Verbryke v. Owens-Corning Fiberglas Corp.

• Decision Date: 18 December 1992
• Docket Number: OWENS-CORNING,No. L-91-350,L-91-350
• Citation: 84 Ohio App.3d 388,616 N.E.2d 1162
• Parties: VERBRYKE et al., Appellants, v.FIBERGLAS CORPORATION, Appellee.
• Court: Ohio Court of Appeals

Page 388

84 Ohio App.3d 388

616 N.E.2d 1162

VERBRYKE et al., Appellants, v. OWENS-CORNING FIBERGLAS CORPORATION, Appellee.

No. L-91-350.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided Dec. 18, 1992.

Matthew T. Bradey, for appellants.

Jeffrey H. Chilton, Susan Healy Zitterman and Paula M. Burgess, for Owens-Corning Fiberglas Corp.

Robert A. Bunda, Anne Y. Koester and Richard A. Papurt, for amicus curiae, Owens-Illinois, Inc.

SHERCK, Judge.

This is an appeal from an order which directed a verdict in favor of an asbestos manufacturer. Because we find, after construing the evidence most favorably toward the nonmoving party, that reasonable minds could differ as to whether appellants proved exposure to the asbestos manufacturer's product and whether that exposure caused injury, we reverse.

Appellants are Robert Verbryke and his wife Harriet. Robert Verbryke was employed at the Toledo Plant of the E.I. DuPont Company from 1945 until his retirement in 1985. The Toledo DuPont plant manufactures automobile paint. Inside the plant are numerous insulated pipes. Appellee, Owens-Corning Fiberglas Corporation, was a distributor of a pipe insulation product, brand named "Kaylo," between 1954 and 1957 and its manufacturer from 1958 until 1972. Kaylo contained asbestos and was used as pipe insulation at DuPont's Toledo plant.

In 1987, two years following his retirement, Robert Verbryke participated in a medical screening for asbestos-related diseases. As a result of that screening, Verbryke was informed that he showed a pleural thickening of his lungs, which is associated with asbestos inhalation. He was also informed that, since it appeared that he had inhaled asbestos, he stood a greatly increased risk of developing certain cancers.

On February 8, 1989, appellants brought suit against appellee and five other defendants ¹ alleging that each defendant had produced, sold, or otherwise introduced into commerce products containing asbestos which the defendants knew or should have known would be harmful to the health of one exposed to these products. The complaint further alleged that Robert Verbryke was exposed to these products and such exposure was the proximate cause of both Verbryke's asbestos-related disease and his emotional distress resulting from the disclosure that he faced a substantially increased risk of cancer. ² Harriet Verbryke joined her husband's suit alleging loss of consortium.

On October 3, 1991, in accordance with the general order for Lucas County asbestos litigation, the first part of a bifurcated jury trial was held. This trial was limited to the issues of (1) product identification, (2) medical causation, and (3) compensatory damages. ³

At trial appellant Robert Verbryke testified that, although he had never worked directly with pipe insulation at the DuPont plant, he had frequently been in proximity to maintenance crews performing reinsulation of pipes. Verbryke recalled frequently seeing clouds of dust in his work areas as maintenance workers tore off old insulation and replaced it with new. Verbryke also testified that he had a specific recollection of seeing insulation boxes labeled "Kaylo" and "Johns-Mansville." Verbryke said he saw the boxes, as follows: in 1945 when he participated in unloading them, between 1953 and 1964 while working in the paint mixing room, and after 1964 in the plant's control laboratory.

Verbryke's account was corroborated, in part, by the testimony of a maintenance worker who recalled installing "Kaylo" and "Johns-Mansville" pipe covering in the control lab where Verbryke worked after 1965. The witness further testified that he saw other company maintenance workers and independent contractors applying these same products throughout the plant.

Appellants also presented the expert testimony of Dr. Paul Venizelos, a pulmonary specialist, who explained the difference between the diseases of asbestosis and asbestos-related pleural plaque. According to Dr. Venizelos, both diseases are precipitated by the inhalation of asbestos particles into the lungs. A pleural plaque or thickening occurs as progressive waves of asbestos fibers cut into the lining of the lung, causing layers of scar tissue to form. Asbestosis is distinguished by scarring of the lung tissue itself as opposed to only the lining of the lung. The doctor described both diseases as progressive and cumulative with a long latency period. There is neither a cure nor a treatment for either disease, according to the doctor.

Dr. Venizelos further stated that asbestos related pleural thickening presents itself by a characteristic pattern on an x-ray. This pattern is a marker of asbestos exposure, which means that the patient who presents such a pattern should be regularly examined for asbestosis, which has a latency period of as much as twenty-five years, or certain cancers, which may have a latency period of as much as thirty years. Dr. Venizelos testified that Robert Verbryke's x-ray exhibited such a characteristic pattern. Further, the doctor stated that it was his opinion within a reasonable degree of medical certainty that Robert Verbryke suffered an asbestos-related disease: asbestos-associated pleural fibrosis.

Dr. Venizelos testified that the probability of dying of lung cancer of a worker who has been exposed to asbestos is between five and fifty times that of an unexposed worker. Robert Verbryke testified that when he was informed that his condition might be a precursor to cancer, he was shaken. He stated that he was especially concerned since he previously had surgery to treat prostate cancer. Harriet Verbryke testified that the increase risk of cancer was a constant concern to both her and her husband.

The trial court denied appellee's motion for a directed verdict at the close of appellants' case-in-chief. However, appellee renewed its motion at the close of its own presentation. This motion the trial court granted. According to the trial court, appellants failed to perfect identification of appellee's product because they were unable to quantify the amount of asbestos dust attributable to Kaylo which Robert Verbryke had encountered in his workplace. Additionally, the trial court found that Robert Verbryke exhibited no symptoms of injury. The court found testimony that Verbryke experienced shortness of breath attributable to his smoking and further found his fear of cancer to be unbelievable. From this order, appellants bring this appeal, citing the following three assignments of error:

"I. The trial court erred in granting the appellee's motion for directed verdict where the uncontroverted expert medical testimony revealed the appellant suffered from an asbestos-related condition.

"II. The trial court erred in finding there was no proof the appellee's Kaylo product caused injury to appellant.

"III. The trial court erred in holding that appellant had no fear of cancer when the testimony of appellant was to the contrary."

"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." Civ.R. 50(A)(4).

" ' * * * [I]t is uncontestably the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence, if believed, relating to that issue to permit reasonable minds to reach different conclusions on that issue. Weaver v. Hicks (1967), 11 Ohio St.2d 230 [40 O.O.2d 203, 228 N.E.2d 315]; Francis v. Bieber (1967), 10 Ohio St.2d 65, 69 [39 O.O.2d 52, 54, 225 N.E.2d 251, 254]; Biery v. Pennsylvania Rd. Co. (1951), 156 Ohio St. 75 [45 O.O. 70, 99 N.E.2d 895], Belshaw v. Agricultural Ins. Co. (1948), 150 Ohio St. 49 [37 O.O. 404, 80 N.E.2d 675]; Bennett v. Sinclair Refining Co. (1944), 144 Ohio St. 139 [29 O.O. 223, 57 N.E.2d 776].' " Huber v. O'Neill (1981), 66 Ohio St.2d 28, 29, 20 O.O.3d 17, 18, 419 N.E.2d 10, 11, quoting and following O'Day v. Webb (1972), 29 Ohio St.2d 215, 220, 58 O.O.2d 424, 427, 280 N.E.2d 896, 899.

I

Appellee and amicus curiae Owens-Illinois, Inc. invite us to hold that asbestos-related pleural thickening or pleural plaque is not an injury as a matter of law. We decline to do so.

Appellee directs our attention to cases in other jurisdictions wherein trial courts have seemingly found that pleural thickening or plaques are not injuries as a matter of law. However, our analysis of these cases reveals each is dependent on the interpretations of local law or evidentiary content.

In Hawaii, a federal district court, applying Hawaii law, granted defendant asbestos manufacturers a judgment notwithstanding the verdict when it found that plaintiffs were precluded from damages for either asbestos-related injuries or for fear of cancer absent evidence of functional impairment from asbestos exposure. The court found on the evidence that pleural plaques or pleural thickening represented no functional impairment. In re Hawaii Fed. Asbestos Cases (D.Hawaii 1990), 734 F.Supp. 1563, 1567-1568.

An Arizona appellate court held that plaintiffs' claims for personal injuries could not be maintained absent evidence of physical impairment, which was not shown merely because plaintiffs, "have asbestos fibers in their lungs which are causing changes in the lung tissue." Burns v. Jaquays Mining Corp. (1987), 156 Ariz. 375, 377, 752 P.2d 28, 30. Similarly, because Arizona requires bodily injury to support emotional distress, plaintiffs could not sustain that cause either. Id. at 378-379, 752 P.2d at 31-32.

Burns and In re Hawaii Fed. Asbestos Cases are distinguishable from the case at bar not only for differences in the local law applied, but for the evidence before ...