Owens-Corning Fiberglas Corporation v. Delvina P. Stone, Individually and as Special Administratrix of Robert L. Stone

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00449-CV

Owens-Corning Fiberglas Corporation, Appellant

v.

Delvina P. Stone, Individually and as Special Administratrix

of Robert L. Stone, Deceased, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 92-16996-A, HONORABLE PETER M. LOWRY, JUDGE PRESIDING

PER CURIAM

Appellant Owens-Corning Fiberglas Corporation challenges a judgment rendered

in favor of appellee Delvina P. Stone, individually and as special administratrix of Robert L.

Stone, deceased. Robert Stone had served in the United States Navy for twenty-three years, from

1952 to 1975. He died at the age of fifty-nine.

Delvina Stone alleged in her pleadings that Robert Stone died from mesothelioma

as a result of exposure to Kaylo, an asbestos-containing insulation product marketed and

manufactured by Owens-Corning. (1) She brought negligence, design defect and marketing defect

claims. The jury found in Stone's favor on the marketing defect claim and awarded more than

$1,288,000 in damages. The trial court rendered judgment on the verdict. Owens-Corning

appeals by eight points of error, challenging the admission of Stone's rebuttal witness's testimony

and its limited cross-examination thereof, causation, and the exclusion of a defense witness's

former testimony. We will affirm the trial-court judgment.

DISCUSSION

Dr. Egilman's Rebuttal Testimony

After Owens-Corning rested its case, Stone called Dr. Egilman, a medical doctor

who specializes in occupational therapy, as a rebuttal witness. By point of error four, Owens-Corning complains that the trial court erred in admitting the testimony of Dr. Egilman because

it was not proper rebuttal testimony. Tex. R. Civ. P. 265.

The admission and exclusion of evidence is committed to the trial court's sound

discretion. City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995); Gee v. Liberty

Mut. Fire Ins. Co ., 765 S.W.2d 394, 396 (Tex. 1989). A trial court abuses its discretion when

it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc. ,

701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied , 476 U.S. 1159 (1985). A person seeking to

reverse a judgment based on evidentiary error need not prove that but for the error a different

judgment would necessarily have been rendered, but only that the error probably resulted in an

improper judgment. The complaining party must show that the judgment turns on the particular

evidence admitted or excluded to successfully challenge the evidentiary ruling. See GT & MC,

Inc. v. Texas City Ref., Inc. , 822 S.W.2d 252, 257 (Tex. App.--Houston [1st Dist.] 1991, writ

denied); Atlantic Mut. Ins. Co. v. Middleman , 661 S.W.2d 182, 185 (Tex. App.--San Antonio

1983, writ ref'd n.r.e.). We determine whether the case turns on the evidence admitted or

excluded by reviewing the entire record. Boothe v. Hausler , 766 S.W.2d 788, 789 (Tex. 1989);

Gee , 765 S.W.2d at 396 .

Owens-Corning claimed that the Navy was solely responsible for Stone's injuries

because Navy specifications required asbestos in its insulation. The crux of Dr. Egilman's

testimony was that Owens-Corning, through its participation in the National Insulators

Manufacturing Association (NIMA), influenced the Navy's specifications. This was proper

rebuttal testimony. Owens-Corning also sought to avoid liability by introducing documents to

prove that it did not know of the hazards of asbestos. Documents that Dr. Egilman reviewed on

the stand countered that assertion. We conclude that the trial court did not abuse its discretion

by admitting Dr. Egilman's testimony. We overrule point of error four.

By points of error one, two, three, and five, Owens-Corning complains that the

trial court improperly limited its cross-examination of Dr. Egilman. Dr. Egilman's testimony was

limited because several jurors needed to leave that day by 5:00 and he was unavailable to testify

the following day. Dr. Egilman's began his direct testimony sometime after 4:12 and his cross-examination at 4:39.

Owens-Corning objected to the trial court that it had been prejudiced because it had

not been able to cross-examine Dr. Egilman regarding two issues. First, it complained that it did

not have an adequate opportunity to question him on the risk versus the utility of Kaylo. Owens-Corning could not have been harmed by the lack of cross-examination regarding the risk/utility

of Kaylo because the jury found that Kaylo was not defective, taking into consideration "its utility

and the risk involved in its use."

Second, Owens-Corning objected that it did not adequately explore the development

of knowledge and the relationship between its documents and general medical literature. Dr.

Egilman did not testify regarding general medical literature; to the extent that he testified

regarding what Owens-Corning knew or should have known, we conclude that the limitation was

harmless because his testimony was cumulative of other properly admitted testimony. Tex. R.

App. P. 81(b)(1); Keene Corp. v. Rogers, Jr. , 863 S.W.2d 168, 179 (Tex. App.--Texarkana 1993,

writ requested) (stayed due to bankruptcy). Evidence admitted during Stone's case-in-chief that

would support a finding that Owens-Corning knew or should have known of the hazards of

asbestos includes: answers to interrogatories stating that it first learned of a diagnosed case of

asbestosis involving users of asbestos insulation products in 1941; internal documents dated in the

1940's discussing the hazards of asbestos; documents from the 1950's showing that Owens-Corning executives had read laboratory reports dealing with the hazards of asbestos and were

conscious of the hazards involved; correspondence from Saranac Laboratories in 1956 describing

asbestos as a carcinogen and Owens-Corning internal documents stating that the Saranac

correspondence was "nothing that we could show customers or a union"; and workers'

compensation suits filed in the 1960's claiming asbestosis and lung cancer as a result of exposure

to Kaylo. (2)

Owens-Corning claims that the testimony is not cumulative because it objected to

the admission of the other testimony. The issue is whether the testimony is cumulative of other

properly admitted testimony; Owens-Corning has waived error since it does not challenge on

appeal the admission of the other testimony. Nevertheless, we will address the propriety of the

admission of the evidence.

In a failure-to-warn case, the plaintiffs must establish that the dangers were

reasonably foreseeable or scientifically discoverable at the time of the exposure. Fibreboard

Corp. , 813 S.W.2d at 668. All manufacturers are held to the knowledge and skill of an expert

in the field. Id . A plaintiff may establish what the defendant should have known by expert

testimony, lay testimony, or documentary evidence showing what information of risks was

available to defendants. USX Corp. v. Salinas , 818 S.W.2d 473, 484 (Tex. App.--San Antonio

1991, writ denied).

The challenged evidence included documents in which Owens-Corning personnel

discussed the general hazards of asbestos and documents addressed to Owens-Illinois, Owens-Corning's predecessor in interest, regarding laboratory tests on Kaylo. Evidence of Owens-Corning's knowledge of the general hazards of asbestos is relevant to show whether Owens-Corning should have known about the dangers of Kaylo. Owens-Corning Fiberglas Corp. v.

Keeton , No. 03-94-00055-CV (Tex. App.--Austin May 8, 1996, no writ h.); Fibreboard Corp. v.

Pool , 813 S.W.2d 658, 669 (Tex. App.--Texarkana 1991, writ denied), cert. denied , 113 S. Ct.

2339 , 3037, 3064 (1993). Laboratory reports addressed to Owens-Illinois that specifically

documented hazards associated with Kaylo are also relevant to show whether Owens-Corning

should have been aware of the hazards associated with Kaylo; further, because Louis Saxby, Jr.,

Owens-Corning's vice-president, testified that Owens-Corning had received the final Saranac

report, the evidence is relevant to show what Owens-Corning actually knew of Kaylo's hazards.

See Fibreboard , 813 S.W.2d at 669 . The challenged evidence was properly admitted.

Owens-Corning also claims that the testimony was not cumulative because Dr.

Egilman was the only witness to testify regarding "the extent of Owens-Corning's knowledge" of

the dangers of asbestos. Opinion testimony about state-of-mind is generally inadmissible. See

Davis v. Peck , 94 S.W.2d 1245, 1247 (Tex. Civ. App.--Amarillo 1936, writ dism'd) (no opinion

testimony as to knowledge or state of mind); cf. James v. Texas Dep't of Human Servs. , 836

S.W.2d 236, 244 (Tex. App.--Texarkana 1992, no writ) (no opinion testimony as to truthfulness).

Stone did attempt to elicit testimony from Dr. Egilman regarding the extent of Owens-Corning's

knowledge. (3) But, when Owens-Corning properly objected to opinion testimony regarding its state

of mind, that objection was sustained. In the single instance in which Owens-Corning was

overruled on a state-of-mind objection, Dr. Egilman simply reviewed on the stand an Owens-Corning document that showed the relative exposure to asbestos dust in shipyards and in factory

settings, and extrapolated from that that Owens-Corning knew that the exposure in shipyards was

higher. In light of the other properly admitted evidence, and the fact that Owens-Corning did not

object to Dr. Egilman's every attempt to testify to what Owens-Corning knew, the admission of

Dr. Egilman's testimony is harmless. Tex. R. App. P. 81(b).

In Davidson v. Great National Life Ins. Co. , 737 S.W.2d 312 (Tex. 1987), the

supreme court considered whether the trial court erred by limiting cross-examination of a witness

who identified the deceased as the insured. The court held that no error occurred because other

witnesses substantiated that fact, even if they were interested witnesses and their testimony was

somewhat inconsistent. Id. at 315 . Here, a plethora of documents, and the testimony of

Owens-Corning vice president Saxby, contained evidence from which the jury could have

reasonably deduced that Owens-Corning knew of the dangers of asbestos but did not warn its

consumers. Although the situation was not ideal, we conclude that any error in allowing

Dr. Egilman to testify under circumstances in which his testimony would be limited is harmless.

Further, when Stone realized that Dr. Egilman could not return the following day,

she moved the court to allow him to testify out of order, during Owens-Corning's presentation

of its case. Owens-Corning resisted the motion on the grounds that bringing a rebuttal witness

before the testimony to be rebutted was offered would confuse the jury and that it would prejudice

it to be "sandwiched" in between Stone's witnesses. Owens-Corning could have accepted Stone's

offer if it was truly concerned about its ability to thoroughly cross-examine Dr. Egilman. The

record shows that Owens-Corning had cross-examined Dr. Egilman in other proceedings and was

cognizant of the substance of the testimony he would offer.

Finally, Owens-Corning, relying primarily on Goldberg v. Kelly , 397 U.S. 254,

269 (1970), and Steddum v. Kirby Lumber Co., 221 S.W. 920, 921 (Tex. 1920), complains that

the limited cross-examination deprived it of due process. Neither case is on point: in Goldberg ,

the person deprived had no opportunity at all to cross-examine witnesses, and in Steddum , the

court simply held that a wife's property rights could not be forfeited except in a proceeding to

declare a forfeiture with notice and an opportunity to be heard. Owens-Corning cites no factually

similar case to support its due process claim, nor do we find one. We overrule points of error

one, two, three, and five.

Causation

By points of error six and seven, Owens-Corning claims that there was no

evidence, or alternatively, factually insufficient evidence, to support the jury's finding of

causation. In evaluating a no-evidence point, we must consider only the evidence and inferences

tending to support the finding of the trier of fact and disregard all evidence and inferences to the

contrary. Alm v. Aluminum Co. of Am. , 717 S.W.2d 588, 593 (Tex. 1986), cert. denied , 498

U.S. 847 (1990); Garza v. Alviar , 395 S.W.2d 821, 823 (Tex. 1965). See generally William

Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence" , 69 Tex.

L. Rev. 515 (1991); Michol O'Connor, Appealing Jury Findings , 12 Hous. L. Rev. 65 (1974).

When reviewing a jury verdict to determine the factual sufficiency of the evidence to support a

finding on which the appellee had the burden of proof at trial, we must consider and weigh all the

evidence and should set aside the judgment only if the evidence is so weak as to be clearly wrong

and manifestly unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate , 244

S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co. , 715 S.W.2d 629 (Tex. 1986);

Federal Deposit Ins. Corp. v. Golden Imports, Inc. , 859 S.W.2d 635, 640 (Tex. App.--Houston

[1st Dist.] 1993, no writ). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No

Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991).

Owens claims that the evidence is not sufficient to make it liable for the failure to

warn because it included a label on its product beginning in 1966. To create liability, an

unreasonably dangerous product must be a producing cause of a plaintiff's injuries. Magro v.

Ragsdale Bros., Inc. , 721 S.W.2d 832, 834 (Tex. 1986). When a manufacturer fails to warn or

instruct, a rebuttable presumption arises that the user would have read and heeded such warning

or instruction. See General Motors Corp. v. Saenz , 873 S.W.2d 353, 359 (Tex. 1993).

However, the presumption does not arise when a manufacturer gives a warning which, if heeded,

would have prevented the accident. Id. Owens-Corning claims that Stone is not entitled to the

presumption because it warned users not to breathe Kaylo dust, but they did anyway.

We need not consider the effect of Owens-Corning's label because Stone was

exposed to asbestos before a label of any sort was placed on Kaylo boxes; furthermore,

Dr. Egilman testified that there was no evidence that Owens-Corning had warned the Navy about

its product's hazards. Two of Stone's three witnesses testified about exposure that occurred

before the label was added in 1966. The Magro presumption that a warning would have been read

and heeded arises because the product carried no warning at all before 1966. Magro , 721 S.W.2d

at 834 ; see also Saenz , 873 S.W.2d at 359 .

Owens-Corning also complains that Stone did not prove causation because Robert

Stone's death certificate stated that he died from acute respiratory failure due to or as a

complication of sepsis, due to or as a complication of acute myelogenous leukemia; it listed

mesothelioma as an "other significant condition." (4)

Robert Stone saw his physician at Nellie Air Force Base about increasing chest pain

in December 1990. A chest x-ray revealed a mass on the surface of the lung on the right side.

In January 1991, a needle biopsy of the mass was attempted but the diagnosis was not conclusive.

In February 1991, a thoracotomy was performed to diagnosis the mass. A consulting physician,

Dr. Sharon Weiss, diagnosed the condition as demosplastic malignant mesothelioma. Robert

Stone was referred to Dr. Howell in June 1991. After viewing the biopsy's pathology, Dr.

Howell concurred that Robert Stone had a very advanced case of mesothelioma.

Dr. Howell offered an experimental form of chemotherapy to treat the

mesothelioma, which was a combination of the drug he believed most efficacious to treat the

disease and a hormone he believed could increase the drug's efficacy. Robert Stone also received

radiation therapy to try to shrink the tumor mass and decrease some of the pain resulting from the

tumor's growth through the chest wall. The tumor initially responded well to the regimen, but,

in January 1992, a CT scan revealed new metastasis to the scalp. In May 1992, Robert Stone

opted to end the experimental treatments to eliminate side effects and to spend more time at home.

The last time Dr. Howell saw Robert Stone, in June of 1992, Stone's pulmonary function was

impaired because the tumor, having grown through the chest wall, was beginning to encase his

lung. Robert Stone died in September 1992. Dr. Howell testified that he believed Robert Stone

died from mesothelioma.

Dr. Roggli, a pathologist who reviewed Stone's medical records, also testified that

he believed Robert Stone died of mesothelioma. Both Dr. Howell and Dr. Roggli concluded that,

to the extent that Robert Stone had leukemia at the time he died, it was caused by either the

massive amount of radiation or the chemotherapy Stone received to treat his mesothelioma.

Further, Dr. Roggli testified that a bone marrow biopsy must be done to make the differential

diagnosis of leukemia as opposed to a leukemoid reaction; this was not done. There was no

controverting testimony. The jury could have concluded from Howell's and Roggli's testimony

that Robert Stone died from mesothelioma.

Owens-Corning also protests that causation was not proven because mesothelioma

can be caused by agents other than asbestos. Dr. Roggli testified that causes of mesothelioma

other than asbestos existed but were extremely rare. The two other causes of mesothelioma he

identified were a long-term latent infection, like that caused by tuberculosis or some other

bacteria, and radiation exposure. In Dr. Roggli's personal experience, three of four hundred-fifty

cases were caused by an agent other than asbestos.

In Robert Stone's case, there was no history of a long-term infection. Owens-Corning cross-examined Dr. Roggli about Robert Stone's possible exposure to radiation while

aboard the U.S.S. O'Bannon during atomic tests in 1961 and 1962 or during the attack on Pearl

Harbor. Dr. Roggli was unaware of any testing. No evidence was introduced regarding the

amount of testing, the dates of the testing, or the medical effects that testing had on Navy

personnel.

Owens-Corning also complained that the witnesses who testified regarding Stone's

exposure did not establish exposure sufficient to cause mesothelioma. Dr. Roggli testified that

the shortest exposure to asbestos that resulted in diagnosed mesothelioma was one month, but that

even shorter exposures have been reported in rare cases. Delvina Stone called three witnesses

who had served with Robert, two of whom had served with him before 1966.

Dale Fisher testified that he served with Stone for approximately one year

beginning in 1956. The two met aboard the U.S.S. Brush while the ship was being repaired in

the shipyards at Long Beach. The ship was reinsulated during a four- to six-month period, and,

during that period, asbestos dust surrounded the ship. The men worked in the debris every day

and were required to sleep on board the ship every third night. Evidence was admitted showing

that asbestos exposure associated with shipyards is extreme. Fisher testified that he actually saw

Robert Stone being exposed to asbestos dust.

Owens-Corning sought to discredit Fisher's testimony with documents introduced

after Fisher was dismissed showing that the U.S.S. Brush was in the Far East rather than at Long

Beach from February 1956 to February 1957. The same documents showed that the U.S.S. Brush

was in Long Beach for eight months from June of 1955 to February of 1956 and again for seven

months from February 1957 to August 1957. The jury could have inferred that Fisher was

mistaken about the dates rather than the amount and time of exposure.

Martin Norton testified that he observed Stone exposed to asbestos dust in the

course of his work on the U.S.S. O'Bannon from 1961 to 1962. Norton was chief of the repair

division. As part of his job, he ordered supplies for repairs, including Kaylo. Also, he

supervised the installation of new insulation on the ship. Norton testified that he had actually seen

Robert Stone in areas where insulation was being cut out and replaced but could not quantify the

number of times.

A coworker's testimony that his employer used a particular asbestos manufacturer's

products, and that asbestos dust routinely permeated the air, may establish plaintiff's exposure

even if the testifying witness did not observe plaintiff actually using or being exposed to the

product. See Click v. Owens-Corning Fiberglas Corp , 899 S.W.2d 376, 378 (Tex. App.--Houston

[14th Dist.] 1995, no writ); Keene Corp. v. Gardner , 837 S.W.2d 224, 227 (Tex. App.--Dallas

1992, writ denied); see also Migues v. Fibreboard Corp. , 662 F.2d 1182, 1185 (5th Cir. 1981).

From Fisher's and Norton's testimony about Kaylo and ordinary working conditions, and their

certainty about Stone's presence and exposure, a reasonable jury could have concluded that Robert

Stone, more likely than not, inhaled asbestos fibers from Owens-Corning's Kaylo.

Finally, Owens-Corning claims that the Navy is the sole producing cause of Stone's

damage because its material specifications required asbestos insulation. There was evidence that

the Navy required asbestos insulation for its fire retardant properties, that supply personnel could

not have chosen to order products without asbestos, and that enlisted men had to use the products

regardless.

However, Dr. Egilman testified that Owens-Corning had influenced the Navy's

specifications through its participation in NIMA. Dr. Egilman also testified that there was no

evidence that Owens-Corning had imparted its knowledge of the hazards of asbestos to the Navy,

that Navy rules did not proscribe warning labels, and that, in his experience, workers who knew

that their health was threatened would take steps to prevent harm. Robert Stone's shipmates

testified that, had they known of the dangers, they would have taken precautions; John McNab,

a supply officer, testified that he would have taken precautions for his safety and that of his men.

Further, the jury could have rejected the sole-cause argument from the fact that Owens-Corning

could and did get a waiver from specifications to ship asbestos-free Kaylo after it began

manufacturing it.

Owens-Corning requested and received a jury instruction on sole cause; the jury's

verdict shows that it rejected that argument. We conclude that there was sufficient evidence to

support the jury's decision.

In sum, testimony was admitted from which the jury could have concluded that

Stone was exposed to asbestos for time periods sufficient to induce mesothelioma; that no other

possible cause of mesothelioma was likely; that Stone in fact died of mesothelioma; and that no

warning was given in spite of what Owens-Corning knew or should have known. The last causal

link -- that a warning would have been read and heeded -- is supplied both by the Magro

presumption and the testimony of Dr. Egilman and Stone's shipmates. We conclude that the

evidence supporting the jury's finding of causation was both legally and factually sufficient. We

overrule points of error six and seven.

Dr. Hinshaw's Former Testimony

By point of error eight, Owens-Corning argues that the trial court erred in

excluding the testimony of Dr. Corwin Hinshaw because it was relevant rebuttal testimony and

it came within the Texas Rule of Civil Evidence 804(b)(1) hearsay exception. The exclusion of

evidence is committed to the trial court's sound discretion. Alvarado , 897 S.W.2d at 753 .

After Dr. Egilman testified, Owens-Corning sought to introduce on surrebuttal the

1984 deposition testimony of Dr. Corwin Hinshaw from a prior case. Rule 804(b)(1), which

addresses the admission of former testimony, requires that the "party against whom the testimony

is . . . offered, or a person with similar interest, had an opportunity and similar motive to develop

the testimony by direct, cross, or redirect examination." Stone was not a party to the prior suit,

so admission of testimony from the prior proceeding turns on whether the plaintiffs' interest in

the prior proceeding was similar to Stone's, and whether they had an opportunity and similar

motive to develop the testimony. It was Stone's responsibility to adequately explain to the trial

court why the interest, motive or opportunity was dissimilar. See Dykes v. Raymark Indus., Inc.,

801 F.2d 810 , 816-817 (6th Cir. 1986), cert. denied , 481 U.S. 1038 (1986).

Stone objected at trial that the motive and opportunity to cross-examine Dr.

Hinshaw differed because many of the documents upon which she relied had not been discovered

at the time of the cross-examination. Dr. Hinshaw, based on his review of published medical

literature, was willing to testify that the medical and scientific community did not and could not

have known of the hazards of asbestos until the late 1970's. Stone based her case on internal

Owens-Corning documents and on unpublished studies performed by or on behalf of Owens-Corning or its predecessor in interest. Without such documents, or reliance on such documents,

the attorneys who attended the 1984 deposition did not have a similar motive or opportunity to

cross-examine Dr. Hinshaw. See Lohrmann v. Pittsburgh Corning Corp. , 782 F.2d 1156, 1160

(4th Cir. 1986) (deposition not admissible against current defendant who stopped selling asbestos

products in 1958 when former defendants continued to sell until 1970's); Murphy v. Owens-Ilinois, Inc. , 779 F.2d 340, 343-44 (6th Cir. 1985) (deposition not admissible against current

defendants when current plaintiff had been incidentally exposed to asbestos and prior plaintiffs

were factory workers directly exposed to raw asbestos). (5) We conclude that the trial court did not

abuse its discretion in excluding Dr. Hinshaw's former testimony. We overrule point of error

eight.

We affirm the trial-court judgment.

Before Justices Powers, Aboussie and Kidd

Affirmed

Filed: June 12, 1996

Do Not Publish

1. Although Stone is an Alabama resident, she brought suit in Texas. See Tex. Civ.

Prac. & Rem. Code Ann. § 71.031 (West 1986). The parties agreed to try the case under

Texas law.

2. Owens-Corning did not object at trial that it lacked an opportunity to cross-examine

Dr. Egilman on the issue of its participation in NIMA and so may not raise that issue on

appeal. Estate of Peale v. Teledyne Indus., Inc. , 899 S.W.2d 239, 242 (Tex. App.--Houston

[1st Dist.] 1995, writ denied).

3. Dr. Egilman, a medical doctor, specializes in occupational therapy and teaches a

course on the history of the "development of . . . medical and scientific knowledge in the

20th century." The course considers how scientists and physicians acquire and interpret

information regarding potentially hazardous products, and how they decide whether to

inform people of risk or to remove products from the market.

4. We consider this and subsequent causation arguments despite the fact that they

appear in Owens-Corning's statement of the case rather than under its points of error.

Owens-Corning's only argument under points of error six and seven deals with the Magro

presumption.

5. Federal Rule of Civil Evidence 804(b)(1) requires that the party against whom the

testimony is offered or a predecessor in interest , had an opportunity and similar motive to

develop the testimony. Despite this apparently more stringent requirement, several federal

circuits have interpreted the language as requiring only that a party with a similar interest have

had an opportunity and similar motive to cross-examine the witness. See Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276, 283 (4th Cir. 1993); Clay v. Johns-Manville Sales

Corp. , 722 F.2d 1289, 1293-95 (6th Cir. 1983); Lloyd v. American Export Lines, Inc., 580

F.2d 1179, 1185-87 (3rd Cir. 1978), cert. denied , 439 U.S. 969 (1978).

whom the testimony

is . . . offered, or a person with similar interest, had an opportunity and similar motive to develop

the testimony by direct, cross, or redirect examination." Stone was not a party to the prior suit,

so admission of testimony from the prior proceeding turns on whether the plaintiffs' interest in

the prior proceeding was similar to Stone's, and whether they had an opportunity and similar

motive to develop the testimony. It was Stone's responsibility to adequately explain to the trial

court why the interest, motive or opportunity was dissimilar. See Dykes v. Raymark Indus., Inc.,

801 F.2d 810 , 816-817 (6th Cir. 1986), cert. denied , 481 U.S. 1038 (1986).

Stone objected at trial that the motive and opportunity to cross-examine Dr.

Hinshaw differed because many of the documents upon which she relied had not been discovered

at the time of the cross-examination. Dr. Hinshaw, based on his review of published medical

literature, was willing to testify that the medical and scientific community did not and could not

have known of the hazards of asbestos until the late 1970's. Stone based her case on internal

Owens-Corning documents and on unpublished studies performed by or on behalf of Owens-Corning or its predecesso