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Owens-Corning Fiberglas Corp. v. Garrett8/28/1996
requires 12 years or more of exposure to cause objective symptoms. The threshold limit value set by the A.C.G.I.H. is 5 million particles per cubic foot. However, Dr. Selikoff has stated that only one fiber in the body can cause cancer...
Asbestos bodies sometimes develop into mesotheliomas, a tumor with considerable carcinogenic potential.
Because of asbestosis (if for no other reason), asbestos fibers should be removed from the atmosphere by adequate ventilation. If ventilation is impossible, suitable respirators should be worn by workmen. At this point, I believe there is reason to question the A.C.G.I.H. threshold limit....
It is impossible to guess the amount of dust created by the cutting, sawing, etc. of Kaylo....
This same evidence is relevant to and tends to prove OCF's bad faith in marketing Kaylo. Having assembled extensive evidence concerning the dangers of asbestos for the purpose of acquiring, and maintaining, a competitive edge and, thus, being acutely aware of its defects, OCF nevertheless marketed a product containing asbestos, touting it as safe. This marketing continued even in the face of evidence that even small amounts of asbestos were dangerous, i.e., Dr. Selikoff's conclusion that only one fiber in the body could cause cancer, OCF's questioning of the accuracy of the threshold limit value relative to asbestos dust, and despite its knowledge of the "impossibility of guessing the amount of dust created by the cutting, sawing, etc. of Kaylo." Notwithstanding that it now contained asbestos, after 1956, OCF marketed its product as having "pleasant handling characteristics" and being "non-toxic."
The evidence before the jury also disclosed that OCF, having developed a non-asbestos containing material for use in Kaylo, declined to use it upon determining that the profit margin it produced was insufficient. Similarly, the jury was informed of OCF's profit- motivated decision not to treat Kaylo with a spray that reduced the amount of dust its handling generated. Furthermore, appellee Scruggs presented evidence concerning OCF's attitude toward replacing the asbestos content of Kaylo. That attitude is exemplified in an internal memorandum:
D. W. Ladd pointed out we have a ten million dollar Kaylo operation. He wants "us" as a team to be in the position to tell management what fibers we can use to reinforce Kaylo if and when the day arrives when the whole industry is "forced" to remove asbestos from their products. He doesn't want OCF to wait until "D" day to start looking for substitute fibers.
I told Dale we are conducting a "low gear" program in finding substitutes for asbestos. Most of our efforts are being directed toward stress corrosion.
It was also pointed out by Mr. Ladd that if and when "D" day for the removal of asbestos arrives, we won't be alone. The whole industry would be in the same boat with us. The industry may be forced, at that point, to accept a and softer product as a price they must pay for the removal of asbestos.
It is clear to me that, contrary to the majority's conclusion, the foregoing evidence, and that detailed in the majority opinion as supportive of appellee Scruggs's entitlement to compensatory damages, could have, as it did, convinced the jury by clear and convincing evidence that the appellee Scruggs was entitled to punitive damages. As such, it was more than enough to permit the jury to return the verdict that it did. To be sure, there was evidence, which had the jury believed it, would have supported a defendant's verdict; however, that evidence, as the majority recognized when evaluating its sufficiency with regard to the compensatory aspect of t
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