Owens-Corning Fiberglas Corporation v. George Warren Keeton, Alton Lenoah Ryals, Otis Cox, and Herman Daniel Worsham

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00055-CV

Owens-Corning Fiberglas Corporation, Appellant

v.

George Warren Keeton, Alton Lenoah Ryals, Otis Cox,

and Herman Daniel Worsham, Appellees

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

NO. 91-17877A, HONORABLE PETER M. LOWRY, JUDGE PRESIDING

Owens-Corning Fiberglas Corporation ("Owens-Corning") appeals from a judgment

for compensatory damages recovered by appellees after a jury trial. We will affirm the trial-court

judgment.

THE CONTROVERSY

The appeal involves four claims of personal injury and three claims of loss of

consortium resulting from unrelated incidents of exposure to "Kaylo," an asbestos-containing

insulation product. Owens-Corning distributed Kaylo beginning in 1953 and manufactured the

product between 1958 and 1972. The cause was tried under the substantive law of Alabama, the

state in which the asbestos exposures occurred. See Tex. Civ. Prac. & Rem. Code Ann. § 71.031

(West 1986). The jury awarded plaintiffs a total of $306,000 in compensatory damages. In six

points of error, Owens-Corning challenges as reversible error the admission of certain documents

in evidence and the omission of certain issues from the jury charge.

ADMISSION OF EVIDENCE

In point of error one, Owens-Corning contends the trial court erred in admitting

nineteen sets of documents over the company's objections that the documents were irrelevant to

the plaintiffs' claims under the Alabama Extended Manufacturer's Liability Doctrine (1) ("AEMLD")

and were unfairly prejudicial. The documents consist of correspondence authored and received

by other non-party manufacturers of asbestos products between the 1930s and early 1950s.

Appellees offered these documents to show that, because industry leaders in asbestos production

were aware of the hazardous nature of asbestos, as early as 1935, Owens-Corning also should

have known of the dangers associated with its products. (2)

Evidence admitted without limitation is before the court for all purposes. See

Cigna Ins. Co. v. Evans , 847 S.W.2d 417, 421 (Tex. App.--Texarkana 1993, no writ); 35 Tex.

Jur. 3d Evidence § 14 (1984). The company did not request a trial-court instruction limiting the

evidence to the purpose of showing liability under the AEMLD. By its failure to request such a

limiting instruction, Owens-Corning has waived any complaint that the documents were irrelevant

to the AEMLD. See Tex. R. Civ. Evid. 105(a); Birchfield v. Texarkana Memorial Hosp. , 747

S.W.2d 361, 365 (Tex. 1987). We therefore need decide only whether the documents were

properly admitted as relevant to any material issue before the trial court. See Tex. R. Civ. Evid.

401.

At trial, appellees sought recovery under the theory of negligent failure to warn,

in addition to the AEMLD. Under Alabama law, when a defendant knows or has reason to know

that a product is dangerous, when used in its customary manner, the defendant must exercise

reasonable diligence to make the danger known to persons likely to be injured by the product.

See Clarke Indus. v. Home Indem. Co. , 591 So. 2d 458, 461 (Ala. 1991); see also King v. S.R.

Smith, Inc. , 578 So. 2d 1285, 1287 (Ala. 1991). Evidence of what Owens-Corning knew or

should have known about the danger of asbestos at the time the exposures occurred was therefore

relevant to a determination of whether the company negligently failed to warn users of the danger.

The disputed documents show that the risks associated with asbestos were not only scientifically

discoverable but also had been identified with certainty by other asbestos producers long before

Owens-Corning was in the business of manufacturing Kaylo. We hold the documents were not

erroneously admitted in evidence. See Clarke , 591 So. 2d at 462 .

Nor do we believe any danger of unfair prejudice to Owens-Corning outweighs the

overall probative value of these documents. See Tex. R. Civ. Evid. 403. The correspondence

showed that asbestos was known in the industry to be a health hazard, a fact highly probative to

the issue of whether Owens-Corning negligently breached its duty to warn of the dangers

associated with its product. While portions of the Johns-Manville correspondence suggesting a

cover-up and the death certificate of a former U.S. Gypsum employee stating "asbestosis" as the

cause of death arguably may have influenced the jurors' emotions, any unfair prejudice resulting

from the admission of these documents is too slight, in light of their highly probative nature on

an essential element of the actions, to warrant exclusion. See Fibreboard Corp. v. Pool , 813

S.W.2d 658, 669 (Tex. App.--Texarkana 1991, writ denied), cert. denied , 113 S. Ct. 2339 , 3037

(1993). We overrule point of error one.

In point of error two Owens-Corning contends the trial court erred in admitting the

Owens-Illinois Glass documents, see supra note 2, without the requested limiting instruction

applied to the other ten sets of correspondence. The instruction would have limited consideration

of the documents to showing what was known in the industry about the dangers of asbestos rather

than as proof of what Owens-Corning actually knew. The trial court apparently overruled Owens-Corning's request for the limiting instruction and conditionally admitted the documents based on

appellees' claims that they intended to produce evidence that Owens-Corning actually received the

reports from Saranac Laboratory contained in the Owens-Illinois Glass correspondence. At the

close of the plaintiffs' evidence, Owens-Corning made a motion for mistrial on the ground that

the appellees failed to produce, as promised, the testimony of an Owens-Corning executive as to

the actual receipt of the Saranac reports. In point of error three Owens-Corning claims the trial

court erred in overruling its motion.

When the relevance, and therefore the admissibility, of certain evidence depends

on a particular fact or condition, the evidence may be admitted subject to the fulfillment of the

condition. See Tex. R. Civ. Evid. 104(b). If the condition is not fulfilled by the close of the

proponent's case, the burden is on the opposing party to renew his original objection by moving

to strike the evidence; otherwise the party waives any error resulting from the conditional

admission of the evidence. See Tex. R. App. P. 52(a); 1 Steven Goode, Olin Guy Wellborn III

& M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 104.2 (Texas

Practice 2d ed. 1993).

At the close of appellees' case, Owens-Corning should have moved to strike the

Owens-Illinois Glass documents on the ground that proof of Owens-Corning's receipt of the

Saranac documents had not been made, or, at least, the company should have urged again its

request for the limiting instruction that the documents not be considered as evidence of the

company's actual knowledge. Such a motion or request would have given the trial court an

opportunity to cure the alleged error in admission of the documents. By moving instead for a

mistrial, Owens-Corning has failed to preserve error for our review. See State Bar v. Evans , 774

S.W.2d 656 , 658 n.6 (Tex. 1989); Port Distrib. v. Fritz Chem. Co. , 775 S.W.2d 669, 671 (Tex.

App.--Dallas 1989, writ dism'd by agr.). We therefore overrule points of error two and three.

JURY CHARGE

In point of error four, Owens-Corning contends the trial court erred in failing to

submit a contributory-negligence issue to the jury because, under Alabama law, there was some

evidence to support the submission. Appellees rejoin that Owens-Corning failed to preserve error

because its requested instruction on contributory negligence did not limit the issue of appellees'

contributory negligence to the use of its product. We disagree. A limiting instruction is not

required when the only negligence alleged is negligence with regard to the product. See Williams

v. Delta Int'l Mach. Corp. , 619 So. 2d 1330, 1332-33 (Ala. 1993); cf. Dennis v. American Honda

Motor Co. , 585 So. 2d 1336, 1342 (Ala. 1991).

Nevertheless, we conclude that Owens-Corning failed to preserve error because its

requested broad-form question regarding appellees' alleged negligence was not accompanied by

instructions that defined the elements of contributory negligence. Under Alabama law,

contributory negligence, or a failure to use reasonable care with regard to a product, is a complete

bar to recovery. To establish contributory negligence, the defendant must prove the following:

(1) the plaintiff put himself in danger's way; (2) the plaintiff appreciated the danger confronted;

and (3) the plaintiff's appreciation of the danger was a conscious appreciation at the moment the

incident occurred. Hicks v. Commercial Union Ins. Co. , 652 So. 2d 211, 219 (Ala. 1994);

Alabama Power Co. v. Mosley , 318 So. 2d 260, 263 (Ala. 1975).

The question that Owens-Corning submitted asked merely, "Did the negligence,

if any, of those plaintiffs listed below proximately cause their own injury or injuries?" The

question itself does not suggest the elements necessary to support a finding of contributory

negligence, and Owens-Corning failed to submit any requested instructions that would supply

those elements. By failing to submit appropriate instructions with its broad-form question,

Owens-Corning has not preserved error for our review. See Keetch v. Kroger Co. , 845 S.W.2d

262, 268 (Tex. 1992) (Hecht, J., concurring).

However, even if Owens-Corning had not waived error, we would overrule its

complaint. Under Alabama law, a defendant who claims contributory negligence must prove that

the plaintiff consciously appreciated the danger confronted. Hicks , 652 So. 2d at 219 . Evidence

of mere heedlessness is insufficient. Id.; Caterpillar Tractor Co. v. Ford , 406 So. 2d 854, 857

(Ala. 1981); see also Baptist Medical Ctr. v. Byars , 271 So. 2d 847, 849 (Ala. 1972). In

addition, knowledge of the physical condition from which harm arose is not enough to show

contributory negligence. See, e.g., Byars , 271 So. 2d at 850 (knowing floor was slippery does

not necessarily mean plaintiff appreciated danger under surrounding conditions); see also Herston

v. Whitesell , 374 So. 2d 267, 270 (Ala. 1979); United States Fidelity & Guar. Co. v. Jones , 356

So. 2d 596, 598 (Ala. 1977).

There is no evidence that appellees were consciously aware of the risk of potential

harm from breathing asbestos dust. Although they were aware that the air about them was dusty

and could cause temporary discomfort, there is no showing they knew that inhalation of asbestos

dust could cause cancer, asbestosis, or other asbestos-related diseases.

Further, the evidence indicates that appellees could not have discovered the risk

of these health hazards. Keeton and Ryals were exposed to asbestos beginning in the 1940s, and

Cox and Worsham beginning in the 1950s. Owens-Corning did not place a label on its product

until 1966. Even then, the small label, which was obscured when the box was opened, stated

merely that the box contained asbestos and that the user should avoid breathing the dust; it did not

contain words of a meaning akin to "caution," "hazardous," "asbestosis," "cancer," or

"mesothelioma." In 1972, the Occupational Safety and Health Administration began requiring

employers to post warning signs about the dangers of asbestos. However, there is no evidence

that Keeton, Worsham, or Ryals saw such warnings. Each testified that he would have taken

affirmative steps to reduce or prevent exposure had he known of the danger he faced. (3) We hold

the court did not err in refusing to submit an issue that had no evidence to support it. See Hill

v. Winn Dixie Tex., Inc. , 849 S.W.2d 802, 803 (Tex. 1993); Brown v. Goldstein , 685 S.W.2d

640, 642-43 (Tex. 1985). We overrule point of error four.

In points of error five and six, Owens-Corning contends the trial court erred in

refusing to submit to the jury a proposed question concerning Keeton's, Worsham's, and Cox's

status as "users" or "consumers" of Kaylo under Alabama law. (4) We rejected the argument in

Owens-Corning v. Wasiak , No. 03-94-00079-CV, slip op. at 13-14 (Tex. App.--Austin February

14, 1996, no writ h.); we reject it here as well.

First, under Alabama law, "users" include those who were exposed to a product.

Casrell v. Altec Indus. , 335 So. 2d 128, 133 (Ala. 1976). The plaintiffs were indisputably

exposed to Kaylo. Moreover, the issue of plaintiff's status as users or consumers was implicitly

submitted as part of another question, which asked: "Did any of the Plaintiffs sustain an asbestos-related injury following exposure to an asbestos-containing product sold and/or marketed and/or

manufactured by Defendants OWENS-CORNING FIBERGLASS CORPORATION or SEPCO

CORPORATION?" The jury's positive answer to the question implicitly required it to find that

the plaintiffs were exposed to Owens-Corning's product. We overrule points of error five and

six.

We affirm the trial-court judgment.

John Powers, Justice

Before Justices Powers, Aboussie and Kidd

Affirmed

Filed: May 8, 1996

Publish

1. The AEMLD is a limited form of strict products liability law adopted by the Alabama

Supreme Court in Casrell v. Altec Industries , 335 So. 2d 128, 132-33 (Ala. 1976), and Atkins

v. American Motors Corporation , 335 So. 2d 134, 141 (Ala. 1976).

2. The documents include: (1) correspondence in the 1940s between Owens-Illinois Glass

Co., the original owner of Owens-Corning's Kaylo plant, and Saranac Laboratory whose

scientific tests indicated that Kaylo dust was capable of producing asbestosis and therefore

every precaution should be taken in the handling of this industrial hazard; (2)

correspondence of National Gypsum in the 1950s discussing the necessity of respirators and

ventilation devices to avoid health hazards posed to workers in its "Thermacoustic" (asbestos-manufacturing) projects; (3) correspondence of Johns-Manville Corporation in the 1930s

discussing the need to minimize publicity about asbestos; and (4) a letter sent to U.S. Gypsum

in 1950 by the son of a former employee suggesting that his father died as a result of working

in its asbestos plant; also enclosed was his father's death certificate which listed "asbestosis"

as the cause of death.

3. No questions were asked of Cox regarding either his knowledge of the potential danger

of the dust or of his observations of warning signs.

4. Ryals worked directly with asbestos products and his status as a "user" or "consumer"

is not challenged.

>

Further, the evidence indicates that appellees could not have discovered the risk

of these health hazards. Keeton and Ryals were exposed to asbestos beginning in the 1940s, and

Cox and Worsham beginning in the 1950s. Owens-Corning did not place a label on its product

until 1966. Even then, the small label, which was obscured when the box was opened, stated

merely that the box contained asbestos and that the user should avoid breathing the dust; it did not

contain words of a meaning akin to "caution," "hazardous," "asbestosis," "cancer," or

"mesothelioma." In 1972, the Occupational Safety and Health Administration began requiring

employers to post warning signs about the dangers of asbestos. However, there is no evidence

that Keeton, Worsham, or Ryals saw such warnings. Each testified that he would have taken

affirmative steps to reduce or prevent exposure had he known of the danger he faced. (3) We hold

the court did not err in refusing to submit an issue that had no evidence to support it. See Hill

v. Winn Dixie Tex., Inc. , 849 S.W.2d 802, 803 (Tex. 1993); Brown v. Goldstein , 685 S.W.2d

640, 642-43 (Tex. 1