Spaur v. Owens-Corning Fiberglas Corp.

• Decision Date: 19 January 1994
• Docket Number: OWENS-CORNING,No. 92-1452,92-1452
• Citation: 510 N.W.2d 854
• Parties: Prod.Liab.Rep. (CCH) P 13,808 Marilyn SPAUR, Executor of the Estate of Robert Spaur, and Marilyn Spaur, Individually, Appellees, v.FIBERGLAS CORPORATION, Appellant.
• Court: Iowa Supreme Court

Page 854

510 N.W.2d 854

Prod.Liab.Rep. (CCH) P 13,808

Marilyn SPAUR, Executor of the Estate of Robert Spaur, and Marilyn Spaur, Individually, Appellees, v. OWENS-CORNING FIBERGLAS CORPORATION, Appellant.

No. 92-1452.

Supreme Court of Iowa.

Jan. 19, 1994.

John D. Ackerman of Eidsmoe, Heidman, Redmond, Fredregill, Patterson & Schatz, Sioux City, for appellant.

Michael J. Galligan and Timm W. Reid of the Michael J. Galligan Law Firm, P.C., Des Moines, for appellees.

Bonnie J. Campbell, Atty. Gen., Craig Kelinson, Sp. Asst. Atty. Gen., and Richard E. Mull, Asst. Atty. Gen., for amicus curiae State of Iowa ex rel. Civil Reparations Trust Fund.

Considered by HARRIS, P.J., and LAVORATO, NEUMAN, SNELL and ANDREASEN, JJ.

ANDREASEN, Justice.

Robert and Marilyn Spaur, husband and wife, brought suit against Owens-Corning Fiberglas Corporation (OCF), and several other defendants to recover damages for personal injury resulting from the husband's exposure to defendants' asbestos-containing products. By the time the case went to the jury all defendants except OCF either settled with Spaurs or were dismissed. The jury awarded compensatory damages, loss of consortium damages, and punitive damages against OCF. This appeal followed.

OCF claims the trial court erred in failing to: (1) grant its motion for a directed verdict and its motion for a judgment notwithstanding the verdict; (2) properly instruct the jury on the level of proof necessary to show husband's exposure to Kaylo, its asbestos-containing product; (3) list the defendant Manville Corporation Asbestos Disease Compensation Fund (Manville Trust) as a party on the verdict form for the purposes of fault allocation; (4) list several nonmanufacturing suppliers of asbestos-containing products as parties on the verdict form for fault allocation; (5) sustain its constitutional challenges to the award of punitive damages; and (6) grant a new trial or a remittitur because the consortium award was excessive. We affirm.

I. Background.

The Spaurs brought this action against twenty-four different parties in June 1991, alleging that Robert Spaur's exposure to asbestos-containing products manufactured or distributed by each of the named defendants caused him to develop cancer and ultimately die. Robert, age sixty-two, died on January 7, 1992, and his executor was substituted as plaintiff. Iowa R.Civ.P. 15.

Defendant OCF cross-petitioned against defendant Manville Trust for contribution. Iowa R.Civ.P. 34(a). Before trial began on March 9, 1992, all defendants settled except Pittsburgh Corning, Keene, Owens-Illinois, Manville Trust and OCF. During trial the Spaurs settled with Pittsburgh Corning and Owens-Illinois, and dismissed Keene with prejudice and dismissed Manville Trust without prejudice.

The action against OCF went to the jury on the theories of negligence and strict liability. The jury held OCF at fault and found total damages of $42,159.20 for medical expenses, $15,000 for interest on burial expenses, $1 million for pain and suffering, and $800,000 for loss of past and future consortium. The jury also assessed $1.5 million in punitive damages against OCF. The jury allocated seventy-six percent fault to OCF, twenty-four percent fault to four other parties and found six other parties not at fault. The court entered judgment on the verdict against OCF in the amount of $1,404,710.93 for compensatory damages and $1.5 million for punitive damages. OCF's posttrial motion for a new trial and for a judgment n.o.v. was denied by the court.

Robert Spaur worked at the Iowa Power Plant on Vandalia Road in Des Moines for approximately twenty-five years between 1957 and when the plant closed in 1985. He was diagnosed with mesothelioma, a form of lung cancer, in October of 1990, approximately fourteen months prior to his death. During his employment with Iowa Power he held a variety of positions at the plant. It is clear that during his years at the plant Spaur was exposed to products containing asbestos which were used to insulate the plant's immense system of boilers, turbines, and pipes.

OCF was formed in 1938 to manufacture fiberglas products. From 1953-58 OCF distributed Kaylo, an asbestos-containing pipe covering and block insulation product manufactured by Owens-Illinois. In 1958 OCF began manufacturing and distributing Kaylo and continued to do so until late 1972. In addition to OCF's Kaylo product, insulating products in a variety of forms from a number of other manufacturers or distributors were used at the plant. Additional facts that bear on the issues will be discussed in our consideration of the legal claims which are presented.

II. Directed Verdict.

Our review of the court's denial of a directed verdict is for correction of errors of law and is limited to the grounds raised in the motion. Federal Land Bank of Omaha v. Woods, 480 N.W.2d 61, 65 (Iowa 1992); Iowa R.App.P. 4. We view the evidence in the light most favorable to the nonmoving party and ask whether reasonable minds could differ on the issue. Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N.W.2d 247, 254 (Iowa 1993).

We first address the issue of whether the court erred in denying OCF's motion for a directed verdict and its motion for judgment n.o.v. on the ground that there was insufficient evidence. Specifically, OCF contends that the record fails to provide competent evidence that Kaylo was the proximate cause of Spaur's disease, that the medical evidence failed to pinpoint Kaylo's exact role and contribution to the disease process, and that the court incorrectly used a "substantial factor" test for proximate cause rather than a "frequency, regularity and proximity" test. See Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir.1986). The district court held that the causation evidence was sufficient to generate a jury question on proximate cause and that the substantial factor test was the appropriate test for causation in Iowa. We agree.

A. Proximate Cause.

Under Iowa law "a plaintiff in a products liability case must prove that the injury causing product was a product manufactured or supplied by the defendant." Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 76 (Iowa 1986). A causal connection must be shown between the defendant's alleged negligence and the injury. Id. at 72. "The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct." 1 Iowa Civil Jury Instructions 700.3 (1991); Johnson v. Interstate Power Co., 481 N.W.2d 310, 323 (Iowa 1992). Proximate cause is ordinarily a question for the jury. Beeman, 496 N.W.2d at 254.

We have recognized a less restrictive approach to causation when dealing with concurrent causes. Beeman, 496 N.W.2d at 254-55 (applying a modified substantial factor rule in asbestos litigation). See also Eagle-Picher v. Balbos, 326 Md. 179, 604 A.2d 445, 459 (1992) (suppliers do not have a causation defense that plaintiff would suffer the same disease from other suppliers' products). Therefore, we agree when the conduct of two or more persons

is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event.

W. Page Keeton, Prosser and Keeton on the Law of Torts § 41, at 268 (5th ed. 1984).

In Beeman, we held

that a reasonable inference of exposure to a defendant's asbestos-containing product, coupled with expert testimony regarding asbestos fiber drift and the cumulative effects of exposure to asbestos, is enough to prove proximate cause in the asbestos products liability context.

496 N.W.2d at 254 (citations omitted). Proof of a causal connection in asbestos litigation is often limited to circumstantial evidence. Circumstantial evidence is equally as probative as direct evidence. Iowa R.App.P. 14(f)(16).

State and federal courts have applied different tests to determine whether a proximate cause issue has been generated in an asbestos product liability case. Some jurisdictions for example, require the plaintiff to prove exposure to the defendant's product and "that it is more likely than not this exposure was a substantial factor in his injury." Johnson v. Celotex Corp., 899 F.2d 1281, 1285-86 (2d Cir.1990), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990); see also In re Joint E. & S. Dist. Asbestos Litig., 798 F.Supp. 925, 930-31 (E. & S.D.N.Y.1992).

Similarly, other courts have adopted a less rigid approach holding that the law does not require that each of several concurring contributing causes be sufficient, standing alone, to bring about the plaintiff's harm. See, e.g., In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 816-18 (9th Cir.1992) (plaintiff must prove presence of defendant's product and provide sufficient evidence to support an inference of exposure to that product); Dunn v. Owens-Corning Fiberglass, 774 F.Supp. 929, 935-36 (D.V.I.1991) (plaintiff must show evidence of defendant's product and plaintiff's exposure to that product sufficient to support an inference that defendant's product was a substantial contributing cause of plaintiff's injury); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 94-95 (W.D.Pa.1985) (causation established by evidence that asbestos was the cause of plaintiff's disease and defendant's product was a substantial factor in bringing about the disease).

A more particularized causation test, a de minimis rule, was articulated by the Fourth Circuit in Lohrmann, 782 F.2d at 1162-63. The court held that "[t]o support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked." Id. In essence, this "frequency,...