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Eagle-Picher Industries Inc. v. Balbos8/29/1990
ecautions to protect himself. Thus, the failure to place warnings on the products was a cause-in-fact of the decedents' injuries.
We agree with appellees' reasoning and hold the evidence was sufficient to establish that the lack of a warning was a cause-in-fact of the injuries.
7.
The trial court erred in refusing to instruct the jury in respect to the defense of contributory negligence.
As we noted above, Eagle-Picher contends that there was no proof that the decedents were in a position to read and react to the warnings Eagle-Picher began to place on its products in 1964, and that the absence of a warning label earlier, therefore, was not a legal cause of appellees' claimed harm. Eagle-Picher argues, however, that if
the court believes there is sufficient evidence to support an inference that Knuckles may have been in a position to observe warnings had they been in place pre-1964, such would certainly be the case post-1964 and to the extent that Dr. Daum's testimony that "Every exposure contributes" is given any credibility whatsoever, the jury should have been allowed to find that [Knuckles's] post-1964 failure to see, read and heed Eagle-Picher's warning constituted contributory negligence.
Thus, Eagle-Picher argues, the court's refusal to give a contributory negligence instruction in the Knuckles case was error.
The flaw in this argument is that we do not believe Knuckles (or Balbos) was in a position to see warnings no matter when they were placed on Eagle-Picher's products. As we noted in our discussion of whether appellants' failure to place warnings on their products was a cause-in-fact of the decedents' injuries, Knuckles would not have learned of
the products' dangers from warnings on the packages. Rather, he would have learned of the dangers when he saw those who worked directly with the products don respirators and other protective equipment.
Thus, Knuckles could not have "fail to see, read and heed" the warnings Eagle-Picher placed on its products after 1964, as the company contends. The trial judge was correct in refusing to give the contributory negligence instruction.
8.
The trial court erred in refusing to instruct the jury that the focus of their analysis of allegedly culpable conduct should be confined to conduct at and before plaintiff's last mesothelioma-producing exposure to asbestos.
Appellant Eagle-Picher contends that " he trial court erred in refusing to instruct the jury that the focus of their analysis of allegedly culpable conduct should be confined to conduct at and before Plaintiff[s'] last mesothelioma-producing exposure to asbestos." According to Eagle-Picher, the court also erred in failing to instruct the jury that it was to evaluate defendants' duty, if any, to warn "bystanders," such as Balbos and Knuckles, rather than workers who actually "used" the products.
With regard to the duty to warn, Eagle-Picher requested that the court instruct the jury as follows:
To show breach of duty to warn plaintiffs must show such defendant, one, knew or had reason to know that it caused or was likely to subject bystanders such as Knuckles and Balbos to a risk of mesothelioma; two, defendant had no reason to believe that those who were exposed to the products would realize its dangerous conditions; and, three, the defendant failed to exercise reasonable
care to inform those exposed to the product of the dangerous condition of the product or the facts which made it likely to be dangerous.
In determining whether any defendant breached a duty to warn you must consider w
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