# Petition — Murphy v. Owens-Corning Fiberglas Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1501%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 905 ## Text MICHAEL RODAK, JR., CLERK IN THE SUPREME COURT OF THE UNITED STATES JAMES L. MURPHY Petitioner 79-1045 Vs. Case No. OWENS-CORNING FIBERGLAS CORPORATION, Respondent PETITION FOR WRIT OF CERTIORARI Marion C. Miller 300 Arrowhead Building $25 N. 7in Kansas City, Kansas 66101 Lloyd Burke Bronston B. David Roselli 6750 W. 75th St., 2B Overland Park, Kansas 66204 Attorneys for Petitioner ERO VRP AEE yan toes, spe is Nope e . Pete ks Paice Bees! Sites: INDEX Table of Cases Table of Statutes Petition for Writ of Certiorari Lower Courts Questions Presented for Review Relevant Statutes Statement of the Case Arguments and Author- ities Conclusion Appendix Memorandum and Order; Murphy v. Owens-Corning Fiber- glas Corp. (U.S. Dist. Court for the Dist. of KS) Majority Opinion Murphy v. Owens-Corn- ing Fiberglas Corp. Tenth Circuit Court of Appeals Dissenting Opinion of Judge Holloway Denial of Petition for a Rehearing (Tenth Circuit Court of Appeals) ii | 31 60 » ce TABLE OF CASES Brach, Sivalls, and Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 TABLE OF STATUTES K.S.A. 44-5a01 F.2d 946 (10th Cir.) 35 408, 32-35 ° ; K.S.A. 44-5a02 8-11 In Re Millar's Estate (Formerly G.S. 44-5a02) 33.34 185 Kan. 510; 345 P.2d . 1033, (1959) 60 Seventh Amendment to the U.S. Constitution $4. 45 In Re Robert's Estate ’ 192 Kan. 91, 386 P.2d 29 USC. § 1254 2 301 (1963) 60 James Baird Co. v. Boyd 41 F.2d 578, 582 49 eR? Sey, Matter of Carothers' Estate 220 Kan. 437 552 P.2d 1354 (1976) 60 Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535 at 538 (1960) 58,59 Be RAeUR Cah aie Gea Rs atte cist Texas and Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 $.¢t. 622 49 Walker v. Colgate- Palmolive-Peet Co. 157 Kan. 170, 139 P.2d 157 46 ,50 ,37 Weeks v. Latter-Day Saints Hospital 418 F.2d 1035 (10th Cir.) 35 ii Wright v. American Home Assurance Co. 488 | F.2d 361 (10th Cir.) 35 +S PRT ANDI NRT tRaurEy AEG SEAR SRIRNRTD Hg 2 * ‘ Pee ya I Nea SS PETITION FOR WRIT OF CERTIORARI Comes now the petitioner and peti- tions this honorable Court for a Writ of Certiorari. In accordance with Rule 23 of the United States Supreme Court, peti- tioner submits the following: LOWER COURTS This petition for writ of Certiorari is from the decision of the 10th Circuit Court of Appeals, denying plaintiff's pe- tition for a rehearing and affirming the decision of the United States District Court for the District of Kansas. The judgment of the Court of Appeals was entered on the 13th day of July, 1979. The dissenting opinion of Judge Holloway was filed on the 17th day of August, 1979. Due to the fact that the dissenting opinion was filed more than a month after the decision of the Court, petitioner timely requested and was grant- ed an additional 14 days after the filing of the dissenting opinion to file a peti- tion for rehearing. Said petition was timely filed on August 31, 1979, with sug- gestions for rehearing en banc, and deni- ed on the Sth day of October, 1979. The mandate of the Court of Appeals was issu- ed on the 15th day of October, 1979. The jurisdiction of the Supreme Court to review the judgment of the Court of Appeals is based on 29 USC §1254. QUESTIONS PRESENTED FOR REVIEW The questions presented for review are as follows: 1. Did the Court of Appeals err in concluding that the presence of ammonia as a contributing factor to plaintiff's injury brought this case within the para- WORT PM: RE | er See Le WGI SERIE eI IO RBT ON meters of the Kansas Workers' Compensa-— tion Law? 2. Did the Court of Appeals err in failing to view the evidencé in the light most favorable to plaintiff and therefore deny plaintiff his right to a trial by jury in contravention of the Seventh Amendment to the Constitution of the United States? 3. Did the Court of Appeals err in concluding that proof of compliance with an industry standard was conclusive as to proof of due care and that plaintiff could not prove his case without expert opinion or proof of violation of an in- dustry standard? RELEVANT STATUTES In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. U.S. Const. amend. VII 44-5a01. Occupational disease as in- jury by accident, when; provisions of workmen's compensation law applicable. (a) Where the employer and employee or workman are subject by law or election to the provisions of the workmen's compen- sation law, the disablement or death of an employee or workman resulting from an aeiiiieh dae’ disease as hereinafter ideee and defined shall be treated as the hap- pening of an injury by secrdude: and the employee or workman or, in case of death, his dependents shall be entitled to com- pensation as provided in the workmen's a —— INE PS aT Et EB OF ITE Joe Yampa Serene compensation law except as hereinafter otherwise provided; and the practice and procedure prescribed in such law shall apply to all proceedings under this act, except as hereinafter otherwise provided: Provided, however, That in no case shall an employer be liable for compensation under the provisions of this act except for an occupational disease specified in section 44-5a02 of the General Statutes Supplement of 1961 and unless such disease has resulted from the nature of the em- ployment in which the employee or workman was engaged under such employer and was actually contracted while so engaged, meaning by “nature of the employment" that to the occupation in which the employee or workman was so engaged there is attach- ed a particular hazard of such disease that distinguishes it from the usual run of occupations and is in excess of the hazard of such disease attending employ- ment in general; and unless disablement results within one year or death results within three (3) years in case of silico- Sis, or one (1) year in case of any other occupational disease, after the last in- jurious exposure to the hazard of such disease in such employment, or, in case of death, unless death follows continuous disability from such disease, commencing within the period above limited, for which compensation has been paid or awarded or timely claim made as provided in this act, and results within seven (7) years after such last. exposure. Where payments have been mnade on account of any disablement from which death shall thereafter result Such payments shall be deducted:.from the amount of liability provided.by law in Se oF STR TE A eree conan case of death. The time limit prescribed by this section shall not apply in the case of an employee whose disablement or death is due to occupational exposure to — ionizing radiation. (b) Where an occupational disease is aggravated by any other disease or in- firmity, not itself compensable, or where disability or death from any other cause, not itself compensable, but is aggravat- ed, prologned, accelerated or in any wise contributed to by an occupational dis- ease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causa- tive factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reduc- ing the number of weekly or-monthly pay- ments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. (c) No compensation for death from an occupational disease shall be payable to any person whose relationship to the deceased employee or workman arose subse- quent to the beginning of the first com- pensable disability save only to afterborn children. (d) The provisions of section 44-570 of the workmen's compensation law shall appiy in case of an occupational disease. [L. 1963, ch. 274, §1; June 30. ] 44-5a02 Compensable occupational dis- eases. The following diseases only shall be deemed to be compensable occupational diseases: 1. Poisoning by (a) aluminum; (b) arsenic; (c) beonzol or its homologues, or the derivatives of benzol, or the derivatives of homologues of benzol; (d) beryllium; (e) cadmium; (f) carbon bisul- phide or hydrogen sulphides; (g) carbon monoxide; (h) chromic acid and chromates; (i) cyanide; (j) formaldeyhyde; (k) fluor- ine, flouride and hydrofluroic acid; (1) halogenated hydrocarbons; (m) lead; (n) manganese; (0) mercury; (p) methanol; (q) nitroglycerine; (r) oxides of nitrogen; (s) yellow phosphorus; (t) sulphur; (u) zinc. 2. Anthrax caused by handling of wool, hair, bristles, hides or skins. 3. Blisters caused by prlonged or repeated use of tools or mechanical appli- ances: Provided, That no compensation Shall be payable unless the workman shall promptly, and not later than the end of the shift during which such blister first develops, report the same to his employer, or designated agent of such employer and submits to such medical treatment therefor as shall be required and furnished by the employer. 4. Brucellosis (undulant fever): Pro- vided, That such disease shall be limited to those individuals employed in milk plants, packing plants, butcher shops or rendering plants. S. Compressed air illness. 6. Conjunctivitis. 7. Dermatitis, that is, inflamation or infection of the skin due to oils, cut- ting compounds or lubricants, dust, li- quids, fumes, gases, vapors, or solids. 10 ——_ | : 8. Diseased condition caused by ex- posure to X-rays or radioactive sub- stances, or exposure to ionizing radia- tion. "Ionizing radiation" means any pro- cess involving the use or direct contact with radium or radioactive substances or the use of or direct exposure to roentgen rays (X-rays) or ionizing radiation. 9. Erysipeloid —- swine erysipelas. 10. Nystagmus incurred in underground work. 11. Synovitis, tenosynovitis or bur- sitis the result of repeated pressure, friction or over use. 12. Silicosis, as hereinafter de- fined. [L. 1959, ch. 222, §1; June 30]. STATEMENT OF THE CASE A brief statement of the facts of this ) case is next to impossible due to the ll nature of the questions presented. The main issues in this appeal turns on the conclusions which can be drawn from the facts, all as more completely set forth hereinafter. This is an action filed in the Dis- trict Court of Wyandotte County, Kansas, and subsequently removed to the United States District Court for the District of Kansas, seeking damages for personal injury to an employee as a result of the employer's negligence in failing to main- tain a safe place to work. Plaintiff is a citizen of Kansas and defendant is a Delaware Corporation with principal offices in Toledo, Ohio. The amount in controversy exceeds Ten Thousand Dollars. Folllowing a five day jury trial, a verdict was returned for the plaintiff in the sum of Two Hundred Seventy-five Thou- 12 sand Dollars ($275,000.00) and judgment was entered thereon on March a0, 19077. The trial court, on December 6, 1977, granted defendant's motion for judgment notwithstanding the verdict and condi- tionally granted defendant a new trial. Plaintiff filed timely notice of appeal from this ruling. The 10th Circuit Court of Appeals affirmed the judgment of the lower court in a two to one decision. Plaintiff's timely petition for a rehear- ing was also denied by a split decision. Appellant applied for work with the defendant at its Kansas City, Kansas, plant in 1959. Plaintiff was in perfect health at the time of his employment. When plaintiff first applied for work with defendant, he noticed 'stuff"all floating through the air inside defend- ant's plant. The material could readily 13 be seen when the sun was shining in the windows. Plaintiff inquired as to the safety of the material in the air and was told that it was'dirty, but that it would not hurt you, At the end of one weeks employment, plaintiff became a fabrication processer on the "burr line", where he worked from 1959 to 1964. On the burr line, plain- tiff fed rolls of untreated fiberglas mats into machinery. As the fiberglas mats would unwind into the burr machine, glass material would shoot into the air from the mats. At the point where plain- tiff worked, gritty material would pile up on the floor to a considerable depth. At the end of a work day, plaintiff's clothes were dirty and dusty to such an extent that they could not be washed with the rest of the family's clothes. 14 ia te ee | = me SS Plaintiff testified that he never noticed any ventilation near the burr line. Plaintiff complained that the fiber- glas dust made him cough and asked to be transferred. However, his supervisor in- formed him that his complaints were just his imagination and that no harm would come to him from the glassy material. Between 1959 and 1965, plaintiff develop- ed a slight cough and would break out with a rash from the fiberglas. Dr. Sifers, the plant physician, diagnosed him as having sinus drainage with a cough and sent him to have a chest x-ray. In 1964, plaintiff finally withdrew from the burr line and began working as a handyman wool packer. He would pull fin- ished fiberglas from the production line and prepare it for shipping. His work area was characterized as having dust and dirt floating around in the air and fiber- glas piling up and hanging over the beams 15 of the plant ceiling and "generally every- thing". After two months as a wool packer, plaintiff became an AF operator and work- ed in the J-3 forehearth area. He was employed in this area from 1965 through 1967. The J-3 forehearth is a partially enclosed, 18 ft. by 25 ft. area, where molten glass is spun into fibers and sprayed with a chemical binder. The fore- hearth is an elevated platform bounded on the west by an enclosed air-conditioned instrument room, on the north by a blast furnace, on south by a partition going half way to the ceiling, on the east by the forming duct (a pit 8 or 9 ft. below the forehearth floor with a waist high barrier along the edge of the pit) and above by a maze of pipes about 64 ft. above the floor of the forehearth. Above 16 ae es the forming duct, are seven hollow cy- linders into which the molten glass’ from the blast furnace runs. Inside the cylin- ders were spinners, a platinum bushing with many small outlets through which molten glass flowed, which when revolved at high speed changed the molten glass into fibers of glass. The fibers of glass were then sprayed with a chemical binder causing them to clump together. After be- ing sprayed with the binder, the raw fiberglas would then fall onto a conveyor and be transported to the ovens to be cured. Not all the fiberglas coming out of the spinner would be sprayed with bind- er, but instead would fly out into the forehearth area through the gap between the bottom of the cylinder and the binder ring. Plaintiff's duties included changing the spinners when they became worn and he 17 would change as many as 25 to 30 spinners in the course of an 8 hour shift. In addi- tion, plaintiff periodically ran a pull check by pulling out a ladle and checking how much molten glass flowed through the spinner in a 5 minute period. Further, he controlled the amount of binder being sprayed onto the fiberglas and was requir- ed to clean up the area and wash the floor down. The furnace adjacent to the fore- hearth area produced a temperature of 2200° F. The temperature of the fore- hearth area in which plaintiff worked averaged about 140° F and ranged as high as 170° F in hot weather. There was glass and dust particles all over the fore- hearth area. The conditions were such that plaintiff was required to clean the dust off his safety glasses all the time 18 he was in the forehearth. When cleaning the area, he would use an air hose to blow the glass dust off the overhead ‘pipes and it would fall down on his head as he worked. After each shift, plaintiff would blow dust out of his nose. Chemical vapors were present in the forehearth almost. constantly and would burn plaintiff's nose, mouth, throat, and eyes. Because the safety glasses he was furnished had no rubber moldings, the fumes would irritate his eyes so much that he could not see at times. The chemi- cal odors would be stronger when the wind outside was from the north or west. The fans underneath the forming duct drew the irritating fumes directly across the fore- hearth were plaintiff worked. The chemi- cal vapors came from the binder room which was northwest of the forehearth. 19 After a typical shift in the fore- hearth, plaintiff would break out with a rash on his arms, his eyes would water, his nose would start to run, he would blow salt and pepper-like stuff from his nose, and he would be coughing up sputum @ontaining dust particles and would be gagging from cnembeut irritation. Plaintiff continued to complain about the conditions in the forehearth and was once again assured that the dust fumes were harmless. The only source of ventilation in the forehearth, ‘other than the fans under the forming duct, which merely served to aggravate his condition due to their pro- pensity to draw irritating chemical va- pors directly across his work area, was a louver in the roof overhead. These lou- vers were above the maze of pipework in 20 the forehearth and would be closed in rain or inclement weather. The defendant began testing for in- dustrial health hazards in its plant in 1962 and began making tests specifically for fiberglas dust in 1964. During the period that plaintiff worked in the fore- hearth area, no testing was conducted for chemical vapors, fiberglas dust, or any other type of industrial health hazard. In 1967, plaintiff was removed from the forehearth area and became a down- stairs operator. As such, he was respon- sible for obtaining as much production as possible from the J-4 line. He would adjust the saws and the height of the oven in order to produce the desired pro- duct. In addition, he was constantly re- turning to the forehearth area to assist in replacing spinners and to check the * quality of raw fiberglas. 21 oe As a downstairs operator, he was ex- posed to fiberglas particles from the dust from the saws and the choppers on the production line. The dust was suspend- ed in the air and would accumulate in the plant requiring continual clean-up. In addition, the ovens in which the raw fiberglas was cured would overheat and cause fiberglas fires. A fire would occur almost daily, and smoke from the fires would permeate the plant to such an ex- tent that plaintiff could not see the other end of the plant. Plaintiff would extinguish the oven fires by going through the thick smoke and opening valves located next to the smoking oven. Plaintiff was not provided with a safety mask when performing this task. Defendant's safety director testifi- ed that 10 rows of windows 3 ft. wide and 22 150 to 200 ft. long were the primary source of ventilation in the production area. The windows would be closed because of snow or inclement weather. Plaintiff, however, stated that he had never noticed the windows being open and had heard that they were welded shut, except for those that had been broken out following an oven fire. Plaintiff testified that the only source of ventilation he was aware of were the doors in the rear of the building. In January, 1968, an industrial hygienist for the defendant noted that there was a lack of make-up air in the plant because of the reliance upon the door openings for ventilation. The only system for pulling air out of the produc- tion area were the small exhaust fans attached to the ovens, vented through the roof. These were inadequate for removing 23 smoke from oven fires. Pedestal fans lo- cated along the production line did not improve the Situation, but merely served to keep fiberglas particles suspended in the air. During the period of 1967 to 1970, plaintiff worked at various other jobs in the plant as the production force was tem- porarily cut back. After his return to work in 1970, Murphy returned to the fore- hearth as a downstairs operator. The "ammonia compressor" was leaking notic- able quantities of ammonia vapor into the atmosphere on the ground floor of the binder room. The ammonia vapor was suffi- cient to cause eye irritation indicating a concentration of 75ppm. No test samp1l- ing was actually done at this time or at the next test in September, 1969. Final- ly, in March, 1970, a sampling for am- 24 monia vapor was taken. As a result of this test, the defendant was advised that the ammonia pump in the binder room was leaking excessive quantities of ammon- ia fumes and should be repaired. There was medical testimony that ammonia has a strong odor and is capable of irritating the mucus membranes of the eyes, nose, throat, and lungs. Ammonia vapors will cause eyes to water and the nose to run. Plaintiff stated that the bad odor would come from the north and west from the di- rection of the binder room, and that it would burn his eyes, nose, mouth, and throat when he worked in the forehearth of the J and K lines. The doors in the rear of the plant (used for ventilation) were near the binder room and the wind would blow the vapors in the direction of his work area. 25 In July, 1968, defendant's special hazards study found that fiberglas dust was in excess of the recommended level and that defendant was advised to take steps to control fiberglas dust. The January, 1969, study found that when the ventilation was down in the recondition- ing area, the concentration of fiberglas was in excess of the recommended levels. The Septembe*, 1969, study found that the concentration of fiberglas dust was in excess of the recommended level in two places. The reconditioning area was again found to be above the recommended level and the Saws on the 70 line also produced excess exposure. The defendant was advised to enclose the open conveyor line carrying fiberglas waste across the J and K pro- duction lines to the reconditioning area. No tests for fiberglas were taken at the 26 cutter station where the J-4 production line saws were located during the period 1967 to 1970. From 1967. through November, 1969, plaintiff continued coughing and expector- ating sputum. In November, 1969, plain- tiff began having chest pains and report- ed to defendant's medical center where he was sent to see a doctor and to be x- rayed. Plaintiff again received assur- ances that there was nothing physically wrong with him and was given no medical directions. From November, 1969, through August,1970, plaintiff continued to have chest pains and grew weaker. By August, 1970, plaintiff was coughing more and more and had developed shortness of breath and choking, and generally was un- able to get a "good breath". Plaintiff's coughing was so severe that he passed out 27 in the summer of 1970 and would sit on the railings of the plant to rest and catch his breath. His coughing would abate after being away from the plant for a five day period. Plaintiff again went to the plant physician, Dr. Sifers, in August of 1970, complaining of severe chest pains. He was X-rayed again and informed that there was nothing physically wrong with him. A pul- monary function machine, a spirometer, was available to defendant's medical cen- ter, but plaintiff was never checked on the machine while employed. In October of 1970, at age 39, as plaintiff was preparing to go to work, he had a severe coughing attack and was un- able to get his breath to such an extent that his wife thought he was having a o-9ee Wen on two occasions. Defendant was warned by the hygienist to control excessive ex- posure to fiberglas dust. The expert sug- gested that this could be done by remov- ing fiberglas which clogged the exhaust system. Another standard to determine the location of testing was where the most Significant exposure to health hazards existed. In breach of this standard, the defendant did not test for fiberglas dust exposure in the area of the saws and chop- 54 pers on the J-4 production lines. The Saws and choppers were one of the most Significant sources for the creation of fiberglas dust in the plant. Furthermore, the saws and choppers on the 70 produc -- tion line produced fiberglas dust in ex- cess of the danger level, even with the use of air cleaning devices. The jury was entitled to infer that the defendant was negligent in failing to test for fiber- glas dust on the J-4 saws; that such test- ing would have shown excessive exposure just as the testing of the 70 line saws disclosed and that the defendant failed to exercise due care to control fiberglas at both locations. Lack of due care and prudence is further shown by the defen- dant's failure to take any remedial steps whatsoever despite the complaints from the union safety committee about smoke, 95 dust, and fumes. The overhead windows relied upon by the defendant as the main source of ven- tilation, were closed at least during in- clement weather (Plaintiff testified that he had never noticed the windows being open). The fact that the plant was com- pletely clouded with smoke from oven fires on a daily basis certainly shows that the oven exhaust fans were inade- quate. Fans in the forehearth brought nox- ious, irritating fumes and dust across the plaintiff causing him to cough and gasp for breath. Pedestal fans in other areas served only to stir up fiberglas dust. These are common sense factors that need no expert opinion or testimony to be understood by the jury as being imprudent. All of these circumstances are co- gent proof that what was being done was 56 amar,” insusficient or done improperly. These circumstances come squarely from the standard of negligence announced in Walker, supra and satisfy plaintiff's bur- den of proof under Kansas law. It was not incumbent upon the 10th Circuit Court of Appeals to weigh the evidence of due care with the evidence of negligence. Rather, their sole functsen was to examine the evidence in a light most favorable to plaintiff and determine whether reason- able minds could differ on the conclu- sions to be drawn. By requiring plaintiff to prove his case by expert opinion, the majority, in effect, has given more cre- dence to the testimony of defendant's ex- perts than to plaintiff's witnesses, and as noted in the previous section, failed to view the evidence in a light favorable to plaintiff. o7 Under a similar set of circumstances the Kansas Supreme Court has stated in Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535 at 538 (1969), as fol- lows: "The record contains lay testimony of the conditions under which the plaintiff worked; of lack of proper ventilation; of long time use of fiberglass which permeated the atmo- sphere and worked into plaintiff's clothes and hair, nearly driving him crazy with itching and requiring daily changes of clothes and daily shampoos; of dust and other particles so thick that coffee, milk and other drinks had to be consumed as soon as poured, else they would be contam- inated by "spects and spots and dust and stuff." Lay testimony also point- ed to a continuing deterioration in Miller's health which commenced shortly after his exposure to such conditions. "Tt is our opinion that from the evi- dence, both lay and expert, the jury might reasonably have drawn the in- ference that plaintiff's disability was job-connected. We believe the trial court erred in deciding as a matter of law that the plaintiff's 98 evidence failed to establish a causal relationship between his employment and damage to his health." Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535 at 5356 (1969). The factual situation presented by Miller, supra, demonstrates the error in the decision of the majority. As. Judge Holloway concluded his dissenting opinion, "Nevertheless, the jury was entitled to accept the testimony of the plaintiff and the doctor who treated him and to draw its conclusions from their evidence, re- jecting the testimony of the defendant's experts. Thus, I cannot agree that judg- ment notwithstanding the jury's verdict should have been entered." The Supreme Court of Kansas has held in numerous situations regarding the com- petency of a testator that an expert's opinion is not binding on the trier of fact where there is a conflict with lay 59 testimony. (In re Millar's Estate, 185 Kan. 510, 345 P.2d 1033, (1959); In re Robert's Estate, 192 Kan. 91, 386 P.2d 301 (1963); Matter of Carothers' Estate, 220 Kan. 437, 552 P.2d 1354 (1976). Under the law of Kansas, expert testimony is no more competent than lay testimony and the Court of Appeals erred when it accorded it greater status. CONCLUSION It is submitted that the foregoing arguments justify granting plaintiff's writ of certiorari. The 10th Circuit Court of Appeals has decided an important state question in a manner in conflict with the law of Kansas. The Court of Appeals, in an opinion "not designated for routine publication" has announced a standard heretofore unknown to the bench and bar of the state, to-wit: That plain- tiff in a negligence action against his employer for failure to provide a safe 60 aa ene place to work must prove his case by expert opinion or proof of violation of Pyne pe standard before he can prevail. The above and foregoing statement has never been the ve in the State of Kansas. It is further contended that a major- ity of the 10th Circuit Court of Appeals has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of this court's power of supervision. The lower court has failed to view the evidence in a light most favorable to plaintiff and engaged in weighing the evidence presented below. These are errors so blatant that citation of authorities to support them is unneces- sary. They have resulted in the violation of plaintiff's constitutional right toa trial by jury. This case cannot be re-tried ina few written pages and should not be. It 61 was tried to a jury and should, in the able court grant petitioner a writ of name of justice, stand as it was determin- certiorari. ed. It is a very difficult task to recon- struct a trial heigl a cold record, which obviously is one reason why verdicts are not ordinarily disturbed. In actuality, the evidence showed a wanton disregard for plaintiff in the failure to test in | the forehearth area for particles of am- monia, much less filter the same out of the atmosphere. This, coupled with the expert testimony of fiberglas particles overwhelming the respiratory system, cer- tainly fits within the parameters of the negligence standards of the State of Kansas. For these and other reasons, includ- ing the integrity of the judicial system, we respectfully request that this honor- 63 62 rence tt de i, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JAMES L. MURPHY, Plaintiff, CIVIL ACTION OWENS-CORNING FIBERGLAS Decided CORPORATION, December 6, 1977 Defendant. MEMORANDUM AND ORDER This case is now before the court for determination of the defendant's mo- tion for judgment notwithstanding the jury verdict or, in the alternative, for a new trial. The jury trial of this action com- menced on March 21, 1977, and was premised upon the defendant's alleged negligence in failing to provide the plaintiff, its employee, a reasonably safe place in which to work. After four days of testimony, at the conclusion of the trial, the jury A-1l returned a verdict for the plaintiff in the amount of $275,000 -- the sum prayed for in the complaint. The defendant's mo- tion is baséd upon the arguments that said verdict is wholly unsupported by substan- tial competent evidence and that the court erred in failing to properly instruct the jury as to the applicable law. The court has devoted much time and consideration to these arguments, and has scrutinized in great detail the transcript of the trial proceedings and the evidence found therein. This process of re-examination has led the court to conclude that the challenged verdict cannot stand and that the defendant's motion for judgment not- withstanding the verdict must, for the reasons set forth in more detail below, be sustained. PEELE GUE: ABO me har . I. MOTION FOR JUDGMENT NOTWITHSTAND- ING THE VERDICT. The standard to be applied in evalua- ting a motion for judgment n.o.v. is es- sentially the same as that applied in evaluating a motion for a directed ver- dict. See Oldenburg. b. [sic] Clerk, 489 F. 2d 839 (10th Cir. 1974); Taylor v. National Trailer Convoy, Inc., 433 F.2d 569 (10th Cir. 1970); Federal Rules of Civil Procedure, Rule 50(b). In consider- ing a motion for judgment n.o.v., the trial court is bound to view the evidence in the light most favorable to the party against whom the motion is made. E.g., Weeks v. Latter-Day Saints Hospital, 418 F. 2d 1035 (10th Cir. 1969); Gulf Insur- ance Company v. Kolob Corp., 404 F.2d 115 (10th Cir. 1968). The fact that the record sO viewed contains a "scintilla" of evi- A-3 dence in support of the challenged verdict -- or perhaps barely refutes a contention that there is "no" evidence supporting a party's case -- presents no legal barrier to entry of a judgment n.o.v. E.g., Yazzie v. Sullivent, 561 F.2d 183 (10th Cir. 1977); Swearngin v. Sears Roebuck & Co., 376 F.2d 637 (10th Cir. 1967). The criti- cal question is whether the record con- tains evidence "upon which the jury could probably find a verdict" for the party against whom the motion is made. Yazzie, supra. Thus, while judgment n.o.v. may not be granted "unless the evidence points but one way and is susceptible to no rea- sonable inferences which may sustain the position of the party against whom the motion is made," Symons v. Mueller Co., 493 F.2d 972 (10th Cir. 1974), a motion for judgment n.o.v. should be sustained PRS VSO TIT > mam, Ay where "the evidence and all the infer- ences to be drawn therefrom are so patent that minds of reasonable men could not differ as to the conclusions to be drawn therefrom" Taylor, 433 F.2G at 571-72. See also Stiner v. United States, 524 F.2d 640 (10th Cir. 1975); Bertot v. School District No. 1, Albany County, Wyo., 522 F.2d 1171 (10th Cir. 1975); Wright v. American Home Assurance Co., 488 F.2d 361 (10th Cir. 1973). Application of these standards to the case now before us is appropriately prefaced with a brief summary of the basic facts introduced in support of the plain- tiff's claim. The plaintiff James Murphy was employed in various capacities at the defendant's plant in Kansas City, Kansas, from 1959 to 1970, at which time he was disabled from further employment due to chronic obstructive lung disease or pul- monary fibrosis -- conditions allegedly resulting from the defendant's negligent failure to provide a reasonably safe work- ing environment. The plaintiff's theory at trial was that the airborne combination of "chemicals + dust + heat" in the Owens- Corning plant had proximately caused the disease and deterioration of his lungs. He asserted that his pulmonary disability resulted from negligence, in that the de- fendant had (1) failed to inspect the air ir. its plant and to determine the effects thereof upon its employees, including the plaintiff; (2) failed to warn or inform its employees, including the plaintiff, when it knew or should have known that the air was harmful to human beings; (3) failed to remove minute fibrous glass par- ticles and dust from the general plant area; (4) failed to minimize harm to its employees, including the plaintiff; (5) failed to inform plaintiff of his deter- iorating condition of health in August, 1970, upon having plaintiff examined by a physician; and (6) failed to provide plaintiff with a safe place to ork. Under Kansas law, there is no ques- tion but that an employer has a duty not to expose his employees to perils and dan- gers against which the employer may guard by the exercise of reasonable care and that a part of this duty is to furnish a reasonably safe place in which to work. E.g., Taylor v. Hostetler, 186 Kan. 788, 352 P.2d 1042 (1960); Fishburn v. Interna- tional Harvester Co., 157 Kan. 43, 138 P.2d 471 (1943). It is equally clear, how- ever, that a master is not an insurer ‘against all injuries which his servants may suffer in the discharge of their duties. E.g., Uhlrig v. Shortt, 194 Kan. 68, 397 P.2d 321 (1964); Blackmore v. Auer, 187 Kan. 434, 357 P.2a 765 (1960). The Kansas Supreme Court has reiterated time and time again the legal axiom that an employer's duty to furnish safe working conditions is not absolute and that an employee's recovery for breach thereof is dependent upon proof of negligence. In Allen v. Shell Petroleum Corp., 146 Kan. 67, 68 P.2d 651 (1937), the Kansas Supreme Court formulated the test of em- ployer negligence as follows: "The master is not required to furnish the best, the safest, or the newest appliances or methods of oper- ation, nor to adopt extraordinary or unusual safeguards against risks and dangers. The limit of his duty here is to exercise ordinary care to supply reasonably safe places, appliances, and methods. The test of his discharge of this duty is the _ ‘ exercise of ordinary care to supply such places, appliances, and methods as persons of ordinary intelligence and prudence commonly furnish in like circumstances." Further, because under fundamental principles of tort law the risk of injury defines the duty to be obeyed, Palsgraf v. Long Island R.R.Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928), the Kansas Supreme Court has held that "the master is not compelled to foresee and guard against an accident which reasonable and prudent men would not expect to hap- pen, and where an injury to a servant could not reasonably have been anticipat- ed, a failure to take precautionary mea- sures is not negligence on the part of the master for which he is liable to the servant." Dodd v. Wilson & Co., Inc., 149 Kan. 605, 88 P.2d 1116 (1939). An employer is therefore not liable for failing to anticpate idiosyncratic injury to a parti- cular employee, arising from the employ- ee's peculiar physical condition of which the employer had and could have no notice. Allen supra. An employer's duty does not extend to the prevention of or warning against remote, improbable, and exception- al occurrences; it is limited to such perils as reasonably are to be anticipat- ed. Finally, in determining the issue of employer negligence, proof of custom- ary practices in the relevant industry is both relevant and highly probative. Because the duty of care owed by the em- ployer is that which is exercised by the average prudent individual in similar cir- cumstances, and because "what men ordinar- ily do is ordinarily prudent and careful." A-10 Blackmore v. Auer, 187 Kan. at 442, 357 P.2d at 772, an employer will generally not be held liable if he conducts his business in a manner conforming with the usage of others engaged in the same busi-— ness under similar circumstances. Uhlrig v. Shortt, supra. Evidence of customary usage in a particular business or industry is clearly not conclusive of the question of reasonable care in a given circum- stance, Walker v. Colgate-Palmolive-Peet Co. 157 Kan. 170, 139 P.2d 157 (1943), for the existence of negligence in each case must depend upon the particular cir- cumstances surrounding the parties at the time and place of the occurrences on which the controversy is based. An employee is therefore not required to prove, as a ne- cessary element of his case, that his em-— ployer either adhered to an unreasonable A-ll or imprudent industrywide practice or im- prudently deviated from commonly accept- able customary practices. AS a practical matter, however, evidence of customary practices within an industry may be among the most relevant and probative evidence available, and its absence in a case such as the one now before the court may severely impair the employee's ability to satisfy the relevant burden of proof. That burden of proof, summarized by the Kansas Supreme Court, is as follows: "Negligence is never presumed. It must be established by proof, but it may be shown by circumstantial evidence where the circumstances are proved and their relation to each other is such that intelligent, fair- minded triers of fact may with reason find that the negligence with which the defendants are charged has been established. To meet the burden of proof on the issue of negligence the evidence must be substantial and saree HS satisfy the obligation imposed upon a plaintiff in a civil action to prove such negligence by a preponder- ance of the evidence." Blackmore v. Auer, 187 Kan. at 440, 357 P.2d at At the conclusion of the trial of this matter, the jury was fully instruct- ed on the substance of the law stated above. The muikiein tn be resolved is whe- ther the jury's verdict for the plaintiff, in view of the evidence on which it was based, can be reconciled with the relevant Kansas case law. Determination of this question requires us to examine in turn the various claims of negligence on which the plaintiff's case was based. 1. The Defendant's Failure to In- spect The Air In Its Plant and to Deter- mine the Effects Thereof Upon Its Em- ployees. Viewed in the light most favorable to the plaintiff, the evidence concerning A-13 the defendant's testing and inspection procedures during the relevant period 1960 - 1970 was as follows: Commencing in 1962, the Industrial Hygiene Section of the Engineering Division of Aetna Life and Casualty Company conducted annual or biannual industrial hygiene surveys at the defendant's plant at places where, due to the particular manufacturing process involved, it was felt that there was or might be a possible occupational health hazard due to the presence of airborne chemicals or dust. In determining whether the presence of such contaminants consti- tuted a health hazard, the inspectors from Aetna referred to the so-called "threshold limit value" (TLV) published by a respect- ed committee of the American Conference of Governmental Industrial Hygienists (ACGIH). The TLV established by the ACGIH A-14 committee for each particular contaminant jaa reviewed on a yearly basis and modifi- ed according to industrial experience and additional toxocological studies; TLV standards for humans were generally established at one tenth of the pollutant concentration level to which test animals could be exposed without suffering dis- cernible harm. Because of this "safety factor" thus build into the TLV standards, each TLV represented conditions under which it was believed that nearly all workers could be "repeatedly exposed day after day without adverse effects." The frequency and nature of the air testing done by Aetna, as well as the procedures employed, conformed to both standard in- dustrial hygiene procedures and procedures in effect in American industrial plants at that time. Aetna communicated to the A-15 defendant the results of each test, to- gether with its analysis and recommenda- tions if warranted by the test results. Aetna's testing was conducted in those places within the defendant's plant where it was suspected that potential health nawedes existed due to proximity to particular manufacturing processes. Early tests in 1962 and 1963 were princi- pally concerned with phenol and formalde- hyde gases and dust; isolated tests for airborne fiberglas particles were not con- ducted because it was generally believed that such particles were "Sere" Le even if inhaled, such particles would cause no miei’ or chemical reaction in the tissue of the lungs. Beginning in 1964, however, the ACGIH decided "to take a good look at fiberglas to see if there was [sic] any possible toxic effect," and A-16 "Came up with a weight figure that they felt it might be desirable to at least look at, at the time." This tenative TLV _was two milligrams of airborne fiberglas dust per cubic meter of air. In 1964 or 1965, based upon industrial experience and experimental human and animal studies, the ACGIH raised the suggested TLV to 5 milligrams per cubic meter of air. By 1970, the ACGIH threshold limit committee had determined that "there was no evi- dence to indicate that fiberglas was a problem;" rt therefore classified airborne fiberglas particles as "nuisance" dust -- one with "a long history of little ad- verse effect on lungs" and that did not produce "significant organic disease or toxic effect when exposures are kept under reasonable control." Upon reaching this conclusion, the ACGIH raised the TLV for A-17 fiberglas as a nuisance dust to 15 milli- grams per cubic meter of air. With two exceptions, all tests from 1964 to 1970 indicated that the concentra- tion of fiberglas particles in the defen-— dant's plant were well within the TLV in effect at the time of the inspection and testing procedures. The two exceptions, in 1968 and 1969, involved test Situations in the reconditioning loading area of the defendant's plant -- an area in which the plaintiff worked in 1964-65, but not thereafter. Further, in no case did a test conducted in the vicinity of the plain- tiff's work station indicate that concen- trations of phenol, formaldehyde, carbon monoxide, or other chemicals or airborne contaminants exceeded the respective TLV's established by the ACGIH. The accuracy of the above-mentioned industrial hygiene studies was not ques- A-18 mer nee ewe tioned at the time of trial. The bulk of the plaintiff's evidence proceeded along the line that more extensive testing was called for in the circumstances. It was shown that the forehearth area in which the plaintiff worked from 1965-70 was never tested for "any and all" chemicals that might be present, or for fiberglas particles, because of Aetna's policy to inspect only those locations in which en- vironmental health hazards seemed most probable. There was evidence that at least some of the defendant's employees felt that industrial hygiene tests were selec-— tively conducted only when conditions in the plant were relatively "clean". There was pie. evidence that testing proce- dures might have been conducted more fre- quently and by arguably more accurate methods, €.g-, having each employee wear A-19 air-testing equipment at his work station throughout the course of his duties. There would seem to be no question but that under the Kansas cases cited above, an employer is obligated to make a reasonable inmauke to discover latent or concealed dangers in his place of work. What constitutes an adequate and proper inspection or test must depend on the cir- cumstances of a particular case; an ade- quate inspection must, however, be such as a reasonably prudent man in the exer- cise of reasonable care would deem neces- sary under the same or similar circum- stances. The court is convinced that the evidence in this regard will sustain no reasonable inference of negligence and that, to the extent the jury's verdict may have been based upon such a finding, it must be set aside. First, the defen- A-20 PEO Oe TPF me ee - dant's testing and inspection procedure was conducted in conformance with a cus- tomary and generally approved industrywide practice that was in no way suggested or shown to be insufficient or negligent. Second, there was no evidence that more frequent testing would have disclosed the existence of any danger to the plaintiff or any other employees of the defendant. Third, tiiere was no evidence that testing at the plaintiff's individual work station would have revealed the existence of any occupational health hazard that might be reasonably anticipated by the defendant. Fourth, neither was the defendant's 30 years of experience in the fiberglas in- dustry we the experience of experts in the field of industrial hygiene such as to put Owens-Corning on notice as to the probable existence of an occupational A-2l | | health hazard in any part of the plant where the plaintiff worked. In these cir- cumstances, as a matter of law, the defen- dant could not be charged with a legal jute to employ unusual or extraordinary ‘tests or to adopt the latest, most improv- ed, and most extensive methods of testing and inspection. In the court's opinon, the minds of reasonable men could not dif-— fer from the view that the defendant's testing and inspection procedures were adequate and reasonable. 2. The Defendant's Failure to warn and Inform Its Employees, Including the Plaintiff, When It Knew or Should Have Known That the Air Was Harmful to Human Beings. Analysis of this aspect of the plain- tiff's case requires us to address two distinct but interrelated questions: (1) Was the air in the defendant's plant harm- ful to human beings? (2) If so, did the defendant know, or should it have been known, of the potential danger to which its employees were exposed? Even viewing the evidence in the light most favorable to the plaintiff, it is readily apparent that the record is devoid of evidence that the air in the defendant's plant could be generally de- scribed as "harmful to human beings." All tests conducted for formaldehyde, ammonia, carbon monoxide, and fiberglas dust in Situations not dissimilar from those in which the plaintiff worked established -- aS we noted above -- that the contam- inant levels were well within the pre- scribed threshold limitation values in effect at the time of the tests. The plant physican, Dr. Earl C. Sifers, testified A-23 that in twenty years of treating the de- fendant's employees he had never seen a case in which the combined inhalation of chemicals and fiberglas particles caused pulmonary problems of the kind suffered by the plaintiff. General experience in the fiberglas industry, together with the information based upon experimental human and animal studies, led the ACGIH during the period in question to progressively raise its tenative TLV's for fiberglas particles and eventually to classify it aS a nuisance dust producing no signifi- cant organic disease or toxic effect. Under no rational view of this overwhelm- ing evidence could the air in the defen- dant's plant be deemed "harmful." The plaintiff's only evidence to the contrary consisted of testimony by Dr. William E. Evans, M.D., to the effect that A-24 nuusiieéinR...-—— (1) inhalation of formaldehyde vapors causes irritation to the iaabeasi membranes of the lungs and reduces the ability of pulmonary cilia to rid the lungs of for- eign materiais: 03) inhalation of ammonia vapors has the same physiological effect upon the lungs; (3) inhalation of carbon monoxide gas decreases the amount of oxy- gen carried in the blood stream; (4) heat tends to dry the mucous membrans in the respiratory tract and reduces the ability of the cilia to renee extraneous material from the lungs; (5) lung tissues often have an allergic reaction to fiberglas particles; and (6) the combination of for- hakdehyde. ammonia, carbon monoxide, heat, and airborne fiberglas particles may com- pletely overwhelm the defense mechanisms: of the body and cause total physical dis- ability. Dr. Evans' testimony was hardly probative of the plaintiff's allegation that the air in the defendant's plant posed any general danger to human health, however, for there was no evidentiary cor- relation between his hypothetical medical testimony and the conditions actually existing at the defendant's plant during the relevant periods of time. Dr. Evans' testimony failed to indicate what concen- trobian at the above-mentioned chemicals would be necessary before their deleter- ious effects would materialize, and he did not pretend to testify that the air in the defendant's plant exceeded such concentrations. Furthermore, his testimony openly acknowledged that the air quality in the defendant's plant was well within the threshold limit value Sieiadiied for such citietiniiliaesits by the ACGIH, a body whose expertise Dr. Evans recognized and OLLIE OE IY AEN Ne gee « eo ee ee * in whose judgment Dr. Evans had confi- dence. Aside from Dr. Evans' testimony, there is no evidence in the record that the air in any part of the defendant's plant in which the plaintiff was employed was generally iia? to human health. Even assuming that some such danger. were present, the court could by no means accept the plaintiff's contention or the jury's possible conclusion that the defen- dant's failure to warn of such danger was negligent or otherwise reprehensible: the record Simply supports no relational inference that the defendant knew or should have known of the existence of such danger. The plaintiff's expert wit- ness on this subject, Dr. Evans, express- ly acknowledged that the TLV standard pro- mulgated by the ACGIH were the work of "a recognized group of experts" in the field A-27 of industrial hygiene; that such stan- dards represented the best judgment available on the basis of present-day scientific ability and knowledge; and that the defendant was "well justified" in relying on current standards adopted by that group. In addition to this testi- mony, the record contains the results of industrial health surveys that were con- ducted during the 1960's and early 1970's and that gave rise to a consensus of med- ical opinion that employees in the fiber- glas industry suffered no particular risk of occupational lung disease in condi- tions similar to those at the defen- dant's plant. The plaintiff did not con- tend that the defendant had actual know- ledge of the "danger" posed in its plant ‘by the conditions in question. Yet, the A-28 + a a ano Se overwhelming weight of the scientific evi- dence of which the defendant might be charged with constructive knowledge point- ed to the conclusion that the conditions in the defendant's plant -- which com- plied with contemporary industrial hy- giene standards -- posed no danger to human health. In the court's view, the evidence herein is susceptible of no rational in- ference that the defendant knew or should have known of any latent danger to human beings arising from the quality of the air in its plant. No reasonable person could conclude that the defendant's fail- ure to warn of such "danger" constituted negligence or other such conduct as should properly render it liable in the circum- stances. Accordingly, to the extent that the jury's verdict may have been based A-29 upon any such finding, it must be set aside. Where there is no appearance of danger, an employer is not required to caution its employees against unexpected or siimboldiite perils; its duty to warn is limited to such dangers as may reason- ably be anticipated. Under this standard, a finding for the plaintiff must be viewed as patently unsupported by the evidence introduced at trial. 3. The Defendant's Failure to Remove Minute Fibrous Glass Particles and Dust from the General Plant Area. The plaintiff's theory was that his disability was "really" caused by condi- tions in the forehearth area of the defen- dant's plant, where he worked from 1965 to 1967. According to the plaintiff, the forehearth area was a metal platform ap- proximately 25 feet long, 18 feet wide, A-30 y Suspended some 15 to 20 feet above floor level. The north end of the forehearth area was comprised of a blast furnace from which molten glass flowed into "spinners" inside large steel tanks. The crystallized molten glass was thereafter "hit" with air, which drove it asi into a ring where it was sprayed with a liquid chemical binder. The product thus produced -- un- cured fiberglas wool -~ was then pulled down into large pits or holes in the floor. The west side of the forehearth platform was bounded by an enclosed, air- conditioned room housing various instru-— ments relating to the forehearth produc- tion processes. The south end of the fore- hearth area was enclosed only by a parti- tion over which the operator could look to the lines running beneath the plat- form. To the east, the forehearth area A-3l was not enclosed; that "wall" consisted of seven large cylinders suspended at eye level over the holes in which the fiber- glas wool was collected. The "ceiling" of the forehearth area is not enclosed but had various pipes "running around every- where." In the forehearth area, according to the plaintiff, fiberglas wool accumu- lated all over the pipes and machinery; chemicals in the air burned his eyes, nose, and mouth; the heat in the summer months approximated 140 - 145 degrees Fahrenheit; and the air was full of dust and glass particles that were not general- ly visible but that produced a gritty ir- ritation to the skin. Forehearth em- ployees were furnished air hoses with which to blow "glass and stuff" to the floor, so that it could be swept up and discarded, but the plaintiff knew of no air purification mechanisms or other pre- cautions taken to ameliorate the dusty conditions in which he worked. Ventila-— tion in the forehearth area was, in the plaintiff's view, inadequate. Evon B. Austin, Safety Director for the defendant's plant, testifiea that all forehearth areas were ventilated by (1) ten rows of overhead windows 150 to 200 feet long; (2) four "schmigs" -- large floor-level apparatus that pulled from the plant's production lines 15,000 cubic feet of air per minute; and (3) two to three large "forming fans," each pulling 50,000 cubic feet of air per minute, that sucked glass into the floor-level pits described above. Austin also testified that because water was present in troughs in the forehearth area and because the fiberglas processed there was "moist and sticky" due to spray application of chemi- cal binders, ther were "hardly any" air- borne fiberglas particles in the vicinity of the forehearth. Further, Austin test- ified that several machines in the defen- dant's plant were covered with hoods in order to collect and prevent dust in the air, and that twice a year the defendant engaged an: outside firm to clean areas of the plant that the defendant's employ- ees could not get to on a regular basis. An employer's duty to furnish safe working conditions is not absolute, Allen v. Shell Petroleum Corp., 146 Kan. at 75, 68 P.2d at 656; it is required merely to exercise "ordinary care" to supply such a place of work as persons of ordinary intelligence and prudence commonly furnish in like circumstances. Here, any evidence that the defendant failed to conform with A-34 commonly accepted standards of good house- keeping or industrial hygiene is conspic- uously absent. The same may be said of proof that significant improvement of the air quality in the defendant's plant was technologically possible and economically feasible during the time period in ques- tion. The jury here was asked to presume the existence of negligence from the mere fact that dust and iibeveios particles were sometimes visible in the air and tended to accumulate on pipes and machin- ery throughout the plant. Was the defendant negligent in fail- ing to more nearly purify air in its plant that it believed or had reason to believe -- based upon reasonably thorough and fre- quent inspection and testing within its plant, the work of respected authorities in the field of industrial hygiene, and A-35 the contemporary state of the medical sci- ences, as well as its experience of some 30 years in the fiberglas industry -- posed no danger to the health or well- being of its employees? We think not. First, the court ine wrevivusis rejected any suggestion that "the defendant knew or in the exercise of due care should have known that the physical conditions in its plant posed a risk of danger to the health of it employees." Given merely the defen- dant's reasonable understanding that dust- related occupational disease among its employees were improbable at the least, and that such disease was reversible if indeed it should occur, any liability of the defendant cannot be premised upon the latter's failure to take extraordinary or unusual air purification steps. Second, there was no evidence at trial that A-36 "cleaner" air would have prevented the onset of the plaintiff's disability. To the contrary, expert testimony strongly suggested that this particular plaintiff -- because of his history of smoking and various pulmonary problems -- accutely suffered from exposure to even minute quantities of dust and other airborne con- taminants. Further, there was no evidence that absolute air purity was technolog- ically and economically possible in the context of the defendant's manufacturing process. The plaintiff indeed made no ef- fort to show that the air purification measures employed by the defendant were not the best available at the time. To sustain the plaintiff's verdict on the dust control issue, the court would be compelled to apply a "white glove" test to a major industrial operation. The dearth of evidence relating to accepted standards of industrial housekeeping and to standards technologically capable of achievement in the 1960's and early 1970's requires the court to conlude [sic] that the jury's verdict on this question must have been based upon sheer speculation. Intelligent, fair-minded triers of fact could not reasonably have found by a pre- ponderance of the evidence that the defen- dant was negligent on this score. Accord- ingly, to the extent the jury's verdict must have rested on this ground, it must be held for naught. 4. The Defendant's Failure to Mini- mize Harm to Its Employees, Including the Plaintiff. This claim, the court assumes, speci- fically refers to the defendant's failure to institute a program of medical check- ups of its employees for the purpose of detecting early symptoms of pulmonary dis- ease and dysfunction. While ia evidence relating to this point is limited, it ap- pears that the defendant's policy was to rotate employees in "high density areas" (i.e. the batch house) for mandatory per- iodic x-ray examinations. No such program for detecting early signs of respiratory problems existed for other employees, but the defendant's policy was to provide free chest x-rays for any employee at any time. Except for the periodic checking of "high density area" employees and the routine pre-employment examinations given to new employees, the defendant maintained no medical programs aimed at the prevention or early detection of occupational lung disease; the plant's medical clinic was principally oriented towards treating both A-39 occupational and shiceeseidsinaapis tain’ illnes- ses or accidents at the request of affect- ed individual employees. For reasons similar to those discus- sed earlier, this limited evidence is clearly incapable of supporting an infer- ence of negligence. The court finds as a matter of law that the defendant, acting as it did upon a reasonable belief that the working environment in its plant created no danger of occupational lung disease, was not legally obligated to con- duct periodic medical examinations of all employees for the purpose of detecting the existence or onset of pulmonary dis- ease. No evidence introduced at trial tended to establish that (1) reasonable and prudent employers in similar situa- tions conducted or should have conducted such tests; (2) the tests medically avail- POTS ew sactaese ae able to the defendant would have material-— ly heightened the defendant's awareness of pulmonary disease as an occupational hazard of its plant; or (3) such tests were capable of detecting pulmonary dys- function at any point in which the disease was capable of treatment to reverse or mitigate a particular employee's disabil- ity. In short, no reasonable person could conclude that there existed a causal rela- tionship between the plaintiff's disabil- ity and the defendant's failure to re- quire mandatory physical examinations of its employees. Accordingly, to the extent that the jury's verdict may have been based upon the allegation of the defen- dant's negligent failure to conduct per- lodic mandatory physical examinations of its employees, said verdict cannot be al- lowed to stand. 5. The Defendant's Failure to Inform Plaintiff of His Deteriorating Condition of Health in August of 1970, Upon Having Him Examined By a Physician Which it Selected. The court has some difficulty ascer- taining the factual gist of this allega- tion. According to the plaintiff, the "real" cause of his disability was the working environment in the forehearth area where he worked "upstairs" from 1965 to 1968 and "downstairs" from 1969 to 1970. In November, 1969, the plaintiff exper- ienced severe chest pain. The defendant's nurse referred him for x-rays. According to the plaintiff, however, he was given no treatment and he returned to work on the assurance that he was "okay." In August, 1970, the plaintiff experienced . a recurrence of chest pain and again re- “—— ported to the defendant's medical clinic for x-rays. The plaintiff was again as- sured that nothing was wrong with him, and several days later he returned to work. He continued to work until October 10, 1970, when he was hospitalized by his personal physician, Dr. Evans. According to the records of Dr. Sifers, the plant physician, the plaintiff last visited him on August 10, 1970, at which time he compalined of "just cough and cold." The plaintiff had experienced repeated attacks of bronchitis, persistent cough, and sinus drainage over the eleven years (1959-1970) that Dr. Sifers had treated him, and the doctor did not feel that hospitalization for further examina- tion of these symptoms was warranted. There was no evidence in Dr. Sifers' records that the plaintiff had ever com- plained that his respiratory problems were occupationally related. Dr. Florence MacInnis, the defendant's pulmonary ex- pert at the trial of this case, compar- ed x-rays of the defendant taken in 1969 end 1974 and concluded that the plaintiff- 's pulmonary fibrotic condition had re- mained virtually unchanged during that period. This is not a medical malpractice case, and in the court's view this par- ticular allegation has little or no re- lationship to the question of the defen- dant's negligence in failing to provide a reasonably safe place to work. It is sufficient for our purposes to note that there was no evidence that the medical services rendered the plaintiff by the de- fendant's medical clinic were deficient. Just how the defendant's "failure to in- form the plaintiff of his deteriorating physical condition in August, 1970," might have caused or aggravated his pre- sent disability is a total mystery so far as the present record is concerned. There is certainly no suggestion that in August, 1970, the plaintiff ignored his own knowledge of "sharp chest pain" and, relying to his detriment upon the reassur- ances of Dr. Sifers, forsook the opportun- ity to obtain an independent medical opin- ion. Nor is there any evidence that had the plaintiff been so "informed" in August, 1970, his hospitalization in October of that year and his Subsequent disability could have been avoided. In Short, there appears to be no causal nexus between the defendant's failure to "inform" the plaintiff -- even assuming that it had a duty to do so -- and the A-45 fact or the extent of the plaintiff's disability. A jury verdict to the con- trary can only be viewed as incompatible with the facts and the relevant Lins 6. The Defendant's Failure to Provide the Plaintiff with a Safe Place to Work. Virtually all of the foregoing claims and the discussion thereof are subsumed in the general allegation that the defen- dant negligently failed to provide the plaintiff a safe place to work. While the court's previously stated views need not be reiterated, two final points merit elaboration: (1) the extremely tenuous nature of the evidence that this particu- lar plaintiff's disability was in fact caused by the conditions in the defen- dant's plant; and (2) the overwhelming evidence that the plaintiff's disability, even if caused by the conditions in the defendant's place of work, was idiosyn- cratic in nature. The sole suggestion of any causal relationship between the plaintiff's place of work and his disability arose in the testimony of his personal physician, Dr. Evans. Dr. Evans testified that (1) acknowledged experts in the fields of medicine and industrial hygiene concurred in the views that (a) the chemicals in the defendant's plant were below those levels that might present a health hazard and that (b) fiberglas dust was an inert material that did not produce signifi- cant organic disease or toxic effect at the levels present in the defendant's plant; (2) such views were worthy of re- spect and Dr. Evans himself respected them; and (3) the defendant was entitled, in operating its plant, to rely upon such views aS representing the best informa- tion available from the medical stand- point. Notwithstanding this testimony, however, Dr. Evans concluded that the plaintiff's disability was caused by the conditions of his employment. This con- clusion was substantiated exclusively by (1) Dr. Evans' personal "disagreement" (based upon undisclosed data) with the consensus of contemporary medical sci- entists; and (2) Dr. Evans' observation that different people have varying physi- cal reactions to the same stimuli. In the court's view, Dr. Evans' conclusion that the plaintiff's disability was occupa- tional is entitled to no credence or weight whatsoever. Indeed, this might truly be characterized as one of those rare cases in which "the evidence points but one way and is susceptible to no rea- A-48 sonable inferences" that would sustain the plaintiff's burden of proof on the issue of causation. The court need not rest its decision solely on this ground, however, for the overwhelming weight of the evidence was that the plaintiff's disability, if it was indeed related to his employment arose from his unique and peculiar susceptibil- ity to harm. In this regard, our case is indistinguishable from Allen v. Shell Petroleum Corp. , 146 Kan. 67, 68 P.2d 651 (1937). The Kansas Supreme Court there noted that the fumes and gases in the de- fendant's plant were neither inherently poisonous nor present in dangerous quan- tities, and that no employee of the de- fendant -- aside from the plaintiff -- had ever suffered a lung ailment similar to that claimed by the plaintiff. The court in Allen rendered a statement of the law that is equally applicable to the case before us:. "It was not the duty of the employer to anticipate a particular injury to an employee which very likely resulted by reason of the employee's pe- culiar physical condition, of which it had or could have had no notice." Here, as in Allen, the plaintiff's disability was neither foreseen nor reasonably fore- seeable by the defendant, and the court cannot hold the defendant strictly liable for its failure to guard against or to prevent disability that a reasonable and prudent employer would not expect to hap- pen. The court must therefore hold that the finding inherent in the jury's verdict -- i.e. that the defendant negligently furnished the plaintiff an unsafe place in which to work -- is absolutely unsup- A-50 ported by the overwhelming evidence in this case. This case is in many ways analogous to Robbins v. Alberto-Culver Co.-, 210 Kan. 147, 499 P.2d 1080 (1972), involving the alleged breach by a hair rinse manufactur- er of an implied warranty that its product was suited and fit for the purpose for which it was sold. The Kansas Supreme Court, in defining the proper standard to be followed in ascertaining the manu- facturer's liability for personal injuries occasioned by its products to persons who were allergic or hypersensitive to their use, made the following comments: "At the risk of seeming over-simplis- tic, we believe the concept of fore- seeability is the key in determining liability on the part of one who man- ufactures or sells a fabricated prod- uct which causes an allergic reaction in a person who may be susceptible to it." The Kansas Supreme Court therefore found in the implied warranty context that a manufacturer is not required "to assume the role of absolute insurer against physiological idiosyncrasy," or rendered liable for an isolated instance of per- sonal injury to "an unusually susceptible individual," unless such injuries "ought reasonably to have been foreseen by a per- son of ordinary care in an appreciable number of persons in light of the attend- ing circumstances." The compelling logic and inherent justice of this rule is equally applicable in the negligence case now before the court. To susatin the jury's verdict absent proof of reasonable foreseeability of the plaintiff's injuries would be to render the defendant here an insurer strictly liable for unexpected A-52 injuries arising from the Peculiar idio- Syncrasies and allergic Predispositions of the plaintiff. Such a result would be consistent with neither the prevailing law nor the court's sense of fundamental justice. See also, Ray v. J.C. Penney Co. 274 F.2d 519 (10th Cir. 1959). 6. Conclusion. For all the reasons stated above, the court finds that the defendant is en- titled to sraedds on its motion for judg- ment notwithstanding the verdict. This conclusion does not end the pertinent in- quiry, however, for under Rule 50(c)(1) of the Federal Rules of Civil Procedure the court is also required to rule on the defendant's motion for a new trial, deter- mining whether it should be granted if the judgment notwithstanding the verdict is thereafter vacated Or reversed. It is A-53 to that question that the court now turns. II. MOTION FOR NEW TRIAL. The defendant argued at various points in the trial that the plaintiff's exclusive remedy, if any, was under the following provisions of the Kansas Work- men's Compensation Act: "K.S.A. §44-5a01. Occupational dis- ease by accident, when; provisions of workmen's compensation law applic- able. (a) where the employer and em- ployee or workman are subject by law or election to the provisions of the workmen's compensation law, the dis- ablement or death of an employee or workman resulting from an occupation- al disease as hereinafter listed and defined shall be treated as the hap- pening of an injury by accident, and the employee or workman . . . shall be entitled to compensation as pro- vided in the workmen's compensation law except as hereinafter otherwise provided.... (b) Where an occupational disease is aggravated by another disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compen- sable, but [sic] is aggravated, pro- A-54 i longed, accelerated or in any wise contributed to by an occupational disease, the compensation payable Shall be reduced and limited to such Proportion only of the compensation that would be payable if the occupa- tional disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death...." "K.S.A. §44-5a02. Compensable occupa- tional diseases. The following dis- eases only shall be deemed to be com- pensable occupational diseases: ot FF Poisoning by ... (g) car- bon monoxide; ... (j) formaldehyde Based upon these statutes, as well as the plaintiff's theory that the synergistic reaction in the plaintiff's lungs of "chemicals" (formaldehyde, ammonia, and carbon monoxide) plus "heat" (from the blast furniace in the forehearth area) plus "dust" (airborne fiberglas particles) had caused the disability complained of, the defendant requested that the court instruct the jury as follows: "You, the A-55 jury, are not permitted to return a ver- dict in favor of the plaintiff in this case for any damages, if any, you find which may have been caused by formaldehyde or phenol or carbon monoxide." The court rejected the proffered instruction on two grounds: first, the defendant had failed to sufficiently show that the plaintiff's disability was caused by "poisoning" as that term was used in K.S.A. §44-5a02; and second, that the defendant had failed to submit any evidence on which the jury could properly apportion the plaintiff's damages, if any. Upon reviewing the record in this case in light of several Kansas cases de- fining "poisoning," the court is persuaded that its prior view of the evidence was overly restrictive, and that the jury should have been instructed to decide whe- ther any of the Plaintiff's disability arose from occupational "poisoning" and was thus within the exclusive purview of the Kansas Workmen's Compensation Act. As early as 1886 the Kansas Supreme Court observed that the word "poison" is "in common use in our language, [has] a well- settled meaning which is not local, and cannot be regarded as technical or pecul- iar.” In State v. Baldwin, 36 Kan. 1 (1886), the court therefore held that, so far as the definition of "poison" was concerned, it was "proper for the court to aid and enlighten the jury by defining the words and giving their usual meaning and acceptation in common language." The court further approved use of the follow- ing dictionary definitions of "poison:" (1) any substance which, when introduced into the animal organization, is Capable A-57 of producing morbid, noxious, or deadly effect upon it; and (2) any substance which, introduced in small quantities in the animal economy, seriously disturbs or destroys the vital functions. It was further noted that there are "many differ- ent modes in which poisons operate," and that included under the heading of "poi- sons" are "obviously .. . a vast number of bodies belongong to the mineral, vege- table, and animal kingdoms, some solid, others fluid, and other gaseous, and de- leterious vapors and miasmata impercept- ible to the sense." 36 Kan. at 20-21. A Similar approach to the definition of "poisoning" in a workmen's compensation context was expressly condoned by the Kansas Supreme Court in Weimer v. Sauder Tank Company, 184 Kan. 422, 337 P.2d 672 (1959). Accordingly, the jury in this case should have been informed of the substance of the relevant occupational disease statutes and instructed to determine whe- ther any part of the plaintiff's disabil- ity was attributable to "poisoning" for which K.S.A. §44-5a01 provided the exclu- Sive remedy. The principal reason why the court refused to give the defendant's proffered instruction was not its concern whether the plaintiff's disability was arguably due to "poisoning" under the relevant statute, but rather its concern that the defendant had presented absolutely no evi- dence on which the jury could rationally apportion the plaintiff's damages, if any, as to recovery for injury within and in- jury outside the scope of the Workmen's Compensation Act. The defendant -- which relied entierly upon the proposition that A-59 the plaintiff's disability was 100% non- occupational in origin -- presented no evidence from which the jury could find that among those occupational causes (if any) of the plaintiff's disability, any particular percentage of his difficulties could be attributed to "poisons" within the scope of the occupational disease statutes as opposed to other substances for which statutory compensation was not available. In retrospect, the court is of the opinion that this failure of proof did not warrant its refusal to instruct the jury as to the arguable applicability of the exclusive remedial provisions of the workmen's compensation statute. The entire theory of the plaintiff's case at trial was that the synergistic reaction of "chemicals + heat + dust" produced the A-60 pulmonary disability for which relief was sought. The plaintiff disavowed the sug- gestion that any single component of this formula, or any combination of two such components, artiinced or could have produc- ed the plaintiff's disability. With refer- ence to the "chemical" component of his theory, however, the plaintiff's own evi- dence established a virtually prima facie case that (1) his disability was partially attributable to §44-5a02 chemicals; and (2) the effect of such chemicals was "poi- sonous" in nature. In view of this evi- dence, which made out a prima facie case that the plaintiff's common law remedy was completely -- or at best, partially -- barred by the availability of workmen's compensation relief, it was incumbent upon the plaintiff to establish the nonexclusi- vity of the statutory compensation remedy A-61 as to each element of the injuries for which he sought common law relief. The defendant's requested instruction did not introduce as an "affirmative defense" the issue of §5a01(b) [sic] apportionment as to the "heat" and "dust" elements of the plaintiff's theory. This issue was inter- jected into the case by the plaintiff him- self. The defendant appeared willing, so far as the "heat" and "dust" facets of the plaintiff's case were concerned, to rest upon the court's basic jury instruc- tions that in order for defendant to be found liable, the plaintiff must prove negligence, causation, foreseeability of injury, etc. Accordingly, the defendant should not have been required, as a condi- tion precedent to the giving cf its prof- fered jury instruction, to introduce evi- dence purporting to assign a certain per- A-62 centage of the plaintiff's disability to causes for which K.S.A. §§44-5a01 and 44- 5a02 aheviied the exclusive remedy. In deciding to conditionally sustain the defendant's motion for a new trial, in the event that the court's order grant- ing the defendant's motion for judgment notwithstanding the verdict should be re- versed upon appeal, the court does not mean to imply that the particular instruc- tion proffered by the defendant adequately addressed all of the points that the court in retrospect feels should have been covered. The court merely holds that based upon the evidence in this case the jury should have been instructed (1) to deter- mine to what degree, if any, the plain- tiff's disability was caused by chemical "poisoning" within the purview of K.S.A. §44-5a02(g) or (j); and (2) to determine A-63 to what degree, if any, the plaintiff's disability was caused by conditions or substances beyond the scope of K.S.A. §§44-5a01 and 44-5a02. The jury should ce been further instructed, if it found the plaintiff's disability to have been caused by both compensable and noncompens-— able factors, to render an appropriate apportioned verdict under K.S.A. §44-5a01 (b). As to the latter point, the jury should have been instructed as to who bore the burden of proving facts on which a rational apportioned verdict could be rendered. It is perhaps appropriate to comment in closing upon the fact that in deciding the defendant's motion for judgment not- withstanding the verdict, the court did not rely upon the defendant's argument | that all recovery whatever was barred by A-64 the availability of relief under the pro- visions of the Workmen's Compenation Act. In the court's view, it was not necessary to reach this issue, which is ste aaciatenion. ™ a matter of affirmative defense, because of the total paucity of evidence probative of the basic elements of the plaintiff's case. If the court's evaluation of that evidence is in error and should its con- clusion be reversed upon appeal, however, the court would be required to find that adjudication of the plaintiff's rights at common law vis-a-vis the exclusive re- medial provisions of the Kansas Workmen's Compensation Act is properly a matter of jury determination under appropriate in- structions. IT IS THEREFORE ORDERED that the de- fendant's motion for judgment notwith- standing the verdict be and hereby is sus- A-65 tained, and that the defendant's motion for new trial be and hereby is condition- ally granted in the event that the judg- @ent to be subsequently entered in this case is hereafter vacated or reversed. Counsel for the defendant shall prepare, circulate, and submit for the court's ap- proval and signature a Journal Entry of Judgment reflecting the holdings of the foregoing Memorandum and Order. Dated this 6th day of November, 1977, at Kansas City, Kansas. /S/ EARL E. O'CONNOR UNITED STATES DISTRICT JUDGE A-66 Not for Routine Publication UNITED STATES COURT OF APPEALS TENTH CIRCUIT No. 78-1082 JAMES L. MURPHY, Appellant Appeal From Vs. the United States District Court For The District of OWENS-CORNING FIBER- Kansas GLAS CORPORATION, Dec. *2d Appellee Juiy 13, 1979 Lloyd Burke Bronston and Dan L. Smith, Overland Park, Kansas, for Appellant. Leonard O. Thomas, Kansas City, Kansas (Charles O. Thomas and James R. Callahan, Kansas City, Kansas, and Weeks, Thomas, Lysaught, Bingham & Mustain, Chartered, Kansas City, Kansas, of Counsel, with him on the Brief), for Appellee. Before SETH, Chief Judge, HOLLOWAY and LOGAN, Circuit Judges. SETH, Chief Judge. A-67 a LNAI POET ORT ry a Plaintiff brought this diversity action in Kansas, alleging that he had | a serious lung condition which was caused by defendant's failure to provide a safe place to work at its fiberglass plant while plaintiff was there employed. The case was tried to a jury which returned a verdict for plaintiff. In response to defendant's motion, the trial court enter- ed a judgment for defendant n.o.v. The plaintiff has taken this appeal. The trial court in its detailed mem- orandum on the motion for judgment not- withstanding the verdict states the stand- ard to be applied in the examination of the evidence on such a motion. We agree with the statement, and further are of the opinion that the trial court properly applied the standard. a a Re A-68 Thus the evidence here must be view- ed in the light most favorable to the plaintiff, and all reasonable inferences are for the plaintiff. Weeks v. Latter- Day Saints Hospital, 418 F.2d 1035 (10th Cir.). A scintilla of evidence is not enough to support plaintiff's position. McGhee v. Draper, 564 F.2d 902 (10th Cir.); Yazzie v. Sullivent, 561 F.2d 183 (10th Cir.). If the benefit of inferences is given to this plaintiff, and the evi- dence generally viewed in a light favor- able to him, and still if reasonable men could not come to a different conclusion, the ruling must go with such conclusion. Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946 (10th Cir.); Wright v. American Home As- surance Co., 488 F.2d 361 (10th Cir.); Taylor v. National Trailer Convoy, Inc., A-69 433 F.2d 569 (10th Cir.). We thus apply these standards in the examination of the record. We will not discuss the facts at length. The trial court's memorandum con- tains a statement of the basic facts which we consider to be supported by the record. It is apparent that under Kansas law, the defendant was to provide the plaintiff a safe place to work. See Uhlrig v. Shortt, 397 P.2d 321 (Kan.). The plaintiff alleged that the defendant wilt negligent in several particulars and recognized that negligence of the defen- dant was an essential ingredient of his cause of action. Allen v. Shell Petroleum Corp., 68 P.2d 651 (Kan.); Lane v. Missouri Pacific Ry. Co., 68 Pac. 626 (Kan.). Thus the standard of ordinary A-70 care as the Kansas court Said in Allen v. oeealh ig: *, . . To supply appliances, methods, and places as persons of ordin- ary intelligence and prudence commonly furnish in like circumstances." As the trial court Stated, a standard is the degree of care exercised by an average prudent person in similar circumstances, and further, " .,.. an employer will gen- erally not be held liable if he conducts his business in a manner conforming with the usage of others engaged in the same business under Similar circumstances," citing Uhlrig v. Shortt. Thus what does the record show as to negligence? The Plaintiff put on evi- dence to show the physical arrangement of the work place. The machinery and the processes were described as were the win- dows and ventilation devices. There was A-71 shown to be heat and dust in the air. These facts were not related, with but one exception, to any prevailing standard or expert opinion as to particulars. No evidence whatever was introduced by the plaintiff to show that the defendant's methods, practices, testing, or ventila- tion departed in any way from industry standards, or was contrary to expert opin- ion. The evidence of defendant was that this was all in accordance with practices used by prudent operators. The "exception" referred to above was a showing that the dust at one or two locations in the plant exceeded a certain figure which was then above an accepted standard. However, the standard was with- in a very short time thereafter changed to accept a very much higher figure than the test showed. There can be no sigqnifi- A-72 cance to this testing since it was well within the standard ultimately adopted. The plaintiff failed in his proof to show that there was anything wrong, within the negligence standard, with the physical facts and processes he described by his witnesses. No other method or de- vices were advance as a proper solution, and there was no proof as to what others in the business were doing. This is the obvious failure in his case. The picture of conditions in the plant had to be re- lated to some standard or measure by ex- pert opinion before a jury could reach any conclusions as to negligence. It is obvious that adherence to a particular industry practice cannot in itself be taken as proof of due care. There is such a great variety of situa- tions and circumstances. See Walker v. A-73 Colgate-Palmolive-Peet Co., 139 P.2d 157 } (Kan.). There must however be proof of facts or clear circumstantial evidence, taken in proper context, to demonstrate for the jury that a defendant has depart- ed from an accepted standard of care, or expert opinion, if the plaintiff is to meet his burden. The court in Blackmore v. Auer, 357 P.2d 765 (Kan.), said in part: "To meet the burden of proof on the issue of negligence the evidence must be substantial and satisfy the obligation . . . to prove such negli- gence by a preponderance of the evi- dence." Taking all the inferences, and the best view of the facts for plaintiff, the failure of plaintiff to come forward with facts to demonstrate that the circum- stances shown to exist met plaintiff's burden under Kansas case law is apparent. The trial court in its memorandun, from which we have borrowed liberally, A-74 PPR a considers separately each allegation of negligence and relates it to the proof. Thus it considers the allegation of fail- ure to test the air quality and to deter- mine the effects on the employees, the failure to warn employees that the air was harmful, the failure to remove dust and particles, the failure to warn plain- tiff of his deteriorating health. We will not repeat the analysis of each allega- tion as made by the district court. An examination of the record supports the view of the trial court as to each point, and it conforms $6 standards for judgment n.oO.v. The record thus shows that the testing of air quality was extensive and over an extended period, reliance was properly placed on evaluations of the dan- gers of certain pollutants, and on the opinions of experts that fiberglass par- ticles in the numbers shown to be in the air could pose no danger. There was no proof otherwise, and again no expert opin- ion or practice to demonstrate anything wie ee: In short there was no proof or inference that anything else should have been done or more done upon which the jury could conclude that the defend- ant was negligent as to any of the par- ticulars recited above. We have again a description of the facts and circum- stances, but no proof or inference that what was being done was insufficient or done improperly. There was no evidence or inference that other or more frequent testing would have led to any different results. In an application of the judgment n.o.v. standard, there was no evidence from which the jury could reach any other A-76 conclusion than plaintiff's lung condi- tion had no connection with his employ- ment. Dr. Evans appeared as a witness for plaintiff as to his medical condition.’ The doctor agreed with the several arti- cles written by recognized experts relat- ing to studies of the health and lung con- ditions of fiberglass workers. These Studies showed in substance that lung con- ditions of fiberglass workers were no dif- ferent than other workers. Dr. Evans agreed with the standards. There were no facts advance by Dr. Evans nor were there any facts in the record on which he could base his opinion as to a causal connec-— tion. He acknowledged that the air quality waS within the limits or standards he recognized as valid. An expert opinion without any basis in fact, or related to any fact before the court, is not an ex- A-77 - t opinion and is not evidence fo A _ ad P ace this element or the whole case by the ose. The trial c = 3 ludi h purp sili at SOrs 2 eanery Te addition of this element brings the claim statements by Dr. Evans said: "Indeed, 23 under the Kansas statutes (K.S.A. § 44- » > 5a02) relating to workmen's compensation ~ this might truly be characterized as one of those rare cases in which 'the evi- ; / ; relating to poisoning. denc oints but a d i t- ee a ee We have considered the severaf other ible to no reasonable inferences' that _ ‘i - points raised by plaintiff, but find them would sustain the plaintiff's burden of : to be without merit. Thus we must con- roof on the issue of causation." The med- . clude that the entry of the judgment not- ical witnesses of defendant testified : withstanding the verdict was proper, and there was no connection between plain- it is affirmed. tiff's condition and his employment. This was the only evidence on the issue. No. 78-1082 There would seem to be no purpose MURPHY v. OWENS-CORNING FIBERGLAS in discussing the matter of ammonia and ; CORPORATION other vapors in the area where plaintiff . : ; HOLLOWAY, Circuit Judge, dissenting: worked. This point is argued on appeal, August 17, 1979 but there is no record support other than : I respectfully dissent. the most general reference. In any event, Under the standards we must apply the argument leads to the conclusion that : he 3 in deciding whether a party should be de- A-78 -prived of a jury verdict in his favor, I mist disagree with the majority. To sus- tain the judgment n.o.v. considerable re- liance is placed on evidence of compli- ance'by the defendant with some industry standards. However, the Kansas Supreme Court has held in connection with the em- ployer's duty to provide a safe place to work that the duty is an absolute obliga- tion, not to be delegated to those in his employ; that while customary methods may be considered in determining whether the duty has been properly performed, "they do not-constitute a controlling test, and it should be left to the jury to deter- mine whether, under the circumstances of the case, the provisions made by the em- ployer were such as a person of ordinary prudence would have made for the safety of his workmen." Walker v. Colgate- Palmolive-Peet Co., 139 P.2d La?, i753 (Kan.), quoting James Baird Co. vy. Boyd, 41 F.2d 578, 582-83 (4th CAP. }» There is ample evidence to sustain a verdict against the defendant under this standard, in my Opinion. The evi- dence showed heat in areas where the plaintiff worked at some 120 to 140 de- grees and the presence of varyng levels of fiberglas Particles, ammonia, carbon monoxide and formaldehyde and complaints by the plaintiff about the conditions. While the concentrations of individual Substances were below some recognized dan- ger levels, the jury was entitled to take into account the combined effect of the conditions on the plaintiff's lungs and their capacity to tolerate fiberglas par- ticles. It was this Synergistic effect which the plaintiff's doctor testified about, as noted below. To me the proof A-81 of the conditions and of the defendant's knowledge of them was sufficient to sus- tain the jury's verdict.? We have held that a judgment n.O.v. cannot be granted unless the evidence, viewed in the light most favorable to the plaintiff, together with inferences which may fairly be drawn therefrom, points all one way and is sus- ceptible of no reasonable inferences sus- taining the plaintiff's position. Moore v. Shultz, 491 F.2d 294, 298 (10th Cir.). That strict test was not met here. It is also argued that the evidence was defective as to causation or connec-— As noted above, the plaintiff testified to the presence of fiberglas dust and chemical fumes in the air, as well as the extreme heat in his working area. While the majority emphasizes that the defendant complied with industry prac- tices in testing for substances, and in ventilation and control of these subs- tances, there was evidence to indicate that testing was conducted only in areas specified by the defendant, and in fact, the plaintiff's work area was not tested for all of these substances. Further evidence showed that loca- tion and frequency of testing were not governed by industry standards but by the individual company, and thus the jury could reasonably have determined that the defendant was negligent in not testing frequently enough and in proper loca- tions, even if the tests used were accur- ate tests. Evidence by the plaintiff and others as to the condition of his work area and evidence of complaints made to the defendant by the plaintiff could lead to the jury's concluding that defendant was negligent in not testing the plain- tiff's work area. There was also evidence to indicate that what ventilation methods were used by the defendant, such as overhead win- dows, were often not used in inclement weather. From this the jury could con- clude that chemicals and fiberglas dust were at higher concentrations on days when defendant was not using all existing ventilation. Finally, some evidence indicated that certain ventilation devices may have served to aggravate the problem by stir- ring up fiberglas particles and by blow- ing chemical vapors into the plaintiff's work area. From this the jury could also infer defendant was negligent in not pro- viding safe working conditions. tion of the plaintiff's disability with his employment. However, his testimony Showed he was in good health on commenc- ing work with defendant in 1959 at 28 years of age, and that he worked in de- fendant's plant until he became disabled in 1970. His own treating physician test- ified on the basis of plaintiff's medical history and tests made during two weeks of hospitalization of plaintiff in late 1970, and from reports and recommenda- tions on conditions in defendant's plant. From all the circumstances this physician testified that the plaintiff had chronic obstructive pulmonary disease, that he had no doubt this was due to the heat and the amount of materials plaintiff had in- haled, that the mechanism of the body try- ing to overcome these things was "over- whelmed," and that in his medical opinion, ee ee the plaintiff was "completely and totally disabled by this employment." (4 R. 249- 50). The doctor had earlier stated his opinion that the plaintiff was permanent- ly and totally disabled. (Id. at 226). He explained in detail how the heat and its drying effect and the inhalation of other materials impaired the functioning of the cilia Ae the ability to dispose of other foreign matter, such as fiber- glas (Id. at 236-39, 244-47).? The majority opinion, p.6, refers to the trial court's "excluding" the statements of Dr. Evans. I assume this is said in the sense that in his post- trial memorandum, 447 F.Supp. at 569, the trial judge said that the doctor's con- clusion "is entitled to no credence and weight whatever." I find no statement in the record where the testimony of Dr. Evans on causation or any other substan- tial part of his testimony was excluded or stricken. We should take into account all this testimony from the treating physician and from the plaintiff himself. As the Kansas Court has done, we should consider "lay testimony of the conditions under which the plaintiff worked; of lack of proper ventilation; of long time use of fiber- glass which permeated the atmosphere..." Miller v. Beech Aircraft Corporation, 460 P.2d 535, 538 (Kan.). From such evidence, "both lay and expert, the jury might rea- sonably have drawn the inference that plaintiff's disability was job-connected." (Id. at 538). It is true that there was consider- able impeachment of the doctor's testi- mony and opposing evidence. The trial court's memorandum opinion states plaus- ible reasons for reaching a contrary re-. sult. Nevertheless, the jury was entitl- A-86 ed to accept the testimony of the plain- tiff and the doctor who treated him and to draw its conclusions from their evi- dence, rejecting the testimony of the de- fendant's experts. Thus I cannot agree that judgment notwithstanding the jury's verdict should have been entered. JAMES L. MURPHY, Plaintiff-Appellant, No. 78-1082 Vs. September Term - October 5, 1979 OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellee. This matter comes on for considera- tion of the petition for rehearing with suggestion for rehearing en banc filed by appellant. Upon consideration whereof, the peti- tion for rehearing is denied by Chief Judge Seth and Circuit Judge Logan. Cir- cuit Judge Holloway voted to grant rehear- ing. The petition for rehearing having been denied by the panel to whom the case was argued and submitted, and no member of the panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, A-88 Rule 35, Federal Rules of Appellate Pro- cedure, the suggestion for rehearing en banc is denied. HOWARD K. PHILLIPS, Clerk By Robert L. Hoecker Chief Deputy Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1501%3A1. Public record. Not legal advice.