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Eagle-Picher Industries Inc. v. Balbos8/29/1990
ther company's finished product. In fact, appellee does not claim that decedent Knuckles was exposed to levels of asbestos in excess of levels that were generally accepted as safe at the time.
Appellee maintains, however, that Owens-Illinois must be charged with knowledge of the danger of its product Kaylo based on the report received from the Saranac Laboratory concerning its product and the deposition testimony of Willis Hazard, Owens-Illinois' industrial hygienist. The report, however, as does other available medical literature, only documents hazards involved with heavy exposure to
the product's dust generated during the manufacturing and application process. In fact, Dr. Vorwald, in a letter accompanying the final report from the Saranac laboratory, recommends only that "control measures should be directed to reducing the amount of atmospheric dust, especially at those points of operation where dust is generated." Thus, after a long-term study of the products, there is no suggestion that exposure by a bystander such as Knuckles to the finished product would be hazardous.
As to Eagle-Picher specifically, appellee points us to the Aber document and an intra-office correspondence concerning the warning label Eagle-Picher voluntarily decided to place on its product in 1964. The Aber document is a typed sales contract report dated April 8, 1942, discussing a complaint received by the Texas Board of Health about a different Eagle-Picher product composed mainly of mineral wool. In his report, Aber, a salesman, mentioned that he had read an article on asbestos and told how a copy could be obtained. He stated "if you think mineral wool is dangerous you should read this." Appellee, however, presents no evidence as to what the article says or who besides Aber may have read it. Finally, appellee points us to inter-office correspondence which describes the warning Eagle-Picher proposed to place on its product. The letter, in pertinent part, states "This is large and clear enough type face to be completely legible, yet does not "shout CAUTION from the roof top." Eagle's warning label provided:
CAUTION: This product contains asbestos fibers. Inhalation of asbestos in excessive quantities over long periods of time may be harmful. If dust is created when this product is handled, avoid breathing the dust. If adequate ventilation is not possible, wear respirators approved by the U.S. Bureau of Mines for Pneumoconiosis producing dust.
Appellee does not argue, however, that the warning itself was defective or insufficient to accomplish effectively its goal of alerting users to the dangers of the product.
The present case can be distinguished from the cases above. In those cases, defendants were not just aware of potential hazards of long-term exposure to asbestos but rather there was direct evidence that they possessed substantial knowledge that the product at issue was dangerous and exhibited a gross indifference to that danger. Such "substantial knowledge" and "gross indifference" was demonstrated by conduct such as the withholding of relevant information from employees and the public (see Fischer, supra; Janssens, supra); knowledge that product had already caused disease in other employees (see Fischer, supra); availability of asbestos free products (see City of Greenville, supra); and rejection of the advice of experts, due to profit concerns, to place warning label on the product (Wammock, supra; Janssens, supra). There are no such instances of outrageous conduct in the case sub judice.
The appellee in the instant case was not involved in the application or manufacture of asbestos-containing products. Appellee has only demonstrated
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