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Dircksen v. Owens-Corning Fiberglass Corp.6/11/1999
TO BE PUBLISHED
Commonwealth Of Kentucky Court Of Appeals
OPINION AFFIRMING
Francis Dircksen and Ann Dircksen filed a products liability action against several defendants, including Owens-Corning Fiberglass Corporation, seeking compensatory and punitive damages. In their complaint, the Dircksens alleged that Francis sustained personal injuries as a result of occupational exposure to asbestos-containing products manufactured by the several defendants. Francis was employed as a sheet-metal worker at Griffin & Company from the late 1940s until his retirement in 1987. Because Francis Dircksen died before the case went to trial, Ann Dircksen revived the action and amended her complaint to include a wrongful death claim. Of the parties originally named in the complaint, only Owens-Corning defended its product at trial; the remaining defendants either settled with Dircksen or were dismissed because of Dircksen's inability to prove exposure to their products.
On December 12, 1997, the jury returned a verdict in favor of Owens-Corning, finding that the asbestos-containing products manufactured by Owens-Corning, to which Francis Dircksen was exposed, were not in a defective condition or unreasonably dangerous. Dircksen appeals from the judgment and the circuit court's order denying her motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial on the grounds that the trial court impermissibly allowed the introduction of Occupational Safety and Health Administration regulations into evidence and refused to instruct the jury regarding the non-delegable nature of the duty to warn in a products liability case.
Dircksen first asserts that the trial court abused its discretion in allowing Owens-Corning to introduce into evidence an OSHA regulation, codified at 29 Code of Federal Regulations (C.F.R.) ยง 1910.93 (1972), and in allowing Owens-Corning to examine witnesses regarding its compliance with the regulation.
The bedrock of Dircksen's claim - that the asbestos-containing product manufactured and distributed by Owens-Corning, called Kaylo, was defective - is that the company failed to warn or inadequately warned of the product's dangers. In his opening statement, Owens-Corning's counsel made several references to warning labels on Kaylo. He stated that in 1972 OSHA adopted a regulation directing that certain things be done in the distribution of asbestos. Counsel then stated that Owens-Corning was one of the first manufacturers of asbestos products to place a warning on such products, having done so in 1966, and, indeed, that the revised label Owens-Corning placed on its products in 1970 was "state of the art." Dircksen failed to object to these statements. Thereafter, counsel stated that 1972 was the first time any governmental directive was issued concerning warning labels on asbestos products. At this point Dircksen objected, arguing that OSHA's directive was irrelevant to the issue of Owens-Corning's inadequate warning. Owens-Corning responded that the date was relevant for establishing whether Owens-Corning's label was state of the art. Although it is difficult to hear every word uttered during the bench conference from the videotaped record, we can discern that the trial court sustained the objection on the basis that the OSHA directive does not set the standard for Owens-Corning's duty to warn. The court did, however, allow Owens-Corning to mention the date of the issuance of the OSHA directive. Dircksen argues that admitting into evidence the date of the promulgation of the OSHA regulation was an attempt by Owens-Corning to impose the duty to warn on the federal government. On appeal, the standard of review fo
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