Raney v. Owens-Illinois, Inc. (1990)

Our plain-English summary of Raney v. Owens-Illinois, Inc. (U.S. Court of Appeals, Second Circuit, February 26, 1990).

Edna Raney sued Owens-Illinois, Celotex and Raymark, individually and as executrix of her husband William Raney, Sr.'s estate. He worked as an asbestos installer from the mid-1940s until at least 1955, applying insulating materials to boilers and steam lines on ships and in generating plants and other structures. He developed asbestosis and mesothelioma and died in 1976 at age 68. The suit was brought in 1987 under a New York statute that revived claims previously barred by the statute of limitations. She claimed the products were defective because they carried no warnings. A jury returned a verdict, and the district court entered a judgment of about $450,000 for her. The companies appealed, arguing she had to offer evidence that Raney would have heeded warnings and avoided exposure. The Second Circuit affirmed. It said New York does not use a formal presumption, but a jury may infer from the facts that a warning would have been heeded. Raney was not shown to know of the hazards, and they were not obvious. His continued smoking was only a factor for the jury. The court also upheld sending a Social Security record to the jury with a cautionary instruction.

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: February 26, 1990
• Citation: 897 F.2d 94
• Docket: No. 384, Docket 88-9099
• Stage: Appeal from judgment after trial
• State: New York

Outcome. The Second Circuit affirmed the district court's judgment of about $450,000 for the widow, Edna Raney, against Owens-Illinois, Celotex and Raymark, holding the evidence let the jury find the missing asbestos warnings were a proximate cause of her husband's death.

What the court held. Under New York law, a jury may infer from the facts and circumstances that a reasonably required warning would have been heeded, so the plaintiff did not need direct evidence that the worker would have changed his conduct. This inference is not a formal presumption.

Issues decided: Causation, Failure to Warn, Trial Procedure and Discovery.

The people and their exposure

• William Raney, Sr.: asbestosis, mesothelioma; died

The defendants

• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• The Celotex Corporation (manufacturer) · its asbestos trust
• Raymark Industries, Inc. (manufacturer)

Later decisions citing this one

5 later decisions in our library cite this one:

• Coffman v. Keene Corp. (New Jersey Supreme Court, 1993). The New Jersey Supreme Court affirmed the Appellate Division, which had upheld the jury verdict for plaintiff George Coffman against Keene Corporation, holding that the jury was properly told to presume a warning would have been heeded.
• Eagle-Picher Industries, Inc. v. Balbos (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory judgments for the Balbos and Knuckles plaintiffs against Eagle-Picher and the other defendants, except that it reversed the Knuckles judgment against Porter Hayden for lack of proof, and it ordered a new trial on punitive damages against Owens-Illinois and Eagle-Picher.
• Owens-Illinois, Inc. v. Armstrong (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory verdicts for workers Armstrong and Wood against Owens-Illinois, but reversed the punitive damages awards and remanded for new trials limited to punitive damages.
• Budd v. Kaiser Gypsum Company, Inc. (Washington Court of Appeals, 1st Division, 2022). The Court of Appeals affirmed the jury's $13,426,000 verdict for Raymond Budd against Kaiser Gypsum Company, rejecting all of Kaiser's challenges.
• Anchor Packing Co. v. Grimshaw (Maryland Court of Special Appeals, 1997). The appeals court held that the statutory cap on noneconomic damages applies to the wrongful death awards in Zumas and McCaffery, but not to the personal injury and consortium awards. It ordered Grimshaw's medical-expense award cut to the stipulated amount and reversed the judgment against Hopeman Brothers. It otherwise affirmed the judgments for the plaintiffs against Anchor and Owens-Corning.

Amounts in the opinion

• approximately $450,000 (total)

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.

897 F.2d 94 (1990)

Edna RANEY, Individually and as Executrix of the Estate of William Raney, Sr., Deceased, Plaintiff-Appellee,

v.

OWENS-ILLINOIS, INC., The Celotex Corporation, and Raymark Industries, Inc., Defendants-

Appellants,

The Anchor Packing Company, etal., Defendants.

No. 384, Docket 88-9099.

Argued December 8, 1989.

Decided February 26, 1990.

United States Court of Appeals, Second Circuit.

Andrew T. Berry, Newark, N.J. (McCarter & English, Newark, N.Y., on the brief), for defendants-appellants. John A. Collins, Buffalo, N.Y. (Richard P. Weisbeck, Jr., Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N.Y., on the brief), for plaintiff-appellee.

Before KAUFMAN, NEWMAN and WINTER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

The issue in this diversity case involving the death of an asbestos worker is whether the evidence sufficed to permit the jury to conclude that the absence of warnings concerning the hazards of asbestos was a proximate cause of the decedent's injuries and death. Owens-Illinois, Inc., The Celotex Corporation, and Raymark Industries, Inc. appeal from the October 24, 1988, [*95] judgment of the District Court for the Eastern District of New York (Raymond J. Dearie, Judge), awarding the worker's widow, individually and as executrix, approximately $450,000. We affirm.

William Raney, Sr., the decedent, was employed as an asbestos installer from the mid-1940's until at least 1955. During the period prior to 1956, to which the trial evidence was limited by agreement, he applied insulating materials containing asbestos to boilers and steam lines aboard ships and in generating plants and other structures. The appellants manufactured the asbestos in the insulating materials used by Raney. Raney developed asbestosis (scarring of the lung tissue due to asbestos inhalation) and mesothelioma (asbestos-induced cancer of the lining of the lung). As a result of these diseases, he died in 1976 at age 68.

Suit was brought in 1987 by virtue of a New York statute reviving certain claims, previously barred by the statute of limitations, based on exposure to various substances including asbestos. See 1986 N.Y. Laws ch. 682, § 4, reprinted at N.Y.Civ. Prac.L. & R. 214-c, note (McKinney 1989) (Revival of Actions). Plaintiff sought to recover on a theory of strict product liability, alleging failure to warn as a product defect. The evidence permitted the jury to find that Raney had been exposed to asbestos products manufactured by the defendants, that exposure to these products caused his diseases and death, that the hazards of these products were known to the defendants at the time of manufacture, that the products were unreasonably dangerous in the absence of warnings, and that the products were not accompanied by warnings. The issue primarily disputed on appeal is whether the evidence sufficed to permit the jury to find that the failure to warn was a proximate cause of Raney's injuries. Appellants contend that plaintiff was required under New York law to present some evidence from which a jury could reasonably find that Raney would have heeded warnings and altered his conduct so as to avoid exposure to asbestos. They further contend that no such evidence was presented and that the only evidence on the issue of heeding warnings was their evidence that Raney had continued smoking cigarettes despite the appearance of warnings of the health hazards of smoking. Appellee contends that New York recognizes a "heeding presumption," which permits a jury to infer, whenever the facts show that a warning is required, that a warning would have been heeded. Appellee somewhat misstates the matter by asserting that New York recognizes a "heeding presumption," but she is correct in contending that in some circumstances, New York permits the trier to infer that a warning would have been heeded and

thereby to conclude that the absence of a warning that was reasonably required to be given was a proximate cause of an injury. Appellee cites no New York decision that refers to a "presumption" of heeding. That term is better reserved to describe circumstances under which an ultimate fact must be inferred from one or more subsidiary facts in the absence of countervailing evidence tending to show that the inference of the ultimate fact ought not to be drawn. Appellee does not claim entitlement to a "presumption" in this sense of the term. She makes no claim that the court should have instructed the jury to rule in her favor on the issue of whether a warning would have been heeded. Instead, she urges that she was entitled to have her case reach the jury and that it was for the jury to decide whether to draw the inference that a warning would have been heeded. In the circumstances of this case, that more limited contention is correct.

New York, in company with most jurisdictions, imposes on a plaintiff the burden to prove that a defendant's negligence was a proximate cause of his injury, and this burden applies in a strict product liability case to oblige the plaintiff to prove that a manufacturer's failure to provide a reasonably required warning was a proximate cause of his injury. See Belling v. Haugh's Pools, Ltd., 126 A.D.2d 958, 959, 511 N.Y.S.2d 732, 733 (4th Dep't), leave to appeal denied, 70 N.Y.2d 602, 518 N.Y. S.2d 1024, 512 N.E.2d 550 (1987); Samuels [*96] v. American Cyanamid Co., 130 Misc.2d 175, 185-86, 495 N.Y.S.2d 1006, 1014 (Sup. Ct.1985); see also Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87, 92 (2d Cir. 1980) (applying New York law). New York recognizes, however, that causation may sometimes be inferred from the facts and circumstances that the plaintiff has presented and has applied this principle in the context of determining whether a failure to warn was the proximate cause of an accident, i.e., whether a warning would have been heeded. See, e.g., Wood v. State, 112 A.D.2d 612, 615, 492 N.Y.S.2d 481, 484 (3d Dep't 1985); Koester v. State, 90 A.D.2d 357, 361-62, 457 N.Y.S.2d 655, 658-59 (4th Dep't 1982); Rugg v. State, 284 A.D. 179, 131 N.Y.S.2d 2 (3d Dep't 1954); see also Tinnerholm v. Parke Davis & Co., 285 F.Supp. 432, 451 (S.D.N.Y.1968), aff'd as modified, 411 F.2d 48 (2d Cir.1969) (applying New York law). Accordingly, even though a plaintiff is not entitled to a presumption, a jury might be permitted to infer the necessary element of causation. Of course, in some circumstances it is not reasonable to draw an inference that a warning would have been heeded, see e.g., Elsroth v. Johnson & Johnson, 700 F.Supp. 151 (S.D.N.Y.1988) (absence of warning that Tylenol package was not tamper-proof immaterial as a matter of law because evidence indisputably showed that injury would have been sustained even if warning had been given). And the absence of a warning may not be a proximate cause if the facts show that the plaintiff had the same awareness of danger as the warning would have given, see Koester v. State, 90 A.D.2d at 362, 457 N.Y.S.2d at 659. Also to be distinguished are cases where a warning is not reasonably required because the danger is obvious, Belling v. Haugh's Pools, Ltd., supra (shallow depth of swimming pool); Smith v. Stark, 111 A.D.2d 913, 490 N.Y.S.2d 811 (2d Dep't 1985) (same), aff'd, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841 (1986); see Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976) (rejecting obviousness of the danger as a complete bar to negligence claims but retaining it with respect to strict product liability claims).

Ultimately, the issue is whether the facts and circumstances presented by the plaintiff in a particular case permit a jury reasonably to infer that a warning, reasonably required, would have been heeded. In this case, it was reasonable to infer that Raney would have heeded a manufacturer's warning. There was no evidence that Raney was aware of asbestos hazards, and they were not obvious. Though everyone might not agree that an asbestos worker would have sought other employment had he been warned of asbestos hazards, a prediction as to what a worker, alerted to the hazards, would have done is generally within the range of reasonable dispute that makes matters appropriate for submission to a jury. Evidence that Raney, who had begun smoking and perhaps had become addicted years before cigarette health warnings appeared, did not stop smoking after such warning, even if admissibility is assumed, is, at most, a circumstance for the trier to consider in deciding whether an asbestos warning would have been heeded. Such evidence does not preclude a finding in plaintiff's favor. As Judge Dearie noted, a jury could reasonably conclude that Raney would have adjusted his conduct more significantly to asbestos warnings than to cigarette warnings or that his union would have precipitated action to protect his welfare.

Appellants also complain that the jury was permitted to examine during deliberations a social security printout of Raney's employment record that reflected his employment with a distributor of one of the appellants during two years beyond the time period the parties had agreed was relevant to his exposure and injuries. Although it might have been preferable to excise the irrelevant portion of the printout, the trial judge's cautionary instruction to disregard that portion sufficed to warrant submission of the entire exhibit to the jury.

The judgment of the District Court is affirmed.

Sources

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