Sorenson v. Raymark Industries, Inc.

• Decision Date: 20 May 1988
• Docket Number: No. 10270-6-II,10270-6-II
• Parties: , Prod.Liab.Rep. (CCH) P 11,894 Lyle R. SORENSON and E. Maxine Sorenson, husband and wife, Respondents, v. RAYMARK INDUSTRIES, INC., Successors in Business to Raybestos-Manhattan, Inc.; Fibreboard Corporation; the Celotex Corporation, Successor in Interest to Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs and Panacon; Owens-Corning Fiberglas Corporation; Owens-Illinois, Inc.; Keene Corporation; and Pittsburgh-Corning Corporation, Appellants.
• Court: Washington Court of Appeals

Page 954

51 Wn.App. 954

756 P.2d 740, Prod.Liab.Rep. (CCH) P 11,894

Lyle R. SORENSON and E. Maxine Sorenson, husband and wife, Respondents, v. RAYMARK INDUSTRIES, INC., Successors in Business to

Raybestos-Manhattan, Inc.; Fibreboard Corporation; the

Celotex Corporation, Successor in Interest to Philip Carey

Manufacturing Company, Philip Carey Corporation, Briggs and

Panacon; Owens-Corning Fiberglas Corporation;

Owens-Illinois, Inc.; Keene Corporation; and

Pittsburgh-Corning Corporation, Appellants.

No. 10270-6-II.

Court of Appeals of Washington,

Division 2.

May 20, 1988.

As Changed July 5, 1988.

Steven T. Johnson, Gibson, Dunn & Crutcher, Seattle, for Celotex Corp., Fibreboard Corp., Owens-Corning, Pittsburgh-Corning, Owens-Illinois, Keene Corp.

Cynthia Gannett, Williams, Kastner & Gibbs, Seattle, for Eagle-Picher Industries.

William J. Rutzick, Schroeter, Goldmark & Bender, Seattle, for respondents.

Linda E. Blohm, McKay & Gaitan, Seattle, for Raymark Industries.

REED, Chief Judge.

Defendants, manufacturers of asbestos products, appeal a judgment in favor of Lyle Sorenson, who suffers asbestos-related impairments. Sorenson was employed at Puget Sound Naval Shipyard for many years, from the early 1940's through the mid-1970's. Although he did not work with asbestos products personally, he frequently did work in areas where these products were applied or removed, and where asbestos dust filled the air.

In 1980, Sorenson's physician determined that Sorenson had asbestosis, which later worsened, and pulmonary disease related to his habit of smoking cigarettes. A more recent medical examination revealed a spot on Sorenson's lung, which proved to be a benign atelectasis. However, persons exposed to asbestos are at greater risk of contracting lung cancer or another form of cancer called mesothelioma.

In 1981, Sorenson filed this action against the defendant manufacturers, relying on negligence and products liability theories. At a pretrial hearing, the defendants' motion to exclude evidence of Sorenson's increased risk of contracting cancer was denied, and such evidence was admitted at trial. The jury awarded damages to Sorenson and his wife. The defendants' motion for judgment notwithstanding the verdict, or for a new trial, was denied.

First, the defendants contend that the trial court erred by denying their motion in limine seeking to exclude evidence that exposure to asbestos increased Sorenson's risk of contracting cancer. Evidentiary rulings are reviewed only for an abuse of the trial court's sound discretion, which occurs only when evidence is admitted that is both inadmissible and prejudicial. Caruso v. Local 690 Int. Bhd of Teamsters, 107 Wash.2d 524, 535, 730 P.2d 1299, cert. denied, --- U.S. ----, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987). The defendants argued that this evidence was not admissible unless Sorenson could demonstrate a reasonable probability that he would actually contract either form of cancer. Sorenson urged, and the trial court agreed, that the evidence was admissible to show the increased risk, relying on Herskovits v. Group Health Coop of Puget Sound, 99 Wash.2d 609, 664 P.2d 474 (1983), which held that a physician could be liable for a misdiagnosis that reduced to 14 percent a patient's 50 percent chance of surviving a terminal condition.

In Herskovits, 99 Wash.2d at 614-15, 664 P.2d 474, two justices concluded that the plaintiff need establish only that the physician's negligence was a substantial factor in causing the patient's death. This analysis was founded on the rule that one is liable for the physical damages caused by negligently rendering aid to another and consequently increasing the risk of harm to that person. Brown v. MacPherson's, Inc., 86 Wash.2d 293, 299, 545 P.2d 13 (1975). However, in Daugert v. Pappas, 104 Wash.2d 254, 262, 704 P.2d 600 (1985), the court limited the substantial factor analysis, noting that it applies only when a plaintiff cannot show that one event alone caused the injury involved. In Sorenson's case, of course, he can point to one event, exposure to asbestos, as a source of injury. Moreover, this is not a case that falls under the Brown rule, because the defendants in this case did not render aid to Sorenson. Thus, this facet of the Herskovits decision does not support admissibility of the challenged evidence.

The next holding of the Herskovits decision, adopted by four justices, is that a reduction in a patient's opportunity to recover from the illness is a real, distinct, and compensable injury. 99 Wash.2d at 634, 664 P.2d 474. Although this discussion does not refer to the Brown rule, it too seems to apply when the defendant negligently has rendered aid, and thus does not apply to this case. Moreover, as Daugert explains, this rationale permits a party to recover where the plaintiff has lost an opportunity and has no other redress. 104 Wash.2d at 261. Here, of course, Sorenson has not lost an opportunity and he seeks redress for a merely speculative harm, the onset of cancer. Finally, Herskovits applies only where the defendant's negligence caused a "separate and distinguishable harm," Daugert, 104 Wash.2d at 261-62, 704 P.2d 600, while Sorenson suffered a single harm, asbestosis from his exposure to the product. See, Herber v. Johns-Manville Corp., 785 F.2d 79, 82-83 (3d Cir.1986). Thus, the evidence regarding Sorenson's increased risk of cancer was not properly admitted under the Herskovits analysis.

We agree with Sorenson's alternative theory, however, that this evidence was admissible to establish, as a damage factor, the reasonableness of his fear that he would contract cancer. Our courts long have recognized that a plaintiff may recover for anxiety, arising from a current reasonable fear of future injury or illness, and resulting from an injury...