Daniels v. Combustion Engineering, Inc. (1978)

Our plain-English summary of Daniels v. Combustion Engineering, Inc. (Tennessee Court of Appeals, November 28, 1978).

Thomas Daniels, a professional insulation installer from 1965 to 1977, developed a mild case of asbestosis. He and his wife Oma sued Combustion Engineering and 16 other makers of asbestos-related insulation under strict products liability, and she claimed loss of consortium. The case was dismissed as to all but four defendants, and a jury found for the defendants. The Tennessee Court of Appeals affirmed. It upheld the exclusion of testimony linking asbestos to cancers and mesothelioma, since Daniels did not claim cancer and the jury had decided liability for the defendants anyway. It upheld the exclusion of two depositions of a deceased Johns-Manville medical director taken in other lawsuits, because the plaintiffs and parties differed and the issues were not shown to be the same. It found no error in the jury charge on unavoidably unsafe products, because the plaintiffs' own failure-to-warn claim put the issue in play. It declined to review the challenge to a defense expert's deposition because the plaintiffs did not cite the objectionable parts.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Tennessee Court of Appeals, Eastern Section
• Decided: November 28, 1978
• Citation: 583 S.W.2d 768
• Stage: Appeal from judgment after trial
• State: Tennessee

Outcome. The Court of Appeals affirmed the judgment on a jury verdict for the defendant insulation manufacturers, overruling all of plaintiffs Thomas and Oma Daniels' assignments of error.

What the court held. A court may exclude evidence of asbestos-related cancers where the plaintiff has only mild asbestosis and no cancer. Prior deposition testimony from different cases with different plaintiffs and no privity is not admissible. A charge on unavoidably unsafe products is proper where the plaintiff's own complaint put failure to warn in issue.

Issues decided: Loss of Consortium, Design Defect, Failure to Warn, Fear of Cancer and Medical Monitoring, Trial Procedure and Discovery.

The people and their exposure

• Thomas G. Daniels: asbestosis

Who	Work	Where	When	Products
Thomas G. Daniels	professional installer of insulation materials (construction)		1965-1977	pipe and block insulation

The defendants

• Combustion Engineering, Inc. (manufacturer) · its asbestos trust
• Johns-Manville Sales Corp. (manufacturer)
• Celotex Corp. (manufacturer) · its asbestos trust
• Owens Corning Fiberglass Corp. (manufacturer) · its asbestos trust
• Pittsburgh Corning Corp. (manufacturer) · its asbestos trust

Later decisions citing this one

3 later decisions in our library cite this one:

• Potts v. Celotex Corp. (Tennessee Supreme Court, 1990). Answering questions certified by the Sixth Circuit, the Tennessee Supreme Court held that the one-year limitations period did not bar Elizabeth Potts's mesothelioma claim against Celotex and the other asbestos product defendants, so the plaintiff prevailed on the limitations question.
• Bernier v. Raymark Industries, Inc. (Maine Supreme Judicial Court, 1986). Answering questions certified by the federal district court, the Maine court held that state-of-the-art evidence is admissible in a failure-to-warn claim under section 221, that wrongful death damages are recoverable in a section 221 action, and that section 221 applies to pre-1973 inhalation only if the disease manifested after October 3, 1973; this was a partial win for each side, with two justices dissenting on the third question.
• Denton v. Southern Ry. Co. (Tennessee Court of Appeals, Eastern Section, 1993). The Court of Appeals affirmed summary judgment dismissing Norfolk Southern Corporation, but reversed the $25,000 jury verdict for Denton against Southern Railway and remanded for a new trial because of an erroneous causation/damages instruction and the exclusion of fear-of-cancer and cancer-monitoring evidence.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

583 S.W.2d 768 (1978)

Thomas G. DANIELS and wife, Oma P. Daniels

v.

COMBUSTION ENGINEERING, INC. etal.

November 28, 1978.

Certiorari Denied May 7, 1979.

Court of Appeals of Tennessee, Eastern Section.

[*769] Paul T. Gillenwater, Ward S. Whelchel, Jr., and H. Douglas Nichol, Knoxville, for appellants.

Fred H. Cagle, Jr., Knoxville, for Johns-Manville Sales Corp.

William D. Vines, III, Knoxville, for Celotex Corp.

Robert R. Campbell, Knoxville, for Owens Corning Fiberglass Corp.

Louis C. Woolf, Knoxville, for Pittsburgh Corning Corp.

Certiorari Denied by Supreme Court May 7, 1979.

OPINION

SANDERS, Judge.

Plaintiffs have appealed from an adverse jury verdict in their products liability suit against a number of manufacturers of asbestos-related insulation materials.

Plaintiff-Appellant, Thomas G. Daniels, was, for a number of years, a professional installer of insulation materials. He was employed primarily by contractors to install insulation in commercial and industrial buildings between 1965 and 1977. The materials with which he worked and installed were asbestos-related insulation materials manufactured and distributed by the Defendants. The Plaintiff contracted an occupational disease known as asbestosis. This develops from breathing asbestos dust over a period of time. Asbestos dust is composed of small sharp fibers which settle into the air sacs in the lungs. This results in inflammation and scarring of the lungs. The respiratory system is affected and, depending on the severity of the case, may range from slight or no disability to death. The Plaintiff's case was considered mild.

The Plaintiff sued the Defendant, Combustion Engineering, Inc., and 16 other Defendants who manufacture and sell asbestos-related insulation materials which had been used by him. Plaintiffs predicated their suit on the theory of products liability. Plaintiff's wife, Oma P. Daniels, also sued for loss of consortium. Plaintiffs contended the insulation products were defective and unreasonably dangerous under 402A, Restatement of Torts, in that they were placed on the market defectively designed; they contained a hazardous material (asbestos); and/or they were defective by reason of inadequate warning of the hazard.

Defendants denied their products were defective and unreasonably dangerous. They denied they directly or proximately caused the Plaintiff's injury. They relied upon the affirmative defenses of the statute of limitations, assumption of the risk and intervening cause. They further contended that the "state of scientific knowledge" was such they did not know, nor could have known, of the hazards to insulation workers prior to 1964.

The case was dismissed as to all but four of the Defendants prior to final determination of the case.

The case was tried before a jury which found the issues in favor of the Defendants. Plaintiffs' motion for a new trial was overruled and they have appealed and assigned error.

Plaintiffs' first assignment of error is: "The Trial Court erred in refusing to allow testimony or reference to the relationship of asbestosis and asbestos exposure to different cancers, cor pulmonale, and mesothelioma."

Prior to the trial the Plaintiffs filed a motion to allow the introduction of testimony regarding association between asbestos [*770] and cancer. The Defendants, in turn, filed a motion to exclude such testimony. The Court ruled such testimony should be excluded, and we concur.

The Plaintiffs advance four reasons why the testimony should have been admitted, but they present only two categories — one pertains to damages and the other relates to the duty to warn of a known danger beyond that contemplated by the ordinary purchaser. Plaintiffs say the testimony should have been admitted since: (1) "Such evidence would show the mental distress or anguish incident to physical trauma as a compensable item of damages." (2) "The increased risk of cancer in persons who have asbestosis requires they be closely monitored by medical personnel for the remainder of their lifetime and the increased cost of this medical service would be a legitimate item of expense and subject to proof." If we assume the contention of the Plaintiffs is correct, this would go only to damages. Since the jury resolved the question of liability in favor of the Defendants, it would, at most, be harmless error.

Plaintiffs further say: (3) "Section 402(a), Restatement of Torts, Second, and cases interpreted, indicate that a test regarding the dangerousness of a product is whether the utility of such product outweighs the harm it could cause," and (4) "The fact that defendants' product contained an ingredient which was likely to cause cancer, ... increases and heightens the duty to warn and would, in effect, have a greater bearing upon the type of warnings that should be given."

This insistence by the Plaintiffs is in contradiction and inconsistent with their argument in support of their fourth assignment of error. There they say, "The plaintiffs did not rely upon the failure of defendants to warn of the dangers of their products in order to establish that the product was defective and unreasonably dangerous."

It is the rule in this jurisdiction that a plaintiff cannot take a position on appeal inconsistent with that taken in the trial of the case. Simpson v. Harper, 21 Tenn. App. 431, 111 S.W.2d 882; Carr v. Wilbanks, 45 Tenn. App. 372, 324 S.W.2d 786. The Plaintiffs make no contention that he has cancer. He has only a mild case of asbestosis and we therefore see no relevancy between his injuries and cancer. To have admitted the evidence could have served only to prejudice the jury. Plaintiffs' second assignment is: "The Trial Court erred in refusing to allow the admission of the two depositions of Dr. Kenneth Wallace Smith, deceased, former Medical Director of the defendant, Johns-Manville Sales Corporation." Prior to the trial of the case the Plaintiffs filed a motion asking to file two depositions of Dr. Smith as evidence. One of the depositions had been taken in January, 1976, in the case of James Roy DeRocco, etal. v. Forty-Eight Insulation, Inc., a Corporation, etal. The case was filed in the Court of Common Pleas of Allegheny County, Pennsylvania. The other deposition was taken in April, 1976, in the case of Louisville Trust Company, Administrator of the Estate of William Virgil Sampson v. Johns-Manville Corporation. This suit was in Louisville, Kentucky. In his motion to admit the depositions the Plaintiff said: "That in DeRocco and Sampson, defendant, Johns-Manville, was given the opportunity to cross-examine the deponent and that the issues in both DeRocco and Sampson are identical to the issues in the case at bar, i.e., what defendant, Johns-Manville, did or did not know relative to the hazards of inhalation of asbestos by the ultimate user of the products. Dr. Kenneth Wallace Smith was employed by defendant, Johns-Manville, from the mid-1940's through 1966 and beginning in 1952 until his termination, was the corporate Medical Director of defendant, Johns-Manville; that in July, 1977, Dr. Kenneth Wallace Smith died.

"Plaintiff submits that the depositions of Dr. Kenneth Wallace Smith are admissible as to Johns-Manville pursuant to 27.03(2) and 26.04(3) of the Tennessee Rules of Civil Procedure and because: (1) the issues in the present case involve the same subject matter [*771] and were admissible in the courts of Pennsylvania and Kentucky, respectively; (2) the witness is deceased; (3) the person against whom the deposition is sought to be introduced was given ample opportunity to cross-examine the witness; and (4) exceptional circumstances exist that justice dictates that introduction should be allowed, i.e. Dr. Smith was present during the time critical decisions were made concerning asbestos health hazards to ultimate users and others."

The Plaintiffs rely upon Rule 26.04(3) and 27.03(2), T.R.C.P., as support for their contention that Dr. Smith's deposition was admissible.

We fail to find these rules in point. Neither of them applies to a deposition offered as evidence in a suit filed subsequent to its taking.

Plaintiffs also cite as authority for their contention the case of In Re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429 (1968).

This case is distinguishable from the case at bar in that the testimony in question was give in a former trial of the same case.

Plaintiffs also cite 29 Am.Jur., Evidence, § 738, as authority for their contention.

We fail to see where this section of Am. Jur. lends much support to Plaintiffs' contention, since it stands for the proposition that before testimony of a witness in a former proceeding can be admitted the second action must be between the same parties or their privies and involve the same issues. We have been cited to no cases, nor have we found any in this jurisdiction, exactly in point on the issue here involved. However, the general rule appears to be stated as follows: "There is authority that the use of depositions is limited to the suit in which they are taken; but, as a general rule, depositions regularly taken in a former suit are admissible in a subsequent suit, involving the same question or subject matter between parties who are the same or in privity. The admissibility of such

depositions is not, however, dependent on exact identity of parties and cause of action, but rather on identity of the question being investigated and on the opportunity of the party, against whom the deposition is offered, to examine or cross-examine.

"The following may be considered as the usual tests by which to determine whether a deposition taken in one cause can be read as evidence in another: First, the parties must be the same or in privity; second, the issues in the case must be the same, or the question in controversy must be the same; third, that, had the testimony been different, it would have been prejudicial to the party introducing it; fourth, that the judgment and verdict rendered in one case would be evidence in the other; and fifth, the legal existence of the first suit. "The general rules above laid down have been held applicable, notwithstanding the fact that one suit is at law and the other in equity. Because a deposition has been taken regularly in a former cause between the same parties, it does not necessarily follow that such fact of itself is a sufficient reason for admitting such deposition in evidence in a subsequent cause between the same parties; there should be some showing of the death, absence, or disability of the witness whose deposition is desired. The competency of the

testimony in such deposition must be determined in the case in which it is offered; and the admission of depositions taken in a former suit between the same parties is a matter somewhat within the discretion of the court, and one which will not be reviewed unless there has been a palpable abuse of the discretion as

exercised." 26A C.J.S. Depositions § 98, p. 452.

This rule is further amplified as follows:

"It has frequently been stated that in order to render admissible on a subsequent trial the former testimony of a witness who has since become unavailable, there must be a substantial identity between the parties to the first and the parties to the subsequent action or proceeding. Accordingly, in many cases the [*772] former testimony of a witness has been held inadmissible for lack of substantial identity of parties, even though the other conditions prerequisite to admissibility have been met.

"The requirement as to the identity of parties is satisfied by the existence of the relation of privity, such as that predicated on relationships arising from connection with a decedent's estate or out of interests in property, or the relationship of principal and surety or of successive plaintiffs in actions for wrongful death, the word `privity' being used, more or less strictly, in somewhat the same sense as it has in the field of property law. `Identity of interest,' as distinguished from strict `privity,' is held in some cases to satisfy the rule requiring identity of parties. In still other cases it has been held that there must be `reciprocity' or `mutuality' as a prerequisite to the admission in evidence of former testimony; that is, former testimony by a witness already cross-examined by B cannot now be offered by A against B unless B could now have offered it

against A." 29 Am.Jur.2d, Evidence, § 744, p. 813.

The criteria set out above are not met in the case at bar in that there are different plaintiffs and there is no privity between them nor is there any way we can determine from the record before us that the issues involved are the same. Also, we cannot say that the Trial Court abused his discretion in rejecting the evidence. Plaintiffs' second assignment is overruled.

Plaintiffs' third assignment is: "The Trial Court erred in charging the jury as to the defense of `unavoidably unsafe product.'" The portion of the Court's charge about which the Plaintiffs complain is as follows: "And, of course, Ladies and Gentlemen, there are some products, which in the state of human knowledge at the time of manufacture are incapable of being made safe for their intended and ordinary use. Products of this kind are not, for the purposes of strict liability, unreasonably dangerous if proper warnings are given."

We cannot agree this was error. It is an accurate statement of the law applicable to the case.

It was the contention of the Plaintiffs the Defendants marketed insulation products which were defective and unreasonably dangerous under 402A of the Restatement of Torts. The Defendants' products were defective in that they contained a hazardous material and were hazardous by reason of inadequate warning of the hazards.

Comment "k" under § 402A states:

"Unavoidably unsafe products. There are some products which, in the present state of human knowledge,

are quite incapable of being made safe for their intended and ordinary use... . Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably

dangerous... . The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk."

The Plaintiffs argue the Court's charge was improper because the defense of "unavoidably unsafe products" is an affirmative defense which must be specifically pleaded. The Defendants did not assert it as an affirmative defense and the charge was therefore improper.

While it is possible the defense of "unavoidably unsafe products" might be an affirmative defense, where, as in the case at bar, the plaintiff, in his complaint, charges the defendants with failure to warn, the defendants only need to deny the complaint, as the Defendants did.

The question of "unavoidably unsafe product" had been placed squarely in issue by both the pleadings and the proof. It therefore became the duty of the Court to charge on this issue. See Cole v. Woods, 548 S.W.2d 640, Tenn. (1977). [*773] Plaintiffs' fourth assignment is: "The Trial Court erred in allowing testimony in a strict liability action as to the `state of the art' or the `state of scientific knowledge.'"

Plaintiffs argue in support of this assignment that it was error for the Court to overrule their motion to strike the testimony of Dr. Paul Kotin. The deposition of Dr. Kotin had been taken by the Defendants. It consisted of approximately 250 pages and covered a variety of issues in the case. Prior to the trial the Plaintiffs filed a motion to strike this testimony. The basis of the motion was that the testimony was irrelevant and immaterial due to the fact the thrust of it is directed to the knowledge Defendants had or should have had relative to the hazards of asbestos. Plaintiffs stated they did not rely upon comment (j) of the Restatement of Torts to establish the defectiveness of the product. Upon the trial of the case the deposition of Dr. Kotin, except portions pertaining to cancer, was read into evidence.

Plaintiffs fail to cite us to the portion of this testimony which they consider is improper. Therefore, this assignment cannot be considered since the Plaintiffs have failed to comply with Rule 12(3) of the Court, which provides: "Where the error alleged is to the admission or rejection of evidence, the specification shall quote the substance of the evidence admitted or rejected with citation of record where the evidence and ruling may be found, but full quotation of the evidence admitted or rejected is not required."

Plaintiffs' assignments of error are overruled. The judgment of the Trial Court is affirmed and the cost of this appeal is taxed to the Appellants.

PARROTT, P.J. (E.S.), and FRANKS, J., concur.

Sources

• The opinion on Google Scholar
• Tennessee asbestos laws
• Tennessee asbestos exposure sites