Kreppein v. Celotex Corp. (1992)

Our plain-English summary of Kreppein v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, July 21, 1992).

Mary Kreppein sued several asbestos product makers, including Celotex as successor to Philip Carey Manufacturing, over the death of her husband Gustave Kreppein. He was diagnosed with asbestosis and mesothelioma in 1981 and died about three and a half years later. He had cleaned ship engine and boiler rooms at Todd Shipyard in Brooklyn in 1940-1942, sweeping asbestos debris left by pipecoverers. From 1950 to 1981 he worked as an ironworker at building sites, including the Tishman and Socony Vacuum Buildings and the 14th Street Powerhouse. A jury awarded $731,557.79 and assigned Celotex 32.5% of the liability. Celotex appealed, arguing that the evidence did not tie its products to Mr. Kreppein, that its share was against the weight of the evidence, and that the court wrongly allowed an amended complaint. The Second Circuit affirmed. Witness testimony about Philip Carey products at each site was enough, and the jury could weigh relative fault. The amendment, which added a pain-and-suffering claim, did not prejudice the defendants.

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, Second Circuit
• Decided: July 21, 1992
• Citation: 969 F.2d 1424
• Docket: No. 585, Docket 90-7576
• Stage: Appeal from judgment after trial
• State: New York

Outcome. The Second Circuit affirmed the judgment holding Celotex liable for 32.5% of the damages to Mary Kreppein, rejecting Celotex's challenges on product nexus, apportionment and the amended complaint, and denied plaintiff's request for sanctions.

What the court held. Proof of causation in asbestos cases does not require identification of the precise product that injured the plaintiff; testimony that the plaintiff worked near the defendant's products is enough. Apportionment of liability may reflect relative culpability, and it is generally for the jury.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Wrongful Death and Survival, Failure to Warn, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Gustave Urban Kreppein: mesothelioma, asbestosis; died

Who	Work	Where	When	Products
Gustave Urban Kreppein	cleaning ship engine rooms and boiler rooms (shipyards and maritime work); worked near others using it	Todd Shipyard, Brooklyn, New York	1940-1942	pipe and block insulation, Philip Carey asbestos products
Gustave Urban Kreppein	ironworker (ornamental ironworker) (construction); worked near others using it	Tishman Building and Socony Vacuum Building	1950-1981	pipe and block insulation, Philip Carey pipecovering and block
Gustave Urban Kreppein	ironworker ripping out boilers (power plants and utilities)	14th Street Powerhouse	1967 and early 1970s	pipe and block insulation, Philip Carey asbestos products

The defendants

• The Celotex Corporation, successor-in-interest to Philip Carey Manufacturing Co. (manufacturer) · its asbestos trust
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• United States Mineral Products Company (manufacturer)
• Eagle-Picher Industries, Inc. (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (U.S. Court of Appeals, Second Circuit, 1992). The Second Circuit affirmed the plaintiffs' verdicts on causation, failure to warn and the dismissal of the design defect claim, but reversed the prejudgment interest awards on survival-action and future damages. It set out a method for combining the settlement set-off with the cap on non-economic damages, remanded the question of aggregating set-offs, and remanded the Barone pain-and-suffering award for a new trial. It affirmed the defense verdict against Feldman.
• O'brien v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1991). The Second Circuit affirmed the jury verdict and judgment against Celotex, finding the exposure evidence sufficient and any hearsay error harmless; the plaintiff's cross-appeal on damages remained stayed by Celotex's bankruptcy.
• Johnson v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the jury judgment for plaintiffs John and Ann Marie Johnson, including compensatory and punitive damages, against Celotex and Owens-Illinois; one judge dissented as to punitive damages.
• Roehling v. Nat. Gypsum Co. Gold Bond Bldg. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit reversed summary judgment for National Gypsum and Owens-Illinois on the Huntley Power Station exposure and remanded for trial, but affirmed summary judgment for Celotex and on the DuPont and Ford plant exposures.
• Kreppein v. Owens-Illinois (In re New York Asbestos Litigation) (U.S. District Court, Eastern District of New York, 1990). The court granted Owens-Illinois' motion for reconsideration, held the widow's claims against it barred by collateral estoppel, and vacated the judgment as to it; it denied the JNOV, new trial and remittitur motions of U.S. Mineral, Eagle-Picher and Celotex, leaving the verdict against them in place.

Later decisions citing this one

10 later decisions in our library cite this one:

• Morin v. AutoZone Northeast, Inc. (Massachusetts Appeals Court, 2010). The Appeals Court reversed summary judgment for AutoZone and Orleans Auto Supply, so the estate's claims against them go forward, and affirmed summary judgment for Great Dane.
• Kimball v. Asbestos Corporation Ltd. (Washington Court of Appeals, 1st Division, 2008). The Court of Appeals reversed the trial court's summary judgment for Elliott Company and ruled for Ernest Kimball, finding enough evidence of exposure and causation for a jury; it did not review the order striking evidence.
• Berry v. Crown Cork & Seal Co., Inc. (Washington Court of Appeals, 1st Division, 2000). The Court of Appeals reversed summary judgment for Saberhagen Holdings and remanded for trial, holding the plaintiffs (Berry's estate and widow) raised a genuine issue of fact on exposure to Brower-supplied products.
• Ciletti v. Raymark Indus. (In re Asbestos Litigation) (U.S. District Court, Southern District of New York, 1997). The court denied Raymark's motions for judgment as a matter of law, new trial and amendment of the judgment, and denied the plaintiffs' cross-motions, except that it set aside the McPadden award for loss of parental consortium.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (U.S. District Court, Southern District of New York, 1994). The court granted in part and denied in part the defendants' post-trial motions after the jury awarded over $47 million to the Tabolt, Consorti, Luchnick and Pulizzi plaintiffs: it ordered a new trial on fault allocation in Tabolt and on Mrs. Consorti's future non-economic consortium damages, cut several consortium awards, and on reargument reduced Pulizzi's funeral-expense award to $2,925, but otherwise left the verdicts in place.
• Pendolino v. Air & Liquid Sys. Corp. (New York Supreme Court, 2015). The trial court granted Nash Engineering Company's motion for summary judgment and dismissed the plaintiffs' claims and all cross-claims against Nash, because plaintiffs did not show exposure to asbestos from a Nash pump; the case continued against the other defendants.
• Citron v. AO Smith Water Prods. (New York Supreme Court, 2014). The court denied Trane U.S., Inc. (formerly American Standard) summary judgment, so the plaintiffs, the Citron family and estate, kept their claims against it.
• Frieder v. Long Is. RR (New York Supreme Court, 2013). The court denied the Long Island Railroad and Metropolitan Transportation Authority's motion for summary judgment, finding the LIRR owed Mr. Frieder a duty of care and that fact questions remained on exposure, so the plaintiffs prevailed on the motion.
• Kline v. Crane Co. (IN the Matter of New York City Asbestos Litig.) (New York Supreme Court, 2010). The court granted Crane Co.'s motion for summary judgment, dismissing the Kline estate's complaint and all cross-claims against Crane Co., while the case continued against the remaining defendants.
• Mtr. OF Nyc Asbestos Litig. (New York Supreme Court, 1997). The court granted Rapid-American's motion for a new trial on damages unless each plaintiff agreed to a reduced pain-and-suffering award, upheld its rulings on the interrogatories, jury charge and fault apportionment, and set aside the recklessness finding for the three pre-1947 plaintiffs (White, Gantcher, Mangialomini).

Amounts in the opinion

• $731,557.79 (compensatory)

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.

969 F.2d 1424 (1992)

Mary KREPPEIN, individually and as administratrix of the estate of Gustave Urban Kreppein,

Plaintiff-Appellee,

v.

The CELOTEX CORPORATION, individually and as successor-in-interest to Philip Carey

Manufacturing Co.; Philip Carey Corporation; Briggs Manufacturing Co.; Smith & Kanzler

Corporation and Panacon Corporation; National Gypsum Company; Armstrong World Industries,

Inc., formerly known as Armstrong Cork Company; Eagle-Picher Industries, Inc.; Nicolet, Inc.,

individually and as successor-in-interest to Keasbey-Mattison Company; H.K. Porter Company,

Inc., individually and as successor to Southern Textile Corporation and Southern Asbestos

Company; Fibreboard Corporation; Owens-Illinois, Inc.; Pittsburgh-Corning Corporation,

individually and as successor-in-interest to Unarco Industries; United States Gypsum Company;

Raymark Industries, Inc. and United States Mineral Products Company, Defendants,

The Celotex Corporation, individually and as successor-in-interest to Philip Carey Manufacturing

Co., Defendant-Appellant.

No. 585, Docket 90-7576.

Argued April 20, 1992.

Decided July 21, 1992.

United States Court of Appeals, Second Circuit.

[*1425] Andrew T. Berry, Newark, N.J. (McCarter & English, of counsel), for defendant-appellant.

Steven J. Phillips, New York City (Alani Golanski, Moshe Maimon, Levy Phillips & Konigsberg, of counsel), for plaintiff-appellee.

Before: OAKES and WALKER, Circuit Judges, and LEVAL, District Judge.[*]

OAKES, Circuit Judge:

In this products liability case, the Celotex Corporation appeals from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, holding Celotex partially liable for Gustave Kreppein's asbestos-related injury and death. 738 F.Supp. 66 (1990). Celotex argues that plaintiff Mary Kreppein, Mr. Kreppein's widow, failed adequately to prove product nexus. It also argues that the apportionment of liability was against the weight of the evidence, and that the district court erroneously allowed Kreppein to amend her complaint. Finding none of Celotex's arguments persuasive, we affirm.

FACTS

Gustave Kreppein worked cleaning ship engine rooms and boiler rooms at the Todd Shipyard in Brooklyn, New York, from 1940 to 1942, sweeping among other things asbestos debris left by pipecoverers. From 1950 to 1981, he worked as an ironworker at various building sites, including the Tishman Building, the Socony Vacuum Building and the 14th Street Powerhouse, where he suffered further asbestos exposure. In 1981, Mr. Kreppein was diagnosed with asbestosis and mesothelioma. He died approximately three and a half years later at age 64.

Mary Kreppein, individually and as administratrix of the estate, sued a number of manufacturers of asbestos-containing products, including Owens-Illinois, Inc. (Owens-Illinois), United States Mineral Products Company (U.S. Mineral), Eagle-Picher Industries, Inc. (Eagle-Picher), and the Celotex Corporation (Celotex). Celotex is the successor in interest to Philip Carey Manufacturing Company (Philip Carey), an asbestos product manufacturer.

The jury found that Mr. Kreppein's injury and death were caused by exposure to the defendants' products. It awarded actual damages of $731,557.79, holding appellant Celotex liable for 32.5% of the total. It allocated 5% of liability to Owens-Illinois, 15% to U.S. Mineral, and 27.5% to Eagle-Picher.

DISCUSSION

I. Product Nexus

Celotex argues that plaintiff's proof of causation was insufficient as a matter of law. Pointing to the requirement of "product nexus," Celotex contends that Kreppein failed to prove specifically that Celotex or Philip Carey products, as distinct from other asbestos-containing products, injured her husband.

In so arguing, Celotex urges us to adopt a strict requirement for proof of causation in asbestos cases. We have rejected defendant's argument at least three times before, first in Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), next in O'Brien v. National Gypsum Co., 944 F.2d 69 (2d Cir.1991), and most recently [*1426] in In re Joint Eastern & Southern District Asbestos Litig.; In re Brooklyn Navy Yard Asbestos Litig. (Brooklyn Navy Yard), 971 F.2d 831 (2d Cir.1992). Each time, we found proof of causation sufficient notwithstanding the lack of identification of the precise product that injured a given plaintiff. Brooklyn Navy Yard, at 836-37; O'Brien, 944 F.2d at 72-73; Johnson, 899 F.2d at 1285-87. See also Roehling v. National Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225, 1228 (4th Cir. 1986) ("We disagree with the district court that direct evidence is needed showing that [plaintiff] identified the asbestos products or that the witnesses knew, had contact with, or recognized [plaintiff] as being on the job site. Such burden is unreasonable."); Lyons v. DeVore, 39 N.Y.2d 971, 972, 354 N.E.2d 848, 848, 387 N.Y.S.2d 108, 108 (1976) (mem.) ("`precision' of proof cannot always be expected or required" in death cases).

In considering Celotex's assertion that the evidence was insufficient to support plaintiff's claim, "[w]e are `bound to view the evidence in the light most favorable to [the plaintiff] and to give [her] the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn.'" Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1042 (2d Cir.) (quoting Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962), cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976)). Viewed in that light, the testimony at trial amply supported the jury's finding that Mr. Kreppein was injured in part by exposure to Philip Carey asbestos products.

First, the testimony at trial supports a finding that Mr. Kreppein was exposed to asbestos dust from Philip Carey products at the Todd Shipyard. One asbestos worker, who worked in the shipyard at the same time as Mr. Kreppein, testified that he used Philip Carey asbestos products there, that dust from those products "would fly all around," and that the air remained dusty from the asbestos products while the laborers — such as Gustave Kreppein — cleaned up the mess. Two other Todd Shipyard pipeworkers from the same period corroborated that testimony.

Second, the record supports a finding that ornamental ironworkers such as Mr. Kreppein at the Tishman and Socony Vacuum Buildings were exposed to dust from the pipecovering and block used by the pipecoverers working in their vicinity, and that those products were manufactured by Philip Carey. Third, ample evidence was adduced to establish that Mr. Kreppein breathed asbestos fibers from Philip Carey products at the 14th Street Powerhouse. Mr. Kreppein ripped out boilers at the powerhouse in 1967 and in the early 1970's. The job created much dust from the insulation on the boilers and pipes. Uncontroverted evidence established that Philip Carey asbestos products insulated the steam piping at the powerhouse. In sum, we find Kreppein's proof sufficient to support the jury's finding that her husband's asbestosis and mesothelioma were caused in part by exposure to Philip Carey asbestos products.

II. Apportionment of Liability

Celotex argues that even if the evidence sufficed to support some liability on Celotex's part, it did not suffice to support liability for 32.5% of the verdict. Central to Celotex's argument is its assumption that allocation of liability cannot take into account the relative blameworthiness of the parties. We find this assumption to be without merit. While an important part of the jury's task is to consider the degree to which each party's conduct contributed to causing the plaintiff's injury, see, e.g., Arbegast v. Board of Educ., 65 N.Y.2d 161, 168, 480 N.E.2d 365, 370, 490 N.Y.S.2d 751, 756 (1985) (referring to the

process as "comparative causation"), the statute states clearly that the "equitable shares" a jury apportions "shall be determined in accordance with the relative culpability of each person liable for contribution." N.Y.C.P.L.R. § 1402 (McKinney 1976). This suggests that liability should be apportioned according to relative degrees of fault for the injury, which may include not [*1427] only the strength of the causal link but also the magnitude of the fault. See Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253, 258, 447 N.E.2d 717, 719, 460 N.Y.S.2d 774, 777 (1983) ("Principles allowing apportionment among tort-feasors reflect the important policy that responsibility for damages to an injured person should be borne by those parties responsible for the injury, in proportion to their respective degrees of fault.") Given the substantial evidence of Mr. Kreppein's exposure to Philip Carey asbestos products, and the ample evidence of Celotex's blameworthiness, we see no reason to disturb the jury's allocation of 32.5% responsibility to Celotex. See Dufur v. Lavin, 101 A.D.2d 319, 327, 476 N.Y.S.2d 389, 395 (1984) (Percentage allocation of liability is generally a matter for the jury.), aff'd, 65 N.Y.2d 830, 482 N.E.2d 919, 493 N.Y.S.2d 123 (1985).

We find meritless Celotex's argument that it cannot be held liable, as a matter of law, because given the state of the art, Celotex could not have known that bystander exposure could result in adverse health effects. The record amply supports a finding that Celotex knew the dangers of asbestos to workers like Gustave Kreppein. We note that in Johnson, 899 F.2d at 1288, we held that the evidence of Celotex's knowledge of the hazards of asbestos supported not only a finding of liability, but also punitive damages.

III. Amended Pleading

Kreppein's complaint, as originally filed, asserted a claim for wrongful death damages. When defense counsel moved to preclude any testimony relating to pain and suffering, on the ground that wrongful death damages are limited to pecuniary losses, the district court allowed Kreppein to amend the complaint to assert a claim for survival action damages.[1] Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading "shall be freely given when justice so requires." Rule 15 further provides:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits.

Fed.R.Civ.P. 15(b). The defendants were on notice of the underlying facts relied upon by plaintiff, and had full discovery of Mr. Kreppein before his death; they were not prejudiced by the addition of a claim for damages for pain and suffering. Judge Nickerson was well within his discretion in allowing the amendment. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

Accordingly, the judgment of the district court is affirmed. Plaintiff's request for sanctions is denied. [*] The Honorable Pierre N. Leval, United States District Judge for the Southern District of New York, sitting by designation. [1] There is some dispute as to whether the district court allowed plaintiff to amend her complaint or simply construed her complaint to assert a cause of action for personal injury. The district court, in its memorandum and order dated May 21, 1990, stated that it "finds no merit in Celotex's objections to the court's reading the complaint as stating a claim for personal injury." Nevertheless, we view the district court's action as allowing an amendment. In response to the defense's motion to preclude testimony relating to pain and suffering, plaintiff's counsel stated to the district court, "I'll make a motion right now to amend the complaint to add the theory of damages of pain and suffering of the plaintiff." After hearing the defendants' objections, the court responded from the bench, "I'll allow you to amend the complaint," explaining to the defendants, "I don't see how you are prejudiced in any degree."

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites