Karjala v. Johns-Manville Products Corp. (1975)

Our plain-English summary of Karjala v. Johns-Manville Products Corp. (U.S. Court of Appeals, Eighth Circuit, September 24, 1975).

John Karjala, who installed asbestos insulation from 1948 until he quit in June 1966, sued Johns-Manville and other insulation makers in 1971, claiming the products were unreasonably dangerous and carried no warning. The other defendants were dismissed, and a jury awarded Karjala $200,000 against Johns-Manville on a strict liability theory. He had developed shortness of breath from 1959, and in 1966 a doctor told him he had asbestosis. Johns-Manville appealed, arguing the trial judge wrongly held it to a duty to warn of unforeseeable risks and misstated when the six-year limitations period began. The Eighth Circuit applied Minnesota law. Because Johns-Manville had not moved for judgment notwithstanding the verdict, the court could review the evidence only for plain error and found enough to support a verdict. It held the warning instruction correctly limited liability to dangers the company knew or could have discovered with reasonable care. It also held the limitations instruction correct, because the period starts when harm or impairment appears that can be tied to the product. The judgment was affirmed.

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: U.S. Court of Appeals, Eighth Circuit
• Decided: September 24, 1975
• Citation: 523 F.2d 155
• Docket: No. 74-1797
• Stage: Appeal from judgment after trial

Outcome. The Eighth Circuit affirmed the $200,000 jury judgment for plaintiff Karjala against Johns-Manville, finding the jury instructions on strict liability/duty to warn and on the statute of limitations consistent with Minnesota law.

What the court held. Under Minnesota law a manufacturer is held to the knowledge of an expert and must warn of dangers it knew or could have discovered through reasonable care. The six-year limitations period for a product injury begins when some harm or impairment manifests itself that can be shown to have been caused by the defendant's product.

Issues decided: Choice of Law, Design Defect, Failure to Warn, Statute of Limitations, Trial Procedure and Discovery.

Why this case is relevant

The Eighth Circuit affirmed a $200,000 strict-liability jury verdict for an asbestosis-stricken insulation installer under Minnesota law, on what it called narrow grounds. Because Johns-Manville never moved for judgment notwithstanding the verdict, the court reviewed the evidence only for plain error. It approved an instruction holding the manufacturer to an expert's knowledge and requiring warnings of dangers it knew or could have discovered with reasonable care. On limitations, it reasoned that there is rarely a "magic moment" when asbestosis is contracted. The six-year period therefore began when the disease manifested itself with some evidence of a causal link to the product.

Later courts cite it mainly on that limitations point. The Minnesota Supreme Court relied on it in holding that an asbestos wrongful-death claim accrued at death, and the high courts of Illinois, Kentucky and Ohio cited it on when asbestos claims accrue. Some courts declined to treat it as controlling. The Seventh Circuit followed Wisconsin precedent instead, and in 2020 the Minnesota Supreme Court said it did not compel departing from that court's own rule. The Fifth Circuit cited it on the duty to warn of known or knowable dangers.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• John A. Karjala: asbestosis

Who	Work	Where	When	Products
John A. Karjala	installer of asbestos insulation		1948-1966	pipe and block insulation, Johns-Manville asbestos insulation

The defendants

• Johns-Manville Products Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Borel v. Fibreboard Paper Products Corporation (U.S. Court of Appeals, Fifth Circuit, 1973). The Fifth Circuit affirmed the jury verdict and judgment for Borel's widow against six asbestos insulation manufacturers, including Fibreboard, Johns-Manville, Pittsburgh Corning, Philip Carey, Armstrong Cork and Ruberoid, and denied rehearing.

Later decisions citing this one

27 later decisions in our library cite this one:

• Palmer v. Walker Jamar Company (Minnesota Supreme Court, 2020). The Minnesota Supreme Court affirmed the court of appeals and the grant of summary judgment for Honeywell, holding Deborah Palmer's wrongful death claim time-barred.
• 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.
• Celotex Corp. v. Copeland (Florida Supreme Court, 1985). The Florida Supreme Court quashed the Third District's approval of market share liability (reinstating dismissal of that theory but allowing Copeland to amend his complaint), and approved the Third District's ruling that the statute of limitations could not be decided by summary judgment, so the Copelands may proceed against the asbestos manufacturers.
• O'stricker v. Jim Walter Corp. (Ohio Supreme Court, 1983). The Ohio Supreme Court ruled for the plaintiff, holding the action timely under a discovery rule, and remanded to the trial court for further proceedings on the merits against the asbestos-product defendants.
• DeCosse v. Armstrong Cork Co. (Minnesota Supreme Court, 1982). The Minnesota Supreme Court reversed the judgment for the asbestos defendants and remanded, holding the wrongful death limitation period can be tolled for fraudulent concealment, so the trustee for DeCosse's heirs may proceed.
• Nolan v. Johns-Manville Asbestos (Illinois Supreme Court, 1981). The Illinois Supreme Court affirmed the appellate court's reversal of summary judgment for the defendants (Johns-Manville and others) and remanded to the circuit court, so the plaintiff's estate may proceed on the asbestosis claim.
• Louisville Trust Co. v. Johns-Manville Products (Kentucky Supreme Court, 1979). The Kentucky Supreme Court reversed the Court of Appeals' ruling that the limitations period barred the claim, held the Sampson estate's suit against Johns-Manville timely, and remanded for the Court of Appeals to consider Johns-Manville's other assignments of error.
• Jackson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1985). The en banc Fifth Circuit declined to create federal common law for asbestos cases, reinstated parts of the panel opinion, and certified the questions on punitive damages, mental anguish and probable future cancer damages to the Mississippi Supreme Court, leaving the Jackson judgment against Johns-Manville and Raybestos-Manhattan unresolved pending that answer.
• Neubauer v. Owens-Corning Fiberglas Corp. (U.S. Court of Appeals, Seventh Circuit, 1982). The Seventh Circuit, on interlocutory appeal, rejected the district court's rule that the limitations period runs from last exposure, and also rejected the plaintiffs' discovery rule. It held that Wisconsin law starts the period when the disease becomes diagnosable, a rule that favors the manufacturer defendants, and remanded for further proceedings.
• Wilson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, District of Columbia Circuit, 1982). The D.C. Circuit reversed the district court's summary judgment for Johns-Manville and the other asbestos defendants, which had dismissed Blannie Wilson's survival and wrongful death claims as time-barred, and remanded for further proceedings.
• Keene Corp. v. Ins. Co. of North America (U.S. Court of Appeals, District of Columbia Circuit, 1981). The court reversed the district court's summary judgment, which had prorated costs among Keene's insurers. It held that each insurer on the risk between initial exposure and manifestation is fully liable to Keene (Keene prevailed on both issues: the court held the dispute justiciable and rejected proration), and it remanded for trial on damages and on Liberty's 1967 policy.
• Ins. Co. North America v. Forty-Eight Insulations (U.S. Court of Appeals, Sixth Circuit, 1980). The Sixth Circuit affirmed the district court's judgment adopting the exposure theory, so all of Forty-Eight Insulations' insurers on the risk during the exposure years share defense and indemnity costs pro rata, with Forty-Eight bearing the share for uninsured years; INA, Affiliated FM, Illinois National and Liberty Mutual lost, and Forty-Eight and Travelers largely won.
• Palmer v. Walker Jamar Company (Minnesota Court of Appeals, 2019). The court affirmed summary judgment for Honeywell on limitations grounds and the dismissal of the claims against Walker Jamar for insufficient service of process, so the plaintiff Deborah Palmer lost both appeals.
• Koker v. Armstrong Cork, Inc. (Washington Court of Appeals, 1st Division, 1991). The court rejected most of Celotex's and Raymark's challenges but reversed the jury verdict for Lewis and Roberta Koker and remanded for a new trial because of an erroneous lost-chance-of-survival instruction.
• Copeland v. Celotex Corp. (Florida District Court of Appeal, 3rd District, 1984). The appeals court reversed the trial court's dismissal with prejudice of the Copelands' third amended complaint against Celotex, held that it stated a cause of action, and remanded for further proceedings.
• Staiano v. Johns-Manville Corp. (Pennsylvania Superior Court, 1982). Affirmed summary judgment for the asbestos product manufacturer defendants, holding the Staianos' claims were barred by the two-year statute of limitations.
• Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (Illinois Appellate Court, 1st District, 1979). The appellate court reversed the summary judgment that the circuit court had granted to all defendants on limitations grounds and remanded, so the plaintiff estate may proceed and a fact-finder will decide when Nolan knew or should have known of his asbestosis.
• Filipek v. the Boeing Company (U.S. District Court, District of Minnesota, 2017). The court granted summary judgment to Boeing, Navistar, Borg-Warner Morse Tec, CBS, McNeil, Northern States Power and United Technologies because the Filipeks' claims were time-barred, denied the Filipeks' motion to withdraw an admission, and dismissed the case with prejudice.
• In re Unr Industries, Inc. (U.S. District Court, Northern District of Illinois, 1983). The district court denied the debtors' (UNR Industries and affiliates) application to appoint a legal representative for unknown future asbestos claimants, and also denied Peter John Robinson's motion to intervene.
• Amader v. Johns-Manville Corp. (U.S. District Court, Eastern District of Pennsylvania, 1982). The court granted plaintiff Thomas Amader's motion for partial summary judgment in part, barring Pittsburgh-Corning from relitigating whether Unibestos was defective between 1962 and 1968, but denied the motion on whether Unibestos was a substantial factor in causing his injuries.
• Bertrand v. Johns-Manville Sales Corp. (U.S. District Court, District of Minnesota, 1982). The court granted plaintiff Bertrand's partial summary judgment motion only on whether asbestos dust can cause asbestosis and mesothelioma, barring the defendants from litigating that point, and denied it on the state of the art defense and whether the products were unreasonably dangerous.
• Hardy v. Johns-Manville Sales Corp. (U.S. District Court, Eastern District of Texas, 1981). The district court granted Forty-Eight Insulations' motions for discovery and leave to file cross-actions on a market share theory, denied the sixteen defendants' motion to reconsider the collateral estoppel order (amending it slightly), and certified the collateral estoppel question for interlocutory appeal.
• Neubauer v. Owens-Corning Fiberglas (U.S. District Court, Eastern District of Wisconsin, 1981). The federal district court denied the summary judgment motions of Johns-Manville, Keene, Armstrong Cork, Owens-Corning, Owens-Illinois and the third-party defendants, holding that the Wisconsin limitations period runs from the plaintiff's last exposure to any asbestos-containing product, and it set a schedule for further summary judgment motions on lack of recent contact.
• Flatt v. Johns-Manville Sales Corp. (U.S. District Court, Eastern District of Texas, 1980). The court granted plaintiffs' partial summary judgment against Johns Manville and, in part, against Certain-Teed, holding that asbestos products are defective and unreasonably dangerous and barring relitigation of that issue, but denied it on whether Certain-Teed made or sold asbestos products.
• Ins. Co. of No. Am. v. Forty-Eight Insulations (U.S. District Court, Eastern District of Michigan, 1978). After a trial, the court held that the exposure theory governs coverage, so every insurer on the risk during a claimant's exposure must share defense and indemnity for Forty-Eight Insulations, with Forty-Eight bearing shares for uninsured years. This rejected the manifestation theory urged by INA, Affiliated FM, Illinois National and Liberty Mutual.
• In re Johns-Manville Corp. (U.S. Bankruptcy Court, Southern District of New York, 2016). The bankruptcy court granted Graphic Packaging International's motion and enjoined Lynda Berry's Louisiana state-court asbestos suit against Graphic as successor to MFP, ruling that her only recourse is a claim to the Manville Trust.
• In re Johns-Manville Corp. (U.S. Bankruptcy Court, Southern District of New York, 1984). The bankruptcy court granted Keene Corp.'s motion to appoint a legal representative for future asbestos claimants in the Manville reorganization, holding that those claimants are parties in interest, and set a later hearing on the representative's form and function.

Amounts in the opinion

• $200,000 (total)

On our site

• Minnesota Mesothelioma Lawyer: Asbestos Claims, Deadlines & Compensation

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.

523 F.2d 155 (1975)

John A. KARJALA, Appellee,

v.

JOHNS-MANVILLE PRODUCTS CORPORATION, Appellant.

No. 74-1797.

Submitted April 14, 1975.

Decided September 24, 1975.

United States Court of Appeals, Eighth Circuit.

[*156] John J. Killen, Jr., Duluth, Minn., for appellant.

Paul J. Louisell, Duluth, Minn., for appellee.

Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Appellant Johns-Manville Products Corporation appeals from an adverse judgment in a jury trial in which John A. Karjala, the plaintiff below, was awarded $200,000 for damages sustained as a result of contracting asbestosis from the use of appellant's asbestos products. We affirm the judgment upon the narrow grounds discussed below.

John A. Karjala began working as an installer of asbestos insulation in 1948. Between then and June, 1966, when he quit his job, Karjala was exposed to great quantities of asbestos dust. In 1959, Karjala began to feel a shortness of breath, congestion, a loss of appetite, and general weakness. Suspecting that he might have tuberculosis, he had his chest x-rayed. The x-ray showed no evidence of tuberculosis; Karjala did not see a doctor at that time, but did remain absent from his job for one week. On a later visit to the sanatorium where the x-ray was taken, he noticed that his record showed "possible asbestosis". His shortness of breath grew worse throughout this period.

In early 1963, Karjala entered a hospital for disc surgery. In the course of his treatment, a tumor was discovered on his right lung. This tumor was removed in May, 1963. The shortness of breath nevertheless continued, and even such routine activities as walking up and down stairs became strenuous for Karjala.

After coughing up blood in June, 1966, Karjala visited his doctor. Following an examination of his body and of x-ray photographs taken of his lungs, Karjala was told that he had asbestosis and that he should quit his job. He did so, but his health steadily declined.

Karjala filed this action in 1971 against several manufacturers of asbestos insulation, charging that their products were unreasonably dangerous and that they failed to warn him of the products' [*157] defective condition.[1] All defendants except Johns-Manville were subsequently dismissed by stipulation.

At trial, in addition to its affirmative defense that Karjala's action was barred by the statute of limitations, Johns-Manville contended principally that since it could not in the exercise of reasonable care have foreseen the dangers to insulation installers now known to be associated with its product, it could not be held responsible for the injury to Karjala's health. In support of its contention, Johns-Manville introduced into evidence two scholarly reports, written nineteen years apart. In the first, Fleischer, Viles, Gade and Drinker, A Health Survey of Pipe-Covering Operations In Constructing Naval Vessels, 28 J.Ind.Hyg. & Tox. 9 (1946), the authors concluded that inferences drawn from other asbestos industries (i. e., that people who work with asbestos are presented with a health hazard) could not be applied to the asbestos pipe covering industry on board naval vessels and that covering pipes with asbestos insulation was not a dangerous occupation. Selikoff, Churg and Hammond, the authors of the second study, The Occurrence of Asbestosis Among Insulation Workers in the United States, 132 Annals N.Y.Acad.Sci. 139, 152 (1965), concluded that "asbestosis and its complications are significant hazards among insulation workers in the United States at this time." Johns-Manville contended that it could not be charged with notice of the hazard until after the publication of the second report.

Evidence was also adduced which showed that Johns-Manville knew by at least the 1930's that persons who worked at plants where asbestos products were manufactured were exposed to a substantial health hazard. Also introduced into evidence was testimony concerning several other pre-1950 articles in which some suggestion was made of a connection between asbestosis and those who work with asbestos fibers. The case was submitted to the jury on the theory of strict liability.

I.

We note at the outset that Johns-Manville's motion for a directed verdict was limited to its statute of limitations defense and that it failed to move for judgment notwithstanding the verdict. See Fed.R.Civ.P. 50(b). Under such circumstances, our review is strictly limited. Johnson v. New York, N.H. & H. R.R., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Tri-State Insurance Co. v. United States, 340 F.2d 542, 546 (8th Cir. 1965). See generally 5A J. Moore, Federal Practice ¶ 50.12 (2d ed. 1974). We cannot test the sufficiency of the evidence to support the jury's verdict beyond application of the "plain error" doctrine in order to prevent a manifest miscarriage of justice. United States v. Harrell, 133 F.2d 504, 506-07 (8th Cir. 1943). See also Urti v. Transport Commercial Corp., 479 F.2d 766, 769 (5th Cir. 1973); Centraal Stikstof Verkoopkanter, N.V., v. Walsh Stevedoring Co., 380 F.2d 523, 528 (5th Cir. 1967); Cowger v. Arnold, 460 F.2d 219, 222 (3d Cir. 1972), quoting Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2d Cir. 1970). We hold that there was evidence upon which a jury, properly instructed, could have returned a verdict in favor of the plaintiff.[2]

Our inquiry does not stop here, however, because appellant contends that the District Court[3] in its charge to [*158] the jury (1) held appellant to an erroneous standard or duty and (2) misstated the law on the applicable statute of limitations.[4] II.

Appellant contends that the instruction given by the District Court on strict liability misstates the law by requiring a manufacturer to advance the state of medical knowledge and to warn of unforeseeable risks.

Judge Lord instructed the jury that:

A manufacturer has a duty to test and inspect his products, and the extent of such research and experiment

must be commensurate with the dangers involved. A product must not be made available to the public

without disclosure of those dangers that the application of reasonable foresight would reveal. A manufacturer

is held to the knowledge and skill of an expert in determining whether or not his product is defective or

otherwise dangerous. It is admitted that Johns-Manville knew as early as 1942 that asbestos would cause

asbestosis when inhaled by factory workers. Mr. Karjala, however, is not a factory worker. He is an insulation

installer. It is for you to decide whether or not Johns-Manville knew in fact of the danger to Mr. Karjala of

contracting asbestosis. And that just goes to the question of the warning, whether or not they should have

warned him, if you conclude that that might be an additional laxity on their part as to impose liability.

In reaching your decision you may consider the knowledge which Johns-Manville had relative to factory

workers and whether or not this knowledge would put Johns-Manville on notice of the danger to Mr. Karjala

as an installation worker.

Well, of course, the damages must have been directly caused by the use of the product. I mentioned that a

little bit earlier. A direct cause is a cause which had a substantial part in bringing about the harm.

Now, the defendant claims that they didn't know that installation workers could be harmed by this material in

1964, when Dr. Selikoff put out his report.

Under Minnesota law, a manufacturer has a duty to warn users of its products of all dangers associated with those products of which it has actual or constructive knowledge. Failure to provide such warnings will render the product unreasonably dangerous and will subject the manufacturer to liability for damages under strict liability in tort. Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 38, 171 N.W.2d 201, 205 (1969). Cf. Land O'Lakes Creameries, Inc. v. Hungerholt, 319 F.2d 352, 359-60 (8th Cir. 1963); McCormack v. Hankscraft Co., 278 Minn. 322, 332, 154 N.W.2d 488, 496 (1967). See also

Sterling Drug, Inc. v. Yarrow, 408 F.2d 978, 992-93 (8th Cir. 1969). See generally Restatement (Second) of Torts §§ 388, 394, 402A (1965);[5] 2 R. Hursh & H. Bailey, American Law of Products Liability § 8:3 (2d ed. 1974). Asbestos insulation is a product that has been held to be susceptible to this standard. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).

As Judge Wisdom pointed out in Borel, "a product is unreasonably dangerous only when it is `dangerous to an extent beyond that contemplated by the ordinary consumer who purchases it.'" 493 F.2d at 1088 (Quoting Restatement (Second) of Torts § 402A, Comment i). [*159] Thus, a product may be unreasonably dangerous because the manufacturer has failed to give adequate warnings of known or knowable dangers involved.

Of course, a manufacturer is only required to warn of foreseeable dangers. O'Hare v. Merck & Co., 381 F.2d 286, 291 (8th Cir. 1967); Westerberg v. School District No. 792, 276 Minn. 1, 7-8, 148 N.W.2d 312, 317 (1967).[6] As Judge Matthes wrote in O'Hare v. Merck & Co., supra, 381 F.2d at 291, a Minnesota diversity case:

A manufacturer is held to the skill of an expert in its particular field of endeavor, and is obligated to keep

informed of scientific knowledge and discoveries concerning that field. * * The manufacturer is held

accountable as an expert in its field only for those dangers of which it has knowledge or those which it could

discover through the exercise of reasonable care. Liability will not attend those injurious consequences

resulting from the use of a product, the harmful effects of which `no developed human skill or foresight can

afford knowledge.' Ross v. Philip Morris & Company, 328 F.2d 3, 6 (8th Cir. 1964).

The manufacturer's duty to warn users of the potential danger inherent in its product is commensurate with

its actual knowledge of the risk involved to those users or the knowledge constructively imparted to it by

available scientific or other medical data. * * * [citations and footnote omitted]

The challenged instruction properly informed the jury that Johns-Manville could be held liable for failing to warn if, while held to the "knowledge and skill of an expert", it did not disclose to the public those dangers inherent in its product "that the application of reasonable foresight would reveal." It emphasized that the jury must decide whether Johns-Manville had the requisite knowledge and reminded the jury that Karjala was an installation worker, not a factory worker. The instruction is in accord with the law of Minnesota. We find no error here.

III.

Appellant asserts that Judge Lord's instruction on the statute of limitations was erroneous because it literally told the jury that the statute did not bar Karjala's claim and because the instruction set the date when the statute would begin to run as the date on which Karjala became disabled. We disagree. When read as a whole, see Alabama Great S. R. R. v. Chicago & N. W. Ry., 493 F.2d 979, 984 (8th Cir. 1974); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2556 (1971), the District Court's instruction on the statute of limitations is in accord with Minnesota law.[7]

[*160] The applicable Minnesota statute, Minn.Stat.Ann. § 541.05(5) (Supp.1975), sets six years as the period within which a cause of action for personal injuries resulting from a defective product must be brought. See Dalton v. Dow Chemical Co., 280 Minn. 147, 158 N.W.2d 580 (1968); American Mutual Liability Insurance Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178 (1963). We recently examined the commencement of the statute of limitations in Minnesota and concluded that: [i]n Minnesota, * * * the statute does not begin to run until damage has resulted. It is not necessary for the

final or ultimate damages to be known or predictable, however, the statute begins to run when some damage

occurs which would entitle the victim to maintain a cause of action.

Continental Grain Co. v. Fegles Construction Co., 480 F.2d 793, 797 (8th Cir. 1973).

Thus, under Minnesota law, an instruction on the statute of limitations must be couched in terms of when damage has resulted from the alleged breach of duty, that is, the time when a claim could be brought in a court of law without dismissal for failure to state a claim; in a personal injury action this occurs when some harm or impairment has manifested itself which can be shown to have been caused by an act or omission for which the defendant would be liable. See Dalton v. Dow Chemical Co., supra, 280 Minn. at 153, 158 N.W.2d at 584; Bachertz v. Hayes-Lucas Lumber Co., 201 Minn. 171, 275 N.W. 694 (1937). This is precisely the substance of the challenged instruction. We do not agree with Johns-Manville that the use

of "disabled" and "disability" in the instruction implied that Karjala had to be totally incapacitated before the statute of limitations would commence. Rather, those terms were properly used as synonyms for "harm" or "impairment". See

Webster's Third New International Dictionary, at 642 (1966).

As in silicosis cases, see Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), there is rarely a magic moment when one exposed to asbestos can be said to have contracted asbestosis; the exposure is more in the nature of a continuing tort. It is when the disease manifests itself in a way which supplies some evidence of causal relationship [*161] to the manufactured product that the public interest in limiting the time for asserting a claim attaches and the statute of limitations will begin to run. The time at which Karjala's impairment manifested itself was, of course, for the jury to determine. As we noted earlier in point I, the limited nature of our review precludes an examination of the sufficiency of the evidence upon which the jury rejected the defense based upon the statute of limitations. We simply hold that the instructions on this point, taken as a whole, adequately and fairly instructed the jury under Minnesota law.

The judgment of the District Court is affirmed.

[1] Karjala initially based his claim upon three theories: (1) negligence, (2) strict liability, and (3) breach of warranty. Only the strict liability claim was submitted to the jury.

[2] Had there been no evidence at all to support the jury's verdict, the maximum relief under such circumstances would be a new trial. See Tri-State Insurance Co. v. United States, 340 F.2d 542, 546 (8th Cir. 1965); Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814, 816-17 (2d Cir. 1970).

[3] The Honorable Miles W. Lord, United States District Judge, District of Minnesota.

[4] Since this is a diversity case, we apply the substantive law of Minnesota, the forum state. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

[5] Comment j to Section 402A states:

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.

[6] "The requirement of foreseeability coincides with the standard of due care in negligence cases in that a seller must exercise reasonable care and foresight to discover a danger in his product and to warn users and consumers of that danger. Davis v. Wyeth Laboratories, Inc., 9 Cir. 1968, 399 F.2d 121. See Basko v. Sterling Drug, Inc., 2 Cir. 1969, 416 F.2d 417, 427." Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1088 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974) (Emphasis original). [7] Judge Lord charged the jury as follows:

Now, with regard to the statute of limitations, the law requires that Mr. Karjala bring his claim to court within six years of the date his claim arises. That is, in order to avoid stale claims, in fairness to the defendant, you shouldn't be able to have a claim and sort of lay in the weeds and wait and wait and wait and then bring it. The defendant might not have any idea what it is about at that time. But they assume that six years is a fair time to wait, and that is what they say, you can't bring it after six years.

His claim arises when the harm to his person becomes evident. However, contracting asbestosis is not a matter of moment, or an occasion, but something which develops over a long period of time. The statute doesn't commence to run against Mr. Karjala until he has contracted the disease of asbestosis, and the process of contracting the disease does not cease until physical impairment manifests itself. In other words, the disease must have progressed to a stage where Mr. Karjala would have a provable legal claim for his injuries, to the point when he would have a provable claim that he could go into court and prove. Now, if you find that he could have brought a case for asbestosis during that period of time that he continued to work and could have put in a claim and would and should have known that he had a claim based on reasonable expectation and so forth, then he had to bring it within six years of 1972 — what is that date? MR. LOUISELL: February 23rd, 1971, was when he commenced it.

THE COURT: Thank you.

MR. LOUISELL: So, I guess, six years before that would be February the 23rd, 1965.

THE COURT: All right. Well, that is for you to decide, whether or not the statute of limitations has barred this claim. That is your decision based on the facts that you have. It is not my decision. I just want you to understand that now.

Nothing I have said to you or will say to you will direct a verdict in this case. Every issue is open for you to decide one way or the other. * * * * * *

I called my law clerk over here to find a little page that I did find, and the fact that I read this last makes no difference. The order in which the instructions are given makes no difference whatsoever. So don't overemphasize this. But here was another way I had of saying this question of the statute of limitations. The jury will have to determine whether or not in 1959 or 1961 or at some time previous to the date mentioned here, 1965, based upon what was then known by this man he could with some degree of success prove that he was disabled, the source of his disability and the other elements that go to make up a case. And that is what we talked about. The first time all these elements coalesced and came together to give him a cause of action, from that date the cause of action would run, the statute of limitations.

Sources

• The opinion on Google Scholar