Haislip v. Owens-Corning ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VALJEAN E. HAISLIP, Executrix of the
Estate of Cleo A. Elmore, deceased,
Plaintiff-Appellee,
and
THELMA C. ELMORE,
Plaintiff,
v.
OWENS-CORNING FIBERGLAS
CORPORATION,
Defendant-Appellant,
and
AC&S, INCORPORATED, a
Pennsylvania Corporation; AMCHEM
PRODUCTS, INCORPORATED;
No. 95-1687
ARMSTRONG WORLD INDUSTRIES,
INCORPORATED, formerly known as
Armstrong Cork Company;
BABCOCK & WILCOX COMPANY, a
Delaware Corporation; CAREY
CANADA, INCORPORATED; THE
CELOTEX CORPORATION, Individually
and as Successor-in-Interest to
Philip Carey Manufacturing
Company, Philip Carey Corporation,
Panacon Corporation, Glen Alden
Corporation, Rapid American
Corporation, Briggs Manufacturing
Company and Smith and Kansler, a
Delaware Corporation; COMBUSTION
ENGINEERING, INCORPORATED, a
Delaware Corporation;
CROWN CORK & SEAL COMPANY,
INCORPORATED, Successor to Mundet
Cork Corporation, a New York
Corporation; EAGLE-PICHER
INDUSTRIES, INCORPORATED, an Ohio
Corporation; FIBREBOARD
CORPORATION, Pabco Industrial
Products Division, a Delaware
Corporation; FLEXITALLIC GASKET
COMPANY, INCORPORATED, a
Connecticut Corporation; FLINTKOTE
COMPANY, a Massachusetts
Corporation; GARLOCK,
INCORPORATED, PRECISION SEAL
DIVISION, an Ohio Corporation; JOHN
CRANE-HOUDAILLE, INCORPORATED,
formerly known as Crane Packing
Company; NATIONAL GYPSUM
COMPANY, a Delaware Corporation;
OWENS-ILLINOIS, INCORPORATED, an
Ohio Corporation; PITTSBURGH-
CORNING CORPORATION, Individually
and as Successor-in-Interest to
Union Asbestos and Rubber
Company (UNARCO), a
Pennsylvania Corporation; UNION
CARBIDE CORPORATION, a New York
Corporation; W.R. GRACE &
COMPANY, a Connecticut
Corporation; KEENE CORPORATION;
GAF CORPORATION,
Defendants,
v.
MANVILLE CORPORATION ASBESTOS
DISEASE COMPENSATION FUND,
Third Party Defendant.
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Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-90-181-BO)
Argued: April 5, 1996
Decided: May 23, 1996
Before RUSSELL and MOTZ, Circuit Judges, and LAY,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Rebecca Anne Womeldorf, GIBSON, DUNN & CRUT-
CHER, Washington, D.C., for Appellant. John Alan Jones,
MICHAELS & JONES LAW OFFICES, P.A., Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Larry L. Simms, GIBSON, DUNN
& CRUTCHER, Washington, D.C., for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Owens Corning Fiberglas (OCF) appeals the jury's verdict award-
ing Cleo Elmore's estate (the "estate") over $2.8 million in compensa-
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tory damages upon its finding that Elmore's exposure to OCF's
asbestos-containing pipe covering was a substantial contributing fac-
tor to his development of mesothelioma and resulting death. OCF
contends the verdict was not supported by substantial evidence and
that the jury's damage award was excessive. Finding no reversible
error, we affirm.
I.
Cleo Elmore was exposed to various asbestos-containing products
during his thirty years of service in the United States Navy. His earli-
est known exposure was in 1946, and his last in 1970. OCF manufac-
tured an asbestos-containing product called "Kaylo" from 1958 to
1972. Although Elmore, testifying by way of deposition before he
died, was unable to specifically recall any exposure to OCF-Kaylo
during his service with the Navy, William Leonard, a friend and co-
worker did remember.
Leonard testified for the estate at trial that he and Elmore were con-
struction workers aboard the USS Raleigh from 1962 to 1964.
According to Leonard, he and Elmore endured extensive exposure to
dust from asbestos products during this time, particularly pipe cover-
ing. Leonard testified that OCF-Kaylo pipe covering was used aboard
the USS Raleigh. He described it as a white pipe covering that was
used extensively on the ship throughout the time he and Elmore
worked there.
According to Leonard, he and Elmore were responsible for check-
ing the piping systems aboard the USS Raleigh over a nine-month
period. Because the pipe covering was being cut to fit the newly-
installed pipes, Leonard recounted that asbestos dust covered him and
Elmore each day, especially Elmore who spent more time in close
contact with the piping systems. They worked under these conditions
nine hours per day, five days per week. Leonard, who was familiar
with Elmore's entire Navy career, stated that Elmore was exposed to
more asbestos dust during those nine months than at any other time
in his career. And, while there were other brands of asbestos-
containing materials on board, Leonard testified that they generated
"minuscule" amounts of asbestos dust compared to that from
OCF-Kaylo pipe covering.
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To further establish Elmore's exposure to OCF-Kaylo, the estate
introduced evidence in the form of invoices demonstrating that ship-
ments totalling 22 tons of OCF-Kaylo were delivered to the shipyard
where the USS Raleigh was docked during the relevant period. The
estate also offered expert medical testimony from two doctors. The
doctors testified that exposure to OCF-Kaylo to the degree described
by Leonard, would be a substantial contributing factor to Elmore's
contraction of mesothelioma (a form of lung cancer) and subsequent
death.
The estate presented evidence of damages in the form of testimony
concerning the extent of Elmore's pain and suffering before death, his
life expectancy in the absence of contracting mesothelioma, and his
wife's near total dependence on Elmore. OCF elected not to present
any testimony. The jury awarded the estate over $2.8 million in com-
pensatory damages. This appeal followed.
II.
We turn first to OCF's contention that the evidence was not suffi-
cient to support the jury's verdict. We will not reverse a jury's verdict
for insufficient evidence unless, after viewing the evidence in the
light most favorable to the verdict, no reasonable juror could have
returned a verdict for the non-moving party. Brinkley-Obu v. Hughes
Training, Inc., 36 F.3d 336, 351 (4th Cir. 1994).
To prevail on a product liability asbestos action under North Caro-
lina law, the estate needed to establish that OCF-Kaylo was a substan-
tial contributing factor to Elmore's contraction of mesothelioma. See
Jones v. Owens-Corning Fiberglas Corp. and Amchem Products, Inc.,
69 F.3d 712, 716 (4th Cir. 1995). "To support a reasonable inference
of substantial causation from circumstantial evidence, there must be
evidence of exposure to a specific product on a regular basis over
some extended period of time in proximity to where the plaintiff actu-
ally worked." Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156,
1162-63 (4th Cir. 1986).
We think it abundantly clear the estate satisfied its burden of proof.
Leonard's testimony established that Elmore was exposed to heavy
concentrations of asbestos dust from OCF-Kaylo over at least a nine-
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month period. And, expert medical testimony confirmed that such
exposure would be a substantial contributing factor to Elmore's con-
traction of mesothelioma.
According to OCF, however, this evidence is insufficient because
the estate needed to produce more than Leonard's testimony linking
Elmore to OCF-Kaylo. OCF contends Leonard's testimony was insuf-
ficient because he was a family friend and, as such, was biased in
favor of Elmore. Additionally, OCF notes that Leonard did not origi-
nally remember that OCF-Kaylo was the primary asbestos-containing
product aboard the USS Raleigh; rather, he only recalled it years later
after seeing a picture of OCF-Kaylo, which was apparently shown to
him by the estate's counsel. The prejudicial impact of Leonard's testi-
mony was magnified, according to OCF, because the estate then
bootstrapped expert medical testimony onto its case, using Leonard's
questionable testimony as the basis to ask these experts hypotheticals
concerning causation.
Despite its protestations to the contrary, at the heart of OCF's argu-
ment is a mere challenge to Leonard's credibility, which is not a
proper subject for appellate review. Brinkley-Obu, 36 F.3d at 351 (cit-
ing Charleston Area Med. Ctr., Inc. v. Blue Cross and Blue Shield
Mut. of Ohio, Inc., 6 F.3d 243, 247-48 (4th Cir. 1993)). The jury was
fully informed of the nature of Leonard's relationship to Elmore and
the circumstances surrounding his recollection of OCF-Kaylo as the
primary asbestos-containing product aboard the USS Raleigh. It was
within the sole province of the jury to accept or reject his testimony.
In any event, invoices from this period corroborated Leonard's testi-
mony in part by establishing that large shipments of OCF-Kaylo were
delivered to the loading docks where the USS Raleigh was undergo-
ing construction. A reasonable inference from this evidence, in con-
junction with Leonard's testimony, is that some, if not all, of these
shipments were destined for the USS Raleigh. Cf. Lohrmann, 782
F.2d at 1163 (holding that invoice evidence, standing alone, was not
sufficient to establish that a particular product was a substantial con-
tributing factor where invoices showed only the purchase of asbestos-
containing product, but not when or where the product was used).
We find the estate's evidence sufficient to support the jury's ver-
dict that OCF-Kaylo was a substantial contributing factor to Elmore's
contraction of mesothelioma.
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III.
OCF also challenges as excessive the jury's award of over $2.8
million in compensatory damages. Appellate courts will intervene to
correct an excessive jury verdict "`only in the most extreme circum-
stances, as where the verdict is not merely excessive but "monstrous,"
. . . . In very few cases, however, where such a possibility was dis-
cussed has this high hurdle been surmounted.'" Arnold v. Eastern Air
Lines, Inc., 681 F.2d 186, 201 (4th Cir. 1982) (quoting Simmons v.
Avisco, Local 713, Textile Workers Union of America , 350 F.2d 1012,
1020 (4th Cir. 1965)), cert. denied, 460 U.S. 1102 (1983).
OCF contends the jury's verdict in the instant case meets this stan-
dard because the estate proved only about $42,000 in medical and
funeral expenses and at most $500,000 in lost retirement benefits. We
disagree. OCF's argument simply overlooks the other elements of
damages permissible under North Carolina law and proved by the
estate, such as Elmore's pain and suffering, and compensation to
Elmore's wife for lost care, assistance, companionship and comfort.
On these points, the estate presented evidence that Elmore was devas-
tated when he learned he had contracted terminal cancer. He had
retired from the Navy to care for his wife who was totally blind. The
two did everything together; he helped her garden and fish; he cooked
meals for her and travelled around the country with her.
After Elmore became severely ill, he had lung surgery which left
him with a hole in his chest that spewed fluid when he coughed, and
he had chemotherapy that left him physically frail. Elmore took mor-
phine for severe pain. He was distraught and cried often. In his final
days he asked to be taken off life support. Through all of this, his pri-
mary concern was the care of his wife who was almost completely
dependent on him. We certainly cannot say that the jury's award was
"monstrous" in light of this evidence.
IV.
We, accordingly, affirm the jury's verdict in all respects.
AFFIRMED
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