Ralma Ehlert, App/cross-resp. v. Brand Insulations, Inc., Resp/cross-app. ( 2014 )

20IU AUG 25 AH 10:5'.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RALMA EHLERT, individually and as NO. 70309-9-1
Personal Representative of the
Estate of ROBERT S. EHLERT; and DIVISION ONE
TAMARA JONES, as Personal
Representative of the Estate of
JAMES A. JONES, UNPUBLISHED OPINION
Appellants,
v.
FILED: August 25, 2014
BRAND INSULATIONS, INC.,
Respondent,
HASKELL CORPORATION,
Defendant.
Leach, J. —Raima Ehlert and Tamara Jones (collectively Ehlert)1 appeal
a trial court judgment dismissing their asbestos claims against Brand Insulations
Inc. Ehlert challenges the court's dismissal of his strict liability claims at the close
of all evidence, its jury instructions, and its exclusion of Ehlert's proffered
newspaper articles about asbestos. Brand cross appeals, challenging the trial
court's denial of its motions for judgment as a matter of law at the close of
Ehlert's case on Ehlert's strict liability and negligence claims and at the close of
1 Ehlert filed this action individually and as personal representative of her
husband's estate. Jones filed this action as personal representative of her
husband's estate. Because both individuals represent their husbands' estates,
we use masculine pronouns.
NO. 70309-9-1 / 2
evidence on Ehlert's negligence claims. Because we reject Ehlert's claims, we
do not consider Brand's cross appeal. We affirm.
FACTS
In 1970, Brand subcontracted with general contractor Ralph M. Parsons
Inc. to install insulation at the ARCO Cherry Point Refinery. This subcontract
contained hot insulation specifications listing brands and types of insulation
materials that Parsons required Brand to use. The subcontract stated, "All piping
shall be insulated with 'chloride free' calcium silicate insulation as manufactured
by PABCO Division of Fibreboard Corporation, Emeryville, California and/or
Johns-Manville Sales Corporation, Industrial Insulations Division."2 This
subcontract also required that Brand invoice Parsons for the cost of materials,
labor hours, and scaffolding that it used to complete the work.
Between 1971 and 1972, Robert Ehlert worked as a welder and James
Jones worked as a pipefitter at the ARCO Cherry Point Refinery. Both worked
near the insulators during the entire course of the installation. When the
insulators cut the insulation, they generated "lots of dust" that "would be flying all
over the place." The dust was in the air, on workers' clothes, and "like snow" on
the ground. The insulators took no precautions to minimize the dust generated
2 At trial, the parties disputed if all of the insulation installed contained
asbestos. Neither party raises this issue on appeal.
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NO. 70309-9-1 / 3
by their work and did not wear respirators or masks. They provided no indication
to Ehlert or Jones that either should avoid breathing the dust.
Both Ehlert and Jones died after developing mesothelioma. In 2010,
Ehlert's and Jones's widows filed this lawsuit, asserting product liability and
negligence claims.
At the close of Ehlert's case at trial, Brand moved for judgment as a matter
of law on both the product liability and negligence claims. It argued that Ehlert
failed to prove his exposure to asbestos at the ARCO facility was a substantial
factor in his development of mesothelioma. The court denied this motion.
At the close of evidence, Brand renewed its motion for judgment as a
matter of law. The court dismissed the strict liability claim and submitted the
case to the jury on Ehlert's negligence theories.
The court rejected Ehlert's request to instruct the jury on negligent failure
to warn and instead gave a general negligence instruction. The jury found that
Brand was not negligent. The trial court entered a judgment on the verdict and
for Brand's attorney fees and costs.
Ehlert appeals, and Brand cross appeals.
NO. 70309-9-1/4
ANALYSIS
Ehlert first claims that the trial court should not have dismissed his strict
liability claim based upon Brand's alleged status as a seller or distributor of a
product containing asbestos. CR 50(a)(1) states,
If, during a trial by jury, a party has been fully heard with respect to
an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find or have found for that party with respect to
that issue, the court may grant a motion for judgment as a matter of
law.
When reviewing a motion for judgment as a matter of law, we apply the
same standard as the trial court.3 In considering a motion for a judgment as a
matter of law, the court must accept as true all competent evidence favorable to
the plaintiffs and must also give them "the benefit of every favorable inference
which may be reasonably drawn from such evidence."4 The court must
"'determine[ ] whether the proffered result is the only reasonable conclusion.'"5 A
court properly denies a motion for a judgment as a matter of law when
substantial evidence for and against liability makes the issue of the defendant's
3 Guiiosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250(2001).
4 Wilcoxen v. City of Seattle, 32 Wn.2d 734, 737, 203 P.2d 658 (1949)
(citing Vercruvsse v. Cascade Laundry Co., 193 Wash. 184, 187, 74 P.2d 920(1938); Keller v. City of Seattle, 200 Wash. 573, 578, 94 P.2d 184 (1939)).
5 Estate of Bordon v. Dep't of Corr., 122 Wn. App. 227, 241, 95 P.3d 764(2004) (alteration in original) (quoting Hollmann v. Corcoran, 89 Wn. App. 323,
331, 949 P.2d 386 (1997)).
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NO. 70309-9-1 / 5
liability a question for the jury.6 Substantial evidence exists if "'it is sufficient to
persuade a fair-minded, rational person of the truth of the declared premise.'"7
The Washington product liability act, chapter 7.72 RCW, does not apply to
Ehlert's claims because they arose before July 26, 1981.8 Therefore, § 402A of
the Restatement (Second) of Torts (1965) applies. This provision states,
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his property
is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a
product, and
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
Comment c to § 402A states,
On whatever theory, the justification for the strict liability has been
said to be that the seller, by marketing his product for use and
consumption, has undertaken and assumed a special responsibility
toward any member of the consuming public who may be injured by
it; that the public has the right to and does expect, in the case of
products which it needs and for which it is forced to rely upon the
seller, that reputable sellers will stand behind their goods; that
public policy demands that the burden of accidental injuries caused
by products intended for consumption be placed upon those who
market them, and be treated as a cost of production against which
6 Jones v. Hoqan, 56 Wn.2d 23, 25, 351 P.2d 153 (1960).
7 Guijosa, 144 Wn.2d at 915 (quoting Brown v. Superior Underwriters, 30
Wn. App. 303, 306, 632 P.2d 887 (1980)).
8 RCW 4.22.920.
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NO. 70309-9-1 / 6
liability insurance can be obtained; and that the consumer of such
products is entitled to the maximum of protection at the hands of
someone, and the proper persons to afford it are those who market
the products.
Comment f to § 402A states,
Business of selling. The rule stated in this Section applies to any
person engaged in the business of selling products for use or
consumption. It therefore applies to any manufacturer of such a
product, to any wholesale or retail dealer or distributor, and to the
operator of a restaurant. It is not necessary that the seller be
engaged solely in the business of selling such products. Thus the
rule applies to the owner of a motion picture theatre who sells
popcorn or ice cream, either for consumption on the premises or in
packages to be taken home.
The rule does not, however, apply to the occasional seller of
food or other such products who is not engaged in that activity as a
part of his business. .. . This Section is also not intended to apply
to sales of the stock of merchants out of the usual course of
business.
Comment j to § 402A provides,
Directions or warning. In order to prevent the product from being
unreasonably dangerous, the seller may be required to give
directions or warning, on the container, as to its use. The seller
may reasonably assume that those with common allergies, as for
example to eggs or strawberries, will be aware of them, and he is
not required to warn against them. Where, however, the product
contains an ingredient to which a substantial number of the
population are allergic, and the ingredient is one whose danger is
not generally known, or if known is one which the consumer would
reasonably not expect to find in the product, the seller is required to
give warning against it, if he has knowledge, or by the application of
reasonable, developed human skill and foresight should have
knowledge, of the presence of the ingredient and the danger.
NO. 70309-9-1 / 7
Strict liability applies retroactively to all claims against product
manufacturers and those in the business of selling or distributing a product.9 A
cause of action arises at the time of a plaintiff's exposure to asbestos, not when
the plaintiff discovers an injury.10
In Simonetta v. Viad Corp.,11 our Supreme Court explained, "We justify
imposing liability on the defendant who, by manufacturing, selling, or marketing a
product, is in the best position to know of the dangerous aspects of the product
and to translate that knowledge into a cost of production against which liability
insurance can be obtained."
Ehlert alleges that Brand was a seller of asbestos insulation because it
"acquired the insulation itself, through its own business channels, and invoiced
Parsons for the product." Ehlert further asserts, "Brand's position in the chain of
distribution is akin to a wholesaler, purchasing asbestos insulation from an entity
up the chain of distribution, then turning around and reselling it to a general
contractor as part of its business of providing and installing insulation."
9 Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 148, 542 P.2d 774(1975).
10 Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 34, 935 P.2d
684 (1997) (citing Koker v. Armstrong Cork, Inc., 60 Wn. App. 466, 471-72, 804
P.2d 659 (1991); Krivanek v. Fibreboard Corp., 72 Wn. App. 632, 865 P.2d 527(1993); Viereckv. Fibreboard Corp., 81 Wn. App. 579, 915 P.2d 581 (1996)).
11 165Wn.2d341.355, 197P.3d 127(2008).
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NO. 70309-9-1 / 8
The trial court disagreed, noting that "the only evidence I have in this case
is one sale from Brand to Parsons of insulation." The court observed,
[l]t seems to me that for Brand to be held under here that they have
to, say, hire insulation installers to go out and do these things and
then either ahead of time say we'll come out and we'll install it but
you've got to buy this product from us and then we'll come and put
it in. Or basically Brand does two things. They install insulation
when an owner requests that they come and do it or they sell
insulation products to other installers to put in. But when a general
contractor says we want you to install insulation and you've got to
buy this type of insulation and you've got to put this in our facility, I
don't see that as a sale.
The court stated,
[Sjupplying isn't the standard. You have to be a manufacturer or a
seller. Because if a supplier was the standard then anybody, once
a product is put in the chain of customers who delivers, a supplier is
nothing more than a deliverer of a product. So once a product is
put into the chain of customers, and they transfer that item to
somebody else, they're a supplier. And that would make the entire
population susceptible to a suit under strict liability.
Michael McGinnis, who served as a project coordinator at Brand, testified,
"Brand was not a distributor [of insulation products]. We bought materials for our
own use. We didn't sell them as a distributor would." He testified that for the
Cherry Point project, Parsons provided a form subcontract to all companies
bidding on the project. The bidders included in their bids insulation products from
a list of project specifications provided by Parsons. McGinnis testified that Brand
chose the particular insulation products it used because "[t]he price was better."
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NO. 70309-9-1 / 9
He estimated that 70 percent of Brand's bid represented labor costs and 30
percent represented the cost of materials.
McGinnis described his job as follows:
I laid out all of the drawings, identified the drawings from which we
bid the project. I laid the work scope out for the supervision for the
project. I purchased all the materials. I purchased the supplies. I
did the progress reporting for Ralph M. Parsons. I managed the
admin staff in the office .... And then also generated drafts of all
the billings and got those approved by Parsons and then went to
formal processing of those invoices and submitted them to Parsons
for payment. ,
McGinnis noted, "Those would have been regarded as progress payments and
the preponderance of the job was done on lump sum. At some point. . . Parsons
reverted the contract from a hard money or lump sum project to a cost
reimbursable or T[&]M project." McGinnis distinguished Brand from companies
that "had both a contracting arm that did insulations and a sales arm that actually
distributed insulation products." He further stated that Brand filed an insurance
claim with the insulation supplier, PABCO, when it experienced problems with
some of the insulation materials.
Although Brand invoiced Parsons for the materials it used to complete the
subcontract, these invoices do not demonstrate that Brand was in the business of
selling insulation products. Ehlert presented no evidence that Brand
manufactured the insulation or that it marketed insulation for use and
NO. 70309-9-1/10
consumption.12 Brand chose the insulation it installed from a list that Parsons
provided. The record shows that Brand merely received reimbursement for the
cost of materials it used to complete a service contract; any alleged "sale" was
incidental to the contract to provide installation services. At most, Brand was an
occasional seller of insulation.13 We conclude that substantial evidence supports
the court's ruling that Brand was not a "seller" for the purposes of § 402A and
affirm the judgment as a matter of law.
Ehlert also claims that if Brand was not a seller, strict liability still applies to
Brand as a supplier in the chain of distribution. Ehlert relies upon Simonetta,
which he notes "repeatedly included the term 'supply' in its discussion of the
chain of distribution under § 402A." Although Simonetta stated that defendant
Viad did not "manufacture or supply" the asbestos insulation at issue, the court
did not hold that "suppliers" such as Brand are subject to strict liability under this
provision.14 Instead, the court held that Viad was not strictly liable for failure to
warn about the dangers of asbestos because it did not market or manufacture
asbestos insulation or have control over the type of insulation selected by the
12 Restatement (Second) of Torts § 402A cmt. c.
13 See Barham v. Turner Constr. Co.. 803 S.W.2d 731, 738 (Tex. Ct. App.
1990) ("Any alleged 'sale' of the steel columns by Turner Construction was
incidental to its contract to provide the services necessary to construct a building.
At most, Turner Construction was an occasional seller of components of
buildings; it was not engaged in the sale of steel columns as part of its
business.").
14 Simonetta. 165 Wn.2d at 358.
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NO. 70309-9-1/11
navy. Because we see no meaningful distinction between Viad and Brand, the
court's actual holding defeats Ehlert's argument.
Next, Ehlert alleges, "The trial court erred by finding that the asbestos
insulation was not an inherently dangerous product, and by inserting an irrelevant
'control' analysis into a failure to warn context." In response to the Ehlert's
proposed jury instruction on product liability, the court stated,
Here's what you're asking that I instruct the jury. A seller has a
duty to supply products that are reasonably safe for use at the time
they leave the seller's control.
Now, in this case the only evidence, let's assume that Brand
qualifies as a seller, the only evidence in this case is that the sale
occurred after that, the product did not leave the seller's control, if
Brand is the seller, until it was installed, and clad and banded. And
an invoice was given to Parsons saying we get paid for this. So
that product had not yet, if they are a seller, had never left their
control when the alleged injury is suppose[d] to have occurred. It
was in the possession of the seller the whole time. So it hadn't left
the seller's control.
Because we conclude that the record does not contain evidence sufficient to
show Brand was a seller subject to strict liability, we do not address this claim.
Ehlert also challenges the adequacy of the trial court's general negligence
jury instruction. We review de novo the adequacy of challenged jury
instructions.15 "'Jury instructions are sufficient when they allow counsel to argue
their theory of the case, are not misleading, and when read as a whole properly
15 State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005) (citing State v.
DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003)).
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NO. 70309-9-1/12
inform the trier of fact of the applicable law.'"16 The instruction is erroneous if any
of these elements is missing, but an erroneous instruction is reversible error only
if it prejudices a party.17 Where jury instructions state the applicable law
correctly, "the court's decision to give the instruction will not be disturbed absent
an abuse of discretion."18
We also review a trial court's refusal to give a proposed jury instruction for
an abuse of discretion.19 A trial court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds.20
The trial court's jury instruction stated,
Negligence is the failure to exercise ordinary care. It is the doing of
some act that a reasonably careful person would not do under the
same or similar circumstances or the failure to do some act that a
reasonably careful person would have done under the same or
similar circumstances.
16 State v. Davis, 174 Wn. App. 623, 635, 300 P.3d 465 (internal quotation
marks omitted) (quoting State v. Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669(2010)), review denied, 178 Wn.2d 1012 (2013).
17 Anfinson v. FedEx Ground Package Svst., Inc., 174 Wn.2d 851, 860,
281 P.3d 289 (2012) (citing Joyce v. Dep't of Corr., 155 Wn.2d 306, 323-25, 119
P.3d 825 (2005)).
18 Micro Enhancement Int'l. Inc. v. Coopers & Lvbrand. LLP, 110 Wn. App.
412, 430, 40 P.3d 1206 (2002) (citing Cramer v. Dep't of Highways, 73 Wn. App.
516^ 520, 870 P.2d 999 (1994)).
19 In re Pet, of Pouncv, 168 Wn.2d 382, 390, 229 P.3d 678 (2010).
20 State v. Emery, 161 Wn. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006)), affd, 174 Wn.2d 741, 278
P.3d 653 (2012).
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NO. 70309-9-1/13
Ehlert claims that the court should have instructed the jury on both strict
liability and negligent failure to warn. Ehlert's proposed instruction stated,
Each Plaintiff brings this action on the basis of two separate
claims:
1. Products Liability
2. Negligence
You are to consider each claim separately with respect to
each Plaintiff.
Each instruction will have a heading at the top indicating
whether the instruction applies to the theory of product liability, or
negligence or both.
With respect to Plaintiffs' product liability claims, each claim
that Brand Insulations distributed, sold or supplied products that
were not reasonably safe for use because:
1. These products contained asbestos, which as [sic] not
reasonably safe to human life and health; and
2. These products did not contain adequate warning of
the precise dangers involved with asbestos use.
With respect to each Plaintiff's negligence claim, each
contend that Brand Insulations was negligent in one or more of the
following respects:
1. Failure to warn foreseeable product users of the
dangers of asbestos;
2. Failure to substitute safe products;
3. Failure to institute proper ventilation methods during
product use;
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NO. 70309-9-1 /14
4. Failure to isolate asbestos dust during application and
removal of its products;
5. Failure to clean up during the application of its
asbestos products.
The Plaintiffs claim that one or more of these acts was a
proximate cause of the injuries and damage to Robert Ehlert and/or
James Jones. Brand Insulations denies these claims and, further,
denies the nature and extent of Plaintiffs' claimed injuries.
The foregoing is merely a summary of the claims of the
parties. You are not to take the same as proof of the matter
claimed unless admitted by the opposing party, and you are to
consider only those matters which are admitted or established by
the evidence. These claims have been outlined solely to aid you in
understanding the issues.
Because we affirm the court's judgment as a matter of law on strict
liability, we conclude that the court properly declined to give a strict product
liability jury instruction.
The Restatement (Second) of Torts § 388 (1965) governs negligent failure
to warn claims.21 This provision states,
One who supplies directly or through a third person a chattel for
another to use is subject to liability to those whom the supplier
should expect to use the chattel with the consent of the other or to
be endangered by its probable use, for physical harm caused by
the use of the chattel in the manner for which and by a person for
whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely
to be dangerous for the use for which it is supplied, and
21 Mele v. Turner. 106 Wn.2d 73, 78, 720 P.2d 787 (1986) (citing Fleming
v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 467-68, 423 P.2d 926 (1967)).
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NO. 70309-9-1/15
(b) has no reason to believe that those for whose use the
chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its
dangerous condition or of the facts which make it likely to be
dangerous.
A supplier is "any person who for any purpose or in any manner gives
possession of a chattel for another's use . .. without disclosing his knowledge
that the chattel is dangerous for the use for which it is supplied or for which it is
permitted to be used."22
The law of negligence requires a defendant to exercise ordinary care.23 A
supplier's duty of ordinary care includes a duty to warn of hazards involved in the
use of a product which are or should be known to the supplier.24 Therefore, in a
negligent failure to warn cause of action, we focus on the supplier's conduct.25
When rejecting Ehlert's proposed instruction, the trial court explained,
"The plaintiff, even if I give the generic one, plaintiff is going to be able to argue
whatever theories of negligence they have." The court's given instruction is
taken verbatim from WPI 10.0126 and states the general law of negligence
accurately.
22 Restatement (Second) of Torts § 388 cmt. c.
23 Simonetta, 165 Wn.2d at 348.
24 Restatement (Second) of Torts § 388.
25 Simonetta, 165 Wn.2d at 348.
26 6 Washington Practice: Washington Pattern Jury Instructions:
Civil 10.01, at 124 (2012).
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NO. 70309-9-1/16
Ehlert argues, "The problem with the general negligence instruction is that
it does not take into account the particularized standards of conduct Washington
law imposes on those in the chain of distribution." But Ehlert does not show that
the court's general negligence instruction prevented him from arguing his failure
to warn theory of negligence. While other judges might have instructed the jury
more specifically on the duty to warn, the trial court did not abuse its discretion
when it declined to give Ehlert's proposed instruction and gave a general
negligence instruction.
Ehlert also challenges the trial court's exclusion of three newspaper
articles from the Seattle Times and two articles from the Chicago Tribune related
to asbestos. We review a trial court's evidentiary rulings for an abuse of
discretion.27 A party challenging the court's ruling bears the burden of proving an
abuse of discretion.28
Ehlert claims that the proffered articles "were relevant to proving Brand's
knowledge of the risk of asbestos exposure in using insulation materials in the
early 1970's [sic], a critical component of Ehlert's and Jones' failure to warn
theory." The trial court ruled,
I don't think that it's relevant. I really don't. . . . [Y]ou could pull out
an article from any newspaper in the United States and say so and
27 Hernandez v. Stender Wn. App. , 321 P.3d 1230, 1233 (2014)
(citing Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000)).
28 Hernandez, 321 P.3d at 1233 (citing Davis, 174 Wn. App. at 642).
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NO. 70309-9-1/17
so thought something, it was a problem, and therefore these people
should have known. I don't know how you can say a Chicago
company should be put on notice either—well, didn't know unless
they admit they read the article or should have been able to find the
article or had a duty to look for an article. I don't see how this is a
connection. It's just too speculative where you're asking the jury to
say that the defendant should have been searching newspaper
articles about anything they were using on the work site to see if
somebody thought there were problems with it.
Evidence is relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence."29 Only relevant evidence is
admissible.30
Newspaper articles are not admissible as evidence to prove the truth of
their contents.31 A newspaper article is admissible for impeachment purposes if
the witness "admitted having read or authorized the article."32
Ehlert could not offer these articles to establish the state of medical
science about the dangers of asbestos exposure. He fails to demonstrate the
relevance of the proffered newspaper articles to his negligent failure to warn
claim. Ehlert does not show that Brand read or authorized the articles or that
Brand had a duty to know about the dangers of the products it selected from the
list that Parsons provided in the subcontract for installation services. We hold
29ER401.
30 ER 402.
31 State ex rel. Pierce County v. King County, 29 Wn.2d 37, 45, 185 P.2d
134(1947).
32 Pierce County, 29 Wn.2d at 45.
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NO. 70309-9-1/18
that the trial court did not abuse its discretion when it excluded the newspaper
articles.
On cross appeal, Brand claims that the trial court should have granted its
motion for judgment as a matter of law at the close of Ehlert's case and also that
the court should have granted its motion for judgment as a matter of law on
Ehlert's negligence claim. Because we affirm the trial court, we do not address
Brand's cross appeal.
CONCLUSION
The record supports the trial court's dismissal of Ehlert's strict liability
claims. The trial court did not abuse its discretion when it instructed the jury or
when it excluded Ehlert's proffered newspaper articles about asbestos. Because
we reject Ehlert's claims, we do not consider Brand's cross appeal. We affirm.
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