Mrs. Emma Jean Halphen v. Johns-Manville Sales Corporation , 737 F.2d 462 ( 1984 )

POLITZ, Circuit Judge:

This Louisiana diversity case occasions an examination of Louisiana strict products liability law, particularly the parameters of the requirement of foreseeability, as applied to a case involving asbestos-related cancer. Johns-Manville appeals a verdict awarding damages for the illness and death of Samuel J. Halphen who succumbed to malignant mesothelioma, which the jury found was caused by exposure to asbestos products manufactured by Johns-Manville. Finding no basis for reversal, we affirm.¹

Facts

Samuel J. Halphen contracted and died from malignant mesothelioma, a rare form of cancer commonly caused by exposure to asbestos. Halphen worked in environments laden with asbestos dust, some emanating from products manufactured and supplied by Johns-Manville. During 1944 Halphen was employed by Asbestos and Magnesia Materials Company, a subcontractor who installed Johns-Manville manufactured asbestos insulation in the Consolidated Shipyard in Orange, Texas. In later years, Halphen worked as a mechanic and flight engineer for the United States Air Force. He may have been exposed to asbestos dust during that time.

Interrogatories were propounded to Hal-phen during his terminal period of hospitalization. In response to the interrogatories, Halphen stated that he worked in the Livingston Shipyards, not the Consolidated Shipyards. Halphen’s recollection during the final stage of his life was not supported by his social security employment records or by a cousin who testified that he had in fact worked at Consolidated.

Halphen filed suit against 16 asbestos products manufacturers seeking recovery under the theory of strict liability. All defendants except Johns-Manville were dismissed before trial. After Halphen’s death, his widow, Emma Jean Halphen; was substituted as party-plaintiff. The jury returned a verdict against Johns-Man-ville.

Discussion

A. Foreseeability in Strict Liability

Stripped to its essentials, Johns-Manville’s primary contention is that it cannot be held strictly liable for injuries incurred due to its failure to warn of potential dangers of its product because it could not foresee the particular harm. Specifically, Johns-Manville maintains that it cannot be held strictly accountable for asbestos-related diseases caused by its products because, when it marketed the products, it did not know that asbestos would cause serious illnesses. Johns-Manville urges the “state of the art” defense, asserting that it did not know of the product’s defect, nor did anyone else, and furthermore, there was no way that it could have known. The thrust of the state of the art defense is that scientific knowledge and methods of research were not advanced enough to permit discovery of the defect.

In this diversity case we are obliged to apply Louisiana’s substantive law. Louisiana law on strict products liability is of relatively recent vintage, but the infant quickly grew to adulthood. This body of law is essentially jurisprudential, although drawing its genesis from revered codical provisions.

The seminal case in which the Supreme Court of Louisiana adopted strict liability for manufacturers in products cases is Weber v. Fidelity & Casualty Ins. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971). Johns-Manville advances what it perceives to be an inconsistency or confusion in the language of the Weber holding on the critical question of foreseeability. The Louisiana Supreme Court held:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by the defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated.

Id. at 755 (emphasis added). Johns-Man-ville argues from this language that not only must the injury be foreseeable but the defect must also be foreseeable. However, the Louisiana high court continued:

If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.

Id. at 756 (emphasis added). This holding imposes a presumption of knowledge of the defect which requires no showing of foreseeability.

A careful reading of the Louisiana cases reflects the distinction between foreseeability of the defect and foreseeability of the harm that might flow from the defect. For example, in Hunt v. City Stores, Inc., 387 So.2d 585, 589 (La.1980), the court stated:

[T]he plaintiff in a products liability suit must only prove that the product was defective, i.e., unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product’s defect might cause his injury; and that the injury might reasonably have been anticipated by the manufacturer. It is unnecessary to prove that the manufacturer was negligent' because he knew or should have known of the dangerous condition of the product at the time of the manufacture or sale. The focus is on the product itself and whether it is unreasonably dangerous to normal use.

(Emphasis added). These two sentences, which leave a mite to be desired for precision writing, are logically consistent only if the foreseeability element is taken to mean that the injury must be foreseeable when viewed in light of the knowledge of the dangerous defect. The injury must be foreseeable; the defect need not be. That interpretation is internally consistent and is consistent with the holdings in other Louisiana cases. See, e.g., Philippe v. Browning Arms Company, 395 So.2d 310 (La. 1980).

Foreseeability of the risk, as distinguished from the foreseeability of injury once the risk is actually or constructively known, is the hallmark of a negligence action; it is the antithesis of a strict products liability action: “The distinction between the two theories of recovery lies in the fact that the inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence.” Hunt at 588. See also, Entrevia v. Hood, 427 So.2d 1146 (La.1983).

The thrust of Louisiana law is certain — in a strict products liability case, the manufacturer is presumed to know the defects of its product. The presumption suffices; no proof is necessary. The injured party need only show that the injury would reasonably be foreseeable to one with knowledge (actual or imputed) of the defect. The Louisiana Supreme Court bright-lined this rule in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982):

In products liability cases, the manufac-' turer is presumed to know the dangerous propensities of its product and is strictly liable for injuries resulting from the product’s unreasonable risk of injury in normal use. The claimant nevertheless must prove that the product presented an unreasonable risk of injury in normal use (regardless of the manufacturer’s knowledge), thus in effect proving the manufacturer was negligent in placing the product in commerce with (presumed) knowledge of the danger.

Id. at 498 n. 6 (emphasis in original).

Johns-Manville invites our attention to Lartigue v. R.J. Reynolds Tobacco Company, 317 F.2d 19 (5th Cir.1963), as a controlling precedent for its state of the art, lack of foreseeability defense. In La-rtigue, we predicted that Louisiana would not hold a cigarette manufacturer strictly liable for failure to warn of the dangers of cigarette smoking. Lartigue no longer has precedential value. First, eight years after our Lartigue prognostication Louisiana adopted the rule of strict liability for products. Second, Lartigue relied on a prior draft of § 402(a) of the Restatement of Torts which related only to foodstuffs. The current Restatement section encompasses any unreasonably dangerous product. Third, the restrictive view of strict liability taken in Lartigue did not correctly anticipate the direction taken by the Louisiana courts. When Lartigue was decided, only 19 states had adopted the Restatement’s view. Now virtually all jurisdictions have adopted rules on strict liability. Louisiana has adopted a broad, liberal view. See, e.g., Robertson, “Manufacturers’ Liability for Defective Products in Louisiana Law,” 50 Tul.L.Rev. 50 (1975). Our prediction in Lartigue missed the mark; Louisiana opted for a different course.

It is our present perception of Louisiana law that a manufacturer is presumed to know the defects in its product. Foreseeability is not an element in that equation. Foreseeability, in a Louisiana products liability case, applies only to the question of injury. See, e.g., DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981). The essential inquiry, then, is whether a manufacturer, with knowledge of the defect, should reasonably anticipate the injury. In this case, Johns-Manville was presumed to know that its product was defective, specifically, Johns-Manville was presumed to know that its product would cause, exacerbate or enhance carcinomatous growths. With that presumed knowledge, the suggestion that Johns-Manville could not foresee Halphen’s malignant me-sothelioma falls of its own weight.

B. Sufficiency of Evidence

Johns-Manville next maintains that there was insufficient evidence to support a finding that its asbestos products played a substantial part in Halphen’s illness and death. We disagree.

There is no dispute that Halphen died of mesothelioma. There is no dispute that this particularly rare type of cancer is linked to and is most prevalent among persons who have been exposed to asbestos particles. The evidence showed that Hal-phen was employed by a company at a time when that company was using Johns-Man-ville’s asbestos products. The evidence also showed the likelihood that Halphen was exposed to the asbestos during this employment.

The jury found sufficient evidence to connect Halphen’s mesothelioma to Johns-Manville’s . asbestos products. We will reject a jury’s factual findings only when the “facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict.” Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969). The jury’s findings in the instant case pass Boeing v. Shipman muster.

C. Inconsistency of Interrogatories

In its final argument, Johns-Manville contends that the testimony given by Annie Wilson, Halphen’s cousin, that Halphen worked in the Consolidated Shipyard in Orange, Texas, as well as the testimony given by other former employees of Consolidated about the working conditions should have been excluded. In an answer to an interrogatory made shortly before his death, Halphen stated that he had worked in the Livingston Shipyard, not the Consolidated Shipyard. Johns-Manville, relies on Fed.R.Civ.P. 26(e)(2), which states:

A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

Johns-Manville asserts that the failure to amend the answer to the interrogatory after Halphen died, when it became clear to Mrs. Halphen and her counsel that the answer was incorrect, constituted a knowing concealment.

The evidence does not support the charge of knowing concealment. Johns-Manville was: (1) supplied with copies of Halphen’s social security records which showed his employment at Consolidated, (2) informed by appropriate pre-trial notice of plaintiffs intent to call as witnesses two former Consolidated employees, and (3) was afforded proper notice of plaintiffs intent to call Annie Wilson as a witness.

The standard under Rule 26(e)(2) is whether the party was “prejudicially surprised.” Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir.1978). The rule seeks to prevent “trial by ambush.” Dilmore v. Stubbs, 636 F.2d 966, 969 n. 2 (5th Cir.1981). A reversal under this rule is only justified when a party seeks to introduce a completely new issue or an unidentified witness. F & S Offshore, Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104 (5th Cir.1981). We do not find knowing concealment within the intendment of Rule 26(e)(2).

AFFIRMED.

1 . This appeal is not stayed as a consequence of the Johns-Manville petition for a Chapter 11 reorganization in bankruptcy court in the Southern District of New York, having been authorized by the bankruptcy court with the understanding that the plaintiff will look solely to the supersedeas bond in satisfaction of judgment.