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Owens Corning Fiberglass Corp. v. Cobb9/10/2001
ON PETITION TO TRANSFER
A jury awarded plaintiff Kenneth Cobb damages, finding that asbestos manufactured by Owens Corning caused him serious illness. We find that there was sufficient evidence of exposure to Owens Corning's asbestos to permit Cobb to present his case to the jury. But we reverse the jury award because the trial court incorrectly prohibited Owens Corning from presenting evidence that at least one other "nonparty" manufacturer may also have been at fault.
Background
Kenneth Cobb worked as a pipe fitter from 1955 until he had to retire in 1995 because he was diagnosed with lung cancer. Prior to developing lung cancer, Cobb was diagnosed with asbestosis in October 1989.
Cobb specialized in working on refrigeration, air conditioning and heating systems, and pneumatic control systems. For 40 years, Cobb's work required that he remove and replace asbestos insulation and wallboard, walk on asbestos blankets, disrupt asbestos-containing insulation as he worked on various systems, and cut and fit asbestos tubing, pipe, and sheets.
On July 24, 1996, Cobb filed a complaint against 33 manufacturers or distributors of asbestos, including Owens Corning Fiberglas Corporation ("Owens Corning"). Cobb claimed that the defendants:
produced, sold and otherwise put into, or caused to be put into, the stream of interstate commerce, asbestos and asbestos-containing materials which Defendants ... knew, or in the exercise of ordinary care should have known were deleterious, poisonous and highly harmful to [Cobb's] body, lungs, respiratory system, skin and health. [Cobb] was exposed to and inhaled, ingested or otherwise absorbed great amounts of asbestos fibers causing him to develop the asbestos disease, asbestosis, and lung cancer.
Cobb sought both compensatory and punitive damages under "product liability theories of negligence, strict liability and breach of warranty." In July 1996, Cobb also sought and was granted an expedited jury trial because his lung cancer had metastasized to his brain and he did not have a long life expectancy.
Owens Corning filed its answer on August 19, 1996. Among the 34 affirmative defenses Owens Corning asserted, it reserved the right to object to any settlement and subsequent dismissal of any defendant. Owens Corning also asserted a reserved right to amend its answer to "specifically delineate those defendants as settling non-party defendants, to request that the court add those defendants to any verdict form submitted to the jury, and to claim credit for any amounts received by the plaintiff from those defendants."
On September 26, 1997, Cobb filed a motion for partial summary judgment against Owens Corning as to its affirmative defenses, asserting that Owens Corning had not presented sufficient evidence to support them. On November 4, 1997, the trial court granted Cobb's motion for partial summary judgment with respect to all of the affirmative defenses set out in Owens Corning's original answer except for the defense of contributory fault.
Also on September 26, 1997, Owens Corning filed a motion for summary judgment based upon lack of product identification, arguing that, in his deposition, Cobb had failed "to provide any evidence proving that he was exposed to asbestos-containing products manufactured or distributed" by Owens Corning. On October 28, 1997, the trial court denied without comment Owens Corning's motion for summary judgment based upon lack of product identification. The trial court's ruling against Owens Corning on this motion is one of the two issues in this appeal.
On October 15, 1997, Owens Corning also filed a motion for
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