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Eagle-Picher Industries Inc. v. Balbos8/29/1990
oducts were the proximate cause of Knuckles's mesothelioma.
The first step in Porter Hayden's argument is, essentially, that appellees failed to produce sufficient evidence that Porter Hayden's products were even used at Key Highway. We disagree. Charles Holterman worked for Porter Hayden, originally called H. W. Porter, from 1947 to 1987 as a contract estimator, a branch manager, and an executive vice president. He testified that H. W. Porter was formed by four former employees of Johns-Manville. He also stated that H. W. Porter generally bought the asbestos products it installed from Johns-Manville and that Porter was "almost" an exclusive distributor for Johns-Manville. Appellees contend that Holterman's comments are proof that Johns-Manville products at Key Highway were placed there by Porter Hayden.
Porter Hayden, however, argues that Holterman's remarks did not mean that Johns-Manville sold almost all of its asbestos through Porter Hayden. Rather, appellant argues, Holterman meant that Porter Hayden sold almost nothing but Johns-Manville products, but that Johns-Manville sold undetermined amounts of its products to companies other than Porter Hayden. Thus, Johns-Manville products found at Key Highway might have been placed there by some other contractor. We agree with Porter Hayden's construction of Holterman's testimony.
Shortly before he made the "exclusive distributor" remark, Holterman said, "Also, Johns-Manville sold material directly to larger concerns and we have learned, as years have gone by, that they sold to other contractors when we thought we were kind of exclusive distributors." In addition, it is clear from the following colloquy surrounding Holterman's "exclusive distributor" comment that Porter Hayden's interpretation was accurate:
[Attorney for plaintiffs]: Let me make it very specific, from 1947 up until 1970, did you, did Porter offer any
asbestos containing insulation products in its material sales business, other than those which were manufactured by Johns-Manville?
A: Yes.
A. We normally stocked Johns-Manville material, but if a customer specifically asked for the materials of some other manufacturers, we would provide it, and, so to that degree we did not sell Johns-Manville material exclusively.
Q. So, insofar as sales were concerned you would say that you were almost an exclusive distributor for Johns-Manville products?
A. I think that's fair to say.
As Porter Hayden acknowledges in its brief, however, an asbestos insulator named Santo John Conigliaro testified that Porter Hayden did contracting work at Key Highway at times between 1964 and 1968. From Conigliaro's testimony that Porter Hayden contractors were at the site, and Holterman's testimony that most of what Porter Hayden used were Johns-Manville products, a reasonable jury could have inferred that any Johns-Manville products identified at Key Highway were Porter Hayden products.
Appellees then had only to identify Johns-Manville products at Key Highway for the identification chain to be complete. Appellees succeeded in offering such evidence. Elmer Sakowski, for example, testified that he worked with Sutton Knuckles on a number of ships in the 1970s. According to Sakowski, he worked around Johns-Manville products and Knuckles was around him most of the time when he saw them. Another witness, George Robert Edwards, worked in the Key Highway facility's warehouse from 1951 to 1982. He testified that Johns-Manville asbestos products were kept in the warehouse.
The second step of Porter Hayden's argument is that, even assuming that Porter Hayden products were used
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