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Eagle-Picher Industries Inc. v. Balbos8/29/1990
Eagle-Picher argues that the evidence that its products caused the harm was insufficient in both the Balbos case
and the Knuckles case. We disagree. As to Balbos, appellees produced witnesses who testified that Eagle-Picher cement was used at the Fairfield Shipyards between 1942 and 1945. As to Knuckles, one of appellees' witnesses testified that Eagle-Picher cement was one of the cements used at Key Highway from 1953 to 1960; another said a particular Eagle-Picher cement was used there for 25 to 30 years; and a third said a type of asbestos covering called "Hylo," manufactured by Owings-Corning Fiberglass and distributed by Eagle-Picher in that company's packaging, was present in the storeroom at Key Highway from 1964 to 1970 and from 1972 to 1982.
Like Porter Hayden, Eagle-Picher argues that even if the evidence was sufficient to place Eagle-Picher products at Fairfield and Key Highway when the decedents worked there, appellees failed to establish that either of the decedents, who did not work directly with asbestos products, actually came into contact with Eagle-Picher's products. Again we point to the expert testimony that asbestos dust can drift "for miles." Because of this evidence, appellees were not required to prove that the decedents actually handled Eagle-Picher's asbestos products.
Eagle-Picher's final argument on this issue is that, even if the decedents did come into contact with some of its products, such contact was not a proximate cause of the decedent's mesothelioma. It bases this argument on the testimony of Dr. Peter Rasmussen, who said that the decedents' diseases were, more likely than not, caused by exposure to amphibole asbestos, rather than to chrysotile asbestos. It argues that because " he principal Eagle-Picher product at issue here contained only chrysotile asbestos," none of the company's products could have been the proximate cause of the decedents' mesothelioma.
Even assuming, arguendo, that none of the Eagle-Picher products at issue contained amphibole asbestos, its argument still fails. Dr. Rasmussen stated earlier in his testimony that the literature indicates that all kinds of asbestos,
including chrysotile asbestos, "are capable of causing malignant mesothelioma." Dr. William Nicholson said the same thing during his testimony. A third doctor testified that all of Knuckles's exposures to asbestos were "significant contributing causal factor to the mesothelioma." Thus, it was reasonable for the jury to infer that Eagle-Picher's asbestos-containing products -- even if they did contain only chrysotile asbestos -- were a proximate cause of the decedents' mesothelioma.
5.
The trial court erred in refusing to instruct the jury in respect to the definition of "substantial factor" in the context of asbestos-related diseases.
Celotex assigns as error the trial judge's failure to give the following instruction:
The products of a particular defendant may be considered a cause of an injury only if the exposure was a substantial factor in causing injury.
The word substantial used in this context means that the products must have had such effect in producing harm as to lead a reasonable man to believe exposure to the products by themselves was a direct cause of the injury. Plaintiffs must prove by a preponderance of the evidence that inhaled respirable asbestos fibers from asbestos products of a particular defendant was a substantial cause of the mesothelioma. In order to prove this plaintiffs must show that each of them worked in proximity to any of the defendants' asbestos-containing products with enough frequency and regularity so that the inhaled fi
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