a potentially-hazardous material."

Defendants sought by motion in limine to prevent the admission of these letters into evidence. The court denied the motion and held the exhibits to the deposition to be admissible. 1 The defendants sought during trial to offer the Hazard deposition to explain or negate the information contained in the two exhibit letters. Plaintiff objected and the court overruled the objection. It stated its reasons as follows:

With regard to the Hazard deposition, relying on Maxwell v. City of Springfield, 705 S.W.2d 90, as well as on the response of the plaintiffs to the defendants' motion in limine to exclude the Saranac documents, which relies on the Hazard deposition, the Court is (sic) determined that the Hazard deposition is admissible and the Court will deal with specific objections to specific passages as needed. (Emphasis supplied)

Owens-Corning supplied plaintiff's counsel with designations of the portions of the deposition it intended to read to the jury. Plaintiff made no objections to any specific portions designated to be read. Plaintiff's counsel supplied defendant with counter-designations of those portions of the deposition he desired read. The deposition was then read to the jury. 2 Later that day plaintiff moved to strike the Hazard deposition. General reference was made to opinions contained in the deposition but specific portions of the deposition were not cited to the court and no request was made to the court to strike anything less than the entire deposition. Defense counsel reminded the court that at the time the Saranac documents were approved for admission defense counsel had expressed his intention to place into evidence portions of the deposition to place the Saranac documents in context. That earlier exchange is part of the record. The court stated: "I don't see why you couldn't have objected to the opinions before he read it in. My ruling was on the deposition as a whole, and I hope I didn't mislead you into thinking that I was overruling any specific objections to designations within the deposition." The court then stated that the plaintiff's objections to the personal opinions of Hazard were meritorious, albeit belated. The court stated that it would give a withdrawal instruction on the opinion testimony.

The next day the court advised the jury:

Ladies and gentlemen, before I forget, you will recall that in the deposition of Willis Hazard, which was read to you yesterday, that he expressed certain opinions, personal opinions about the safety of asbestos as Kaylo and the need for a warning label or the lack of need for a warning label. Those opinions have been stricken from the record, those personal opinions he expressed, and you'll disregard them.

No objection to the withdrawal instruction was made by plaintiff, no request was made for any additional language in the withdrawal instruction and no other specific objectionable portions of the deposition were brought to the court's attention.

Plaintiff contends on appeal that the court erred in allowing the Hazard deposition to be read to the jury and that the withdrawal instruction was inadequate to remove the prejudice generated by the material read to the jury. Although not so delineated the plaintiff's position raises two separate inquiries: first, was the deposition properly admitted at all and, second, if so, did the court err in its subsequent efforts to remove from the record materials it concluded should not have been read.

The Saranac documents were allowed into evidence to establish that Owens-Corning had knowledge of the dangerous nature of Kaylo as early as 1943 and certainly at the time it acquired the rights to manufacture the product. Bowes, to whom the Saranac documents were addressed, was an employee of Owens-Illinois but was also on the board of Owens-Corning. The Hazard deposition further indicated that the Saranac documents were turned over to Owens-Corning at the time it acquired the rights to Kaylo. Hazard's deposition testimony was that subsequent research, studies and tests after the Saranac letters convinced Owens-Illinois and Hazard that the exposures of Kaylo to the guinea pigs were of such massive quantity and continuity that those studies did not establish that the much lower exposures that humans would be subject to would result in illness. Hazard testified that employees in the Kaylo manufacturing plants did not have increased illness and favorable test results were reached at those plants.

Whether to admit deposed testimony is a decision largely within the discretion of the trial court. Keith v. Burlington Northern Railroad, 889 S.W.2d 911 (Mo.App.1994)[25-28]. We accord the trial court broad discretion in ruling on the use of depositions. Id. It was stated in Massman v. Muehlebach, 231 Mo.App. 72, 95 S.W.2d 808 (Mo.App.1936): "[i]t is a well-settled rule in this state that, where one party to a controversy invites evidence of a certain character, even if incompetent, he estops himself from objecting to the other party's following it up with testimony of the same character tending to explain his side of the controversy." In Burrous v. American Airlines, Inc., 639 S.W.2d 263 (Mo.App.1982)[8-10] we stated: "It is the general rule that when one party reads a portion of a deposition the opposition may read some or all of the remainder in explanation." Similar holdings have been made in other cases. Watson v. Landvatter, 517 S.W.2d 117 (Mo.banc 1974)[8,9]; State v. Jones, 532 S.W.2d 772 (Mo.App.1975); Keith v. Burlington Northern Railroad Company, supra.


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  • State, v. Wolfe
    • United States
    • United States State Supreme Court of Missouri
    • February 22, 2000
    ...of the agreement Jury examination of evidence is within the sound discretion of the trial court. Nugent v. Owens Corning Fiberglas, Inc., 925 S.W.2d 925, 931 (Mo. App. 1996), citing Sparks v. Consolidated Aluminum Company, 679 S.W.2d 348 (Mo. App.1984). See also State v. Roberts, 948 S.W.2d......
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    ..."`Each case is determined by its own facts as to whether an abuse of discretion occurred.'" Id. (quoting Nugent v. Owens Corning Fiberglas, Inc., 925 S.W.2d 925, 931 (Mo.App. E.D.1996)). Appellant's argument challenging the aforementioned testimony makes little sense. He appears to be claim......
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    ...a portion of a deposition, the opposition may read some or all of the remainder in explanation. Nugent v. OwensCorning Fiberglas, Inc., 925 S.W.2d 925, 929 Page 704 (Mo.App. E.D.1996). 10 Having reviewed the transcript ex gratia, we find no abuse of discretion on the part of the trial court......
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