493 F.2d 1076 (5th Cir. 1973)
Clarence Borel began working as an industrial insulation worker in 1936.1 He continued in that occupation until he was disabled in 1969.2 He was employed at numerous locations usually in Texas.3 His work exposed him to heavy concentrations of asbestos dust from insulation materials.4
In his pre-trial deposition Borel testified that at the end of each day his clothes were so dusty he could barely pick them up without shaking them.5 He blew dust from his nostrils by handfuls despite using water or mentholatum.6 He knew the dust was bad but believed it dissolved in the lungs.7 He did not realize it could cause serious or terminal illness.8
Borel remained in good health until the mid-1960s except for lung congestion attributed to pleurisy.9 In 1964 an insurance examination revealed cloudy lung x-rays possibly related to his occupation.10
On January 19 1969 he was hospitalized for a lung biopsy that diagnosed pulmonary asbestosis.11 His condition worsened.12 On February 11 1970 he underwent surgery removing his right lung after doctors determined he had mesothelioma caused by asbestosis.13 Borel died before the case reached trial.14
Medical testimony established that inhaling asbestos dust even with relatively light exposure can produce asbestosis.15 It can also produce mesothelioma.16 There is a latent period of ten to twenty-five years or more between exposure and diagnosable effect.17 The diseases are cumulative.18 They are progressive with fibers remaining in the lungs causing irreversible tissue changes.19 It is impossible to determine which particular exposures caused the disease.20
Historical studies from the 1920s onward documented the risks among asbestos workers and insulation workers.21 These included reports by Cooke in 1924.22 The 1938 U.S. Public Health Service report was one such study.23 The 1965 Selikoff study also documented the risks.24
Throughout Borel's career no defendant manufacturer warned contractors or insulation workers of the dangers of inhaling asbestos dust.25 No manufacturer informed them of threshold limit values set by the American Conference of Governmental Industrial Hygienists beginning in 1947.26 No manufacturer tested the effect of its products on workers using them.27 No manufacturer attempted to determine whether exposures exceeded recommended limits.28
On October 20 1969 Borel filed a diversity action in the United States District Court for the Eastern District of Texas against eleven manufacturers.29 He named Fibreboard Paper Products Corporation Johns-Manville Products Corporation Pittsburgh Corning Corporation Philip Carey Corporation Armstrong Cork Corporation and Ruberoid Corporation among others.30
Borel settled with four defendants before trial.31 The court directed a verdict for a fifth.32 The jury found the remaining six defendants strictly liable.33 It awarded total damages of $79,436.24.34 After crediting $20,902.20 in settlements the court entered judgment jointly and severally against the six for $58,534.04.35 The defendants appealed to the Fifth Circuit.36 The court heard the case after Borel's widow was substituted as plaintiff under the Texas wrongful death statutes.37
Whether the trial court properly instructed the jury on strict liability in tort under Texas law for asbestos products that were allegedly unreasonably dangerous due to failure to warn?38
Under Texas law a manufacturer of a defective product may be liable to a user or consumer in either warranty or tort.39 The Texas Supreme Court has adopted the theory of strict liability in tort as expressed in section 402A of the Restatement (Second) of Torts.40 A product is unreasonably dangerous when it lacks adequate warnings of known or foreseeable dangers.41 This is true even if its utility outweighs the risk.42 The user is entitled to make an informed choice.43
Yes. The trial court correctly instructed the jury that strict liability could be imposed only if the product was unreasonably dangerous to the user or consumer at the time it was sold.44 It defined unreasonably dangerous as dangerous to an extent beyond that contemplated by an insulation contractor or insulator with knowledge available to them as to the characteristics of the product.45 The court stated that the danger must have been reasonably foreseen by the manufacturer and that the product's unreasonably dangerous condition must have been the proximate cause of Borel's injury.46
This instruction properly equated breach of warranty language with the unreasonably dangerous standard of strict liability in tort.47 It ensured the jury understood that liability required more than mere harm from ordinary use.48 The court also correctly refused the defendants' requested instruction that conformity to the reasonable expectations of industrial purchasers relieved the duty to warn ultimate users such as Borel.49 The seller's duty extends to the ultimate consumer.50
The presence of an intermediate party does not by itself relieve that duty.51 The instruction further recognized that even unavoidably unsafe products require adequate warnings to avoid being unreasonably dangerous.52 The facts show that Borel worked with the defendants' asbestos insulation products from 1936 until 1969 without receiving any warnings from the manufacturers about the dangers of inhaling asbestos dust or the ACGIH threshold limit values.53 This occurred despite the cumulative and latent nature of asbestosis and mesothelioma that made each exposure potentially injurious.54
The trial court properly instructed the jury on strict liability.55
Whether there was sufficient evidence for the jury to find that the dangers of inhaling asbestos dust were foreseeable to the defendant manufacturers during the period of Borel's exposure?56
A manufacturer is held to the knowledge and skill of an expert.57 It has a duty to keep abreast of scientific knowledge.58 It has a duty to test its product.59 The foreseeability of danger is measured by whether the manufacturer knew or should have known of the danger through the application of reasonable foresight and testing commensurate with the dangers involved.60
Yes. The jury was entitled to find that the danger to Borel and other insulation workers from inhaling asbestos dust was foreseeable to the defendants at the time the products causing Borel's injuries were sold.61 Asbestosis has been recognized as a disease for well over fifty years.62 The first reported cases of asbestosis were among asbestos textile workers.63
The 1938 U.S. Public Health Service report documented significant risks in asbestos textile factories and urged precautionary measures. The 1945 Fleischer-Drinker report cautioned that exposure to high concentrations could cause asbestosis.64 The American Conference of Governmental Industrial Hygienists issued threshold limit values beginning in 1947.65 The defendants never tested the effect of their products on industrial insulation workers.66
They never attempted to determine whether exposures exceeded recommended limits.67 Expert testimony established that the danger was known in the 1930s and could be controlled by maintaining modest levels of exposure.68 Borel's exposures began in 1936 and continued through 1968.69 Because the disease is cumulative both early and late exposures contributed to his condition.70
There was sufficient evidence for the jury to find that the dangers of inhaling asbestos dust were foreseeable to the defendant manufacturers during the period of Borel's exposure.71
Whether the jury's verdict finding strict liability against Pittsburgh Corning and Armstrong Cork was inconsistent with its separate finding that those defendants were not negligent?72
When a failure to give adequate warning is alleged to have made a product unreasonably dangerous the standard for strict liability is essentially similar to the standard for establishing negligence.73 The seller has a duty to warn of foreseeable dangers.74 Consistency in general verdicts is not required.75 Juries may reach different conclusions on separate counts even if the evidence supports the finding reached.76
No. The apparent inconsistency between the jury's finding of strict liability against Pittsburgh Corning and Armstrong Cork and its separate general verdict that those defendants were not negligent does not require reversal.77 Consistency in general verdicts is not required. The jury's prerogative allows it to reach different conclusions on the negligence and strict liability counts even when the underlying standard for failure to warn is similar. The evidence supported the strict liability finding that the products were unreasonably dangerous because of the complete absence of warnings.78
The jury was entitled to return a verdict on that count regardless of its negligence determination.79
The jury's verdict finding strict liability against Pittsburgh Corning and Armstrong Cork was not inconsistent in a manner requiring reversal with its separate finding that those defendants were not negligent.80
Whether each defendant was a cause in fact of Borel's asbestosis and mesothelioma given the cumulative and latent nature of the diseases?81
A defendant's conduct is the cause in fact of an event if it was a substantial factor in bringing it about.82 When the effect of exposure is cumulative so that each exposure may result in an additional and separate injury it is impossible as a practical matter to determine with absolute certainty which particular exposure resulted in injury.83 The jury may find each defendant that exposed the plaintiff to the product was a cause in fact on the basis of strong circumstantial evidence.84
Yes. Each defendant was a cause in fact of some injury to Borel.85 It was undisputed that Borel contracted asbestosis from inhaling asbestos dust and that he was exposed to the products of all the defendants on many occasions.86 The effect of exposure to asbestos dust is cumulative so that each exposure may result in an additional and separate injury.87
The latent period varies according to individual idiosyncrasy so that even the most recent exposures after 1962 and 1966 could have added to or accelerated Borel's overall condition.88 The traditional substantial factor test applies.89 The jury could reasonably conclude on the basis of the evidence that each defendant's product contributed to the indivisible harm.90
Each defendant was a cause in fact of Borel's asbestosis and mesothelioma.91
Whether the defendants could be held jointly and severally liable for the entire indivisible harm when their independent acts combined to cause injury that could not be reasonably apportioned?92
Where the tortious acts of two or more wrongdoers join to produce an indivisible injury that from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers all of the wrongdoers will be held jointly and severally liable for the entire damages.93 The burden shifts to each defendant to show what portion of the harm it caused.94 Inability to show a reasonable basis for division renders them jointly and severally liable.95
Yes. The defendants may be held jointly and severally liable for the total damages.96 The injury from cumulative asbestos exposures is indivisible as a practical matter.97 The traditional rule that each defendant is liable only for the portion of harm it caused gives way when apportionment is impossible.98
Texas law as established in Landers v. East Texas Salt Water Disposal Co. places the burden on each defendant to show its portion or face joint and several liability for the whole.99 The trial court correctly applied this rule after crediting the settlements.100 It entered judgment against the remaining six defendants for the balance.101
The defendants could be held jointly and severally liable for the entire indivisible harm.102
Whether contributory negligence or assumption of risk in the form of volenti non fit injuria barred recovery in strict liability when Borel continued working after learning of his condition?103
Contributory negligence or assumption of risk is a defense to a strict liability action only when it consists of voluntary and unreasonable conduct in encountering a known risk.104 The plaintiff must have had actual knowledge understanding and appreciation of the danger.105 The action must be both voluntary from a subjective standpoint and unreasonable from an objective standpoint.106 Mere failure to discover the defect or to guard against its possibility is not a defense.
No. Contributory negligence or assumption of risk did not bar recovery.107 Borel never actually knew or appreciated the extent of the danger until his doctors diagnosed asbestosis in 1969.108 The danger was not so obvious that he should be charged with knowledge as a matter of law.109 His decision to continue working was neither voluntary nor unreasonable given the economic circumstances and the lack of any warnings that would have allowed an informed choice.110
The trial court's instruction on volenti was overly favorable to the defendants.111 Yet the jury still found that Borel had not assumed the risk.112 The evidence supported the conclusion that Borel's conduct did not meet the Restatement comment n standard of voluntarily and unreasonably proceeding to encounter a known danger.113
Contributory negligence or assumption of risk in the form of volenti non fit injuria did not bar recovery in strict liability.114
Whether the statute of limitations barred the action given the date Borel filed his workmen's compensation claim and the subsequent damage suit?115
Under Texas law when a claimant elects to proceed under the Workmen's Compensation Act and qualifies for an award the cause of action against a third party does not accrue until the amount of the award is paid by the carrier or the claimant obtains a final judgment against the carrier.116 The suit must be filed within two years from that date.117 Alternatively the discovery rule applies so that the cause of action does not accrue until the plaintiff knew or had reason to know of the disease.118
No. The statute of limitations did not bar the action.119120 Borel filed his workmen's compensation claim on January 17 1969. The Industrial Accident Board approved the settlement award on July 31 1969.121 Borel filed the damage action on October 20 1969.122
This was within two years of the Board's final order under Campbell v. Sonford Chemical Co.123 Even under the alternative view that the Act merely tolls the statute the action was timely.124 Borel did not know he had asbestosis until the 1969 diagnosis and surgery.125 The discovery rule prevents accrual until the effects of the exposures manifest themselves.126 The trial court correctly determined that the action was filed timely without submitting the issue to the jury.127
There was no substantial evidence opposing that finding.128
The statute of limitations did not bar the action.