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COURT OF
APPEALS DECISION DATED AND
RELEASED September
30, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0745
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
NANCY
KOSLOSKE, individually and as
Special
Administrator of the
ESTATE
OF RAYMOND J. KOSLOSKE, JR.,
Plaintiffs-Respondents,
v.
OWENS-CORNING
FIBERGLAS CORPORATION,
Defendant-Third Party Plaintiff-Appellant,
KEENE CORPORATION, GAF CORPORATION,
FIBREBOARD CORPORATION, PITTSBURGH-CORNING
CORPORATION, A.P. GREEN INDUSTRIES, INC.,
UNITED STATES GYPSUM COMPANY,
SPRINKMANN SONS CORPORATION,
Jointly and Severally,
Defendants,
MANVILLE PERSONAL INJURY SETTLEMENT TRUST,
Third-Party Defendant.
APPEAL
from a judgment and an order of the circuit court for Portage County: JOHN V. FINN, Judge. Affirmed.
Before
Eich, C.J., and Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
EICH,
C.J.[1] Owens-Corning Fiberglas Corporation, a
manufacturer of asbestos, appeals from a judgment awarding substantial damages
to the estate of Raymond Kosloske, a boiler operator and inspector, who
incurred—and later died of—an asbestos-related cancer which he claimed was
caused by his exposure to a product manufactured by Owens-Corning. Kosloske originally sued several other
asbestos manufacturers and suppliers, all of whom settled prior to trial. Kosloske died during the pendency of the
action, and it was continued by his wife, Nancy Kosloske, both individually and
as the special administrator of his estate.[2]
Owens-Corning's
appeal presents the following issues: (1) whether the trial court erred in
ruling that the company failed to adduce sufficient evidence to go to the jury
on its claim that Kosloske was contributorily negligent; (2) whether admission
into evidence of a deposition of a former Owens-Corning employee violated
§ 908.045(1), Stats. which
states that in order to be admissible, deposition testimony given in another
proceeding must have been offered either at the instance of or against a party
"with motive and interest similar to those of the party against whom [it
is] now offered";[3]
(3) whether Kosloske's purported knowledge of the dangers of asbestos warrants
a determination that, as a matter of law, there could be no causal relation
between Owens-Corning's alleged failure to warn and Kosloske's damages; and (4)
whether the cumulative effect of the trial court's rulings warrants a new
trial. We reject Owens-Corning's
arguments and affirm the judgment and the order.
Kosloske
worked as a boiler operator and inspector for the Wisconsin Electric Power
Company (WEPCO) between 1962 and 1972.
In 1991, Kosloske was diagnosed with malignant mesothelioma, a cancer
caused by exposure to asbestos. He
claimed in his lawsuit that an Owens-Corning asbestos product called
"Kaylo" was used at the WEPCO plant as insulation and to cover pipes
and boilers. Seeking to recover on
theories of negligence and strict products liability, he alleged that
Owens-Corning failed to adequately warn Kaylo users of the product's
dangers. Owens-Corning claimed, among
other things, that Kosloske was contributorily negligent in failing to take
adequate precautions against asbestos exposure. After all the evidence was in, the trial court ruled that there
was insufficient evidence to go to the jury on Owens-Corning's claim of
contributory negligence. After seven
days of trial, the jury returned a verdict finding Owens-Corning 51% negligent
and apportioning the remaining negligence among the several other defendants
who had settled out of the case. The
jury awarded Kosloske damages in the sum of $838,601.76.[4]
Owens-Corning
filed several motions after the verdict, raising many of the arguments it
advances on this appeal, which the trial court denied. Owens-Corning appeals from the judgment and
from the court's order denying its postverdict motions. Other facts will be referred to in the body
of the opinion.
I.
Contributory Negligence
There
is no question that contributory negligence is a matter of proof for the
defendant. Austin v. Ford Motor
Co., 86 Wis.2d 628, 639, 273 N.W.2d 233, 238 (1979). Nor is there any dispute that the
apportionment of negligence is ordinarily a matter for the jury, not the court,
to determine. It is also the rule,
however, that the trial court "`may withdraw a case from the jury whenever
the jury could not reasonably find the [party's] conduct to be
negligent.'" Morgan v.
Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 733, 275 N.W.2d 660, 665
(1979) (quoting William L. Prosser,
Handbook of the Law of Torts § 37, at 205 (4th ed. 1971)). Thus, Owens-Corning must produce evidence of
Kosloske's lack of care in order to be entitled to a contributory negligence
instruction. Gish v. CSX Transp.,
Inc., 890 F.2d 989, 992 (7th Cir. 1989); see also Birchem
v. Burlington N. R.R. Co., 812 F.2d 1047, 1049 (8th Cir. 1987) (it is
error to instruct on plaintiff's negligence when defendant fails to produce
evidence of lack of care).
Owens-Corning
argues that the evidence justified such an instruction, pointing to Kosloske's
testimony in a pretrial deposition that, while he "had heard that asbestos
materials might have a potential health problem" and was aware that
asbestos had been used "somewhere" in the WEPCO plant, sometimes he
would not wear a face mask or respirator at work. Based on that testimony, Owens-Corning argues that a reasonable
jury could find Kosloske contributorily negligent for his own safety. The trial court disagreed, as do we.
We
have read relevant portions of Kosloske's deposition and we agree with him that
it can lead to only one conclusion: Kosloske, following his employer's safety
instructions, would wear a mask or respirator whenever conditions in a
particular area of the plant called for it, and if none was available, he would
not go into the area.[5] And he followed those instructions in all of
his work at the plant, including the occasional times when he would be in an
area where other employees were working with insulation.[6]
What
Owens-Corning's argument boils down to is that, in the context of a
four-and-one-half-hour deposition, admitted into evidence as part of a
seven-day trial, Kosloske's affirmative response to a single question—whether
he sometimes would and sometimes would not wear a respirator while in an area
where insulators were working—warrants submission of a question on his
contributory negligence. Taken in
context of his responses to questions in the preceding few pages of the
deposition transcript, it is apparent that this was simply a restatement of his
repeated testimony that, as instructed by his employer, he wore protective
devices when and where the conditions in the plant required—specifically when
there was any dust in the area where he was working.
On
this record, we believe the trial court could properly rule that Kosloske's
testimony provides no reasonable basis for a jury finding that he was negligent
for his own safety.
II. Former
Testimony
As
indicated, Kosloske claimed that Owens-Corning failed to adequately warn of the
dangers presented by Kaylo. Witnesses
for Owens-Corning testified at trial that it was the company's routine practice
to place warning labels on all Kaylo containers. In rebuttal, Kosloske offered the transcript of the deposition of
a former Owens-Corning employee, Ronald Hill, taken in a New Jersey case in
which Hill sued Owens-Corning, claiming that his exposure to raw asbestos used
in the manufacture of Kaylo caused him to contract an asbestos-related
disease. In his deposition, Hill
testified that Owens-Corning did not place warning labels on Kaylo
containers.
Owens-Corning
objected to the admission of Hill's deposition on hearsay grounds, arguing that
the "former testimony" exception to the hearsay rule codified in
§ 908.045(1), Stats., see
supra note 3, did not apply to the offered testimony because it did not
meet the statute's requirement: To be admissible, the testimony must have been
taken by or against a party who had the opportunity to examine the witness and
who had a "motive and interest similar to those of the party against whom
now offered."
The
trial court ruled that the exception applied and overruled Owens-Corning's
objection to admission of the testimony.
The court gave the following reasons for the ruling:
[E]ven though ... [Owens-Corning's attorney focused on
immunity in the Hill deposition] ... certainly the opportunity was there to
cross-examine, to ask Mr. Hill about ... his observations or lack thereof. The motive ... was there, because here was
an individual testifying contrary to the position that [Owens-Corning] had
taken, that is, that these Kaylo products did have the warning label on them,
and here was an employee testifying that there were no such warnings that he
saw; so I think that certainly an argument can be made that there was a motive
to do so.[7]
Owens-Corning
first urges us to review the trial court's ruling de novo, arguing that it
involves interpreting a statute—§ 908.045(1), Stats.—which is traditionally considered to raise a question
of law. See State ex rel.
Sielen v. Milwaukee Cir. Ct., 176 Wis.2d 101, 106, 499 N.W.2d 657, 659
(1993). We decline to do so for, as we
said in State v. Barksdale, 160 Wis.2d 284, 287, 466 N.W.2d 198,
199 (Ct. App. 1991), the decision to admit or reject evidence under the hearsay
exceptions—including § 908.045—is committed to the trial court's
discretion. We will not reverse a
discretionary determination by the trial court if the record shows that
discretion was exercised and "we can perceive a reasonable basis for the
court's decision." Prahl v.
Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App.
1987). "And where the record shows
that the court looked to and considered the facts of the case and reasoned its
way to a conclusion that is (a) one a reasonable judge could reach and (b)
consistent with applicable law, we will affirm the decision even if it is not
one with which we ourselves would agree."
Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39
(Ct. App. 1991) (footnote omitted).
It
is apparent from the record that the trial court exercised discretion in ruling
on Owens-Corning's objection to Hill's testimony. Therefore, we must uphold that ruling if it is one a reasonable
judge could reach—even though we disagree with it. Schneller v. St. Mary's Hosp., 155 Wis.2d 365, 374,
455 N.W.2d 250, 254 (Ct. App. 1990), aff'd, 162 Wis.2d 296, 470 N.W.2d
873 (1991).
Owens-Corning
argues that the trial court could not reasonably rule that the "motive and
interest" provisions of § 908.045(1), Stats., were met in this case. It is an argument that the court erred as a matter of law, and
"we have never hesitated to reverse discretionary determinations where the
exercise of discretion is based on an error of law." State v. Wyss, 124 Wis.2d 681,
734, 370 N.W.2d 745, 770 (1985), overruled on other grounds, State
v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990).
Owens-Corning
begins by pointing out that Hill claimed in his suit, among other things, that
because of Owens-Corning's prior knowledge of asbestos hazards, it had
committed an intentional tort against him by allowing him to be exposed to the
product, and as a result, the provisions of the New Jersey worker's
compensation law, which make employers immune from liability to employees, did
not apply. While the case was pending,
the New Jersey Supreme Court held that an employer's knowledge of the hazards
of asbestos used in the workplace did not constitute an intentional tort so as
to defeat the employer's immunity under the worker's compensation law. Owens-Corning contends that its attorney was
only trying to establish the company's immunity in the Hill deposition;
therefore, he did not need to go further in challenging Hill's testimony on
other points. Thus, says Owens-Corning,
it did not have a similar motive or interest in Hill's case and it was error
for the trial court to admit the deposition testimony.
Owens-Corning's
argument comes down to this:
In [Hill's case]
the attorney for [Owens-Corning] was trying to bolster the testimony indicating
that Mr. Hill's only alleged exposure to asbestos products ... was while under
the employment of Owens-Corning ....
Counsel's job in Kosloske was dramatically different,
however. In Kosloske,
[Owens-Corning] was trying to diminish the exposure to alleged
asbestos-containing products manufactured by [it] and instead prove that he in
fact was not exposed to any [Owens-Corning] products allegedly containing
asbestos ....
We
think Owens-Corning paints with too broad a brush. Hill's testimony was admitted in this case on the limited point
of the existence or nonexistence of product warnings; we agree with Kosloske
that "[r]egardless of the confines of the worker's compensation provision
in New Jersey at that time ... [Owens-Corning] certainly had a motive and
interest in refuting testimony that it failed to place warning labels on its
packages." According to an
affidavit filed in this case, Owens-Corning's counsel in the Hill case was representing
the company in a large number of asbestos-related lawsuits, and his election,
as a matter of strategy in that case, not to pursue Hill's charge that
Owens-Corning had failed to warn users of the dangers of its product should
not, in our opinion, provide a basis for declaring Hill's testimony
inadmissible under the statute.
In
In re Related Asbestos Cases, 543 F. Supp. 1142, 1145 (N.D. Cal.
1982), the plaintiffs in a class-action asbestos suit sought admission of a
deposition of the former medical director of one of the manufacturers, who had
since died, in which he testified as to his awareness of the hazards of
asbestos as early as the 1940s. The
applicable rule, Fed. R. Evid.
804(b)(1), is similar to § 908.045(1), Stats.,
in that it allows such evidence if the party against whom the testimony is
offered, or its predecessor in interest, "had an opportunity and similar
motive to develop the testimony in full."
Id. at 1146. The
manufacturer, the Johns-Manville Corporation, argued that its interest in
cross-examining the witness in the former proceeding was "not as
intense" as in the present case, because the facts were different and
because the witness's deposition was intended not for use at trial but only for
discovery purposes.
The
court rejected the argument, stating, among other things, that while the
circumstances of the actions were dissimilar in several respects, "[s]ince
plaintiffs presently seek to use only those portions of the depositions which
pertain to the notice issue, the additional issues in the [former] case[] do
not preclude a finding that Johns-Manville's motive for cross-examining [the
witness] in [that] case was similar to its motive in the instant
case[]." Id. at
1148. The court also noted that
Johns-Manville ran a risk in failing to cross-examine
[the witness] vigorously when it had the opportunity to do so. [The witness] is unavailable now. We refuse to exclude highly relevant
testimony because Johns-Manville's failure to avail itself of an ample
opportunity to cross-examine [the witness] turns out, in retrospect, to have
been a tactical error.
Id.; see also Nabbefeld v. State, 83 Wis.2d
515, 525-27, 266 N.W.2d 292, 298 (1978) (allowing preliminary hearing
deposition of a now unavailable witness to be read into evidence at the trial
under § 908.045(1), even though a preliminary examination has a different
nature and purpose than a trial).
We
recognize that Asbestos Cases, like other federal court
decisions, is not binding on state courts in Wisconsin or anywhere else. Thompson v. Village of Hales Corners,
115 Wis.2d 289, 307, 340 N.W.2d 704,
713 (1983). We have elected to follow
such cases, however, when we find their reasoning persuasive on a particular
question, Streff v. Town of Delafield, 190 Wis.2d 348, 356-57,
526 N.W.2d 822, 825 (Ct. App. 1994), and we believe it is persuasive in Asbestos
Cases. In this case, as in that
one, the prior testimony sought to be admitted is quite limited in scope: It is
confined to Hill's statements that Owens-Corning did not label its Kaylo
products. As a result, the fact that
the New Jersey proceedings and the instant trial were dissimilar becomes
immaterial.
Nor
are we persuaded by Owens-Corning's assertions that, given the immunity
provisions of the New Jersey law, it had little incentive to question Hill
about the absence of warning labels, and thus cannot reasonably be held to have
any interest or motive in doing so. As
we noted above, the evidence indicated that widespread asbestos litigation is a
fact of life for Owens-Corning and other asbestos manufacturers. Asbestos Cases, for example,
lists approximately twenty-five members of the asbestos industry—including
Owens-Corning—as defendants. We believe
a reasonable trial judge could conclude that Owens-Corning had an interest in
refuting testimony that it had failed to place warning labels on its packages.
Because
the trial court, in overruling Owens-Corning's objection to the admission of
Hill's deposition, exercised its discretion in a manner that was neither
unreasonable nor contrary to the facts of record or applicable law, we may not
overturn its ruling. We conclude,
therefore, that the trial court did not erroneously exercise its discretion in
overruling Owens-Corning's objection to Hill's deposition.
III.
Sufficiency of the Evidence of Cause
Owens-Corning next
contends that the evidence was insufficient to permit the jury to find, as it
did, that Kosloske's damages were caused by Owens-Corning's failure to warn of
the dangers of its product. It argues,
in essence, that because Kosloske's own deposition testimony "establishes
that he knew of all dangers that [Owens-Corning] could have warned him about,"
there can be no causal connection between its failure to warn of those dangers
and Kosloske's illness. The argument is
based on: (1) the same evidence on which Owens-Corning relied in arguing that
the trial court erred in declining to instruct the jury on Kosloske's
contributory negligence; and (2) the assertion that Hill's deposition was
erroneously admitted into evidence. We
have, of course, held that the evidence did not warrant a
contributory-negligence instruction, and that the Hill deposition was properly
admitted.
In
reviewing jury verdicts for sufficiency of the supporting evidence, we follow
the rule that if there is any credible evidence, under any reasonable view,
which fairly leads to an inference that supports the jury's finding, such
finding may not be overturned. Ferraro
v. Koelsch, 119 Wis.2d 407, 410-11, 350 N.W.2d 735, 737 (Ct. App.
1984), aff'd, 124 Wis.2d 154, 368 N.W.2d 666 (1985); § 805.14(1), Stats.
"[W]e examine the record, not for facts to support a finding the
trial court did not make or could have made, but for facts to support the
finding the trial court did make."
In re Estate of Becker, 76 Wis.2d 336, 347, 251 N.W.2d
431, 435 (1977) (quoted source omitted); see In re T.R.B.,
160 Wis.2d 840, 842, 467 N.W.2d 553, 554 (Ct. App. 1991). In doing so, we view the evidence in the
light most favorable to the verdict; this is especially true when the trial
court approved the verdict. York
v. National Continental Ins. Co., 158 Wis.2d 486, 493, 463 N.W.2d 364,
367 (Ct. App. 1990). The credibility of
witnesses and the weight afforded their testimony are left to the jury's
judgment, and "where more than one reasonable inference can be drawn from
the evidence, we accept the inference drawn by the jury." Id.
First,
of course, is Hill's testimony regarding the absence of labels on Kaylo
packages. Owens-Corning contradicted
that testimony with other evidence, but, as we just indicated, resolving
conflicts in the evidence is the jury's task, not ours; we look only to see
whether any credible evidence exists to support the jury's verdict.
Second,
it is true, as Owens-Corning asserts, that a manufacturer has no duty to warn
members of a trade or profession about dangers generally known in that trade or
profession. Shawver v. Roberts
Corp., 90 Wis.2d 672, 686, 280 N.W.2d 226, 233 (1979). The record in this case, however—much of it
in the form of internal Owens-Corning documents—indicates that since 1940 the
company has become increasingly aware of the cancer-causing dangers of asbestos,
and there is no evidence that Kosloske or other members of his trade were aware
of the mortal threat posed by exposure to asbestos products. As we noted above, while Kosloske indicated
his awareness that dust and other airborne contaminants—including
asbestos—should not be internalized, he stated he had no idea how
"detrimental" they were.
Finally,
Owens-Corning contends there was no evidence that, had Kosloske been warned, he
would have exercised any greater care for his own safety. It claims that without such testimony, no
evidentiary basis exists for the jury's affirmative answer to the cause
question. Again, we disagree.
Kosloske's
deposition shows that he consistently took appropriate measures to protect
himself from work-related dangers—including exposure to airborne
contaminants—as he understood them. He
recounted the safety meetings and instruction sessions held at the WEPCO plant
and he testified that he followed those instructions by using respirators and
other safety devices when warranted by conditions at the plant. The jury could reasonably infer that, had he
been realistically apprised of the dangers of asbestos, he would have taken
additional measures to ensure his safety.
This is not a case, like those cited by Owens-Corning in support of its
argument—notably Broussard v. Houdaille Indus., Inc., 539 N.E.2d
360, 364 (Ill. App. Ct. 1989), and Overpeck v. Chicago Pneumatic Tool Co.,
823 F.2d 751, 755 (3d Cir. 1987)—where the plaintiffs flouted safety procedures
of which they were well aware. There
simply was no such showing in this case.
Owens-Corning
failed to establish that the jury's verdict on cause is unsupported by any
credible evidence in the record. Nor,
as we indicated, has the company persuaded us that the judgment and order
appealed from are otherwise unsound.[8]
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.
[1] This case, originally taken under submission by
the court in March 1995, was reassigned to the author for preparation of the
opinion in August 1996.
[2] For ease of exposition, we will refer to
Raymond Kosloske as the plaintiff in the action (and the respondent on this
appeal).
[3] Section 908.045(1), Stats., provides an exception to the hearsay rule for
[t]estimony ... in
a deposition taken in compliance with law in the course of another proceeding
at the instance of or against a party with an opportunity to develop the
testimony by direct, cross, or redirect examination, with motive and interest
similar to those of the party against whom [it is] now offered.
[4] In light of the Pierringer
releases obtained by the settling defendants, and Wisconsin's law on
contribution among joint tortfeasors, the trial court concluded that
Owens-Corning was responsible for 97% of Kosloske's damages. See Pierringer v. Hoger,
21 Wis.2d 182, 124 N.W.2d 106 (1963).
Owens-Corning has not appealed that portion of the judgment.
[5] He said, for example, that he and the other
employees were instructed by WEPCO to wear the protective devices when working
under dusty conditions in the boilers or elsewhere in the plant, and that he
followed those instructions—noting that it would be "dumb" not
to. If no protective devices were
available, Kosloske and the other employees would not go into a dusty
area.
[6] With respect to asbestos, Kosloske testified
that he understood some of the insulation in the plant contained asbestos, and
had heard generally that asbestos "could cause problems," but that
"[a]t that time [he] did not know how detrimental that was." He said that his job duties did not include
working with insulation, but he was sometimes in an area where others were
working with it, and while in the area would sometimes wear a respirator and
sometimes not, depending on whether "the environment was to the point
where it was a dusty condition."