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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
tors Approved By The U.S. Bureau Of Mines For Pneumoconiosis Producing Dust."
On the other hand, the labels on the Kaylo packages recommended safe handling practices, an indication that OCF believed Kaylo could be safely handled. Such a belief would have been consistent at the time with the state of the art knowledge, as discussed, (supra) , and in Godwin, that asbestos was only dangerous when its threshold limit value was exceeded due to poor handling practices and inadequate ventilation. In fact, at the time OCF began to label its Kaylo packages in December of 1966, the federal government had neither adopted safety standards nor promulgated any labeling regulations for asbestos products. It was not until 1972, six years later, that an Occupational Safety and Health Act (OSHA) regulation required a cautionary label on asbestos products ; by that time, OCF was six months away from producing asbestos-free Kaylo. OCF also argues that its actions in labeling its cartons years before the government required such labels demonstrated its commitment to protecting the workers who used Kaylo, and therefore negates as a matter of law any charge of bad faith in marketing Kaylo.
The testimony and exhibits in the case showed that OCF embarked on an extensive research project in the mid-1960's to discover a replacement for asbestos in Kaylo which would serve the same reinforcement and bonding purposes, a project which plaintiffs claim may have indicated OCF's awareness that any asbestos at all was soon to be no longer an acceptable health risk to workers. The evidence of a search for a replacement bonding agent could appear inconsistent with OCF's claim that it "believed or hoped" asbestos Kaylo was not dangerous.
The search for a replacement bonding agent for asbestos, however, while conceivably inconsistent with a claim that asbestos in Kaylo was not dangerous, is also inconsistent with the plaintiffs' claim that OCF was proceeding to manufacture and market Kaylo in deliberate disregard of safety concerns. The minutes, memoranda, and reports contained in the record which detail the search for an effective asbestos-free Kaylo design refer repeatedly to the "potential" health hazard presented by asbestos in Kaylo and the "urgency motive" to find a replacement. This evidence clearly demonstrates, according to OCF, that the company was concerned about its consumers and actively invested money and sought solutions to the possible health hazards of Kaylo.
3. Other Evidence of Bad Faith
Plaintiffs/appellees seek to strengthen their argument that OCF acted in bad faith by introducing at trial documents and testimony detailing OCF's fiscal, marketing and public relations concerns over asbestos Kaylo. For example, plaintiffs cite the trial testimony of Jerry Helser, the quality control supervisor at the Kaylo plant, concerning the excessive costs of spraying asbestos with a sealant which would significantly reduce dust:
"Q. Mr. Helser, let me show you a statement by Mr. Gould, the attorney that you met with . . . and ask you to read along with me. I'm going to ask you if this refreshes your recollection. It says Jerry does recall that there were experiments run to reduce surface dust on Kaylo. He recalls that they were very successful when Kaylo was sprayed with sodium silicate. However, it is also Jerry's recollection that this type of Kaylo product was not marketed because of the cost involved in spraying the product. Do you see that, sir?
A. Yes, sir.
Q. Is that your recollection, that the sodium silicate was not used because of the cost involved in spraying the product?
A. Cost because we couldn't spray it properly
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