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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
famous 1964 study linking asbestos and cancer, (supra) , n.2. Dr. Selikoff himself, possibly the leading medical authority on the hazards of exposure to asbestos, expressed his view at this meeting that improved working conditions and reduced dust could reduce the health hazards of asbestos. According to the staff person at OCF who attended the meeting, J.L. Konsen, M.D., Dr. Selikoff "proposed an ambitious program of research to develop practical engineering methods to lower the atmospheric dust level on construction jobs with primary emphasis on the insulation workers." Several months earlier, in a speech to the International Association of Heat and Frost Insulators and Asbestos Workers at its annual convention, Dr. Selikoff discussed at length the methods by which asbestos workers and insulators could protect themselves from asbestosis:
"Well, this is a hazard you people face, and a hazard I hope we are going to be able to clear up. There is no reason under the sun that this can't be cleared up, none, because it depends upon how much dust, in large part, -- there are individual reactions, not everybody reacts to the dust the same way; there are individual idiosyncracies, but, basically, it is due to how much dust you fellows breathe in. And if we can't make the trade safer, we are crazy. If we can't keep dust out of the air, we don't deserve to call ourselves the proud United States of America."
The plaintiffs/appellees in the instant case contend that the very same documents in the record relied upon by OCF to show lack of knowledge clearly indicate OCF's full knowledge of the available state of the art research concerning asbestos and asbestos products and their potentially harmful effects. Dr. Selikoff's study was published and OCF was aware of it three years before Mr. Scruggs began work with Kaylo. The record also reflects that OCF officials were aware of and intensely interested in other research on the carcinogenicity of asbestos being conducted at Fairleigh Dickinson University in New Jersey, in Africa, and around the world, before Mr. Scruggs' employ. In addition, for at least two decades before 1968, senior officials at OCF knew of the voluminous medical evidence concerning asbestosis, a severe and deadly lung disease caused by inhalation of asbestos fibers. It seems incontrovertible that key executive and medical personnel at OCF had read or been apprised of numerous studies showing that asbestos trade workers had an elevated risk of mesothelioma, among other diseases.
2. Conflicting Interpretations of OCF's Cautionary Labels on Kaylo and OCF's Search for An Asbestos-Free Kaylo
We are also presented with reasonable but conflicting interpretations of other OCF actions preceding and during Mr. Scruggs' exposure. For example, OCF's knowledge of some level of hazard could be inferred from its decision to label all Kaylo packages advising users of potential hazards and advising safe handling precautions. The record, consisting of internal memoranda, orders to and invoices from packaging companies, and photographs of the Kaylo boxes, reflects that after December 1966 boxes of Kaylo were marked:
"THIS PRODUCT CONTAINS ASBESTOS FIBER -- If Dust Is Created When This Product Is Handled, Avoid Breathing The Dust -- If Adequate Ventilation Control Is Not Possible, Wear Respirator Approved By U.S. Bureau Of Mines."
The label was changed in 1970 to be more specific regarding the harm possibly caused by breathing Kaylo dust:
"CAUTION -- PRODUCT CONTAINS ASBESTOS FIBER -- Inhalation Of Dust In Excessive Quantities Over Long Periods Of Time May Be Harmful. Avoid Breathing Dust. If Adequate Ventilation Is Not Possible, Wear Respira
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