Allen v. Owens-Corning Fiberglas Corp.

571 N.W.2d 530 (1997) 225 Mich. App. 397

Lynn ALLEN, Copersonal Representative of the Estate of James R. Upham, Deceased, Plaintiff-Appellee,
v.
OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant.

Docket No. 190696.

Court of Appeals of Michigan.

Submitted March 4, 1997, at Detroit. Decided September 12, 1997, at 9:25 a.m. Released for Publication December 23, 1997.

Jo Ann M. Carlson, Detroit, for plaintiff-appellee.

Kitch, Drutchas, Wagner & Kenney P.C. by Linda M. Garbarino and Mark A. Wisniewski, Detroit, for defendant-appellant.

Before MARK J. CAVANAGH, P.J., and REILLY and WHITE, JJ.

PER CURIAM.

Defendant, Owens-Corning Fiberglas Corporation, appeals as of right the jury verdict in favor of plaintiff in this products liability action. We affirm.

The decedent, James Upham, filed this action in December 1993, shortly after he was diagnosed with mesothelioma. After he died in February 1994, his daughter, Lynn Allen, was appointed copersonal representative of his estate and was substituted as party plaintiff.

The decedent was a welder at the General Motors Buick plant in Flint from 1952 to 1988. Testimony at trial established that the decedent had been exposed to "Kaylo," a product manufactured and distributed by defendant,^[1] during the course of his employment. Kaylo was a pipe covering and block insulation product that contained approximately fifteen percent asbestos. In 1972, all asbestos was removed from the Kaylo product line.

Shortly before trial, plaintiff moved in limine to preclude defendant from presenting any evidence regarding the decedent's alleged exposure to other sources of asbestos. Defendant opposed the motion, arguing that exposure to other products was pivotal to the issue of causation. Defendant further maintained that a jury could not determine whether its product was a substantial factor in causing the decedent's injury if it were given no information concerning the decedent's exposure to other manufacturers' asbestos products.

The trial court initially ruled that evidence of the decedent's exposure to other manufacturers' products was admissible. However, after the close of proofs, plaintiff brought a motion to strike the testimony regarding the decedent's exposure to other asbestos products. Plaintiff argued that defendant had failed to produce any evidence that exposure to asbestos products other than those of defendant was the sole cause of the decedent's mesothelioma. The trial court granted plaintiff's motion. In addition, the trial court instructed the jury as follows:

[Y]ou are instructed that as a matter of law I have found that you should disregard any and all testimony or proof regarding James Upham's exposure to other asbestos-containing products not manufactured or distributed by the defendant, Owens-Corning Fiberglas. Such testimony and proof is stricken and should be disregarded and not considered by you in deciding the issues in this case.

The jury found that defendant was negligent and that defendant's negligence was the cause of the decedent's injury. The jury awarded damages of $1 million to the decedent's estate and $250,000 to each of his two daughters.

I

A

Defendant argues that the trial court erred in striking all the evidence of the decedent's exposure to the asbestos products of other manufacturers. Defendant notes that the decedent testified at deposition that he had worked with the products of various other companies, and his co-workers testified about the use of other companies' products as well.

We review a trial court's evidentiary rulings for an abuse of discretion. An abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences perversity of will or the exercise of passion or bias rather than the exercise of discretion. Mina v. General Star Indemnity Co., 218 Mich.App. 678, 687-688, 555 N.W.2d 1 (1996).

To prove that defendant is liable for the injury to plaintiff's decedent, plaintiff must show that defendant's conduct was a proximate cause of the injury. See Moll v. Abbott Laboratories, 444 Mich. 1, 16, 506 N.W.2d 816 (1993). In order to show proximate cause, plaintiff must prove that the injury was a probable, reasonably anticipated, and natural consequence of the defendant's negligence. See McLean v. Rogers, 100 Mich.App. 734, 736, 300 N.W.2d 389 (1980). A plaintiff in a products liability action need not offer evidence that positively excludes every other possible cause. It is enough that a plaintiff establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories. Skinner v. Square D Co., 445 Mich. 153, 179, 516 N.W.2d 475 (1994).

There may be more than one proximate cause of an injury. Two causes frequently operate concurrently so that both constitute a direct proximate cause of the resulting harm. Therefore, a defendant cannot escape liability for its negligent conduct simply because the negligence of others may also have contributed to the injury suffered by a plaintiff. When a number of factors contribute to produce an injury, one actor's negligence will be considered a proximate cause of the harm if it was a substantial factor in producing the injury. Brisboy v. Fibreboard Corp., 429 Mich. 540, 547, 418 N.W.2d 650 (1988).

In challenging the trial court's refusal to allow the jury to consider testimony regarding the decedent's exposure to other asbestos products, defendant relies on Laney v. Celotex Corp., 901 F.2d 1319 (C.A.6, 1990). Laney was also a personal injury case arising from asbestos exposure. In that case, the federal Court of Appeals for the Sixth Circuit held that the trial court had erred in excluding evidence proffered by the defendant about the plaintiff's exposure to other asbestos products. The Laney court reasoned:

[E]vidence of Plaintiff's exposure to other asbestos products goes to the fundamental question of cause. A jury may consider all evidence of contributing factors to determine which, if any, were substantial factors in causing Plaintiff's injury. The substantial factor analysis cannot be made in a vacuum. [Id. at 1321.]

Although this Court is not bound by a federal court decision construing Michigan law, it may follow the decision if the reasoning is persuasive. See Royalite Co. v. Federal Ins. Co., 184 Mich.App. 69, 75, 457 N.W.2d 96 (1990). We are persuaded that the decision in Laney is correct. To exclude evidence of other exposures to asbestos is to force the jury to decide whether the defendant's product was a substantial factor in producing the plaintiff's injury "in a vacuum." See Laney, supra at 1321.

Under Michigan law, a defendant may introduce evidence that the plaintiff's injury is attributable to another's negligence, even if the alleged negligent actor is not a party to the action. Mitchell v. Steward Oldford & Sons, Inc., 163 Mich.App. 622, 627, 415 N.W.2d 224 (1987). Thus, defendant's attempt to attribute the decedent's illness to other manufacturers' asbestos products was a legitimate effort to rebut plaintiff's claim.

Proximate cause is usually a factual issue for the jury to determine. Alar v. Mercy Memorial Hosp., 208 Mich.App. 518, 537, 529 N.W.2d 318 (1995). When multiple factors contribute to produce the plaintiff's injury, one actor's negligence will be considered a proximate cause of the harm if it was a substantial factor in producing the injury. Brisboy, supra. One of the considerations in determining whether negligent conduct is a "substantial factor" in producing an injury is "the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it." 2 Restatement Torts, 2d, § 433(a), p. 432. Thus, in order to determine whether a particular factor was a substantial factor in causing a plaintiff's injury, a jury should be permitted to weigh evidence of other contributing factors. In the present case, whether the decedent's "exposure to defendant's product was significant in terms of intensity and when viewed in the scope of [the decedent's] entire work history" was a question for the jury. See Brisboy, supra at 550, 418 N.W.2d 650.

Plaintiff argues that allowing defendant to introduce evidence of the decedent's exposures to other asbestos products would have been more prejudicial than probative and would only have served to confuse the jury. Under MRE 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Unfair prejudice exists when marginally relevant evidence might be given undue or preemptive weight by the jury or when it would be inequitable to allow use of such evidence. Haberkorn v. Chrysler Corp., 210 Mich.App. 354, 361-362, 533 N.W.2d 373 (1995).

Contrary to plaintiff's argument, evidence of the decedent's exposure to the asbestos products of other manufacturers would not have been more prejudicial than probative. Proximate cause is an essential element of plaintiff's case. See Moll, supra. In order for the jury to determine whether defendant's product was a substantial factor in producing the decedent's injury, and therefore a proximate cause of the injury, it must be permitted to consider the number of other factors that contributed to produce the harm. See Restatement, supra. Accordingly, we find that the trial court abused its discretion in excluding evidence of the decedent's exposures to other manufacturers' asbestos products.

B

We have concluded that the trial court erred in excluding evidence of the decedent's exposure to other asbestos products. Nevertheless, we find that the error was harmless because plaintiff presented sufficient evidence to establish that exposure to defendant's product was a substantial cause of the decedent's mesothelioma. Cf. Fibreboard Corp. v. Pool, 813 S.W.2d 658, 695 (Tex.App., 1991), cert. den. 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993) (finding that the trial court's error in excluding testimony regarding the asbestos products of insolvent parties was harmless because the evidence showed at most that the other parties were joint tortfeasors with the defendant).

Plaintiff's expert, Dr. Bernard Naylor, testified that each exposure to asbestos was a significant contributing cause of the decedent's mesothelioma. Dr. Naylor explained that individual exposures would have contributed cumulatively to the development of the disease. Although defendant attempted to impeach Dr. Naylor's testimony, defendant offered no contrary medical evidence.

Eldon Bellows, who worked with the decedent from approximately 1956 to 1972, testified that he and the decedent used Kaylo pipe covering on a regular basis. Bellows explained that he and the decedent would cut holes in the pipe covering in order to put it on the pipes, in the process generating dust. Another co-worker, Charles Miller, testified that he had been a pipefitter at Buick. Miller stated that he had worked directly with the decedent many times. The decedent would cut the pipe covering to size. Up until about 1972, asbestos covering was used. Miller described cutting the asbestos pipe covering as a very dusty process. Miller recalled that the pipe covering used at Buick had been mostly manufactured by Owens-Corning and Johns-Manville. Miller stated that he worked with the decedent many times when the decedent would cut Owens-Corning pipe covering for him. The decedent himself testified at deposition that he frequently worked with asbestos pipe covering before 1972 and, in particular, was able to recall using products manufactured by "Owens" and Johns-Manville. Given the above testimony, we believe that plaintiff demonstrated that exposure to defendant's product was a substantial cause of the decedent's injury.^[2]

II

Defendant next asserts that the trial court erred in denying its motion for a directed verdict. We review a trial court's decision with regard to a motion for a directed verdict de novo. When evaluating a motion for a directed verdict, a court must consider the evidence in the light most favorable to the nonmoving party, making all inferences in the nonmoving party's favor. The grant of a directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ. Meagher v. Wayne State Univ., 222 Mich.App. 700, 708, 565 N.W.2d 401 (1997).

Defendant argues that the trial court should have granted its motion for a directed verdict because there was no evidence that the decedent would have done anything differently if a warning had been placed on defendant's product. We disagree.

Under Michigan law, the manufacturer of a product has a duty to warn of dangers associated with the intended uses or reasonably foreseeable misuses of its product. Portelli v. I R Const. Products Co., Inc., 218 Mich.App. 591, 598-599, 554 N.W.2d 591 (1996). In most failure-to-warn cases, proximate cause is not established absent a showing that the plaintiff would have altered his behavior in response to a warning. However, in certain circumstances the jury may infer this fact from the evidence presented. When the consequences of the exposure are severe, the lack of warning is undisputed, and the person exposed is dead, the jury may be permitted to infer that a warning would have been heeded and that the failure to warn was a proximate cause of the injury. Bordeaux v. Celotex Corp., 203 Mich.App. 158, 166, 511 N.W.2d 899 (1993). See generally anno: Presumption or inference, in products liability action based on failure to warn, that user of product would have heeded an adequate warning had one been given, 38 A.L.R.5th 683.

In this case, the trial court held that there was evidence that the decedent was the type of worker that read directions and followed rules and that this evidence was sufficient to preclude a directed verdict in defendant's favor.^[3] We find no error. There was evidence presented that, viewed in the light most favorable to plaintiff, could have permitted a jury to conclude that the decedent would have heeded a warning, had one been given. Bellows testified that the decedent was a conscientious worker who avoided harmful conduct and followed all the rules pertaining to the job. Bellows also testified that he observed the decedent reading directions and then following them, and in addition he saw the decedent wear safety equipment. Furthermore, given the severe consequences of the exposure, the lack of warning, and the death of the decedent, the jury was permitted to infer that the decedent would have heeded a warning.^[4] See Bordeaux, supra.

III

Finally, defendant argues that the trial court improperly precluded it from submitting evidence that it was not aware that asbestos could cause mesothelioma until the 1960s. As noted above, the decision to admit or exclude evidence is within the trial court's discretion. See Mina, supra.

In the trial court, plaintiff requested that "defendant be prohibited from introducing evidence, mentioning, alleging, arguing or otherwise attempting in any way to assert as a defense that, although they were aware that asbestos cause[s] asbestosis and lung cancer in the 1930's, 1940's and 1950's, they did not learn that asbestos caused mesothelioma until the 1960's." The trial court granted plaintiff's motion.

We find no error. A plaintiff need not establish that the mechanism of injury was foreseeable or anticipated in specific detail. It is only necessary that the evidence establishes that some injury to the plaintiff was foreseeable or to be anticipated. Schultz v. Consumers Power Co., 443 Mich. 445, 452, n. 7, 506 N.W.2d 175 (1993); Babula v. Robertson, 212 Mich.App. 45, 53, 536 N.W.2d 834 (1995). In the present case, evidence was presented that defendant was aware in the 1940s and 1950s that exposure to asbestos causes asbestosis. Because defendant had knowledge of harm from exposure to asbestos, it had the duty to warn the decedent of the potential for injury even though it did not know of the risk of the particular disease that ultimately claimed the decedent's life. Therefore, the trial court did not abuse its discretion in refusing to allow defendant to present evidence that it was not aware that exposure to asbestos could cause mesothelioma until the 1960s.

Affirmed. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.

WHITE, Judge, concurring.

Given the evidence presented regarding the decedent's exposure to defendant's product and other asbestos-containing products, and the medical testimony regarding causation, I agree that the court's instruction striking the proofs regarding exposure to other asbestos-containing products does not warrant reversal.

I join in parts II and III of the opinion.

NOTES

[1] Testimony at trial established that Kaylo was manufactured by Owens-Illinois until approximately 1958, when defendant purchased the Kaylo production plant. However, defendant began distributing Kaylo around 1953.

[2] We note that in Brisboy, the Supreme Court held that an intensive exposure to the defendant's product for six to nine months could reasonably be considered a substantial factor in bringing about the plaintiff's injuries. Brisboy, supra.

[3] Defendant cites the following passage from the decedent's deposition as evidence that he did not pay attention to warnings:

Q. And you can't recall either way whether or not there was any type of wording or warning on these boxes which you on occasion would observe, correct?

A. I never paid attention to that at that time. No. I would—now I'm sure.

However, we find this testimony to be at best ambiguous.

[4] Defendant cites several cases in support of its argument. However, we find these cases to be distinguishable because there is no evidence that a warning would not have affected the decedent's conduct. See Nichols v. Clare Community Hosp., 190 Mich.App. 679, 684, 476 N.W.2d 493 (1991) (additional warnings about the drug would have had no effect because the doctor knew of the dangers already); Woodworth v. Gates Learjet Corp., 173 Mich.App. 480, 484-485, 434 N.W.2d 167 (1988) (the element of proximate cause was not established where no evidence was presented that warnings that windshield was not bird-resistant would have caused the defendant company to change the windshield); Mowery v. Crittenton Hosp., 155 Mich.App. 711, 721, 400 N.W.2d 633 (1986) (even if additional warnings had been given, the doctor still would have prescribed the drug).