Appeal from Superior Court of King County. Docket No: 92-2-24009-2. Date filed: 03/24/95. Judge signing: Hon. Michael S. Spearman.
Petition for Review Denied July 8, 1997,
Authored by William W. Baker. Concurring: Susan R. Agid, Mary K. Becker.
The opinion of the court was delivered by: Baker
BAKER, C.J. - Audrey Palmer, individually and as the personal representative of the estate of Jack Palmer, (Palmer) successfully sued Owens-Illinois, Inc. (Owens) for Jack Palmer's death from mesothelioma caused by exposure to asbestos from Owens' Kaylo insulation while he was working at the Hanford Nuclear Reservation in 1951. *fn1 On appeal, Owens argues that Palmer presented insufficient product identification and post-sale duty-to-warn evidence to sustain the jury verdict. Owens also argues that the jury's finding that Owens-Corning Fiberglas' (OCF) Kaylo insulation was reasonably safe as to warnings at the time of manufacture in 1958 (no strict liability) was inconsistent with its finding that Owens negligently failed to warn Jack Palmer in 1951. Finally, Owens argues that the trial court abused its discretion in excluding deposition testimony rebutting Palmer's product identification case and in consolidating Palmer's case with an unrelated asbestos case. *fn2 We hold that Palmer presented sufficient product identification evidence for the jury to reasonably infer that Owens' product was present during Jack Palmer's exposure in 1951. We also hold that Palmer presented sufficient evidence for the jury to find that, from a manufacturer's perspective, Owens negligently failed to warn of the hazards of its Kaylo insulation after it was sold, but before Jack Palmer's exposure in 1951.
We finally hold that the trial court did not abuse its discretion in excluding the challenged deposition testimony and in consolidating the cases. We therefore affirm.
This opinion has no precedential value and will be filed according to the rules of court. *fn3 Because this opinion will not be published and the facts of the case are known to the parties, we mention the facts only as necessary for an understanding of the opinion.
A. Sufficiency of Product Identification Evidence
Owens first argues that the trial court erred in denying its motions for judgment as a matter of law because Palmer presented insufficient evidence that Kaylo was present at Jack Palmer's Hanford worksite during the summer of 1951. In reviewing the denial of a motion for judgment as a matter of law, we view the evidence in the light most favorable to the nonmoving party, accepting the truth of the nonmoving party's evidence and drawing all favorable inferences that may reasonably be made. *fn4 "'If there is any justifiable evidence upon which reasonable minds might reach Conclusions that sustain the verdict, the question is for the jury.'" *fn5
In Lockwood the supreme court addressed the sufficiency of product identification evidence, holding that testimony from other workers placing a manufacturer's product at Lockwood's worksite together with expert testimony about the tendency of asbestos dust to drift upon release was sufficient to withstand directed verdict and judgment notwithstanding the verdict motions. *fn6 Thus, a reasonable inference arose that because the product was in Lockwood's workplace, he was exposed to it, even if no evidence proved that he worked directly with it. *fn7
Acknowledging the difficulty in obtaining evidence in asbestos cases because of the interval between exposure and the development of disease, the Lockwood court set forth several factors that trial courts should consider when determining if sufficient evidence exists for a case to go to a jury. *fn8 Trial courts should consider (1) evidence of proximity to the product when exposure occurred, (2) the expanse of the worksite where the asbestos dust was released, (3) the extent of time the plaintiff was exposed to the product, (4) the types of products and the way they were used by the plaintiff, and (5) evidence of medical causation regarding the plaintiff's disease. *fn9 Circumstantial evidence may support a finding that a manufacturer's product was the source of an asbestos plaintiff's exposure. *fn10
Here, Jack Palmer and his college friend Wesley Grande worked for V. S. Jenkins installing insulation at Hanford during the summer of 1951. For approximately two months, they insulated pipes in several rooms on the main floor of one large, windowless, cement building with no ventilation, which was in the 200 West area. The insulation itself and the various workers cutting it in one room created a great deal of dust. Grande's boss told him that the insulation material was asbestos, but did not warn him that it was dangerous.
Another Jenkins' employee in 1951, J. Richard Sargent, transported insulation materials, including Kaylo, from run down houses in Hanford and White Bluffs, two abandoned towns on the reservation, to the installers at various Jenkins' worksites around the reservation. On two occasions, Grande picked up insulation materials from storage shacks used by Jenkins in either Hanford or White Bluffs. Grande could not remember the brand names of the insulation, but he noticed other Jenkins' drivers at the shacks. Jenkins' insulation materials were used in the building in which Grande and Jack Palmer worked for two months.
Owens admitted that it manufactured and sold Kaylo asbestos insulation between 1948 and 1958. Owens did not deny that its product was used at Hanford.
In August 1992 Jack Palmer was diagnosed with mesothelioma caused by asbestos exposure. Expert testimony established that asbestos dust from insulation can drift throughout an enclosed area and that short term exposure to high levels of asbestos dust could cause mesothelioma. The doctors reviewing Jack Palmer's medical records opined ...