Document da3VG5VkoB0OL8QrKqQY1DGQb

wfN* FILED W'UO nriiTK 0,~nT AURORA DE LA GARZA DIST. CLERK CAUSE NO. 2000-05-1962-C JAN 1 8 2001 ROBERT HENRY VILLARREAL. Individually and as Personal Representative of the Heirs and Estate of JOHN HENRY VILLARREAL Plaintiffs, vs. GAF CORPORATION HOLDINGS, INC.), ET AL. IN THE Dili iUNTY. TEXAS RT nr deputy CAMERON COUNTY, TEXAS Defendants. 197TM JUDICIAL DISTRICT MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE OF DEFENDANT UNITED STATES GYPSUM COMPANY TO EXCLUDE EVIDENCE AND ARGUMENT RELATING TO THE CLAIMS OF OTHER COMPANIES' EMPLOYEES Defendant United States Gypsum Company ("U.S. Gypsum") hereby submits this memorandum of law in support of its motion in limine for an order excluding any evidence or argument relating to claims of asbestos-related disease made by employees of other companies. U.S. Gypsum anticipates that plaintiff will attempt to introduce at trial documents and testimony regarding claims that two former employees of the National Asbestos Manufacturing Company ("National Asbestos")^ developed asbestos-related disease as a result of working for that company. Neither of the individuals ever worked for U.S. Gypsum. Both individuals worked as employees of National Asbestos at its manufacturing facility in Jersey City. New Jersey. The only "nexus," if it can even be called that, between the two individuals and U.S. Gypsum is that, after both individuals stopped working at the plant. U.S. Gypsum i/ There was never any corporate relationship between National Asbestos and U.S Gypsum. purchased the Jersey City facility from National Asbestos in 1936. Moreover, as part of an ongoing process of assessing health and safety issues in its plants. L'.S. Gypsum, immediately upon acquiring the plant, retained a noted expert in dust and disease. Dr. LeRoy Gardner, to survey the plant and make any necessary recommendations regarding health and safety. Dr. Gardner found that the conditions under which National Asbestos had operated the plant were extremely dusty, and made a number of recommendations, each of which was implemented by U.S. Gypsum. Thus, the conditions under which the two National Asbestos employees apparently became sick were rectified by U.S. Gypsum, which operated the plant in an entirely different manner. U.S. Gypsum never received any asbestos-related claims from any of its Jersey City plant employees during the thirtynine years it owned that plant. One of the individuals in question was a bookkeeper for National Asbestos. Certain correspondence suggests that he later filed a claim alleging asbestosis against National Asbestos. As clearly demonstrated by Dr. Gardner's report on the Jersey City plant and other documents relating to his employment, the bookkeeper was exposed to the extremely high dust levels created by the handling of raw asbestos. Thus, his exposure does not in any way constitute, as plaintiff may suggest, evidence of disease from "non-occupational" or "bystander" exposure. See, e.g., Sealover v. Carey Canada, 793 F. Supp. 569, 578-79 (M.D. Pa. 1992) (Exhibit A) ("evidence that U.S. Gypsum was on notice that a bookkeeper in one of its [sic] manufacturing plants contracted asbestosis does not equate to knowledge that construction bystanders, such as [plaintiff], were equally at risk"): School District of the City of Independence, Missouri, No. 30 v. United States Gypsum Co.. 750 S.W.2d 442. 448 (Mo. App. 1988) (Exhibit B) (no error in excluding documents regarding bookkeeper because they related only to U.S. Gypsum's "general knowledge of the hazards of asbestos exposure"). r \CCR\Cameron\Villarreal. John\USG-Memo-Gtner Empioyees.doc The same is true of the second individual. The evidence regarding his exposure consists of an angry letter written to U.S. Gypsum in 1950. The author, a Ben Minello, claimed that his father had worked in the Jersey City plant, and had later died of asbestosis as a result of the conditions there. The letter is little more than a diatribe by a bitter, grieving son lamenting the loss of his father. The letter suggests that the death of the writer's mother is imminent as well, and pleads with U.S. Gypsum "for the sake of God and humanity" to clean up the Jersey City plant. U.S. Gypsum had, of course, already done so when it acquired the plant from National Asbestos almost 15 years earlier. A U.S. Gypsum investigation conducted upon receipt of the letter revealed that Mr. Mirieilo's father had never worked for U.S. Gypsum, but rather, that he had worked for National Asbestos under the deplorable conditions that marked its ownership of the facility. The Miriello letter has been excluded by numerous courts. See County ofAnderson v. United States Gypsum Co., No. CIV-3-83511, Tr. at 1324-25 (E.D. Tenn. Feb. 26, 1985) (Exhibit C) (Minello letter lacked probative value due to extreme levels of exposure suggested by document), defense verdict affd sub nom. Anderson County Bd. of Educ. v. National Gypsum Co.. 821 F.2d 1230 (6th Cir. 1987); Jacobs v. OwensComing Fiberglas Corp., No. 97-4-13222, Tr. at 23 (Tex. Dist., Calhoun Cty. Feb. 8, 2000) (Exhibit D); Durham v. Able Supply, Inc.. Cause No. 98-758-B (Tex. Dist., Gregg Cty. Feb. 2000); Rugani v. Asbestos Defendants, No. 302355. Tr. at 2 (Cal. Super., S.F. Cty. Feb. 16, 2000) (Exhibit E); State of Maryland v. Keene Corp., No. 1108600, Tr. at 6016 (Md. Cir. Anne Arundel Cty., Jan. 8. 1991) (Exhibit F) - In addition to the fact that they are utterly irrelevant to U.S. Gypsum or any of its conduct, the two purported claims by National Asbestos employees are beset with other evidentiary problems. 2/ The documents also lack foundation, and are cumulative to other evidence regarding conditions at the Jersey Citv plant. U.S Gypsum reserves these objections, but does not present them fully herein. -3- F \CCR\Cameron\Vilianeal. John\USG-Memo-Oiher Employees.doc Both are based upon decades-old correspondence directed to U.S. Gypsum. There is little, if any. wav to verify any of the facts relating to the individuals in question, their work histones at National Asbestos or elsewhere, or the nature or cause of their medical conditions. The letters contain multiple lavers of hearsay, repeating statements and allegations purportedly made by persons other than the authors, who cannot be cross-examined. The letters also contain characterizations, or more properly mischaractenzations. of U.S. Gypsum and its conduct. Merely because the claims were directed to U.S. Gypsum in letters written decades ago does not make them true. In some cases they are demonstrably untrue, such as the suggestion U.S. Gypsum had, by 1937. confronted asbestos-related claims from its own employees, or that the senior Minello worked for U.S. Gypsum. There is no independent evidence for either assertion, both of which are flatly contradicted by other documents. These statements should not be placed before the jury in a manner which can only mislead and confuse them. Finally, presentation to the jury' of the claims of other companies' employees threatens U.S. Gypsum with unfair prejudice far outweighing any conceivable probative value the evidence may have. In particular, the Miriello letter is fraught with sarcastic, angry language. The only purpose for introducing such evidence is to try to persuade the jury that U.S. Gypsum was a "bad company'' because, decades before any alleged exposure of plaintiff to any U.S. Gypsum product, U.S. Gypsum purchased a plant that the former owner operated under extremely dusty conditions. Any such misuse of the documents would prejudice U.S. Gypsum by allowing plaintiff to suggest to the jury an improper basis upon which to render a verdict against U.S. Gypsum. Moreover, evidence relating to the purported claims of other companies' employees can only confuse and mislead the jury by suggesting that this case somehow involves exposures resembling the conditions which existed in National Asbestos' Jersey City plant. There is no evidence that any -4 FACCR\Cameron\Yilianeal. JohmrSG-Memo-Other Employees.doc exposure alleged by plaintiff to any U.S. Gypsum product involved such conditions. Presentation of evidence relating to the employees of other companies working in dissimilar conditions more than 60 years ago. and the need for U.S. Gypsum to respond to such issues, can only add to the length and complexity of the trial by injecting tangential issues and evidence. See County ofAnderson, supra, Tr. at 1325-26 ("any probative value . . . this letter has is substantially outweighed by the danger of prejudice and confusion of the issues here and is therefore misleading to the jury"); State of Maryland, supra (Miriello letter would unfairly prejudice jury); Wesley Theological Seminary of the United Methodist Church v. United States Gypsum Company, 876 F.2d 119, 123 (D.D.C. 1989) (Exhibit G) (affirming exclusion of Jersey City document as unduly prejudicial) cert, denied, 494 U.S. 1003 (1990). F \CCR\Camcron\VillarTeal johMUSG-Memo-Other Employees.doc Accordingly. U.S. Gypsum respectfully requests the Court exclude any evidence or argument relating to the claims of disease in individuals employed at National Asbestos' manufacturing facility. Respectfully submitted. POWERS & FROST, L.L.P. 7 James H. Powers Texas State Bar No. 16217400 Sharia J. Frost Texas State Bar No. 07491100 Gwendolyn S. Frost Texas State Bar No. 07488750 2600 Two Houston Center 909 Fannin Houston. Texas 77010 Telephone:(713) 767-1555 Facsimile: (713) 767-1799 ATTORNEYS FOR DEFENDANT UNITED STATES GYPSUM COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct of Defendant United States Gypsum Company's Memorandum of Law in Support of Motion in Limine has been forwarded to Plaintiffs' counsel of record either by first class mail, return receipt requested, delivery or facsimile on this the day of 1 ',*-0------~t--' --------- . 2001. -6 F \CCR\Cameron'A tllarrea:. JohrM'SG-MemO'Other Employees doc Exhibits for: Memorandum of Law in Support of Motion In Limine of Defendant United States Gypsum Company to Exclude Evidence and Argument Relating to the Claims of Other Companies' Employees Exhibit A 793 F.Supp. 569 Prod.Liab.Rep. (CCH) P 13,210 (Cite as: 793 F.Supp. 569) Page 1 Alma M. SEALOVER, individually, and in her capacity as Administratrix of the Estate of Donald Sealover, deceased. Plaintiff, r. CAREY CANADA, et al.. Defendants. No. CV-88-0643. United States District Court, M.D. Pennsylvania. April 3. 1992. Widow of deceased construction worker brought products liability action, both individually and as administratrix of her husband's estate, seeking to recover damages from asbestos manufacturers. On manufacturer*' motions for summary judgment on widow's punitive damages claim, the District Court, McClure, J., held that: (1) to recover punitive damages from asbestos manufaemrers, widow had burden of showing th manufacturers amtai knowledge, prior to worker's exposure, of the serious health risks posed by their products, and (2) manufacturers' knowledge that asbestos fibers might cause cancer in laboratory """ exposed to massive quantities of asbestos could not be equated with knowledge that construction workers would suffer same ill effects to same degree. dust in far greater quantities than typical construction worker. [3] DAMAGES <*= 179 115kl79 Evidence regarding asbestos manufacturer's knowledge of dangers associated with their products at time subsequent to construction worker's exposure thereto was inadmissible, as irrelevant to punitive damages issue and as to whether manufacturers had actual knowledge of dangers associated with their product at time of worker's exposure. [4] DAMAGES => 94 115k94 Any limitation on extent of asbestos manufacturer's liability for punitive damages, in order to preserve fund for payment of subsequent compensatory asbestos claims, was matter more properly addressed to legislature than to district court. "569 John McN. Broaddus, Deborah K. Hines, Shepard A. Hoffman. Concertoa. Ray St Simon, Washington, D.C., for plaintiff. Robert B. Lawler, Beth Evans Valocchi, Wilbraham St Coleman. Philadelphia, Pa., for defendant U.S. Gypsum Co. Motion granted. [1] DAMAGES = 91(1) 115k9l(l) To recover punitive damages from asbestos manufacturers, widow of deceased construction worker had burden of showing that manufacturers had actual knowledge, prior to time of construction worker's exposure, of the serious health risks posed by their products. [2] DAMAGES = 91(1) 115k91(l) Widow of deceased construction worker failed to show that asbestos manufaemrers had actual and not just constructive knowledge of health risks posed by their products, so that manufacturers were not liable for punitive damages, where only evidence of causal connection between asbestos and cancer involved laboratory mice and manufacturing or mining employees, each of whom was exposed to asbestos James P. Gannon. Barnard and Garmon, Media, Pa., for defendam W.R. Grace St Co. MEMORANDUM McCLURE, District Judge. BACKGROUND Plaintiffs Alma M. Sealover and Donald E. Sealover filed this products liability action "570 against defendants W.R. Grace Company. ('W.R. Grace*), United States Gypsum Company (*U.S. Gypsum') (FN1J among others. Plaintiffs alleged that as a result of Donald Sealover's exposure to asbestos during his sojourn in the Merchant Marines and during his forty-year career as a carpenter, he contracted mesothelioma. [FN2] asbestosis and other asbestos-relaxed diseases which ultimately led to his death os May 2, 1988. Alma Sealover, acting both individually and as Administratrix of her husband's Copr. e West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW *93 F Supp. 569 (Cite as: 793 F.Supp. 569, *570) esu:e. sought to recover for her husband's illness and tor tus death. FN1. U.S. Gypsum is put of a group of defeoduus, for purposes of defending coons such is (his. which are known as (he Censer for Claims Resolution Defendants or *CCR defendants." The other defendants which are pan of chat group are: (a) GAF Corporation (b) National Gypsum Company and (c) Turner A NewaD Of the four, plaintiff seeks punitive damages only against VS. Gypsum. (Record Document No. 232. filed Sept. II. 1991) FN2. Mesothelioma is a terminal cancer of the Immg of the lung. The trial was bifurcated with the first phase on stria liability only. The first phase of the trial concluded with the jury awarding compensatory damages of $400,000 to the estate and $210,000 to Alma Sealover. The negligence and punitive damage claims have yet to be tried. Defendants W.R. Grace and U.S. Gypsum have moved to defer indefinitely trial of plamnfTs punitive damage claim. Before the coon are: (1) a motion (Record Document No. 234, filed October 29, 1991) by U.S. Gypsum to bar plaintiffs from proceeding with their punitive damage claim or, in the alternative, to defer indefinitely the trial on punitive damages; (2) a motion (Record Document No. 238, filed November 15. 1991) by W.R. Grace for summary judgment on the punitive damage claim; (3) and a morion by U.S. Gypsum to exclude evidence on punitive damages. [FN3] For the reasons set forth below, the conn will grant all three morions and direa entry of summary judgment in defendants' favor on the punitive damage claims. [FN4] FN3. Also outstanding are plaintiffs morion for delay damages: defendants' morions for a new trial or j.n.o.v.; plaintiffs morion to sever the case against GAF; and defendants' morions to treat Johas-Manville as a sealed defendant and mold the verdict. These morions will be addressed m a separate munnuiiiiinn Page 2 plaintiffs punitive damage claims. DISCUSSION Summary judgment standard The patties have agreed that the conn should treat the morions to bar plaintiff from trying the punitive damage claim as a morion for partial summary judgment. We will, therefore, apply the summary judgment standard in determining the sufficiency of plaintiff's evidence. Summary judgment is appropriate if the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fan and that the moving parry is entitled to judgment as a maser of law.* Fed.R.Civ.P. 56(c) (Emphasis supplied). ... [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate rime for discovery and upon morion, against a parry who foils to make a showing sufficient to establish the existence of an element mwnriai to that party's ass, an on which drat party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to aqy material fact,' since a complete failure of proof concerning an essential element of the nonmoving parry's case necessarily renders all other foes The moving parry is 'entitled to judgment as a maser of law' because the nonmoving party has foiled to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex v. Catrea. 477 U.S. 317, 323-24, 106 S.Ct. 2548. 2553, 91 L.Ed.2d 265 (1986). *571 The moving parry bears the initial responsibility of stating the basis for its morions and identifying those portions of the record which demonstrate die absence of a genuine issue of material fan. He or she can discharge that burden by 'showing ... that there is an absence of evidence to support the,nonmoving party's case.* Celotex, supra. 477 U.S. at 323 and 325, 106 S.Ct. at 255354. FN4. The parties have agreed that the court should treat the morions filed by WJt. Grice and U.S. Gypsum as morions for summary judgment on Issues of fan are 'genuine only if a reasonable jury, considering the evidence presented, could find for the non-moving parry. * Childers v. Joseph, 842 Copr. West 1998 No Claim to Orig. U.S. Govt. Works WE5TLASV 793 F.Supp. 569 (Cite as: 793 F.Supp. 569, *571) Page 3 F.2d 689, 694 (3d Cir.1988). dung Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 249, 106 S.Ct. 2505, 2510, 91 LEd.2d 202 (1986). Material facts ate those which will affect the outcome of the trial nnAt-r governing law. Anderson, supra, 477 U.S. ai 248, 106 S.Cl at 2510. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non* moving party. White v. Westingfaouse Electric Company. 862 F.2d 56. 59 (3d Gr.1988). Evidentiary issues Defendants contend that: (1) plaintiff will be mtahie to meet the high standard of proof Pennsylvania law requires for an award of punitive damage*; (2) plaintiffs in personal injury asbestos actions have in the past been unable to muster such evidence and the Pennsylvania courts [FN5] have consistently precluded plaintiffs from proceeding to trial on punitive damage claims; and (3) the plaintiff in this case has offered no new evidence which would warrant this court reaching a different conclusion. FN2. AS parties agree dot Pennsylvania law applies under Erie RJL v. Tompkins. 304 tLS. 64. 58 S.CL 817. 82 LJstL 1188 (1938) and its progeny. In Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1096 (1985), the Pennsylvania Supreme Court held that to recover punitive damages, a plaintiff must show, by a preponderance of the evidence, [FN6] that the defendant's conduct met the requirements of Section 908(2) of the Restatement (Second) of Torts: FN6. Although some courts require a higher standard of proof, the Pennsylvania courts have rejected that approach and require plaintiff to prove entitlement to punitive damages by a preponderance of the evidence only. Mania, supra. 494 A2d at 1098 n. 14 (*We believe the goal of limiting punitive damage awards in the context of products liability litigation is best served by focusing on the nature of the defendant's conduct instead of increasing the plaintiff*s burden of persuasion.') (2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fan can properly consider the chancier of die defendant's act. die nature and extent of the harm to the plaintiff that the defendant caused or wirirto cause and the wealth of the defendant. The court's holding was stated in a plurality opinion written by Justice Hutchinson. Justice Hutchinson rejected a constructive knowledge (i.e. reasonable man) standard in favor of a standard requiring actual knowledge of the hazard on the pan of the Arfn\Amt Although a majority of die other justices joined in the result, they did not specifically adopt the actual knowledge standard endorsed by Hutchinson, generating confusion as to the appropriate standard. In Burke v. Maasen, 904 F.2d 178. 181 (3d Gr.1990), the Third Circuit analyzed in considerable detail the state of Pennsylvania law on punitive damages: ... [the plurality in Martin ] held that a jury may award punitive damages only where die evidence shows the defendant knows, or has reason to know, of fees which create a high degree of risk of physical harm to another, and deliberately proceeds to act in conscious disregard of, or indifference to. that risk.... (Citation omitted.) ... [Qt is not sufficient to show dial a reasonable person in the defendant's position would have realized or appreciated the high degree of risk from his actions ... (Citation omitted.) ... The Martin plurality opinion rejects Restatement 500's general definition of 'reckless disregard of safety' as the standard for imposition of punitive damages. *572 That section states, 'In order that an actor's conduct may be reckless, it is not necessary that he himself recognize it as being extremely dangerous.... It is enough that he knows or has reason to know of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct.' ... Restatement 500, comment c. Instead, Martin requires the more culpable mental state of conscious indifference to another's safety as the test for mental state of conscious "indifference to another's safety as die test for 'reckless indifference' under Restatement $ 908. There most be some evidence that the person actually realized the risk and acted in conscious disregard or indifference to it.... (Citation omitted.)... The opinion announcing the judgment of the court Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 793 F.Supp. 569 (Cite *s: 793 F.Supp. 569, *572) in Martin is not dearly the law of Pennsylvania on this issue. Only Justices Hutchinson and Flaherty joined in the reasoning of the plurality opinion.... Thus, a majority of the Supreme Court has not ArA whether punitive damages may be awarded only where there is proof of consdous disregard of a known risk, or whether disregard of a risk that would be obvious to a reasonable person would suffice.... T]n subsequent cases, Pennsylvania's Superior Court has not applied a 'reasonable man' standard, but followed the lead of Justices Hutchinson and Flaherty, adopting and applying the 'consdous disregard' formulation.... (Citations omitted.).... [T]be rule of the opinion announcing the judgment of the conn in Martin furthers the purpose of punitive damages, which is to punish and deter 'conduct involving some element of outrage similar to that usually found in crime.' ....In sum, we predict the Pennsylvania Supreme Court would adopt the standard set forth in the Martin plurality opinion were it to confront the issue today. Burke, supra, 904 F.2d at 181 (Emphasis original). Accord: Villari v. Termini* International, Inc., 663 F.Supp. 727, 734 (E.D.Pa. 1987). The only post-Martin Pennsylvania Supreme Court decision on this issue is SHV Coal, Inc. v. Continental Grain Co., S26 Pa. 489, 493. 587 A.2d 702, 704-05 (1990). There, the Court excetpted the portion of the Hutchinson opinion in Martin, supra, which adopts the actual knowledge standard. SHV Coal, coupled with the Third Circuit's analysis in Burke, supra, leave no doubt that the ni knowledge standard applies to this case. See also: Tunis Brothers Company, Inc. v. Ford Motor Company, 952 F.2d 715, 740 (3d Cir.1991). [1] Thus, to recover, Sealover must prove that W.R. Grace and U.S. Gypsum were aware, prior to Donald Sealover's exposure, that the exposure of construction workers to asbestos released during the installation of their products was a health hazard and failed to warn of that risk. In Smith v. Celotex Corp., 387 Pa.Super. 340, 564 A.2d 209, 211-13 (1989), the Pennsylvania Superior Court dismissed the quantum of evidence necessary to prove such Imowledge. Using Martin as the foundation for its analysis, the court stated: The evidence deemed insufficient in Martin was testimony by two doctors concerning what the Page 4 medical profession Imew of the risks posed to applies of finished asbestos products and when they knew it.... Justice Hutchinson ... that plaintiff had not produced sufficient evidence of the awareness of the defendants of the specific risks associated with application of finished asbestos products, as opposed to risks associated with the manufacture of asbestos products. Justice Hutchinson distinguished those cases where the plaintiffs were employees of manufaourets of asbestos products and produced evidence of the specific knowledge of the defendants as to the risks posed to manufacturing employees such as the plaintiffs long before the defendants took any measures to protea the employees. See, e.g. Neal v. Carey Canadian Mines, Inc., 662 F.Supp. 64, 70-71 (E.D.Pa.1987). *573 Smith, supra. 564 A.2d at 211 (Emphasis supplied.) Finding such evidence lacking, the Superior Court reversed the jury's award of punitive damages, stating: [hjere, the evidence submitted ... did not establish either that the management of appellant knew or had reason to know of facts indicaring that appellant's conduct posed a substantial risk of physical harm to an applier of finished products film plaintiff.... There is no [medical] testimony specifically relating to knowledge by the medical profession is to the risks posed by finished asbestos products to those who installed or applied them. We, therefore, conclude that Dr. Sturgis offered no testimony in any way probative of outrageous condua by appellant vis-a-vis plaintiff. Smith, supra, 564 A.2d at 211. (Emphasis supplied.) The court dismissed as immaterial evidence of workmen's compensation rfaimt filed against the manufacturer, explaining that: [t]he existence of those claims alone, with no evidence demonstrating anything relating to how they were ultimately resolved, does not indicate anything regarding appellants knowledge of the risks posed to appliers of asbestos products for numerous reasons. Most importantly, we note that the claimants were manufacturing employees and not appliers. Thus we do not see how the mere fact that these workers' compensation claims were made is relevant to plaintiffs punitive damages claim. Smith, supra, 564 A.2d at 212 (Emphasis supplied.). See also: Catasaugua Area School Copr. e West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 793 F.Supp. 569 (Cite as: 793 F.Supp. 569, *573) Page 5 District v. Raymark Industries. Inc., 662 F.Supp. 64. 70-71 (E.D.Pa.1987) (evidence of punitive damages insufficient where plaintiff failed to demonstrate defendant's awareness of risks associated specifically with the installation of finished asbestos products in schools). In Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 586 A.2d 416. 422-26 (1991). the outcome was the same. The Pennsylvania Superior Court overturned a verdict assessing punitive damages against Corson, finding insufficient evidence that Corson, an asbestos supplier, was aware of the hazard asbestos posed to construction workers prior to the exposure of plaintiffs husband. There was, the court stated, "no support in the record for the assertion that officials or managerial employees of G. & W.H. Corson were aware in the mid 60's that exposure to asbestos fibers could result in cancer.* Plaintiff had attempted to prove such knowledge through: (1) testimony from G. <& W.H. Corson Vice President John Evans about general discussions he had, prior to 1969, with business colleagues about the hazards, .of asbestos; (2) Evans's testimony that he took no action to relay this information to his customers or warn' them of the potential danger, but relied instead on the manufacturer, Baldwin Hill, to take such action; (3) Evans's testimony that he had never discussed the issue of asbestos with Baldwin Hill; and (4) articles about the hazards of asbestos published in medical and trade journals circulated in Europe and the United States since the mm-of-the-cetmay. Noting, among other things, the absence of any proof that `anyone at Corson knew or had reason to know of these articles or any medical research studies on the risks involved in the use of insulation materials containing asbestos', the Superior Court found that such evidence did not prove knowledge on the part of Corson dial asbestos exposure posed a threat to Moran. Moran, supra, 586 A.2d at 425. Pennsylvania is not unique in adhering to the 'actual knowledge' standard. Missouri follows the same standard and its courts have likewise rejected punitive damage claims against asbestos suppliers and manufacturers in cases in which there was insufficient evidence that the defendant actually knew that even exposure to relatively moderate levels of asbestos posed a serious health risk. In Angotri v. Celotex Corp., 812 S.W.2d 742 (Mo.Ct.App.1991). the Missouri Court of Appeals found insufficient evidence that Celotex actually knew, at the time of plaintiffs exposure, of the hazard asbestos posed to construction workers, staring: ....The record here shows that information in regard to the harmful effect of *574 asbestos was still developing, but it does not establish that, at the relevant trines ... there was already information available to show that Philip Carey's finished products were actually known to present a health hazard to insulaton. In other words, the record does not reflect thar scientific knowledge even existed, at the relevant trines [from 1951 through 1973] ... to establish legal causation sufficient to submit punitive damages against Celotex for the injuries of William Angotri as a result of his exposure, as an insulator, to Celotex's products. Without even a showing of scientific knowledge sufficient to establish legal causation. Celotex can not be held to have bad actual knowledge of the danger to William Angotri on the basis of the record in this case. Angotri, supra, 812 S.W.2d at 746-47. See also: School District of the City of Independence v. U.S. Gypsum, 750 S.WJd 442, 44648 (Mo.Ct.App.1988), (Court found insufficient evidence that U.S. Gypsum had actual knowledge at the trine of sale that the ceiling tiles sold for installation in schools would release asbestos fibers if abraded [rubbed against or scraped], thereby posing a health risk to school employees and students). Evidence proffered by Sealover Plaintiffs principal witness on Sealover's exposure to defendants' asbestos produca was Martin Brehm. Brefam was Sealover's brother-inlaw and, like Sealover. worked as a carpenter in the Harrisburg, Pennsylvania area. Brehm and Sealover worked on the same construction projects on several occasions during the late 1950's and early 1960's. It was during that time that Sealover was exposed to defendants' asbestos products. Brehm testified that Sealover was exposed to (1) Zonolite. a W.R. Grace fireproofing spay. [FN7] during construction of the Cumberland County Courthouse in Carlisle, Pennsylvania in 1960-61; [FN8] (2) Red Top plaster, a U.S. Gypsum product, and to 21onolite, during construction of the Archives Building in Harrisburg, Pennsylvania in 1961-62; [FN9] and (3) Red Top plaster, during construction of the William Copr. e West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 793 FiSupp. 569 (Cite as: 793 F.Sapp. 569, *574) Penn Museum [FN10] in Harrisburg, Pennsylvania in 1962-61. [FN11] As a carpenter, Donald Sealover was not involved in the actual installation of asbestos products, but worked near locations where such products were used. FN7. WJL Grace acquired the asses of the Zooolite Company in April. 1963 and argues that punitive damages should not be assessed against it because it was not a mMc.itmrer of asbestos products prior id 1963. r&niiff argues WJL Grace is liable as a successor corporation to Zooolite. Our ruling on the sufficiency of the evidence disposes of plamufTs claim and eliminates the need to consider this issue. FN8. N.T.. July 8. 1991, pp. 23-31 and 64(Brehm. M.). FN9. N.T.. July 8. 1991. pp. 32-35, 38-39 (Brehm. M.). FN10. N.T., July 8. 1991. pp. 3641. (Brehm. M.). FN11. Brehm testified that Sealover was also exposed B Cold Bond products manufactured by National Gypsum on the three construction projects: the Cumberland County Courthouse, the Archives Building in Harrisburg, and the William Petm Museum. Bainriff is not seeking punitive damages against National Gypsum. To recover on her punitive damage claim, the piainriff must prove that W.R. Grace and U.S. Gypsum had actual knowledge, before 1960 and 1961 respectively, thst the installation of their products' presented a serious health risk to construction bystanders and failed to warn of the danger. Plaintiff bases her case against U.S. Gypsum on information derived from two sources: [FN12] (1) experiments performed on at Lake Saranac laboratory in New York during the 1930's by Dr. Leroy Gardner and the reports generated by those experiments (the 'Lake Saranac* evidence); and (2) a suit filed by a bookkeeper formerly employed in one of its plants who alleged that be had contracted asbestosis as a result of working in an asbestos plant. [FN13] FN12. We assume, without deciding, that for Page 6 purposes of ruling ou defendants' morions, that all evidence which plaintiff proffers would be admissible at triiL FN13. The bookkeeper worked at an asbestos factory owned by the National Asbestos Manufacturing Co., and the suit was filed against that company. U-S. Gypsum plant acquired the factory in 1936. *575 Piainriff bases her case against W.R. Grace on the Lake Saranac evidence as well as on other information allegedly available to it through its acquisition of two companies in the 1950's and 1960's. WJL Grace did not become involved in manufacturing asbestos-containing products until December. 1954 when it acquired the Dewey and Almy Chemical Company ('Dewey and Almy'). [FN14] Dewey and Almy had been involved in manufacturing products which incorporated asbestos rince the 1930's when its acquired Mulribestos, a company which manufactured brake linings. During the 1930's, Mulribestos plant employees exhibited symptoms of asbestosis and their conditions and symptoms were repotted in two articles published in medical journals. FN14. Became we find the evidence proffered by plaintiff legally imufllciem. we need not address WJL Grace's contention that it cannot be held liable tor punitive damages as a successor corporation to Zooolite. the corporation which manufactured the asbestos products to which Sealover was exposed. In April of 1963, W.R. Grace acquired a second company involved with asbestos products, the Zooolite Company ('Zonolite'). Zooolite operated a vermiculite mine in Libby, Montana, a vermiculite mine in South Carolina, and several processing plants at which the ores mined at Libby were used to manufacture fireproof plaster, among other products. The vermiculite ore mined at Libby was contaminated with asbestos, and Zonolite employees' had exhibited problems stemming from their exposure to asbestos during mining and processing operations. Zonolite was aware of such problems since at least die early 1950's, when it implemented regulations requiring Libby employees to wear respirators. Despite precautionary Copr. c West 1998 No Claim to Orig. U.S. Govt. Works- WESTLAW "5; r.Supp. 569 (Cue as: 793 F.Supp. 569, *575) measures, such as the use of respirators, x-rays of LiCcy employees taken is the late 1950's revealed a t.gc mcidence of abnormal lung conditions. The conditions observed included pleural thickening, interstitial fibrosis and pneuoonocosis or possible asbestosis. Troubling dust conditions in the Libby nae were noted and reported by public health officials. For example, a report generated during a 1956 inspection of the Libby mine by the Montana Board of Health found `the asbestos dust in the air* to be *of considerable toxicity.* Saranac Lake experiments [2] The Saranac Lake experiments are the cornerstone of plaintiffs case against U.S. Gypsum. The experiments were performed in.the late 1930's and the early 1940's by Dr. Leroy Gardner. Dr. Gardner exposed to mice, rabbits, can and other animals to asbestos dust and other types of dust and documented the effect on their lungs. His initial intent was to study whether the animals exposed to asbestos developed asbestosis. the conditions under which it developed, etc. He was surprised when the results in mice revealed a high incidence of hmg tumors which he believed to be cancerous. The population of mice exposed to the asbestos dust was small, numbering only eleven. The significance of certain aspects of Dr. Gardner's experiments is vigorously disputed, but one point is clear. The experiments did not establish a definite causal relationship between asbestos exposure at levels comparable to those experienced by construction bystanders and cancer. Dr. Gardner found only a possible relationship between exposure to massive amounts of asbestos and malignant turnon of the lung in whim mice. He himself stated that the implications were unclear and that the matter required further study before any clear conclusions could be drawn. Further, possible flaws in the methodology were identified by Dr. Gardner and by othen who later reviewed the results. Among the flaws was the fact that the strain of white mice studied was thought to be particularly susceptible to lung turnon. In Februaxy of 1943, Dr. Gardner released an `Outline of Proposed Monograph on Asbestosis*, in which he characterized the significance of his findings as follows: Tbese observations are suggestive but not Page 7 conclusive evidence of a cancer stimulating action by asbestos dust. They are open to several criticisms. The strain of mice was not the same in the *576 asbestos experiment as in many of the other cited; apparently, the former were unusually susceptible. Not enough mimau survived in the dust for longer than the 15 months apparently necessary to produce many tumors. There were no unexposed controls of the same strain and age, and no similar controls exposed to other dusts. It is hoped that this experiment can be repeated under properly controlled conditions to detexmine whether asbestos actually favors cancer of the lung. (Record Document No. 245, filed December 11. 1991. p. 19 referencing plaintiffs exhibit USG-152 at 126-66-(7) through 126-66-{8) (emphasis supplied)). See generally: Angotri. supra. 812 S.W.2d at 746-49 (Responding to the alleged tignifieanee of a prediction by a physician working for the company that someday * 'even the minor use of asbestos may ... be considered ... dangerous to the general populace' *, the court stated: *A forecast of what may be determined m the future does not establish present knowledge that a health hazard existed for those working as insulators. *) In a letter and report to Johns-Manville dated February 24.1943, Dr. Gardner again described the results as inconclusive and noted the need for further study on the question of a possible link to cancer. The question of cancer susceptibility now seems more significant than I previously imagined. 1 believe 1 can obtain support for repeating it from the cancer research group. As it will take two or three yean to complete such a study, I believe it would be better to be omitted from the present report. If it should become possible to make this study, I hope I any [sic] count on some of your members to supply me with enough pure, long fiber asbestos for the purpose ... (Record Document No. 245, filed December 11, 1991, p. 23, referencing plaintiff's exhibit USG-152 at 126-66-{7) through 126-66-{8)). Plaintiff argues that the results of the Saranac Lake research'Were more definite than this and, as support for that assertion, points to a statement in a letter dated August 13. 1936 from W.L. Keady, a U.S. Gypsum executive. Keady summarizes the contents of a report by Dr. Gardner on conditions at a Jersey City plant which U.S. Gypsum had Copr. West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 793 F.Supp. 569 (Cite as: 793 F.Supp. 569, *576) purchased from another asbestos manufacturer. Dr. Keady stares at one point that 'then was no safe level of exposure to asbestos.* Plaintiff argues that, by this, he meant (bar exposure to any ""* of asbestos, however minute, posed a hazard. Plaintiff** interpretation is inconsistent with the test of the passage. The entire passage reads: Dr. Gardner points out that various authorities have tentatively suggested a concentration of five million particles of free silica per cubic foot of air b limit* above which a silicosis hazard might exist, and this value has met with some recognition. There is no standard for safe concentration of asbestos dust comparable to the value just given for free silica dust. (Record Document No. 245, filed December 11, 1991, Exhibit *N*). We are not the first court to consider the import of the Keady letter. The Court of Appeals for the District of Columbia Circuit considered the letter in Wesley Theological Seminary v. U.S. Gypsum Co., 876 F.2d 119. 123 (D.CGr.1989). and rejected plaintiff's proposed interpretation. ..The court explained; Dr. Gardner concluded that a serious asbestos dust hazard existed in the plant. He discussed other studies which proposed a mjTrrmrm safe level of 'five millinn panicles of free per cubic foot of air.' He distinguished silica duct from asbestos dust, however, and concluded that this standard was not necessarily applicable to asbestos dust. Wesley seeks to treat as a smoking gun die letter's observation that '[tjhere is no standard for safe concentration of asbestos dust comparable to the value just given for free silica dust.' In context, however, this is simply a statement that, due to the absence of enough research, no one could yet identify the safe level for occupational exposure. Similarly, the letter's discussion of an *577 asbestos dust study which found a 10% asbestosis rate among workers exposed to five million panicles per cubic foot of dust was of remote relevance at best. While it suggests that U.S. Gypsum was on notice that the safe level for occupational exposure to asbestos dust an a full* time basis was less than five million particles per cubic foot of air. it does almost nothing to establish Wesley's central thesis--that the defendant was aware that asbestos-containing ceiling tiles, once installed, created hazardous concentrations. Page 8 Wesley Theological, supra. 876 F.2d at 123 (Emphasis supplied.) We are aware of the controversy concerning the alleged attempts of the Saranac study sponsors, a group of asbestos manufacturers which included U.S. Gypsum, to conceal the suspected link to cancer revealed by Dr. Gardner's study. It is not clear from the documents we have reviewed dui U.S. Gypsum knowingly participated in any conspiracy to conceal the results by pressuring Dr. Gardner or his successors to omit any mention of cancer from the published reports of the study. This distinguishes is position from that of other asbestos manufacturers, such as Johns-Macville, with respect to which there is dear direct evidence of knowing participation in efforts to block publication of results linking asbestos-exposure is animals to cancer. Moreover, the Pennsylvania courts have found even such knowing participation an insufficient basis for imposing punitive damages. See: Martin, supra, and Angotti, supra, 812 S.W.2d at 746-49 (Efforts to keep a medical advisor's 'observations and evaluation confidential does not show actual knowledge of a health hazard to an individual working as an insulator.*) Cf. Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357, 365 (E.D.Pa.1982). Plaintiff has not pointed to any evidence that U.S. Gypsum was directly or knowingly involved in attempts to conceal Dr. Gardner's finding of a suspected cancer link or to curtail publication of his findings. The Lake Saranac experiments were sponsored by a group of asbestos manufacturers which mcltuted U.S. Gypsum. [FN15] Dr. Gardner was in contact with officers of Johns-Manville and Raybestos-Manhattan about his experiments, and such evidence, as well as attempts by the principals of those companies to suppress the study results, has been the basis for an award of punitive damages against them in a number of cases. Plaintiff has not, however, directed our attention to any evidence similarly linking U.S. Gypsum to efforts to conceal the results or to pressure Dr. Gardner or his successors to-timit publication of their findings. Without such direct evidence, U.S. Gypsum cannot be tarred with the same brush as Raybestos or JohnsManville. FN15. W.R. Grace was not one of the sponsors. At the dme the experiments were conducted, it was Copr. West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 793 F.Supp. 569 (Cite as: 793 F.Supp. 569, *577) not involved in the mining or processing of asbestos. It did not acquire asbestos-related industries uadi the 1950's. Further, without the underpinnings of evidence establishing actual Imowiedge of the hazard asbestos posed to those who even indirectly came into contag with their products, plaintiff's evidence of alleged attempts to conceal the Saranac Lake experiments, as well as its alleged failure to use alternatives to asbestos has no probative value. Such evidence alone does not establish culpable conduct, U.S. Gypsum employee The other evidence on which plaintiff relies to establish actual knowledge on the pan of U.S. Gypsum is evidence that in the 1930'a a bookkeeper employed at one of its plants in Jersey City, New Jersey contracted asbestosis as a result of Ids employment. Plaintiff argues that this proves U.S. Gypsum knew that exposure to even relatively tnodente levels of asbestos posed a significant health hazard. Such evidence does not equate to knowledge that construction bystanders were at risk. As the court pointed out in Angotti, supra, asbestos-plant workers were exposed to far greater quantities of asbestos dust than the avenge construction worker, ***"* their work environments differed. The manufacturing processes generated enormous *578 quantities of dust. Day-after-day, each worker labored in the same location and was exposed to the same, extremely dusty conditions. Ventilation was oftdmes non-existent during the early manufacturing days, and the worker had no reprieve from the repetitive accumulation of asbestos dust. Knowledge that workers laboring under such conditions suffered from a cumulative exposure to asbestos cannot be equated with Imowiedge that construction workers, presumably laboring under less disagreeable conditions and less dusty conditions [FN16] would suffer the same ill-effects to the same degree. In Angotti. supra, the court FN16. See. e.g.. Record Document No. 245, filed December 11. 1991. referencing plaintiff's exhibit USG-16 at p. 2. ... While there was evidence that sawing of asbestos products by insulators produced dust in Page 9 varying degrees, depending on the type of material and the size of the cut. there was no evidence to show that the exposure of the plant employees with asbestosis was to the same degree as the exposure of an insulator. There are many products and environmental conditions that are knows to create a health hazard to individuals exposed to a given degree which do not create a hazard to one exposed to a lesser degree.... .... [T]he fact that workers at the Philip Carey plant exposed to high volumes of asbestos dust within the manufacturing process contracted asbestosis does not show actual knowledge by Philip Carey that a health hazard existed from the exposure of an insulator, who did not work in the manufacturing process and within the confines of its plant, but who worked with its finished products. The evidence did not establish that Philip Carey had actual knowledge that insulators were exposed to a dangerous level of asbestos fibers by use of their products or that Philip Carey was put on notice and consciously chose to ignore information that showed its products were actually known to be harmful to insulators. Angotti, supra, 812 S.W.2d at 747-748 (Emphasis supplied.). See also: Martin, supra, 494 A.2d at 1099 n. 15 (noting the distinction between articles and research studying the risks associated with mining and manufacturing raw asbestos and the risks associated with installing or applying asbestoscontaining products), and Smith, supra, 564 A.2d at 212. Clearly, then, evidence that U.S. Gypsum was on notice that a bookkeeper in one of its manufacturing plants contracted asbestosis does not equate to knowledge that construction. bystanders, such as Donald Sealover, were equally at risk. Libby mine workers Of all of the evidence which plaintiff proffen against W.R. Grace, that which brings her closest to proving actual knowledge of the hazard asbestos posed to construction workers is proof that the workers who experienced problems were, purportedly, exposed to only relatively small amounts of asbestos contained in the vermiculite. Plaintiff argues that this served as notice that even casual or indirect exposure to relatively small amounts of asbestos can cause serious lung problems. She contends that this also distinguishes this case from others decided by the Pennsylvania courts in which the courts refused to equate long- Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 793 F.Supp. 569 (Cite as: 793 F.Supp. 569, *578) Page 10 standing knowledge of lung problems in plant workers with knowledge that asbestos would have an equally devastating effect on construction workers exposed to lesser quantities and lower concentrations. [FN17] See, e.g., Neal v. Carey rnarfian Mines and Martin, supra. The conclusion which plaintiff seeks to draw from the problems experienced by the Libby mine and plant workers does not follow. Knowledge of their health problems does not equate under Pennsylvania law to *tniai knowledge that construction bystanders would suffer like problems from exposure on construction sites to asbestos-containing products. It stands to reason that exposure during the manufacturing process and during mining, when asbestos- containing *579 raw materials were being crushed, sorted, and otherwise manipulated, would pose a greater risk of more extensive exposure than would the installation of the manufactured product. See, e.g. Angoni, supra, 812 S.W.2d at 746-49 (*[A]rtides from medical literature relating to the 'hazards of asbestos exposure in industrial employment, and to the surrounding population.' .... and warnings by a medical advisor.of 'possible liability to persons other than employees' does not establish actual knowledge and it does not*establish that information was available to show that ... (defendant's] products were actually known to constitute a health hazard to insulators.*) Further, the reports upon which plaintiff relies indicate that workers and miners were exposed to a large volume of dust. For example, a 1956 report from the Montana Board of Health states: 'dust vibrates almost continuously off the rafters which have become loaded and are continuously loaded with dust generating from many sources." (Record Document No. 248, filed December 11, 1991 at p. 22, referencing W.R. Grace Exhibit 2). A letter written in 1961 by a Zonolite official expresses similar concerns, staring: There is a relatively large amount of asbestos dust present in our mill and this is difficult to control.* (Record Document No. 248, filed December 11, 1991. at p. 23). Thus, even though the dust workers were exposed to may have contained only trace amounts of asbestos, the fan that it was generated continuously and allowed to accumulate day after day distinguishes their situation from that of construction workers, where one would reasonably expea the volume of dust to be less. Once installation was completed installers move to a new location, so that one would that there is not the same opportunity for dust to accumulate day after day in the same location and endanger the health of bystanders. Cf. Wammock v. Celotex Corp., 835 F.2d 818, 822 (11th Cir.1988) (punitive damages award against National Gypsum upheld based, inter alia on evidence that National Gypsum was aware of hazards asbestos exposure posed to miners, plant workers and others exposed to high concentrations of die dust and could be found to be 'consciously indifferent* to the threat posed to construction workers by failing to aa on that information to pretea such workers from exposure). FN17. (See: Record Document No. 248. filed December 11,1991 at p. 17. Emphasis supplied.) Post-1961-1962 evidence [3] Plaintiff's reliance on post-1961-1962 evidence is misplaced. Evidence that W.R. Grace and U.S. Gypsum learned of the hazards of asbestos sometime after Sealover's exposure is in r.-:> way probative of what they actually knew prior to Sealover's exposure. Although such evidence is relevant in some cases, depending upon the claims raised, it is not relevant to the issues before this court. Cf. Rowan County Board of Education v. U.S. Gypsum. 103 N.C.App. 288, 407 S.E.2d 860 (1991) (post-exposure evidence relevant to refute defendant's assertions that asbestos ceiling tiles it markrteri were suitable for installation in schools) and Eagle-Picher Industries. Inc. v. Balbos, 84 Md.App. 10, 578 A^d 228, 249-50 (1990) (post exposure evidence relevant to prove a duty to alert plaintiff after exposure and avert possibility of him worsening his condition by continuing to smoke cigarettes and/or to prompt the persons exposed to seek treatment earlier and thereby perhaps prolong their lives). Cases cited by plaintiff Plaintiff urges the court to follow Ivins v. Celotex Corporation, 115 F.R.D. 159 (E.D.Pa.1986). in which Judge Newcomer found the Saranac documents sufficient to support a claim for punitive damages against* Owens-Illinois and Owens Coming Fiberglas. Ivins is inapposite, because the court did not follow what we now know to be the Pennsylvania standard for imposing punitive damages. Although the court stated that liability had been established under both Martin and the line of cases which preceded it (cases which did not Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 793 F.Supp. 569 (Cite as: 793 F.Supp. 569, *579) Page 11 require the plaintiff to prove aoual knowledge), its bolding was framed is terms of what the defendants should have or could have inferred from the Saranac findings, not in terms of what they actually knew 580 about the effect of asbestos on construction workers. The court stated: [T]he Saranac documents could indicate that Owens-Illinois and OCF had knowledge of the danger sometime between 1948 and 1958. Second ... testimony with respect to OCF*s familiarity with asbestos and the contemplated publication of the 'asbestos file* may support the inference that OCF was aware of the hazards of asbestos in mining and factory settings. Such evidence could also show that OCF knew or should have known of such (acts as would cause a reasonable person to realize the existence of a serious danger. Since plaintiffs' proob may support the inference that defendant OCF-long before it took ameliorative action-(l) knew of the risks associated with asbestos or (2) knew or should have known of bets which would cause a reasonable person to realize that exposure to asbestos caused significant health risks, it would be inappropriate to dismiss plaintiff's claim for punitive daTM;-- as a matter of law. Ivins, supra, 115 F.R.D. at 166. City of Greenville v. W.R. Grace It Co., 827 F.2d 975. 981-83 (4th Or. 1987) is distinguishable on its bos. The Gty of Greenville, Sooth Carolina sued W.R. Grace to recover the cost of removing a fireproofing product called Monokote from the Greenville City Hall. The city was awarded compensatory and punitive damages on its negligence and breads of warranty claims. On appeal, the award was upheld by the Fourth Circuit Court of Appeals. Unlike the case before us, W.R. Grace sold die asbestos-containing Monokote to Greenville in 1971 to 1972, at a tim when it was fully aware of the hazards associated with asbestos products, knew that die asbestos-containing Monokote was not suitable for the purposes for which it was sold because of is tendency not to bond to the surfaces to which it was applied, and, acting in response to well-publicized concerns about the health risks associated with asbestos exposure, had developed and was marketing commercially a non-asbestos Monokote product. Repeated punitive damage awards Defendants raise several policy reasons for not permitting punitive damages in this case, which we will address briefly. Defendants rite: (1) the compensatory and punitive damage judgments assessed against them in prior cases; (2) pending asbestos claims; [FN18] (3) the dire financial straits of other asbestos manufacturers as reasons for disallowing punitive damages in this case; and the bo that plaintiff has been folly compensated for her injuries. They argue under the circumstances, subjecting them to punitive damages would serve no purpose iat. 'unreasonably endanger future litigants' chances to recovery compensatory damages* by further draining defendants' limited financial resources. If their coffers are further depleted by large punitive damage awards in cases such as this, they argue, the injuries .of (inure claims will go uncompensated. Other injured parties, having an equal right to receive foil compensation for their losses, will receive nothing. By allowing plaintiffs to proceed to trial on the punitive damage issue, defendants argue, the court would be sanctioning a practice county to the interests of other injured parties. FN18. Untold numbers of asbestos personal injury actions have alrrady been Imgatrd to conclusion and statistics inrfiratc that the stream of litigation is ftr from witting. Coon records indicate that presently in the federal system nearly two new asbestos action are being filed for every action terminated, and that at the current rate, there win be more than 48.000 action pending in the federal coons at the end of three years.* In re: Asbestos Products UabOtiy Uriptitm (No. VII). 771 F.Supp. 415. 418 (J.P.M.L.1991) (citing Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation, 8 (1991)). The Third Circuit Court of Appeals has recognized the legitimacy of the concerns which defendants raise. In In Re School Asbestos Litigation. 789 F.2d 996, 1003-04 Pd Cir.1986). the court commented on the inappropriateness of punitive damages in mass ton litigation, stating: In the era when most ton suits were 'one-against- one' contests, a single act triggered a single punishment. The increasingly *581 prevalent mass ton situation, however, exposes a defendant to repetitious punishment for the culpable conduct. The parallels between the assessment of exemplary damages and a fine levied in criminal Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works WESTLfflV '?: F Supp. 569 iCite as: 793 F.Supp. 569, *5*1) Page 12 coutj have led to suggestions that the concepts of double jeopardy and excessive punishment should be invoiced in the civil field as well.... (Citations onjned.).... Similar concerns have prompted highly respected judges to comment on the possibility that the due process clause might contain some constitutional Imitation on the amount of exemplary damages to be awarded. 'Unlimited multiple punishment for the same act determined in a succession of individual lawsuits and bearing no relation to the defendants' culpability or the actual injuries suffered by victims, would violate the sense of 'fundamental fairness" that is to constitutional due process.' In re Federal Skywalk Cases. 680 F.2d 1175, 1188 (8th Cir.1982) (Heaney, J. dissenting). There must, therefore, be some limit, either as a matter of policy or as a matter of due process, to the amount of times defendants may be punished for a single transaction.' In re 'Agent Orange* Produo Liability Litigation. 100 FJLD. 718,728 (1983). In addition to a possible federal constitutional limitation, state substantive ton law .could place restraints on repetitive punitive damage awards.... Thus powerful arguments have been made that, as a matter of constitutional law or of substantive ton law, the courts shoulder some responsibility for preventing repeated awards of punitive damages for the same acts or series of acts. ... [TThe tens of thousands of personal injury suits in which punitive damage verdicts have been and continue to be assessed ... are satisfied from the same pool of asses to which the school districts now look. If a limit is ever placed on the total punitive damages to be imposed on the asbestos defendans, then that limit probably would apply to all claims whether they arise in property damage or personal injury suns. ... [Djespite strong arguments favoring limitations on punitive damages and die increasing number of bankruptcies, the 'business as usual' attitude still prevails.... (Citations omitted.) School Asbestos Litigation, supra, 789 F.2d at-- 1003-05 and 1007. Although the Third Circuit recognized the need for controls, it has not thus far adopted a rule limiting the number of punitive damage recoveries against a single defendant for a single product or course of action. The United Stales Supreme Court has also acknowledged that there are Fourteenth Amendment due process constraints on punitive damage awards. Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.CL 1032. 113 L.Ed.2d 1 (1991). Defendants further argue that allowing plaintiff to proceed with her punitive damage claim would be inconsistent with the order of the Judicial Panel on Multi-District Litigation (the "Panel*) dated July 30, 1991 consolidating the pre-trial proceedings of all federal personal injury and wrongful death asbestos cases. In its decision to consolidate, the Panel made reference to concerns along these lines expressed m the Match 1991 report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation: The ... five yean [since 1985] have seen ... increased filings, larger backlogs, higher costs, more bankruptcies and poorer prospects that judgments--if ever obtained--can be collected. The most objectionable aspects of asbestos litigation can be briefly summarized ... exhaustion of assets threatens and distorts die process; and future rlarmams may lose altogether. In re: Asbestos Products Liability Litigation (No. VI). 771 F.Supp. 415, 418-19 (J.P.M.L.1991) (quoting Report of the Judicial Conference Ad Hoc Committee on Asbestos litigation, 1-3, 9 (1991)). [4] *582 Although the defendants raise legitimate concerns, this conn is not the proper forum for redress. [FN19] If restrictions are to be imposed on the number of punitive damage awards which may be assessed against a single defendant for the same product or course of action, they must be established by the Pennsylvania legislature or "a higher judicial authority*, but not by this court. See: Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1096-97 (5th Cir. 1991) (Tf there is to be further control of repeated punitive damage awards, the solution must be found through legislation.*); King v. Armstrong World Industries, Inc., 906 F.2d 1022, 1031-33 (5th Or. 1990), cen. denied, 500 U.S. 942, 111 S.Ct. 2236, 114 L_Ed.2d 478 (1991); McCleary v. Armstrong World Industries, Inc., 913 F.2d 257, 260-61 (5th Cir. 1990). Cf. Juzwin v. Amtorg Trading Corp., 718 F.Supp. 1233, 1235 (D.NJ.1989) (THhis court does not have the power or the authority to prohibit subsequent [punitive damage] awards in other courts Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works WESTLAW 9 793 F.Supp. 369 (Cite as: 793 F.Supp. 569, *582) notwithstanding its opinion that such subsequent awards violate the due process rights of the ^frvriintt against whom such verdicts are entered. Until there is uniformity either through Supreme Court decision or national legislation, this court is powerless to fashion a remedy which will protea the due process rights of this defendant or other ArftmAant< similarly situated.*) and Gogol v. Johns' Manville Sales Corp., 593 F.Supp- 971, 975-76 (D.NJ.1984). Page 13 plaintiff's punitive damage claim, summary judgment is granted in defendants' favor on that claim. 4. The Clerk is directed to defer entry of final judgment until forther order of court. END OF DOCUMENT FN19. Commentators have recognized the legitimacy of these concerns, but have also urged a legislative solution. See: Robert E. Scott. Jr., Puoirive Duniges: Elements ud Defense-The Defense Perspective. 387 PU 425 (Match 1. 1990). Commentators have nrged the need fer a resoaint on the nttmhrr of punitive damage awards that may be imposed on any one company for injuries arising from a single product or line of products. See: Jack B. Weinstein and Eileen B. Hershenov, The Effect of Equity an Mass Ton Law. 1991 U.DLLJtev. 269 (1991). ORDER For the reasons stated in the accompanying memorandum. IT IS ORDERED THAT: 1. The motions [FN1] (Record Document No. 234, filed October 29, 1991 and Record Document Nos. 245 and 246, filed December 11. 1991) by U.S. Gypsum to bar plaintiffs from proceeding with their punitive damage claim and to exclude evidence of punitive damages are granted. FN1. Also outstanding are plaintiffs motion for delay damages: defendants' motions for a new trial or jm.o.v.: plaintiffs motion to sever the case against GAF; and defendants' motion to treat Johns-Minville is t settled dgfrtvtaiwf mH mold (he verdict. These motions wfll be in i separate trtgmCT,TV^w,i order. 2. The motion (Record Document No. 238, filed November 15, 1991) by W.R. Grace for summary judgment on plaintiff's punitive damage claim is granted. 3. The parties having agreed that the court should treat the above motions filed by W.R. Grace and U.S. Gypsum as motions for summary judgment on Copr. 0 West 1998 No Claim to Orig. U.S. Govt. Works WE5TLAW Exhibit B 750 S.W.2d 442 56 USLW2572, 46 Ed. Law Rep. 1241. Prod. Liab. Rep. (CCH) P 11.717 (Cite as: 750 S.W^d 442) Page 1 SCHOOL DISTRICT OF the CITY OF INDEPENDENCE, MISSOURI, NO. 30, Appellant, r. U.S. GYPSUM COMPANY, Respondent. No. WD 39135. A motion for judgment n.o.v. represents same question as motion for directed verdict at close cf all evidence: whether plaintiff made a submissible case; defendant's motion for judgment n.o.v. is properly granted if motion identifies one or more elements of plaintiff's case that is not supported by evidence. Missouri Court of Appeals. Western District. March 1. 1988. As Modified May 3, 1988. Motion for Rehearing and/or Transfer to Supreme Court Denied May 3. 1988. Application to Transfer Denied June 14, 1988. [2] DAMAGES => 91(1) 115k91(l) School district was not entitled to award of punitive damages against manufacturer of ceiling material containing asbestos, as school district produced no evidence that at rime manufacturer sold ceiling material to school district, manufacturer had actual knowledge of produo's propensity to release asbestos fibers into atmosphere. School district sued manufacturer of ceiling plaster containing asbestos for cost of removing and replacing ceiling plaster and asbestos-contaminated furnishings. After a jury verdict in favor of school district, the Circuit Court, Jackson County, H. Michael Coburn. J., entered judgment in favor of school district on claim for actual damages, but granted manufacturer's motion for judgment notwithstanding the verdict as to punitive damage award. Both parties appealed. The Court of Appeals, Covington. J., held due (1) school district could not recover punitive damages from manufacturer when no evidence was produced to show that manufacturer was aware of ceiling material's propensity to release asbestos fibers at time of installation; (2) trial court properly admitted evidence pertaining to school custodian's exposure to asbestos-containing products and physical condition; (3) jury's verdict in favor of school district on actual damages claim was not tainted by evidence on punitive damages claim which was later dismissed by judge; (4) trial court properly admitted documents and expert testimony as to hazards of other asbestos-containing products and hazards of asbestos in general; and (5) school district could maintain action in tort for cost of replacing defective product and personal property contaminated by asbestos. Affirmed. [1] JUDGMENT = 199(3.9) 228kl99(3.9) [3] APPEAL AND ERROR <*= 1056.1(1) 30kl056.1(I) Refusal to admit evidence does not constitute reversible error unless admission of evidence would have changed result reached. [4] APPEAL AND ERROR <S 1056.1(7) 30kl056.1(7) In products liability action brought by school district against manufacturer of ceiling material containing asbestos, exclusion of internal correspondence of manufacturer concerning employee who bad allegedly contracted silicosis or asbestosis was not reversible error insofar as school district's claim for punitive damages was concerned; excluded documents related only to manufacturer's general knowledge of hazards of asbestos exposure, not to manufacturer's knowledge of ceiling material's propensity to release asbestos fibers into atmosphere which was necessary to prove punitive damages claim. [5] PRODUCTS LIABILITY = 81.1 313Ak81.1 Formerly 313Ak81 Evidence concerning school custodian's disabling respiratory ailments, which were allegedly caused or aggravated by exposure to asbestos-containing products, was admissible is school district's products liability action against manufacturer of ceiling material containing asbestos; medical testimony confirmed chat custodian's lung condition was aggravated or caused by exposure to asbestos Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works Westlav 750 S.W.2d 442 (Cite as: 750 S.W.2d 442) Page 2 dust during period of time when custodian worked in schools containing ceiling material. [6] APPEAL AND ERROR <$ 1062.1 30kl062.1 Trial court properly determined that improper submission of punitive damages issue to jury had not tainted underlying verdict rendered in favor of school district on actual damages claim in its products liability suit against manufacturer of asbestos ceiling material; nnnr of actual damages awarded by jury was less than school district sought. [7] EVIDENCE <*= 519 I57k519 In products liability action brought by school district against manufacturer of asbestos ceiling material, trial coun properly admitted documents and expen testimony pertaining to hazards of other asbestoscontaining products and of hazards of asbestos in general; certain of evidence was relevant to demonstrate feasibility of warning concerning dangers of asbestos, and remaining evidence was relevant to show manufacturer's knowledge of asbestos health hazards. [7] PRODUCTS LIABILITY G=> 81.1 313Ak81.1 Formerly 3l3Ak8l In products liability action brought by school district against manufacturer of asbestos ceiling material, trial coun properly mtnimH documents and expert testimony pertaining to hazards of other asbestos- containing products and of hazards of asbestos in general; of evidence was relevant to demonstrate feasibility of warning concerning dangers of asbestos, and remaining evidence was relevant to show manufacturer's knowledge of asbestos health hazards. [8] EVIDENCE <8= 519 I57k5l9 In products liability action brought by school district against manufacturer of asbestos ceiling material, expen witness was properly permitted to testify as to his opinion that friable asbestos-containing ceiling materials are unreasonably dangerous; jury was not likely to be conversant with dangers of friable asbestos-containing ceiling materials, and since issue of unreasonable danger was to be left to jury without further definition, opinion of expen was likely to aid in jury's understanding. [9] TRIAL 45(2) 388k45(2) In order to present and preserve an offer of proof, proper procedure is to propound questions to witness who is present and who has taken stand; although narrative offer of proof may occasionally be found to be adequate, it must be presented with certainty and detail sufficient to demonstrate its quality as relevant, material and probative evidence. [9] TRIAL <&= 45(3) 388k45(3) In order to present and preserve an offer of proof, proper procedure is to propound questions to witness who is present and who has rairgn stand; although narrative offer of proof may occasionally be found to be adequate, it must be presented with certainty and detail sufficient to demonstrate its quality as relevant, material and probative evidence. [10] APPEAL AND ERROR 205 30k203 In products liability action brought by school district against manufacturer of asbestos ceiling material, manufacturer did not preserve for appellate review issue of exclusion of 'comparative risk assessment* testimony by trial coun; manufacturer made conclusory narrative offer of proof as to testimony to be given by expert. [11] PRODUCTS LIABILITY = S3 313Ak83 In school district's products liability action against manufacturer of ceiling material containing asbestos, evidence was sufficient to support finding in that ceiling material was unreasonably dangerous; school district was not required to quantify level or threshold at which exposure to asbestos in ceiling material actually became health hazard, as school district was not damages for future injuries, but was seeking damages for present injury to property incurred as result of replacement of ceiling material and ocher contaminated property. [12] PRODUCTS LIABILITY <3= 17.1 313Akl7.1 Formerly 313Akl7 School district was entitled to bring action against manufacturer in tort for cost of replacing asbestos ceiling product and other items of personal property contaminated by asbestos-laden ceiling material. 444 Humphrey. Farrington & McClain, P.C.. Copr. * West 2000 No Claim to Orig. U.S. Govt. Works Wfetlav 750 S.W.2d 442 (Cite si: 750 S.W.2d 442, *444) Page 3 Norman Humphrey. Jr.. Kenneth B. McClain, Steven P. Callahan. Independence, for appellant. punitive award. USG cross-appeals from the adverse judgment. Affirmed. Deacy Deacy. Spencer J. Brown, Kansas City, Morgan. Lewis St Bockius, Janies D. Pagliaro, Amelia C. Benton. Philadelphia, Pa., for respondent. Before PRITCHARD, J.. Presiding, and GAITAN and COVINGTON. JJ. COVINGTON. Judge. This case presents cross appeals from an action for damages based on stria products liability. Plaintiff, the School Distria of the City of Independence. Missouri, No. 30 (School Distria), sought recovery for injury to property arising out of the use of Audicote, a ceiling plaster containing asbestos, in seven of its schools. Plaintiff brought suit against defendant United States Gypsum Company (USG), the manufacturer of Audicote, to recover the costs of removing Audicote and certain asbestoscontaminated furnishings from the seven school buildings. Plaintiff alleged that at the tirne the Audicote was sold and installed by defendant in plaintiff's school buildings, the Audicote was in a defective condition and unreasonably dangerous. The sole defea alleged was that Audicote released asbestos into the atmosphere of the buildings, contaminated the buildings nd ftunishings, thereby exposed occupants of the buildings to a continuing health hazard. The School Distria also alleged stria liability for failure to warn of the danger. In addition to the stria liability claims for actual damages, the School Distria sought punitive damages on the theory that USG knew of the defea and danger of Audicote when it sold the product to plaintiff, and that USG thereby showed complete 445 indifference to, or conscious disregard for, the safety of others. The jury awarded the School Distria S650.000.00 in actual damages (561,000.00 less than requested) and 5400.000.00 in punitive damages. The trial court granted defendant's motion for judgment notwithstanding the verdict as to the punitive damage award, but sustained the award of actual damages. The School Distria appeals from the judgment n.o.v., seeking reinstatement of the jury's Asbestos is the generic name for a class of naturally-occurring fibrous minerals. There are four major varieties of asbestos: chrysotile. crocidolite, tremolite. and anthopbyllite. Each type of asbestos has unique physical properties. Asbestos has been commonly used as a component of various building materials such as insulation, fireproofing, and acoustical ceiling tiles and plasters. Prior to 1972, USG manufactured an acoustical ceiling plaster, Audicote, which contained 10 to 12 percent chrysotile asbestos and 3 to 5 percent tremolite or anthophyilite asbestos. Between the years 19571969, USG sold Audicote to the School Distria for installation as a ceiling material in seven schools being constructed by the School Distria. Since 1982, the United States Environmental Protection Agency (EPA) has required school districts to inspea to determine whether their buildings contained asbestos materials. At the of the trial of this case, however, the EPA had not established guidelines for determining the existence of a hazard sufficient to justify removal or abatement. In 1979, Independence school administrators, in response to recommendations promulgated by the EPA. undertook an inspection of the Independence schools in order to determine whether any of the building materials used in the schools contained asbestos. As a result of this inspection and subsequent testing of materials, the School Distria determined that Audicote had been installed in seven of its schools, and that Audicote contained asbestos. Because Audicote was considered a 'friable* material (i.e., a material capable of being crumbled, pulverized or powdered in the hand), and because School Distria officials bad become aware, through consultation with the E.P.A., that friable asbestoscontaining ceiling materials presented some potential for release of asbestos, the School Distria undertoqk a program of 'encapsulating' the Audicote ceilings in its schools in order to minimize the possibility of asbestos release. Encapsulation consisted of painting the ceilings with a heavy paint, recommended by the E.P.A., in order to entrap and prevent release of asbestos fibers. Copr. c West 2000 No Gaim to Orig. U.S. Govt. Works Westlav 750 S.W.2d *42 (Cite as: 750 S.W.2d 442, *445) Page 4 The encapsulation was considered a short-term solution to the problem. Because the heavy paint used to encapsulate Audicote ceilings allowed water to build up behind the painted surfaces, leaks which eventually developed were more serious than had previously been experienced, sometimes causing dropouts of Audicote material. The School District also experienced continuing damage to ceiling* from vandalism and accidental impacts and received numerous reporn of dusting. The School Board became increasingly concerned about the hazards of asbestos exposure, and in 1994 voted to remove asbeirivs-'^ntaining materials, including Audicote, from the schools. THE SCHOOL DISTRICT'S APPEAL In its first point of error, the School District alleges that the trial coart erred in granting judgment notwithstanding the verdict on the issue of punitive damages. The School District argues that the jury's S400.000 punitive damage award was supported by substantial and competent evidence that USG knew its product Audicote was unreasonably dangerous and defective, and that USG, by selling Audicote to the School District with such knowledge, and without adequate wanting, demonstrated complete indifference to. or conscious disregard for. the safety of others. [1] A motion for judgment n.o.v. presents the same question as a motion for *446 directed verdict at the close of all the evidence; i.e., whether the plaintiff made a submissible case. Anderson v. Childers, 686 S.W.2d 38. 39 (Mo.App.1985); Dockery v. Mazmisi. 636 S.W.2d 372. 376 (Mo.App.1982). A defendant's motion for judgment n.o.v. is property granted if the motion identifies one or more elements of the plaintiff's case which are not Supported by the evidence. Stegeman v. Fust Mo. Bank of Gasconade Cry., 722 S.W.2d 349, 352 (Mo.App. 1987). In reviewing (he trial court's ruling, the appellate court must consider the evidence in a light most favorable to the plaintiff and accept such evidence as true, giving plaintiff the benefit of ail favorable inferences that may reasonably be drawn from that evidence, and disregarding defendant's evidence except as it aids the plaintiffs case. Dockery v. Mazmisi, 636 S.W.2d at 376. (The School District argues extensively that the standard for submissibility applied by the trial court was improper, however. because the reviewing court determines whether a submissible case is made, it is unnecessary to evaluate the School District's argument in this regard.) [2] Punitive damages were submitted to the jury by an instruction based on MAI 10.04, which punitive damages in a product liability action may be awarded if the jury finds that the defendant Imew of the defect and danger of the product at the time it sold the product, and that the defendant thereby showed complete indifference to or conscious disregard for the safety of others. Relying upon the Committee's Comments to MAl 10.04, the court in Lewis v. Envirotech Corp., 674 S.W.2d 105. 114 (Mo.App. 1984) defines 'knowledge* in this context as actual knowledge. So Missouri case has permitted submission of a punitive damage claim in a stria products liability case an the theory that the defendant should have known of a dangerous defect in its product. See. e.g., Bbagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 397-98 (Mo. banc 1987); Love v. Deere and Co., 684 S.W.2d 70.77 (Mo.App.1985); Sparks v. Consolidated Aluminum Co., 679 S.W.2d 348. 354 (Mo.App.1984); Racer v. Utrennan, 629 S.W.2d 387, 397 (Mo.App. 1981). all requiring actual knowledge of product defect. See also, Laney v. Coleman Co.. Inc., 758 F.2d 1299, 13044)5 (8th Cir. 2985), ('Missouri law does not permit submission of a punitive damage claim on a theory of constructive knowledge of product defect'). The School Distria's allegation of defect in the product Audicote was that Audicote released asbestos fibers into fee atmosphere. To make a submissible case for punitive damages, fee School Distria was required to produce evidence feat USG had actual knowledge of the product Audicote's propensity to release asbestos fibers. The record is devoid of evidence to support a finding of actual knowledge. The School District's evidence established that Audicote would release asbestos fibers if abraded (rubbed^ against, scraped) and feat asbestos fibers had beta' released from the Audicote ceilings in fee School District's schools. The School Distria produced no evidence, however, that, at fee time USG sold Audicote to the School Distria. U5G had knowledge of these facts. The School Distria's Copr. e West 2000 No Gaim to Orig. U.S. Govt. Works Wfestlav 750 S.W.2d 442 (Cite as: 750 S.W.2d 442, -445) Page 5 only factuaJ allegations relating to USG's knowledge of the properties of Audicote were mere suggestions that USG received repons of water damage to Audicote ceilings, which would release asbestos. The School District's allegations are not supported by evidence. While the School District did produce evidence of water damage to Audicote ceilings, it did not show that USG was aware of die problem. USG's quality assurance manager, John Heman. who had observed hat-roofed schools containing Audicote in the 1960*s. conceded on crossexamination that `the potential for leaking is greater with a hat roof than a pitched roof.* Contrary to the School Duma's assertions, however. Heman did not testify that he was aware of the problems water damage caused to Audicote ceilings at that tune. There is no evidence in the record to support the School Distria's claim that USG knew, at the relevant time, that water damage to Audicote ceilings would release asbestos into the air. *447 The School Districr also relies on the testimony of Dr. Garin Schepers, an expert in lung diseases, to establish* USG's actual knowledge of the defea and danger of Audicote. In 1955, Dr. Schepers, acting on his own and without ftmding from USG, performed experiments in which he exposed laboratory animals to combinations of asbestos and gypsum. During that year he showed die experiments to Edward Beuthine, USG's then safety manager. Dr. Schepers described the *bad results* obtained from combining asbestos in various compounds, the *bad results* being asbestosis, emphysema, and proliferation of epithelial tissues in the lungs. Lata, having learned from an advertisement that USG was marketing a new produa which combined gypsum and asbestos. Dr. Schepers wrote to USG protesting the `folly* of adding asbestos to gypsum, noting his experiments. Accepting Dr. Schepers' testimony as true, the evidence shows that USG was informed of Dr. Schepers' experiments and opinions concerning the potential danger of incorporating asbestos into gypsum products during 1955. There is no evidence in the record, however, of the validity of Dr. Schepers' experiments, nor of the methods by which the experiments were conducted. There is no evidence in the record to show any similarity between Dr. Schepers' experimental conditions and the conditions existing in the buildings with Audicote ceilings. There is no evidence of the gypsum/asbestos ratio or length of exposure required to produce "bad results*. There is no evidence in the record that any of the supporting Dr. Schepers' experiments was communicated to Mr. Beuthine or any other aynr of USG. Dr. Schepers' testimony, even when viewed most favorably to the School District, does nothing to establish USG's actual knowledge of Audicote's propensity to release asbestos into the atmosphere. The School District's own characterization of its evidence, as argued, falls for short of demonstrating USG's actual knowledge of a defea in Audicote--its propensity to release asbestos fibers. The School District argues that the company's actual knowledge of the dangerously defective character of Audicote may be discerned from USG's longstanding knowledge of the hazards of asbestos when used at its own plants, the burgeoning medical knowledge of the hazards of asbestos exposure in nonoccuparional settings, and continued reports of water damage to Audicote ceilings, which would release components of the produa into the air. The School Distria argues that these fees, at a minimum, are sufficient to place a reasonably prudent person'on actual notice of the danger of Audicote. The School Distria cites Hale v. Firestone Tire & Rubber Co.. 756 F.2d 1322 (8th Ctr. 1985), for the proposition that actual knowledge can be inferred from a defendant's generalized knowledge of hazards, mcimting hazards associated wife brands or designs other than those directly at issue. While Hale does show that actual knowledge may be proven by circumstantial evidence (i.e.. evidence which would allow the jury to infer that defendant had actual knowledge of a danger). Hale was not a case in which the plaintiff merely alleged facts from which the defendant could have or should have inferred a danger. In Hale, the plaintiff adduced evidence from which the jury could infer that Firestone had actual knowledge of the danger of explosive separations of its RH5 truck wheel rim. A 1952 Firestone memorandum requesting a list of complaints regarding the RH5 rim. including those complaints involving explosive separations, strongly supported the finding of actual knowledge. The School--Distria has not produced evidence of knowledge comparable to the evidence in Hale. The School Disjia cites Lamke v. Lynn. 680 S.W.2d 285 (Mo.App.1984), for the proposition Copr. West 2000 No Claim to Orig. U.S. Govt. Works Westlav 750 S.W.2d 442 (Cite as: 750 S.W.2d 442, -447) Page 6 that a person may be charged with actual knowledge if he lmows of the hazard or has sufficient knowledge to drrince it. LanJce is inapposite. It concerns the actual notice requirement in a statutory lien, not the requirement of actual knowledge of defect in a stria products liability punitive damages claim. 448 The School Distria's evidence fails to satisfy the stria requirements for a submissible case of punitive damages under Missouri law. Because the School Distria failed to produce evidence that USG had actual knowledge of a defect or danger in Audicote, it is unnecessary further to address the sufficiency of the School Distria's evidence regarding USG's alleged complete indifference to, or conscious disregard of. the safety of others. In its second and final point, the School Distria claims that the court erred in excluding four exhibits, each being internal correspondence of USG from the late 1930's, concerning a USG employee who allegedly consaaed silicosis or asbestosis. The School Distria asserts that the exhibits were admissible to prove USG's knowledge of asbestos hazards at low levels of exposure. Noting that die trial court's judgment n.o.v. was based upon insufficiency of the evidence, the School Distria complains that the trial court itself exacerbated the alleged insufficiency by excluding the exhibits. [3][4] 'Refusal to admit evidence does not constitute reversible error unless it would have changed the result reached.* Green v. Stanfill, 641 S.W.2d 490, 492 (Mo.App.1982). Unless admission of the excluded exhibits would have cured the insufficiency of the evidence on punitive damages, error, if any, is not reversible. To make a submissible case on its claim for punitive damages with respect to the element of knowledge, the School Distria was required to produce evidence that USG had actual knowledge of a defect in is produa Audicote. The excluded documents related only to USG's general knowledge of the hazards of asbestos exposure. As such, they had no tendency to prove USG's knowledge of Audicote's propensity to release asbestos fibers into the atmosphere. Consequently, the excluded documents would not nave cured the insufficiency of the evidence on the School Distria's punitive damage claim. It is not necessary to consider whether the evidence was admissible as against USG because, assuming that its exclusion was error, it was harmless error since no submissible case would have been '**** against USG. Rule 84.13(b); see Chaney by Chaney v. Creten. 658 S.W.2d 891. 893 (Mo.App.1983). UNITED STATES GYPSUM COMPANY'S APPEAL [5] In its first point. USG contends that the trial court erred in admitting evidence relating to Wayne Fleming's exposure to asbestos-containing products and his physical condition. Wayne Fleming was a school custodian in the Independence Schools. His disabling respiratory ailments were allegedly eamarf or aggravated by exposure to asbestos-containing products in the Independence schools. USG argues that the Fleming evidence was irrelevant it was never linked to the produa Audicote, and chat the evidence was highly inflammatory and therefore prejudicial. Evidence is relevant, and therefore admissible, if the faa it tends to establish tends in nun to prove or disprove a fact in issue. Charles' F. Curry St Co. v. Hedrick. 378 S.WJd 522, 536 (Mo. 1964). A central factual issue in the case was whether or not asbestos released from the produa Audicote posed a health hazard to building occupants in the Independence Schools. The School Distria's factual theory was that asbestos could cause a variety of lung diseases, that these diseases were extremely serious, that there was no known threshold for exposure to asbestos below which disease could not be expected to occur, and chat any produa which increased the asbestos burden within the school buildings constituted an unreasonable danger. The School Distria introduced other evidence to establish that Audicote released asbestos into the school environments. The Fleming evidence was relevant to show the nature and severity of the harm being mused by the presence of breathable asbestos in the Independence schools. Wayne Fleming, retired custodian, had been employed by the School Distria for *449 more than thirteen years. From 1966 until 1971, Mr. Fleming Copr. e Wes: 2000 No Gaim to Orig. U.S. Govt. Works Westlav 750 S.W.2d 442 (Cite as: 750 S.WJld 442, *449) Page 7 swept and dusted in Truman High School during the school year and worked on special crews in other schools during summers. After 1971, Mr. Fleming worked exclusively at Truman High School. Truman High School contained asbestos fireproofing products (manufactured by W.R. Grace, an original defendant in this case). The other schools in which Mr. Fleming worked on summer crews contained both Audicote, manufactured by USG, and other asbestos products not manufactured by USG. the inference that Audicote bad contributed to Rcming's lung condition, such an inference cannot be said to be wholly unwarranted. Dr. Schepers' testimony supported the inference that Audicote dust was a factor contributing to Reming's condition. Dr. Schepers stated that asbestosis can be caused by heavy exposure to asbestos for a short time, if there is a long latency period, or by little exposure (around five million particles per cubic foot or less) for a long period of time. At the time of trial Mr. Fleming suffered from a lung disorder as well as from other medical problems. He testified regarding his employment history with the School District and his working conditions. He also described his physical condition as he understood it. Following Mr. Fleming's testimony. Dr. Getrirt Schepen. plaintiffs expen in lung diseases, testified regarding the contribution of asbestos to Mr. Fleming's lung condition based upon Dr. Schepers' examination of Fleming's medical records and a copy of an X-ray. According to Dr. Schepers, certain small irregular focal opacities in Mr. Fleming's lungs were caused by inhalation of asbestos dust. In response to a hypothetical which outlined Fleming's occupational exposure to asbestos. Dr. Schepen gave his opinion that the inhalation exposure to asbestos which resulted from those occupations contributed to Mr. Fleming's lung disease. USG complains that there was no evidence that the dust to which Mr. Fleming was exposed contained asbestos from Audicote. and that, therefore, Mr. Fleming's lung condition was irrelevant to the issue of whether Audicote was unreasonably dangerous. Even assuming there was no such linking evidence, the Fleming evidence was admissible. The School District was not called upon to prove that dust from Audicote had caused personal injury. The Fleming evidence was introduced to show the nature and seriousness of the harm posed by asbestos contamination in the Independence schools. Together with evidence establishing Audicote as a source of asbestos contamination, the Reining evidence tended to prove not only that Audicote was dangerous, but also that the danger was an unreasonable one. Moreover, assuming, arguendo, that the jury drew Dr. Peter Tuteur, a physician specializing in internal medicine with emphasis on pulmonary disease, testified that the typical latency period for asbestosis is about fifteen years. Resting began working in schools Audicote in 1968. The inference that asbestos-laden dust from Audicote contributed to Mr. Reming's lung condition is not unreasonable and is not unrelated to the issue of an asbestos health hazard in the schools. The testimony of James Hubbard, a materials scientist and microscopist, provided additional bases on which reasonably to infer that Wayne Renting was exposed to dust from die product Audicote. Mr. Hubbard, based on his observation and tests of Audicote in die Independence schools, stated that Audicote had released asbestos fibers into those school environments. Mr. Resting had been exposed to dust while sweeping floors and cleaning desks and air registers in the seven Independence schools involved in this ease. Although there was no direct evidence that the dust to which Mr. Resting was exposed contained asbestos fibers from Audicote, the following evidence substantiates a reasonable inference to that effect: Audicote contains asbestos; Audicote is soft and friable (can be powdered in the hands); asbestos fibers are released upon even minor disturbances; Audicote ceilings were frequently gouged, cut, and subjected to water damage; there "450 were dropouts of large sections of Audicote from water-damaged ceilings in On school; dust came from the ceilings; dust on light fixtures was lighter in color than dust on floors; schools with Audicote were dustier than those without; and dusting ceased once the Audicote was removed. The trial court's determination of whether proffered evidence is relevant will be upheld on appeal absent a showing of abuse of discretion. Counts v. Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works Westlav 750 S.W.ld 442 (Cite as: 750 S.W.2d 442, *450) Page 8 Thompson, 359 Mo. 485, 222 S.W.2d 487, 493 (1949); Moreland v. State Farm Fire and Casualty Co.. 662 S.W.2d 556, 565 (Mo.App.1983). It was proper for the trial court to allow the jury to consider a broad tparmim of facts and circumstances bearing upon the issue of unreasonable danger. See Nesselrode v. Executive Beechcraft. Inc., 707 S.W.2d 371, 378 (Mo. banc 1986). USC had ample opportunity to impeach the credibility of Dr. Schepen and to counter the evidence of Mr. Fleming's asbestosis with testimony of its own experts. The weight to be given the evidence was for the jury to consider. USG asserts that, even if the evidence is relevant, its inflammatory, prejudicial nature outweighs its probative value, citing Stapleton v. Griewe, 602 S.W.2d 810 (Mo.App.19M), for four negative factors to be considered. A foil discussion on foe merits of this claim is unwarranted. Briefly, a review of the entire record indicates a very slight possibility that facts of Fleming's illness could have unduly aroused the jury's emotions, slight probability that the evidence created a side issue which would have unduly distracted the jury from the main issues in the case, and no likelihood that the evidence and counrerproof consumed an undue amount of time. Moreover, it is notable that USG's argument that there was no logical basis for concluding that Audieote had caused or contributed to Mr. Fleming's lung disease tends to defeat USG's contention that the evidence was prejudicial. Whether the possibility of prejudice outweighed the probative value of the evidence was a matter for the trial court's sound discretion. The Fleming evidence cannot be said to have introduced numerous new controversial points and a confusion of issues, nor can it be said to have constituted unfair surprise or undue prejudice disproportionate to foe usefulness of foe evidence. Douglas v. Twenter. 364 Mo. 71, 79. 259 S.W.2d 353. 357 (Mo. 1953). The trial court did not abuse its discretion in admitting this evidence. [6] USG's second point asserts that the erroneous interjection of punitive damages evidence and argument prejudiced the jury and influenced its verdict for foe School District and against USG. As to questions of fact and matters affecting determination of issues of faa, foe decision whether to afford or deny a new trial is for the trial court's sound exercise of discretion. Cook v. Cox, 478 S.W.2d 678. 682 (Mo. 1972). The trial court has a unique opportunity to view and evaluate the presencanon of evidence and judge the many trial intangibles not discemable from the mere record. Niccoli v. Thompson, 713 S.W.2d 579, 581 (Mo.App.1986). Appellate review is limited to the determination of whether or not the trial court has abused its discretion. Here, the trial court found that submission of the issue of punitive damages to the jury was erroneous. In its finding, the trial court specifically stated that the submission did not cairn the jury's verdict as to actual damages. The trial court noted that the amount of actual damages awarded by the jury was less than the School District dmnrf USG relies upon Love v. Deere & Co.. 684 S.W.2d 70 (Mo.App.1985). In Love, the trial court determined specifically that the improper submission of the punitive damage instruction had tainted the underlying verdict. This court affirmed the gram of a new trial noting that the trial court was emphatic in expressing its opinion that the award for actual damages was irrevocably by foe evidence and argument relative to punitive damages. Id. at 77. Although this court observed that the amount of actual damages awarded was not excessive, this court gave deference to the trial court's discretion. Further, the plaintiff *451 made no argument for reinstatement of its actual damage award but continued to claim entitlement to punitive damages. This conn concluded that the new trial order must therefore be Love, consequently, is distinguishable from the present case. In essence, USG argues that foe actual damage verdict was excessive, and that the jury was prejudiced by foe improperly admitted evidence as to punitive damages. If supported by the record, this claim can be cured only by a new trial. Cignetti v. Camel, 692 S.W.2d 329, 336 (Mo.App.1985). To prevail on appeal, USG must show: first, that foe evidence, when viewed in the light most favorable to foe verdict, does not warrant such a verdks;, and, second, that there was error sufficient to cause prejudice. Id. The evidence, when viewed in the light most favorable to foe verdict, warrants foe verdict for actual damages. The School District's evidence showed that foe actual costs Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works Westlav. 750 S.W.2d 442 (Cite as: 750 S.W.2d 442, *451) Page 9 attributable to removal of Audicote totaled S711,487.22. less thaa 574,000 of the total amount was seriously disputed by USC as being not properly attributable to the removal. The jury could reasonably have awarded 5650.000 in actual damages. See Fowler v. Park Corporation, 673 $.w.2d 749, 758 (Mo. banc 1984). As to Cignetri's second requirement, there is no error sufficient to cause prejudice. The actual damages in this case were clearly segregated the punitive damages. There is no extriusx: indication of passion or prejudice in the award of actual damages.* There is no inference that the award of acmal damages included any punitive effect. The amount of the punitive damage award. 5400,000. represented .04 percent of USG's net worth. USG claims that the School District's statements during dosing argument in support of the punitive damage award were inflammatory. The determination of prejudicial effect of final argument is another issue within die trial court's discretion. Pfeffer v. Kerr. 693 S.W.2d 296. 305 (Mo.App. 1985). This assigmnenr of error has been considered, noting, specifically, the School District's recommendation that an award of one million dollars in punitive damages would be a mere slap on the wrist in light of USG's net worth of a billion dollars, and considering the School District's suggestion that the jury teach USG a lesson and send it a message. The trial conn did not abuse its discretion. [7] USG's third point alleges dial the trial court erred in admitting documents and expert testimony of the hazards of other asbestos-containing products, and of the hazards of asbestos in general, without foundation evidence linking those hazards to Audicote. USG alleges the trial court erred in admitting the following: documents containing application warnings for SprayDon, a mineral-wool based, spray- applied fireproofing material containing asbestos and manufactured by USG; documents concerning experiments on laboratory animals exposed to high concentrations of asbestos fibers; documents concerning removal or handling of asbestos-containing products in USG's own plants; and testimony from two of the School District's experts. Dr. Peter Tuteur and Dr. Kaye Kilbum. regarding asbestos-related diseases. If evidence is admissible for one valid purpose, it cannot properly be excluded. Boehmer v. Boggiano, 412 S.W.2d 103, 110 (Mo.1967). The SprayDon documents were relevant to demonstrate both the feasibility of warning, and USG's knowledge of asbestos hazards in general. The remaining documents complained of were admissible to show USG's knowledge of asbestos health hazards. Issues of waning and of USG's knowledge were in the case. USG requested no limiting instructions with regard to the documents. The trial court's ruling as to these documents was not error. Dr. Tuteur testified at length regarding the physiological effects of asbestos on the human lung, and the characteristics of asbestosis and asbestos- related lung cancers. He also gave anecdotal testimony regarding two of his patimwa who exhibited different degrees of susceptibility to asbestosis. and he rendered his opinion that friable asbestos-containing ceiling are *452 unreasonably dangerous. USG made specific objections at trial, and also moved to strike Dr. Tureur'j opinion on the ultimate issue. [8] Dr. Tmeur'i general testimony regarding the diseases caused by wthaiarinn of asbestos was relevant to show that inhalation of asbestos could cause disease. This was a material issue in the case. The School District's theory was that USG's Audicote was defective and dangerous because it released asbestos fibers, which, if inhaled, could cause various lung diseases. Expen testimony regarding the nature, variety and seriousness of these diseases was likely to be helpful to the jury, and was therefore admissible. Parlow v. Dan Hamm Drayage Co.. 391 S.W.2d 315, 326 (Mo. 1965): Randolph v. USF St G Companies, 626 S.W.2d418, 421 (Mo.App.1981). The testimony regarding varying levels of susceptibility to asbestos- related disease was also relevant" and material. The jury, in determining whether the asbestos inhalation hazard posed by Audicote was unreasonable, was entitled to consider the heightened susceptibility of children to asbestosrelated disease. Dr. Tuteur's testimony illustrating differing levels of susceptibility in two of bis Copr. West 2000 No Claim to Orig. U.S. Govt. Works Westlav 750 S.W.2d 442 (Cite as: 750 S.W.2d 442, *452) Page 10 patients laid die foundation for his later opinion, to which USG did not object, that children are more susceptible to asbestos-related disease than adults. Dr. Tuteur's opinion on the ultimate issue is likewise unobjectionable. It is not a valid objection to the introduction of expert testimony that it points to an ultimate issue in the case if the subject is such that the jurors are not likely to be convenanr with it and the opinion would aid in their understanding. Wessar v. John che^k Motors. Inc., 623 S.W.2d 599, 602 (Mo.App.1981). The jury was not likely to be conversant with the dangers of friable asbestos-conraining ceiling materials, and, since the issue of unreasonable danger was to be left to the jury without further definition. Nesselrode. 707 S.W.2d at 378. the opinion of an expen was likely to aid in their understanding. See Siebem v. Missouri-Ulinois Tractor A Equipment Co., 711 S.W.2d 935, 938-40 (Mo.App.1986). Because the testimony of Dr. Tuteur was admissible for other valid purposes, it was not subject to exclusion merely on'the ground that it did not relate directly to the product Audicote. Boehmer. 412 S.W.2d at 110. USG complains that testimony of Dr. Kaye Kilbum. concerning two studies he conducted in the Los Angeles area, should have been excluded for lack of foundation. The first study measured the inririenre of asbestos-related disease in shipyard workers exposed directly to asbestos. This study also measured disease in the workers' family members, who were exposed to asbestos only through the workers' clothing brought into the household after having been worn on the job. The second study measured the incidence of asbestosrelated disease in maintenance and custodial workers exposed to asbestos-containing products in the Los Angeles School District. USG contends that, because these studies involved dissimilar exposure levels, fiber types and circumstances of exposure, they were irrelevant to demonstrate any defect in Audicote or any danger arising out of its use. The Kilbum studies were admissible for legitimate purposes other than to show directly that Audicote was unreasonably dangerous. The shipyard study showed that incidental, non-occuparional exposures could cause disease. The school study showed that asbestos-containing building materials could present significant health threats. The school study was pan of the basis for Dr. Kilbum's opinion as to the types of disease which would be caused by exposure to asbestos. It was also foundational for his opinion that asbestos in any site where it can be abraded and released into the air is dangerous. The were proper subjects of expert testimony in that they were likely to aid the jury's understanding of the dangers of exposure to asbestos. They were. therefore, relevant and admissible for a valid purpose and were not subject to exclusion merely because *453 they did not involve exposures to Audicote. Boehmer. 412 S.W.2dat 110. USG contends that the Kilbum studies must meet foundational requirements for experimental evidence set forth in Blevins v. Cushman Motors, 551 S.W.2d 602, 610 (Mo. banc 1977). The Kilbum studies, however, were not experiments conducted out of court for the purpose of re-creating the conditions in the Independence schools. The studies were conducted for the purpose of obtaining scientific knowledge. R**~"'** me are free from the taint of interest or bias that might accompany the usual experimental evidence, if is appropriate to give greater latitude when reviewing allegations of error in their admission. See 29 AmJur.2d Evidence S 819; McCormick on Evidence 202 at 603-04 (3d ed.). The trial court's ruling on the Tuteur and Kilbum evidence was not error. USG's next point, which contends that exclusion of 'comparative risk assessment* testimony was error, has not been preserved for appellate review. Prior to trial, USG proposed to offer comparative risk evidence through the expert testimony of Dr. Kenneth Crump. The School District filed a motion in limine to preclude all testimony and demonstrative evidence concerning comparative risk assessment. Both parties filed suggestions in support of their positions on the motion. USG's memorandum described comparative risk assessment in general terms and advanced legal arguments in favor of admissibility on the issue of unreasonable danger. The School District argued that the proposed evidence was calculated to confuse the jury and would introduce collateral matters, thereby diverting anention from the central inquiry. The motion was argued during pre-trial conference and was sustained on the grounds advanced by the Copr. e West 2000 No Claim to Orig. U.S. Govt. Works Wfetlav 750 S.W.2d 442 (Citt as: 750 S.W.2d 442, *453) Page 11 School District. The judge indicated, however, that he would defer finai judgment on the matter until Dr. Crump could be examined as to the exact nature of his testimony. The School District noted that, during the taking of his deposition. Dr. Crump had been unable to say what comparisons be planned to make at trial. School District requested an opportunity for ftirther discovery, noting that without advance knowledge of the comparisons Dr. Crump would make, the School Distria would have no effective means of cross- examining him. USC did not produce Dr. Cramp at trial, but instead made the following narrative offer of proof: We would like to offer evidence on the issue of comparative risk assessment. We believe that, as we argued in our pretrial, that this is a useful nay to enable the jury to make some comparison between the risk anendanr upon exposure to very small quantities of asbestos and other day-to- day things, and we think that's helpful for them to come to some reasonable conclusion about what an unreasonably dangerous or unreasonably hazardous product is, and we think it goes to the evidence of stria liability and we would like to offer evidence on that. School Distria objected on the same grounds advanced in its motion in limine. The conn inquired. This is the comparisons to peanm butter and diet soda?* USG replied: It's comparisons with other mmriaU mat people come into contaa with on a day-to-day basis which may enmwi very *mn iwima of harmful material, and it gives the jury some basis to assess the extent or quantification of the risk involved in this case. [9][10] In order to present and preserve an offer of proof, the proper procedure is to propound questions to a witness who is present and who has taken the stand. Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo. banc 1983); Dunkin v. Reagon, 710 S.W.2d 498, 499 (Mo.App. 1986). Although a narrative offer of proof may occasionally be found to be adequate (see cases collected in Stapleton v. Griewe, 602 S.W.2d at 813), it must be presented 'with certainty and detail sufficient to demonstrate its quality as relevant, material and probative evidence. * Fletcher v. City of Independence. 708 S.W.2d 158, 172 (Mo.App.1986). The uffer must be *454 more than a mere statement of the conclusions of counsel. Kanshin. 653 S.W.2d at 205; Kinzel v. WestPark Investment Corp.. 330 S.W.2d 792. 795-96 (Mo. 1959). These requirements are not only to ensure that the trial court has a sound basis for ruling on admissibility, but also to ensure that the appellate court has an adequate record for review. Kanshin. 653 S.W.2d at 205. USG'j offer of proof did not meet the general requirements. The offer was not in question and answer form, and it was not specific and definite enough to demonstrate the relevance, materiality or probative value of (he proffered testimony. The testimony USG sought to introduce was to be of a highly technical nature. Whether any pan of it would have been relevant or helpful to the jury cannot be determined without knowing exactly what comparisons Dr. Cramp would have made. Although there is a narrow exception to the general requirement for a formal offer of proof, the testimony of Dr. Cramp was not within the exception. The exception applies where: 1) all parties and the trial court completely nnAnttand what the proffered testimony will be. 2) the objection is to a category of evidence rather than to specific testimony, and 3) the record reveals that the evidence would have been heipfiti to the offering patty. Frank v. Environmental Sanitation Management, 687 S.W.2d 876, 883-84 (Mo. banc 1985); State v. Northeast Building Co.. 421 S.W.2d 297. 3004)1 (Mo.1967). Where it is unclear what the excluded testimony would have been, die exception does not apply. Hiwltinson Tread Tire Co. v. Walker. 715 S.W.2d 335, 337 (Mo.App. 1986). In this case, plaintiff had been unable to discover the exact nature of Dr. Crump's testimony, and the trial court heard only the conclusory statements of counsel. The trial court had no sound basis for ruling on admissibility and the appellate court has no adequate record for review. (11] USG'j fifth point alleges that the School Distria failed to make a subtnissible case because there is no evidence in the record that Audicote piaster was unreasonably dangerous. USG argues that the School Distria's failure to quantify the risk of harm to building occupams is fatai to the School Distria's case. Without a standard for measuring the degree of risk presented in the schools by Copr. West 2000 No Claim to Orig. U.S. Govt. Works Wfestla\ 750 S.W.2d M2 (Cite as: 750 S.W.2d 442, *454) Page 12 Audicote, claims USG, the jury had no way to evaluate whether any danger posed by Audicote was unreasonable. USG relies upon Bennett v. Mallinckrodt, Inc., 698 S.W.2d 854 (Mo.App.1985), wherein the plaintiffs sought recovery on the theory that exposure to radiation, which increased their risk as candidates for cancer, was a present injury. The court found chat the plaintiff's allegation of fomre damages, based upon mere mathematical probability of enhanced risk, could not be considered a reasonable certainty; the claim of injury based on the theory of increased risk of contracting cancer was therefore defective. Gypsum reasons by analogy that the need for quantification of future damages in Bennett requires equivalent quantification of risk in this case; if future damages must be based upon QlOrC 016X0 BBqwmtjfjM martwnaifiral probabilities, then, so also should increased risk of harm from exposure to the product Audicote. USG reasons that lack of quantification of risk should be deemed fatal to the School District's case. In other words, USG contends that, in older to prove unreasonable danger, the School District must prove the level or threshold at which exposure to asbestos in Audicote actually becomes a health hazard. Bennett v. Mallinckrodt and cases from other jurisdictions os which USG relies are distinguishable. There, the plamtifEi' actions are for fomre personal injuries. Such claims are not compensable in Missouri because damages based upon such mere probabilities 'significantly under compensate those who actually develop cancer and are a windfall to those who do not.' Bennett v. Mallinckrodt at 866. The School District, however, states a claim for present injury to in property. Although the claim of injury through contamination is related to the increased risk of fomre harm to building occupants, the *455 School District seeks recovery for present injury to in property, not for future personal injuries. There is no question here of remote and speculative future damages, as in Bennett. The School District incurred actual costs through the steps taken to abate the hazard posed by Audicote. The damages are fixed and ascertainable. The real question posed by USG is whether the jury should have been required to measure the degree of risk posed by Audicote against an external standard as a basis for in determination of whether Audicote was unreasonably dangerous. The Missouri Supreme Court, in Nesselrode, 707 S.W.2d ar 377-78, deliberately refrained from imposing upon the jury an external standard for determining whether a product is in an unreasonably dangerous (i.e., defective) condition. The court explicitly approved the practice of submitting the issue of unreasonable danger to the jury as an ultimate issue without fonher definition. The concept of unreasonable danger is given content by the jury's 'applying their collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented by the parties.* Id. at 378. In reviewing the submissibility of the School District's case, this court must assess the sufficiency of the evidence, which must be viewed in the light most favorable to the School District, and the School District must be given the benefit of all favorable inferences which may fairly be drawn from the evidence. The School District's evidence was ample to support a finding that Audicote created an enhanced risk to the health of building occupants. USG so concedes. Drs. Tuteur and Kilbura testified that, if Audicote released asbestos fibers into the school environment, the children and personnel were subject to a definite hazard. Mr. Hubbard testified that Audicote had released asbestos into the school on prior occasions. Dr. Keyes, a specialist in air pollution analysis and control, testified that Audicote was friable, that is. that it could be powdered in the hands. Dr. Rohl, a consulting mineralogist/geologist, concurred and stated that a one-gram sample of Audicote would release millions of asbestos fibers upon being physically disturbed. Dr. Tuteur testified that children are particularly susceptible to asbestosrelated diseases because of the longer latency period which follows exposure at an early age. For so long as the Audicote ceilings remained in place, they were subject to continuing damage from foreseeable vandalism, invasion by cleaning implements used by maintenance workers, and dropouts caused by leakipg roofs. The evidence was sufficient to support the conclusion that the presence of asbestos-laden Audicote in the School District's buildings increased the risk of serious harm to the building occupants Copr. c West 2000 No Gaim to Orig. U.S. Govt. Works Wfestki 750 S.W.2d 442 (Cite as: 750 S. W.2d 442, *455) Page 13 through contamination of the buildings contents. The evidence shows that the danger of contamination could not be adequately controlled by encapsulation or any other reasonable *"<*<* program. Whether Audicote was dangerously defective was a factual issue for the jury's determination. Id. A jury composed of reasonable men and women, therefore, 'applying their collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented,* Id. at 378, was free to infer and conclude upon the evidence aririnrrri by the School District that Audicote contained asbestos, which could, if released, cause a definite health hazard, that Audicote did release asbestos into the School District's buildings, and that it was, therefore, unreasonably dangerous. [12] USG's final point alleges that the School District failed to prove tortious injury to property other than the defective product itself, and that its cause of action, if any, sounded in warranty for pure economic loss rather than in tort. The School District correctly observes that USG's sixth point fails to comply with Rule 84.04(d) which requires a statement of wherein and why the trial conn erred. Considering the fifth and sixth points together, however, USG's essential contentions are dearly ascertainable. The School District responded to USG's final point with obvious undemanding of USG's contentions. Because the issue is submissibility, it should be reviewed. Charles F. Curry & Company v. Hedrick. 378 S.W.2d at 531. Missouri courts have not previously confronted the special problems of containment *456 or removal of products containing asbestos within schools. In dealing with school boards' claims against asbestos manufacturers for the recovery of abatement costs, most courts have permitted recovery in tort for damage to the defective product itself: that is, for the cost of replacing the asbestos. See e.g., AdamsArapahoe School District No. 28-J v. Celorex Cotp., 637 F.Supp. 1207 (D.Colo.1986); City of Manchester v. National Gypsum Company, 637 F.Supp. 646 (D.R.I.1986); Town of Hooksea School District v. W.R. Grace & Co., 617 F.Supp. 126 (D.N.H.1984); Cinnaminson Township Board of Edncarion v. U.S. Gypsum Co., 552 F.Supp. 855 (D.NJ.1982). In arguing the issue of whether a plaintiff in Missouri can recover damages in tort or only in a contras action for breach of warranty. USG invites this court to examine two leading cases: Sharp Brothers v. American Hoist and Derrick Company, 703 S.W.2d 901. 902 (Mo. banc 1986), and East River Steamship Corporation v. Transamerica Ddaval, 476 U.S. 858, 106 S.Cl 2295.90 L.Ed.2d 865 (1986). In Sharp Brothers, the defendant sold a crane, the counterweight of which broke from its place and crushed the crane's cab. There was ngirh^ personal injury nor other damage. The Missouri Supreme Court, as a matter of policy, denied recovery on a theory of stria liability in tott where the only damage is to the produa sold. Sharp Brothers, 703 S.W.2d at 903. In East River Steamship Corporation, the United States Supreme Court held in admiralty that damage to the ship's turbine caused by a defect in the design of the turbine was an economic loss recoverable only in warranty. There was neither personal injury nor other damage. Justice Blackmun stared the issue: *[W]e must decide whether a cause of action in tott is stared when a defective produa purchased in a commercial transaction malfunctions, injuring only the produa itself and purely economic loss.* 106 S.Cl at 2296. The court held that a manufacturer in a commercial relationship has no duty in ton to prevent a produa from injuring itself. Id. at 2302. The court, however, specifically did not reach (he issue of whether a ton cause of action can ever be stared in admiralty when (he only damages are economic. Id. at 2302 n. 6. East River provides that damage to a produa itself is most naturally understood as a warranty claim. This is so brranse `the ton concern with safety is reduced when an injury is only to the produa itself.* Id. at 2302. In contrast to personal injury or property damage situations, which commonly generate costs the consumer is not prepared to meet, losses incurred when a produa injures only itself are properly characterized as 'insufficient produa value,* and are adequately addressed by warranty law. Id. a: 2303. The coun noted that economic loss is best characterized as the failure of the purchaser to receive the benefit of the bargain. Id. at 2302 n. 9. USG contends that under the rule in Sharp Brothers and East River the School Distria is precluded from tort recovery for its damages resulting from the installation of Audicote. Each of these decisions. Copr. West 2000 No Gaim to Orig. U.S. Govt. Works Wfestlav 750 S.W.2d 442 (Cite as: 750 S.W.2d 442, -456) Page 14 however, is largely inapposite to the situation presented by the School District. In both Sharp Brothers and East River, the defective product injured only itself. The School District, however, did claim damage to property other than the Audicote ceilings. It claimed that Audicote released asbestos, contaminating the school buildings their contents, thereby endangering the lives and health of building occupants. The verb 'contaminate* is defined as 'an action by something external to an object which by entering into or by coming in contact with the object destroys its purity.* Webster's Third New International Dictionary, Unabridged (1966). The School District's evidence of contamination includes the following: Audicote was a textured acoustical finish coat which was sprayed or trowelled over a plaster base coat: it contained 13 to 17 percent asbestos; Audicote released asbestos fibers spontaneously through dusting; on more than one occasion the schools sustained ceiling dropoua from water damage, releasing large numbers of fibers; the routine scraping and impact damage done by students could release many millions of fibers; foe fibers released were in the *457 building environment, foe air, curtains, rugs, and furnishings. As a part of its actual damages, the School District gim< an amount in excess of 5100,000 for costs of replacement of a portion of foe buildings' contents. The School District does not allege that Audicote failed to perform its function as plaster but that it contaminated foe school buildings and posed a serious risk of personal injury to those in contact with it. The risk here is not foe type of risk that is normally allocated between foe parties to a contract by agreement such as that contemplated by East River. The product in this case did not require replacement or repair in order to function as it was intended. The School District's pecuniary loss does not arise from deterioration, internal breakage, or any other son of insufficient product value. The School District is not claiming damages because of injury to foe product itself. There is no claim for loss of profit arising from a defect in foe performance of foe product. Rather, foe issue of damages arises from replacement of a product and other items of personal property because of a grave personal safety risk caused by contamination of buildings and their contents. Moreover, East River specifically did not reach foe issue of whether a ton cause of action can ever be stated in admiralty when foe only damages are economic. East River. 106 S.Ct. at 2302, n. 6. Here, the product would sot be defective but for foe faa that it caused a risk of injury to others. The ton lies in foe exposure of risk to foe students and other building occupants by as unreasonably dangerous product. As a matter of policy, Missouri law permits a finding of liability under Restatement (Second) of Tons { 4Q2A (1963) when a dangerously defective product causes personal injury. Sharp Brothers at 902. Is Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo. 1969), foe court annonnerd that foe rale of stria liability was appropriate to insure that foe cost of injuries from defective products be bone by manufacturers, not by foe injured persons. It is reasonable that Missouri should extend tort liability to a manufacturer whose produa threatens a substantial and unreasonable risk of harm by releasing toxic substances into foe environment, thereby causing damage to foe property owner who has placed the harmful produa in his building. The School Distxia should not be prevented from asserting as action in stria liability simply because nose of foe school's occupants has yet developed disease. Asbestosis. other asbestos-reined lung diseases, and cancer may not develop until decades after exposure. A plaintiff such as the School Disoia should tun be forced to wait until disease manifests itself before being permitted to an action in tort against the manufacturer whose produa increases foe risk of deadly disease or serious impairment of health by releasing a harmful substance into foe environment. See City of Greenville v. W.R. Grace & Company, 827 F.2d 975, 978 (4th Cir.1987). Review of relevant authority supports the School Distria's ability to assert a claim for stria liability against USG under foe facts of this case. Judgment affirmed. All concur. END OF DOCUMENT Copr. c West 2000 No Claim to Orig. U.S. Govt. Works Westlav 2ND * END * END* END * END * END * END * END * END * END * END * END * END* END * END * END* END * END * END 1420401-PARKER,VIVECA D DATE AND TIME PRINTING STARTED: DATE AND TIME PRINTING ENDED: 05/16/2000 05/16/2000 04:00:30 pm (Central) 04:09:14 pm (Central) OFFLINE TRANSMISSION TIME: 00:00:44 NUMBER OF REQUESTS IN GROUP: 1 NUMBER OF LINES CHARGED: 988 * END * END* END * END * END * END * END * END * END* END * END * END * END* END * END * END * END * END * END ' Wfestlav Exhibit C 1*1 o 7 2 2H TEE UNITED S.aTSS DISTRICT C for the eastern district or tens 3 NORTHERN DIVISION f % 4 COUNTY OF ANDERSON, TENNESSEE, : ACTING BY AND THR0UG3 ITS HSAD Of : 5 EDOCATION ASD SUPERINTENDENT OF SCHOOLS, 6 : PLAINTIFF, 7 VS. 8 NO. UNITED STATES GYPSUM COMPANY AND 9 RATIONAL GYPSUM COMPANY, / s~ 10 DEFENDANTS. 11 TRANSCRIPT OF PROCEEDINGS 12 FEBRUARY 2S, 1985 13 14 is I i 18 : | is ! i 19 : 20 21 22 23 : 24 ` WAGNER-BROWN COURT REPORTING 814 STATE STREET, P. 0. BOX 2347 KNOXVILLE, TENNESSEE 37901 615-524-2841 . i 25 VAGNER-BROWN COURT REPORTING 1 3 4 s c 7 1 9 10 u; 12. 13 14 U 15 i rr j u{ 19 21 22 i 23 .* I I 24 ! as: 12 deposition. that's for the jury to decide *tfcr the Ccurt to threw cut before they ever, ^efa chance to listen to it. T5S COURT: All right. As I have said, Mr. Kirieilo testified his father worked at plant fros -'32 to *3$, he believed. And it apneaz that the Defendant, United States Gypsum, did tat acquire the plant cntil February 20, 1936. She deposition Z reviewed very carefully, and it costa: some lay opinions; for example, that Senior hirieli died of that -- what happened at 'this plant was the cause of his death cad also that his daddy was* exposed to asbestos. I think Plaintiff's counsel i probably right. She deposition has sene relevancy, because one issue here is the knowledge of United States Gypsum as to the danger of asbestos prior to the time that the product was sold; that is 1967. Zt probably does have some probative value, but Z am faced with the situation here -- with this despondent who is obviously bitter -- an anguished son who has written a very anguishe*d letter about hi: father's experience in the plant. In my judgment, any probative value this testimony in this_ desositior and this letter has is substantially outweighed by cwjiqit n *1 2 :! 4I i <! i i i ! i i i s! 10 II I U| } a! u: j I l IB : # 17 i 4 IB | ! ! 38 ii aI *4 a the digger of prejudice and confusion c; --25 , * -ssues here and is therefore misleading to the jury. Therefore, 1 sustain the objection to hiriello's deposition. All right. HR. BQTZZs Your Honor, one ether natter that Z would like to take up -- HR. ROWLAND: And that goes to the issue of punitive damages as well? She Court ruled that is in the ease, and I think that is perfectly probative, the issue of punitive damages. T3E COtJRT: That's ay ruling period. HR. HOYLT; Your Honor, in eonaeetion with the ?A documents that were introduced during -- THE COCRT: I vast to add something to vha-t I just said for the record. I think it's also important to keep in mine here ve have an occupational exposure in the depositi He said his daddy came home from lunch covered with white dust and he washed his face and hands and sat down at the table. Obviously, the Senior Hiriello was exposed to high levels of dust .for over a period of years, and Z think that's one of the differential features in what the, Junior Hiriello said and what is in this case. That goes to the probative value of rvuiDiT n 3-12 10 a! u i u u * I vt 11 IS 30 & s 23 't I si ; iI 23 ! I wait is being slid. It is not conclusive bc. * think it bears ea whit prcbitive viitti i*. KS. HOYLS; Xocr Honor, ia connection the ?A doeuaeats, that wen introduced dcria5 e. exaaiaitioa, there is one X aiaunderstood. they corked i proposed section linthit wn not idsptc I?A pat it oat far eseaeafis sad then refused to issue it. X didn't understand that vis whit they were patting ia. There bis bees so hira yet, bat woold set -- X would object tbit it cose ia oa. thi bisis of heirsiy. KB. CRAKER; X think it bis bees adopted isd X think Hr. Brws is prepared to stits that. KR. flOYLS: X think if you give as i chi: ve eia show you where it vis not adopted. X would request if Hr. Brcva would egzee tbit it sot be she to the jury until ve hive e chance to find that regulation. ........................... TBS COOBT: While we hive got w. Brcvm oi the stand, you tall &e about it. THE WITNESS: X is not*wire tbit it was sever issued; is other words, it vis issued for the proposed regulation.for its consideration i&d it bis bees well pissed down. Xt went through the highest ; Exhibit D 1 TRIAL COURT CAUSE NUM3ER 97-4-13222 2 JAMES PAUL JACOBS, ET. AL. ) ( 3 VS. )( 4 OWENS-CORNING FI3ERGLAS )( 5 CORPORATION, ET. AL. )( IN THE DISTRICT COURT OF CALHOUN COUNTY, TEXAS 6 7 8 9 PRETRIAL MOTIONS AND OPENING STATEMENT 10 11 t 12 13 14 15 IS 17 18 19 On the 8th day of February, 2000, the 20 following proceedings came on to be heard in the 21 above-entitled and numbered cause before the Honorable 22 Whayland W. Kilgore, Judge of said Court and a jury, held in 23 Port Lavaca, Calhoun County, Texas. 24 Proceedings reported by machine shorthand. 25 cvasoN MI OP. I. R.MF APPEARANCES FOR THE PLAINTIFFS: 3 ALLEN M. STEWART, ELIZABETH SCHICK & ALAN B. RICH Baron & Budd, P.C. 4 The Centrum 3102 Oak Lawn Avenue, Suite 1100 5 Dallas, TX 75219-4281 TELEPHONE: 214-521-3605 6 FAX: 214-520-1181 7 8 FOR THE DEFENDANTS: 9 TODD J. SUDDLESON & TODD D. OGDEN DeHay & Elliston, L.L.P. 10 NationsBank Plaza 901 Main Street, Suite 3500 11 Dallas, TX 75202 12 BRUCE T. BISHOP Willcox & Savage, P.C. 13 1800 NationsBank Center Norfolk, VA 23510 14 TELEPHONE: 757-628-5S73 FAX: 757-628-5566 15 EDWARD F. HOUFF 16 Church St Houff, P.A. 2 N. Charles Street 17 Suite 600 - B&O Building Baltimore, MD 21201 18 TELEPHONE: 410-539-3900 FAX: 410-539-3987 19 VTVECA D. PARKER 20 Morgan, Lewis & Bockius, L.L.P. 1701 Market Street 21 Philadelphia, PA 19103-2921 TELEPHONE: 215-963-5000 22 FAX: 215-963-5299 23 24 25 SHARON MIORI, R.MR 2 21 1 who subsequently work around products that come from that 2 plant that contain the same asbestos, contain the same 3 fibers might also be similarly in danger of developing the 4 disease. I believe that, at a minimum, meets our standard 5 of relevance. 6 THE COURT: Okay. Motion overruled. What's 7 your next one? At this time. 8 MS. PARKER: Thank you, Your Honor. I 9 appreciate your openness to reconsider. 10 Our motion regarding the Miriello issue. Mr. 11 Miriello was a gentleman whose father worked at the plant we * 12 were just discussing. He worked at the plant before my 13 client bought that plant. His father died from what Mr. 14 Miriello claims was an asbestos-related disease. 15 What they propose to bring in is a letter that 16 was written in 1950 by a distraught, grieving son of a man t 17 whose father had just died. And he writes a very bitter, 18 distraught letter to U.S. Gypsum and says my father-worked 19 at your plant and now he's died of an asbestos-related 20 disease. Mr. Miriello is not a doctor, the letter doesn't 21 include the man's medical records. 'And, moreover, it 22 appears from the documents that the father who died worked 23 for the company who owned the plant before we did. So he 24 didn't even work for us. And, again, we're talking about 25 massive exposures over a working lifetime. SHARON MIORI, RMR 22 1 THE COURT: Okay. Whac's your... 2 MR. SIMS: Very similar response to the last 3 issue, which is we're here to put --to show defendants' 4 knowledge, that they were put on notice. We're not -- the 5 statement -- the letter isn't being offered to prove the 6 truth of the matter asserted. 7 THE COURT: I'm inclined to grant that 8 particular motion because if they're going to concede that 9 they knew -- but I don't know -- concede that they knew 10 about the adverse effects, that's covered by that letter. 11 MS. PARKER: Yes. And the letter is 1950. 12 So, again, we're talking... * 13 THE COURT: Well -- but if he worked in the 14 plant and they concede that they knew, unless there's 15 something else I'm going to sustain the objection. IS MR. SIMS: Your Honor, as Z understand, 17 they're conceding that massive exposures over a prolonged 18 period of time causes asbestos. 19 THE COURT: Well, but isn't that the problem 20 that the guy had in the plant? 21 MS. PARKER: Yes. 22 MR. SIMS: No, Your Honor, I don't believe so. 23 THE COURT: Well, take another look at it, 24 because I'm inclined to grant that motion about reading that 25 letter, providing they concede they have -- concede their SHARON MIORI, RMR 23 1 knowledge, which she says chey are. 2 MS. PARKER: Right. 3 MR. SIMS: Of course the added issue, Your 4 Honor, of punitive damages. So beyond the mere burden, we 5 have to show they had actual knowledge and they acted with 6 malice or gross negligence, and we believe this letter goes 7 to that evidence. 8 THE COURT: Hell, the letter is talking about 9 the grief of somebody'and that's basically in the nature of 10 hearsay anyway. But if they're conceding it, and if they 11 do, well, then, I'm going to sustain the objection. 12 MR. RICH: Your Honor, may I make a 13 suggestion? It seems to me that Your Honor's ruling is 14 based in large part on a concession that U.S. Gypsum is 15 prepared to make. IS THE COURT: Well, if they concede it. 17 MR. RICH: Right. So can we get a stipulation 18 on the record now about what the nature of that concession 19 is so it can be read to the jury. 20 MS. PARKER: It's in our discovery responses, 21 Your Honor, filed in these cases. 22 MR. RICH: The same 'discovery that they don't 23 want us to be able to use. 24 MS. PARKER: No, the current discovery 25 responses. SHARON MIORI, RMR Exhibit E IN TEE SUrOR COURT OF TEE STATS OF CALIFORNIA IN AND FOR THE CITY TE2 COUNTY OF SAN FRANCISCO BSFORS THE HONORABLE ALEX SALDAMANDO, JUDGE " DEPARTMANT NO. 316 --OOO-- ROBERT RUGANI, LOIS RUGANI, PLAINTIFF(S), VS. ASBESTOS DEFENDANTS, DEFENDANT(S) ) ) ) ) SC# 302355 ) ) ) J ) ) REPORTER'S TRANSCRIPT OF PROCS5PINGS WEDNESDAY, FEBRUARY 16, 2000 ---OOO------- APPEARANCES: FOR THE PLAINTIFF: DEAN A. HANLEY/ ESQ. PAUL & HANLEY 4905 CENTRAL AVE., 200 RICHMOND, CA 94804 FOR THE DEFENDANT: PATRICIA H. PERRY, ATTY. AT LAW HAIGHT, BROWN & BONESTEEL 100 BUSH ST., 27T3 FLOOR SAN FRANCISCO, CA 94104-3929 1 WEDNESDAY, FEBRUARY IS, 2000 AFTERNOON SESSION 2 --ooo------ 3 PARTIAL PROCEEDINGS 4 THE COURT: THE NEXT MOTION I'D LIKE TO TAKE IS 5 THE MOTION TO EXCLUDE TEE EVIDENCE OF ARGUMENT RELATING TO 6 THE MURIELLO ISSUE. 7 ARE YOU PROCEEDING ON THAT LETTER? a MR. HANLEY: YES YOUR HONOR.. 9 THE COURT: ALL RIGHT. 10 THERE'S A JUNE 8IH, 1950 LETTER THAT MR. MURIELLO 11 SENT TO U.S. GYPSUM ASSERTING THAT HIS FATHER WORKED IN A 12 U.S. GYPSUM FACILITY, OCCUPATIONALLY EXPOSED TO ASBESTOS 13 FIBERS AND AS A RESULT DIED OF THIS. U.S. GYPSUM 14 ACKNOWLEDGES RECEIPT OF THIS LETTER AND THAT'S ABOUT IT. 15 MR. HANLEY: AND IT SIMPLY GOES TO NOTICE. 16 THE COURT: OF WHAT? OF A COMPLAINT? 17 MR. HANLEY: NOTICE OF -- 18 WELL, YEAH. THEY DON'T DISPUTE THAT HE HAD'THE 19 DISEASE, BUT -- 20 THE COURT: THEY DON'T ACCEPT -- 21 SEE, THEY DON'T ACCEPT IT EITHER. IN SO FAR AS A 22 WRITER KNOWS THERE HAS BEEN NO OCCUPATIONAL DISEASE MADE FOR 23 ON ACCOUNT FOR ASBESTOS AGAINST THAT COMPANY IN THAT PLANT. 24 IN FACT, SINCE JUNE 1939 THERE HAS BEEN NO ASBESTOS USED AT 25 THAT PLANT. 26 MR. HANLEY: THE IDEA IS THAT BEING ON NOTICE THAT 27 PEOPLE ARE GETTING SICK FROM AS3SST0S, THEY SHOULD HAVE BEEN 26 TESTED. AND THE EVIDENCE WILL BE THAT THEY CONDUCTED NO TEST VALERIE PAPALE, C.S.P.. 6 6 99 2 1 OF THESE PRODUCTS. 2 THE COURT; COUNSEL, THE ONLY WAY TEAT ARGUMENT 3 MAKES SENSE IS I? TEAT GUY'S FATHER HAD GOTTEN ASSEST'OS AND 4 YOU HAVE EVIDENCE OF THAT. 5 MR. HANLEY: WELL, WE DO, BUT THAT'S NOT THE 6 POINT. 7 TEE COURT; THAT IS THE POINT. 8 MR. HANLEY: THERE'S TEE DEATH CERTIFICATE, BUT 9 IT'S NOT COMING IN FOR THE TRUTH ASSERTED. 10 THE COURT; THEN IT'S IRRELEVANT. 11 WHAT'S THE RELEVANCE TO THIS CASS? 12 MR. HANLEY: THE RELEVANCE? 13 THE COURT: THE NOTICE THAT SOMEONE'S COMPLAINING 14 ABOUT SOMETHING? IS MR. HANLEY: YES. YES. I. THE COURT: WHAT IF IT TURNS OUT NOT TO BE TRUE? 17 MR. HANLEY: UNLESS THEY'RE ON NOTICE THAT THERE'S 18 AN ISSUE AND THERE'S NOTICE THAT PEOPLE -19 THE COURT: IT'S NOT RELEVANT TO THAT POINT 20 COUNSEL. 21 MR. HANLEY: ALL RIGHT. 22 THE COURT: SUSTAINED. 23 IT'S IRRELEVANT TO ANY ISSUE IN THIS CASE. 24 --ooo--- 25 28 27 28 VALERIE PAPALE. C.S.R. fiSDQ TOTAL P.0- Exhibit F 5 253 1 Stata of Maryland, ) In tba 2 3 4 vs. 5 Plaintiff ) circuit Court } for ) Anna Arundal } County 6 Kaana Corporation, 7 t al., ) ) Civil Action 8 Dafandants ) No. 1108600 9 10 Tha abova-antitlad casa continuad in 11 trial bafora tba Honorabla Rayaond G. Tbiaaa, Jr., 12 Judga, and a Jury, Tuasday, January 8, 1991 13 coaaancing at 9:15 a.a. 14 15 18 17 18 Raportad by: Bosnia Gabagan 19 20 BETZ 6 STROOSE, INC. 114 Vast Kulbarry Straat 21 Baltiaora, Maryland 21201 (301) 752-4733 Batz 6 strousa, Inc. 586 1 1 APPEABAWCFS 2 3 4 On behalf of the Plaintiff: 5 Karlen* Trestaan, Esquire 6 Janet LaBella, Esquire 7 David Kennedy, Esquire 8 Shelly Kintz, Esquire 9 Mary Lucasse, Esquire 10 11 12 On behalf of the Defendants: 13 John Levis, Esquire 14 Rebecca Slaughter, Esquire 15 George Hilson, Esquire 16 John Singer, Esquire 17 Thoaas F. McDonough, Esquire 18 Lenox G. Cooper, Esquire 19 20 21 Betz & Strouse, Inc. 53 5: 1 PROCEEDINGS 2 (Ib cpn court, Jury present.) 3 TEE COCRT: Good morning. 4 MS. LUCASSE: Your Honor, the seat* 5 would call its next witness, Mr. Edvard McConnell. 8 Whereupon -- 7 EDWARD MCCONNELL 8 a vitaess, called for examination, having been 9 first duly svorn, vas examined aad testified as 10 follovs: 11 THE CLERX: State your naae aad. 12 occupation. 13 TEE WITNESS: My na&* is Edvard 14 McConnell. I aa director of plant operations at 15 the University of Baltiaor*. 18 DIRECT EXAMINATION 17 Bt MS. LUCASSE: 18 Q. Eov long have you held that position 19 at the University of Baltiaor*? 20 A. 18 years. r 21 Q. What are your duties as plant Betz S Strouse, Inc. 1 building materials" 2 THS COURT: With due respect to your 3 client, that is sot even a complete sentence. 4 HR. LEWIS: Z know, bat unless the 5 State can shov that scaease sav such a letterhead 6 and relied upon it, the statement at the bottom is 7 irrelevant. That is my point. 8 TSS COURT: I bate to rely upon 9 somethin? that doesn't make any sense. Z 10 overrule -- I vill allov it in. X don't know what 11 the State is going to do with it, but X vill allov 12 it in. 13 KS. TRESTHAH: Thank you, your Sonar. 14 X vill take baek from the clerk the original for 15 the redaction. Thank you. 18 (Plaintiff's Exhibit Humber P-3558 vas 17 received is evidence.) 18 KS. TRESTHAH: The next series of 19 document* are P-3423, 3424, 0425, 28 and 30. 20 As to P-3423, 24 and 25, U. S. Oypsus 21 has stipulated that those are authentic and not Betz & strouse, Inc. 0CC 1 hearsay. As ts P-3428 sad 30, U. S. Gypsub has 2 also stipulated that thoss ar authentic. 3 HR. LEWIS: I would like to take thea 4 one at a tine, your Honor. Let ae show you 3423. 5 XS. TRESTXAN: I have a complete set Cor your Honor. 7 THE COURT: All right. 8 HR. LEWIS: Your Honor, there is 9 already in evidence this lengthy Saranae report an ' 10 the eoapany that United States Gypsua bought in 11 1936 and sent Dr. Gardner in to aafce a dust 12 survey, and your Honor aay recall that Dr. 13 Schepcrs testified about it. 14 There is absolutely no question that 15 United States Gypsua Coapany as of the date of 16 that 1936 dust survey had knowledge that high 17 concentrations of asbestos dust could eause 18 asbestosis. Therefore, our objection to this 19 letter is'that its prejudicial iapaet outweighs 20 the probative value. There is no question that 21 prior to the.date of this letter we had notice of Bet: & Strouse, Inc. 3 1 eh* dangers of asbeseosis iron high levels. 2 This is a letter that apparently talks 3 about several eases, and I don't know whether they 4 were silicosis and, id so, they would not be 5 relevant, or asbestosis. This fellow is worried* 6 about his dad, he is talking about the old 7 National Asbestos Company, which, of course, is 8 not United States Gypsum Coapany. 9 It seems to me the only purpose of 10 really offering that is to sort of inflame the 11 jury as to what happened to this person's dad. 12 The underlying argument is that a year 13 ago, and wa concede this, we had notiee in 1936 14 that high levels of concentration will cause IS asbestosis. I don't think it is necessary and if 16 it comes in, its only effect will be to prejudice 17 us against the jury. 18 X5. TRfSTXAN: Your Eonor, the State 19 would like to offer this document in addition to 20 the information contained already in the admitted 21 New Jersey study, this letter talks about notiee Betz 8 strouse Inc. 1 of a ease of asbestosis of a bookkeeper whose desk 2 was away froa the machinery in she factory area. 3 THE COURT: Th* infaranca is that ha 4 gat the silicosis. Xaybe ha did, maybe ha 5 didn't. 6 KS. TRESTXAH: If we look at tha next 7 latter, F-3424, vhera Gypsum's assistant to the 8 prasidant is responding to tha asbastosis suit. 9 KS. LEWIS: This is at least double 10 hearsay, that is, thara is a suit against somebody 11 by an assistant bookkeeper who alleges that ha get 12 something wrong with him at the old Kational -- it 13 is double hearsay, your Honor, and, as I say, 14 clearly ve already have notice of tha dangers of 15 high levels, and I think any probative value is 16 outweighed by its prejudicial impact. 17 THE COURT: Wait a minute, let me 18 understand you. Km to 3423, you want this in to 19 show that -some employee got silicosis or 20 asbastosis sitting 200 feet away froa machinery? 21 KS. TRESTXAH: We want it in, your Betz & Strouse, Inc. 6005 1 Honor, for 0. S. Gypsua's notice of the elaia 2 being aide with regard to asbestosis free those 3 circtastances in an occupational setting, and with 4 regard to Hr. Lewis' now stated challenge to the 5 hearsay, I reaind counsel that 0. S. Gypsua has 6 already stipulated that this doeuaent is authentic 7 and not hearsay. 8 MX. LZWXS: No, there is no question, 9 your Honor, this was written by 0nited States 10 Gypsua. I aa saying the point is that it in turn 11 relates to hearsay. Also, Ms. Trestaan talks 12 about notice. Zf your Honor turns to 3424, 0nited 13 States Gypsua Ceapany quite properly says we are 14 glad to cooperate with you, but your son's letter 15 does not give us sufficient detail. 18 This is a very, very unclear letter 17 containing double hearsay about some unknown 18 person at soae plant that we didn't known. 19 MS. TRISTHAX: Then, your Honor, if 20 you go through the series of correspondence which 21 clarifies seas of the confusion that Mr. Lewis Betz Strocse, Inc. 6C0 1 apparently has about the situation by looking at 2 P-3428 and 30, additional details are provided. 3 In particular, is P-3428 the general counsel for 4 United States Gypsua Company to vhos this Batter 5 had been referred in the prior letters is being 6 told further about vhat the elaiss were, and in 7 this case it is not adaitted for the truth of vhat 8 is being said; but vith regard to the elaias being 9 aade about the case that vas instituted concerning 10 asbestosis among as eaployee of the eoapasy that 11 they had bought concerning soaeone who worked in 12 the office and not is as industrial setting. 13 HR. LJSRIS: Your Honor, there has to 14 be soae liait on this notiea point. It seeas to 15 ae for notice to be relevant, there has to have 16 soae specificity, some credibility to it, because 17 otherwise vhat is going to happen this afternoon 18 is when the State gets beaten dovn os a hearsay 19 objection, then they will say well, why don't we 20 try notice, and a letter that is coming up that 21 soaebody wrote to U. S. Gypsua in 1950 and Betz i Strouse, Inc. 6007 1 said "You killed my ratter" and he is referring 2 actually to the aid National Asbestos plant, but 3 they want that in not for the truth, but for 4 notiee, and I aa saying that eannot be used as a s backdoor to poison this jury. 6 KS. TRESTXAN: Your Honor, if Z can 7 reaain seated? 8 THE COURT: Yes, you can reaain 9 seated. 10 XS. TRESTXAN: I see nothing secondary 11 or in soae vay less iaportant in evidence the 12 issue of notice as Kr. Levis apparently does. 13 This jury is entitled to hear vhae u. S. Gypsum 14 had notiee did or vhat it did in response to 15 that. There is nothing secondary or tainted or IS less proper for evidence coming in for that 17 purpose. 18 THE COURT: All right. The Court vill 19 overrule the objection. The court vill allov it 20 for the purpose of notice. He are talking about 21 3423, 24 and 28. Betz t strouse, Inc. 6CCs 1 (Plaintiff's Exhibits Hunbers P-3423, 2 P-3424, and P-3428 vara received in evidence.) 3 KS. TRESTKAH: There vas also, your 4 Honor, in the series 25 -- 5 THE COURT: The entire scries you 6 vented in? 7 KS. TRESTKAH: Yes, your Honor. 8 KR. LEWIS: I have a separate 9 problea. 10 THE COURT: With 25? 11 KR. LEWIS: Tes. It seeas to ae 25 in 12 addition to the prejudicial iapact that I vas 13 talking about earlier, here you have got eoaaents 14 that have got nothing to do vith the case. They 15 are talking about lavyers and runners for 15 lavyers. That really has -- 17 THE COURT: What notiee does this 18 give? 19 MS. TRESTKAK: It coapletes the series 20 of correspondence, your Honor. In tens of giving 21 couplets aeaning to the series, vho the parties Betz & Strouse, Inc. e-:; 1 art for tb cospleteness of the set. 2 THE COOUT: Wo, no, I aa going to 3 sustain tba objection to tbis. I don't think we 4 need it for the completeness of the docuaents as 5 to what I aa talking about, 23, 24 and 28. What 6 about 30 7 7 KX. LEWIS: 30, your Honor, ay problea 8 is with respect to the last two paragraphs on the 9 first page. There United States sypsua Company is 10 talking about suits froa dust in gypsum 11 operation. I think it is abundantly clear in this 12 case that gypsua has no asbestos in it, it is an 13 entirely different thing. I think it is 14 prejudicial to talk about 1937 lawsuits against 15 the coapany for a product that had nothing to do 16 with asbestos. Beyond that, I have no objection 17 to the letter, but I do object to these two 18 paragraphs being included. 19 THE COURT: Ms. Trestaan. 20 MS. TRESTHAM: Yes, your Honor, I aa 21 looking to the second page. Betz i strouse, Ine. C010 1 THE COURT: So ahead. 2 KS. TRESTHA.W: We will withdraw the 3 request far 3430. 4 THE COURT: Very well. 5 KS. TRESTHAX: Just to clarify, what C has now been admitted is 3423, 24 and 28? 7 THE COURT: That is correct. 8 HS. TRESTHAH: Thanh you. 9 HR. LEWIS: I gather pursuant to the 10 guidelines -- 11 THE COURT: Tar notiee. 12 HR. LEWIS: -- with some statement to 13 the jury for notice? 14 THE COURT: That is correct. IS KS. TRESTKAH: For the record, the 1C next series of documents is ?~3403, 342C, 3427 -- 17 HR. LEWIS: I am sorry, 34-what? IS KS. TRESTKAH: 342S, 3427, 3431, 343C, 19 3451, 3453, 3492. That is it in that series, your 20 Honor. I believe that U. S. Gypsum has previously 21 stipulated to the admissibility of all of these Betz & Strouse, Inc. 6011 1 documents. 2 KB. LEWIS: 3403 no objection. 3426, 3 no objection. 3427, no objection. 3431, no 4 objection. 3436, no objection. 3451, no S objection. 3453, no objection. Ho objection to 6 3492. 7 THE COURT: Very well. Hark tbea in. 8 (Plaintiff's Exhibits Numbers P-3403, 9 P-3426,. P-3427, P-3431, P-3436, P-34S1, P-34S3, 10 P-3492 were received in evidence.) 11 XS. TRESTHAN: The next series of 12 documents-, your Honor, is Plaintiff's Exhibits 13 P-3513, 3516 and 3517. 14 HR. LEWIS: There are objections to IS all three, your Honor. 16 KS. TRESTHAN: I will hand up a copy 17 to your Honor in one moment. 18 THE COURT: Let ae see the docuaents. 19 KS. TRESTHAN: Yes, your Honor.' For 20 the record, U. S. Gypsub has already stipulated 21 that 3513 and 3517 are authentic and not hearsay. Betz 6 Strouse, Inc. 1 KR. LEWIS: I would life* Co focus on 2 3516 first, your Honor, because tills is exactly 3 the point Z was Baking earlier. this is a letter 4 to United States Gypsum Coapany in 1950 which in 5 effect accuses United States Gypsua Coapanyof 6 murdering the author's father. It begins by 7 saying -8 THE COURT: Wait a minute. Hr. Lewis, 9 did you stipulate to the authenticity of this 10 docuacnt? 11 KS. TRESTKAN: Ho, your Honor. 12 THE COURT: Under what theory is it 13 being adaitted? 14 HR. LEWIS: Notice, I assuae, your 15 Honor. 16 KS. TRESTKAN: Yes, your Honor, it was 17 produced froa the files of U. S. Sypsua Coapany, 18 responded to by P-3517 and, again,' with regard to 19 notice. 20 THE COURT: We have got a letter froa 21 someone, I don't know froa what -- Betz 8 Strouse, Inc 6013 1 MS. TRESTXAN: la the file* -- I &a 2 only dealing' vita authenticity first. This vas 2 produced froa the files of the United States 4 Gypsua Coapany. 5 THE COURT: It is obviously hearsay. 6 What pigeonhole are ve going to put it in to aakc 7 it adaissible? 8 MS. TRESTMAN: Notice. It is 9 authentic and being offered far notice of the 10 contents. 3517 is the response by the eoapany to 11 3516. 12 MR. LEWIS: Tour Boner, there is no 13 question this piece of paper arrived in the aail. 14 There is no question the United States Gypsua 15 Coapany Bade a response and pointed out to the 16 person that the eoapany. United States Gypsua 17 Coapany, didn't ovn the plant vhen this person's 18 father apparently contracted asbestosis, but this 19 is just notice going vild. 20 Thare is no question that in 1936 from 21 the dust surveys ve knew of the dangers of Betz 6 Strouse, Inc. 6014 1 asbestosis froa high levels. How what the state 2 wants to do is put in a letter saying "I want to 3 eongratulate you and your wonderful products," 4 talking about us being like a cave nan era, that 5 their fanily has never been the sane since dad 6 died. It is their saae business record theory, 7 your Honor. That is, if a coapany gets a letter, 8 they are stuck with it for the truth of its 9 contents and if they don't get it that way, they 10 say we will try notice. 11 Tour Honor, this doeuaent cries out 12 for aistrial if it is floated to the jury.' 13 TEH COURT: Ho, I agree. We got a 14 letter -- no, Z don't think this is a basis to IS give notice to anybody based upon the letter and 16 the response, then, of course, would be 17 irrelevant. 18 KR. LXWZS: Z think the death 19 certificate for the saae reason, your Honor, whieh 20 is the third doeuaent. 21 MS. TRXSTMAH: Xpur Honor, Z aa Betr streuse. Inc. SC 15 1 sorry. First of all, again, Mr. Lavis 2 aischaracterizes what I said. 3316 vas not aver 3 offered by the State as a business record and then 4 sonehov recaptured as sosething else. He offered 3 it for notice only. 6 THX COURT: Mo, Z'm not going to 7 accept it for notice. I get a letter and it 8 doesn't even talk about -- no indicia of even 9 reliability. Authenticity, Z assuae whoever wrote 10 it is the author of it. Z an not going to accept 11 this as notice. 12 MS. TRXSTXAH: Tour Honor, vith regard 13 to the latter, the death certificate itself which 14 is a public record and, therefore, 13 self-authenticating and which Z remind U. S. 16 Gypsum that they have already stipulated that it 17 is authentic and not hearsay, and as to 3517 even 18 assuaing that the Court does not allov 3516, the 19 State still saves the adsissidn of 3513 and 3517 20 without 3516. 21 TEX COURT: Z aa not going to allov Betz & Strouse, Inc 6016 1 3516, 3517 for the reason Z previously indicated. 2 Nov, 3513, that is the death certificate. 3 MR. LXWZS: What is the jury going' to 4 do vith that, your Eonor? No question Mr. s Keriella died. Of course, the death certificate, . 6 Z agree it is a competent document. I don't know 7 whether under the lav it then is self-proving to 8 show cause of death. But vhat is the jury . 9 supposed to do vith a death certificate? 10 THE COURT: Sustain the objection. Z 11 as not going to receive it. 12 MS. TRESTMAX: The next document is 13 P--3 43 9. U. S. Gypsum has already stipulated that 14 this document is authentic and not hearsay. 15 Counsel for U. S. Gypsum had offered to give us 16 the complete document, and Z think ve vill 17 probably still -- thank you. Zs this an extra 18 <=opy? 19 MR. LEWIS: Yes. Are you offering the 20 complete document? 21 MS. TRESTXAX: Yes,'T as offering the Betz Strouse, Inc. Exhibit G 876 F.2d 119 (Cite as: S76 F.2d 119, 277 U.S.App.D.C. 360) < KevCite Yellow Flag > Page l WESLEY THEOLOGICAL SEMINARY OF THE UNITED METHODIST CHURCH, Appellant, r. UNITED STATES GYPSUM COMPANY. No. 88-7144. United States Conn of Appeals, District of Columbia Circuit. Argued Feb. 22. 1989. Decided May 19. 1989. Rehearing and Rehearing En Banc Denied Aug. 11, 1989. Building owner brought action against manufacturer of asbestos-containing products after owner discovered that manufacturer's products were used in construction of building. The United States District Court for the District of Columbia. Joyce Hens Green. J., entered judgment for manufacturer, and owner appealed. The Conn of Appeals. Stephen F. Williams, Circuit Judge, held that: (1) retroactive amendment of statute of repose did not violate due process, but (2) owner was not entitled to punitive damages in connection with breach of warranty claim. Reversed and remanded. [1] CONSTITUTIONAL LAW <t= 308 92k308 Retroactive amendment of statute of repose to exclude manufacturer of asbestos* containing products did not violate due process despite 'manufacturer's contention that statute of repose was by nature substantive and that retroactive amendment was thus improper. D.C.Code 1981. $ 12-310; U.S.C.A. Const.Amends. 3, 14. [1] LIMITATION OF ACTIONS = 6(1) 241k6(l) Retroactive amendment of statute of repose to exclude manufacturer of asbestos- containing products did not violate due process despite manufacturer's contention that statute of repose was by nature substantive and that retroactive amendment was thus improper. D.C.Code 1981, 12-310; U.S.C.A. Const.Amends. 3, 14. PI EVIDENCE = 146 1571cl46 In products liability action against manufacturer of asbestos-containing products, district court aw) within its discretion in ruling that prejudicial effect of letter to manufacturer about asbestos dust hazard at its plant outweighed any probative value it might have on issue of manufacturer's knowing concealment of asbestos danger. PI DAMAGES 91(1) 113k91(l) Plaintiff in products liability action against manufacturer of asbestos- containing products failed to establish that manufacturer's knowledge of asbestos hazards reflected malice or wantonness that would justify award of punidve damages on breach of warranty daim. *120 **361 Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-01606). Peter T. Enslem, Washington, D.C., with whom James M. Hanny, Landover. Md., and Michelle A. Parfitt, Washington, D.C.. were on the brief, for appellant Thomas B. Kenworthy, Philadelphia, Pa., with whom Grace E. Speights. Washington, D.C., was on the brief, for appellee. Frederick D. Cooke, Jr., Corp. Counsel. Charles L. Reiscbel, Deputy Corp. Counsel, and Lutz Alexander Prager. Asst. Deputy Corp. Counsel. Washington, D.C.. were on the brief for aminn curiae, urging reversal and remand. Before STARR. WILLIAMS and D.H. GINSBURG. Circuit Judges. Opinion for the Court filed by Circuit Judge WILLIAMS. STEPHEN F. WILLIAMS, Circuit Judge: A fifth or firms that constructed buildings for The Wesley Theological Seminary in 1937-60 used ceiling tiles purchased from the defendant. United States Gypsum Company. The dies contained asbestos. In early 1984 an industrial hygienist retained by Wesley reported that the ceilings had Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works Wfestlaw 876 F.2d 119 (Cite as: 876 FJd 119, *120, 277 U.S.App.D.C. 360, "361) Page 2 released asbestos fibers in the past and would do so in the future. Wesley then began a removal program. On May 17, 1983 it filed a diversity action in ton and contract against-U.S. Gypsum and others. Among the defenses invoked by U.S. Gypsum's answer was the then operative version of a statute of repose, D.CCode { 12-310 (1981). This statute barred certain actions for injury resulting from defective improvements to real property if the injury occurred more than 10 years after the improvement's completion. The parties quarrel over whether the statute is a subspecies of statute of limitation or belongs to a different species altogether. We do not enter into this semantic dispute, but we note that the statute is certainly distinct from a conventional statute of limitation in that the bar operates not when the suit is filed too late, but when the 'injury * occurs too late--here, more than 10 years after completion of the improvement. Here, although dements of the analytic chain by which J 12-310 would probably operate to bar the claim are disputed, it seems highly likely that it would have done so but for an amendment (to be discussed shortly) that was enacted in 1987. First, there is at least a very strong argument that for purposes of $ 12- 310 no 'injury* occurred until after the passage of 10 years. Cf. Bussineau v. President and Directors of Georgetown College, S18 A_2d 423, 423, 428, 433 (D.C.1986) (equating accrual of a cause of action for statute of limitation purposes with occurrence of 'injury* and requiring that the injury be discoverable with reasonable diligence). Second, under the decision of the Court of Appeals of the District of Columbia m J.H. Westerman Co. v. Fireman's Fund Ins. Co., 499 A.2d 116 (D.C.1983). the statute protected manufacturers of a component of an improvement. On February 28, 1987, however. District Law 6- 202 came into effect, reversing the Westerman decision and removing this critical element in U.S. Gypsum's use of $ 12-310 as a defense. The nade the rani inapplicable to 'any manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property.* D.C. Law 6-202, 34 D.C.R. 527 (1987), codified at D.C.Code }} 12-301, 12- 310(b)(2M4), (Michie Supp.1988). It was expressly *121 *"362 applicable to actions pending in a court on July l, 1986. See D.C.Code 12-311 note (Michie Supp.1988): D.C. Law 6- 202. $ 6. The district court granted partial summary judgment for U.S. Gypsum on Wesley's ton claims, applying the earlier version of D.C.Code $ 12-310. The court reasoned char that version conferred on defendant a 'substantive* right not to be swl. which vested before 1987, and that therefore any retroactive divestment of its protection would violate defendant's rights under the due process of the Fifth Amendment. The case went to trial on Wesley's breach of warranty claims, and a jury found U.S. Gypsum free of liability. The district court entered judgment accordingly. Wesley argues here that the court erred in invalidating the retroactive of the statute of repose. It also claims error in certain evidentiary rulings, and in the district court's directed verdict against Wesley on the punitive damages component of its contract claim. We reverse the judgment of the trial court dismissing Wesley's ton claim and affirm in all other respects. L RETROACTIVE REPEAL OF THE STATUTE OF REPOSE [1] The parties agree that if $ 12-310 were a statute of limitation the due process clause would not prevent the District from extending the period and thereby reviving a cause of action that the statute had expunged. See International Union of Electrical Workers v. Robbins A Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); Chase Securities Corp. v. Donaldson, 323 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945): Campbell v. Holt, 115 U.S. 620. 6 S.Ct. 209, 29 L.Ed. 483 (1885). The defendant claims to find in Chase and Campbell a simple dichotomy berween procedure and substance, under which changes in purely procedural provisions may be retroactive while changes in substantive ones may not. This constitutes the major premise of a proposed syllogism. Defendant would add a minor premise, that statutes of repose are substantive. The desired result follows automatically. We may in fact resolve this case, however, without classifying the District's statute as substantive or Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works Westlav 876 F.2d 119 (Cite as: 876 F.2d 119, *121, 277 U.S.App.D.C. 360, "362) Page 3 procedural. The cases simply do not support defendant's major premise. First, die cases upholding retroactive application of amwirfmwirt of statures of limitations by no means give the procedure/substance distinction anything like the place that U.S. Gypsum suggests. Robbins and Campbell do not mention it. Chase does so, but in terms that fall far short of establishing defendant's theory. Justice Jackson wrote: The abstract logic of the distinction between substantive rights and remedial or procedural rights may not be clear-cut, but it has been found a workable concept to point up the real and valid difference between rales in which stability is of prime importance and those in which flexibility is a more important value. 323 U.S. at 314. 63 S.CL at 1142. While the sentence lends some support to defendant's major premise, it reformulates the distinction as being between rales for which 'stability* is important and ones for which 'flexibility* is critical. Justice Jackson then turned to a lengthy quotation from an opinion written by Justice Holmes as Chief Justice of the Supreme Judicial Court of Massachusetts. After a passage talking of the inexactitude of constitutional restraints. *end[ing] in a penumbra where the Legislature has a certain freedom m fixing the line,* [FN1] Justice Holmes proceeds (in the quotation) to a characteristic sraremeut of an entirely functional test: FN1. For a discussion of judicial use of the `penumbra* metaphor, see Butt Healy. "Penumbra': The Roots of a Legal Metaphor. 13 Hastings Con. Law Q. 81 (1987). But however that may be, multitudes of cases have recognized the power of the Legislature to call a liability into being where there was none before, if the circumstances were such as to appeal with some strength to the prevailing views of justice, and if the obstacle in the way of the creation seemed small. 122 "363 323 U.S. at 313, 65 S.Ct. at 1143, quoting Danforth v. Groton Water Co., 178 Mass. 472, 476, 59 N.E. 1033 (1901). Mining Co.. 428 U.S. 1, 96 S.Ct. 2882. 49 L.Ed.2d 752 (1976). the Court approved Congress's creation of an entirely new liability of coal ming operators for death or illness of miners where linked, through a series' of stringent presumptions (some of them irrebutable), to work in an operator's mines, even if the work long antedated the passage of the statute. The Court dealt curtly with the due process objection based on retroactivity, seemingly testing the statute merely for rationality: [Legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and ... the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.... [0]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability based on past acts. 428 U.S. at 15-16. 96 S.CL at 2892 (citations omitted). And in Pension Benefit Guaranty Carp, v. R.A. Gray St Co.. 467 U.S. 717. 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984), the Court turning^ die imposition of a novel 'withdrawal liability* on employers who withdrew from multi-employer pension plans before the passage of die burdencreating legislation. Again the Court invoked the modest 'rationality* standards 'that it generally applies to 'economic* legislation: [T]he strong deference accorded legislation in the field of national economic policy is no less applicable when that legislation is applied retroactively. Provided that the retroactive application of a statute is supported by a legitimate legislative purpose ftwbeted by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches.... To be sure ... retroactive legislation does have to meet a burden not faced by legislation that has only future effects.... But that burden is met limply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose. 467 UjS. at 729-30, 104 S.Ct. at 2717-18. Later decisions have emphatically confirmed Holmes's view of the nutter, both in its functionalism and in its hint of the leeway open to legislative bodies. Thus in Usery v. Turner Elkhora At this point, therefore, any substance/procedure dichotomy suggested by Chase is either completely defunct or. at the very most, establishes procedural rules as a safe harbor within which a legislature may Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works Westiav\ 876 F.2d 119 (Cite as: 876 F.2d 119, -122, 277 U.S.App.D.C. 360, "363) Page 4 freely make retroactive changes. Application of Turner Elkhora and Gray is not difficult here. We cannot say it is imtional for the District to decide that the losses due to defects in building materials discovered long after installation should fall on the supplier rather than the building's owner, indeed, defendant makes no claim of irrationality. Moreover, defendant's equities are not especially powerful; the statute of repose became law only in 1972, see Pub.L. No. 92-579, 86 Star. 1275 (1972), about 12 years after the last building at issue was completed. Thus defendant made the sales without reliance on the statute. See Turner Elkhora, 428 U.S. at 17 & n. 16. 96 S.Ct. at 2893 & n. 16 (discussing relevance of a party's reliance on prior law). legislative action present in this case. For support the defendant cites Bradley v. Richmond School Board, 416 U.S. 696, 720. 94 S.Ct. 2006, 2020, 40 L.Ed.2d 476 (1974), which addresses a quite different issue-tbe factors a court, confronted with a change in law during the pendency of litigation, should consider in deciding whether to apply the new law in the absence of specific legislative guidance. See id. at 710-16, 94 S.Ct. at 2015-19; United States v. Schooner Peggy, 7.S. (l Cranch) 103, 110, 2 L.Ed. 49 (1801). Accordingly, we must reverse the district court's decision invalidating die retroactive effectiveness of the statute of repose. a. EVIDENTIARY RULINGS None of this is to deny U.S. Gypsum's arguments that there are real distinctions between a statute of limitation and one of repose. Defendant frames the distinction around the existence of a cause of action, saying that a statute of repose prevents one from ever coming into existence (unless the terms are satisfied), whereas a statute of limitation causes the expiration of an existing cause of action. We think this line of distinction may be somewhat metaphysical. If a statute of limitation extinguishes an undiscoverable cause of action, as some do, one conld easily recharacterize it as a stature of repose: so viewed. "123 *"364 it prevena the claim from ever accruing (with discovery, or the possibility of discovery, being a necessary component of accrual). Thus we rest more confidence in the distinction suggested earlier, in terms of the event that satisfies the statute (i.e., an injury, for a statute of repose; filing of suit, for a statute of limitation). But we need not tany with these theoretical poina. Even if they proved that statutes of repose were substantive it would not advance our resolution of the constitutional claim. U.S. Gypsum seeks to distinguish such cases as Turner Elkhora and Gray on the ground that the present case is not one 'where the legislature is imposing liability for past acts which had not previously been legislatively addressed at all.* Appellee's Brief at 12-13. We fail to perceive a distinction of constitutional magnitude between an expectation of nonliability that arises from legislative silence and common law nonliability, and one chat arises from the type of affirmative [2] Wesley appeals from the district court's decision to exclude certain exhibits and expert testimony that it argues it needed to prove that U.S. Gypsum knowingly concealed the asbestos danger. We affirm the rulings of the district corn on substantially the grounds Hmn discussion to a single disputed exhibit. PX-510 is a letter addressed to a U.S. Gypsum executive in 1936, summarizing the results of studies carried out in U.S. Gypsum's plant by a Dr. Leroy Gardner. Dr. Gardner concluded that a serious asbestos dust hazard existed in the plant. He discussed other studies which proposed a marirrmm safe level of 'five million particles of free silica per cubic foot of air.* He distinguished silica dust from asbestos dust, however, and concluded that this standard was not necessarily applicable to asbestos dust. Wesley seeks to treat as a smoking gun the letter's observation that '[tjhere is no standard for safe concentration of asbestos dust comparable to the value just given for free silica dust.* In context, however, this is simply a statement that, due to the absence of enough research, no one could yet identify the safe level for occupational exposure. Similarly, the letter's discussion of an asbestos dust study which found a 10% asbestosis rate among workers exposed to five million particles per cubic foot of dust was of remote relevance at best. While it suggests that U.S. Gypsum was on notice that the safe level for occupational exposure to asbestos dust on a full-time basis was less than five million Copr. West 2000 No Claim to Orig. U.S. Govt. Works Westlav ,876 F.2d 119 (Cite as: *76 F.2d 119 *123, 277 U.S.App.D.C. 360, "364) Page 3 panicles per cubic foot of air, it does almost nothing to establish Wesley's central thesis-that the defendant was aware that asbestos-containing ceiling tiles, . once installed. created hazardous concentrations. brand on its conduct. [FN2] FN2. Of course our decision here does not speak to any pumove damages ***" plaintiff may asstn on its tort claim on remand. Thus the district court was well within its discretion in ruling the letter unduly prejudicial. Moreover, for any proper purpose the exhibit was cumulative: LT.S. Gypsum admitted in its opening statement to the jurors that for years there had been no question that asbestos caused disease at high-level occupational exposures over long periods of time. See Tr. 40. IV. CONCLUSION Although rejecting the errors asserted by plaintiff as to the disputed evidentiary rulings and the partial directed verdict, we must reverse the judgment on account of the Himiai of the ton claim and remand for further proceedings consistent with this opinion. HI. DIRECTED VERDICT ON PUNITIVE DAMAGE CLAIM [3] The district court entered a directed verdict against Wesley on its claim for punitive damages for the alleged breach of warranty. We doubt that such a direction of verdict could ever be reversible error *124 **365 where the jury rejects the substantive claim to which the request for punitive damages is appended; exoneration on the substantive claim seems to moor die issue of punitive damages. The court's direction of the verdict in no way reduced the evidence available to the jury. And while inclusion of a charge on punirives might have given a derogatory tinge to the actual evidence, and to the defendant itself, plaintiff had no legal right to any such spillover. So ordered. END OF DOCUMENT In any event, a directed verdict "is proper only if. viewing the evidence in the light most favorable to the plaintiff and giving him the advantage of every fair and reasonable inference that the evidence may permit, there can be but one reasonable conclusion drawn.* Richardson v. Richardwn-Merrell. Inc., 857 F.2d 823. 827 (D.C.Cir.1988). Here only one conclusion could have been drawn. If indeed punitive damages ate recoverable on a warranty claim, then in order to be entitled to have its punitive damages dajm go to the jury, District law required Wesley to offer evidence of conduct 'outrageous, characterized by malice, wantonness, gross fraud, recklessness, or willful disregard of the plaintiff's rights.* Sere v. Group Hospitalization, Inc.. 443 A.2d 33, 37 (D.C.), cert, denied. 459 U.S. 912, 103 S.Ct. 221. 74 L.Ed.2d 176 (1982). Plaintiff clearly did not prove that defendant's knowledge of asbestos hazards could justify such a Copr. West 2000 No Gaim to Orig. U.S. Govt. Works Westlav, END'END* END* END* END* END* END* END* END* END* END* END* END* END* END* END* END* END* END' 1420401-PARKER,VIVECA D TATE AND TIME PRINTING STARTED: 05/17/2000 07:18:55 am (Central) DATE AND TIME PRINTING ENDED: 05/17/2000 07:19:05 am (Central) OFFLINE TRANSMISSION TIME: 00:00:10 NUMBER OF REQUESTS IN GROUP: 1 NUMBER OF LINES CHARGED: 332 * END* END* END * END * END END* END* END* END* END * END* END * END* END * END * END * END *END * END * Westlav - .*.-> rrv ' Sr?***-'*' *- _ V.'--. < * A"*? . .'Vi- - _ .... 4. - . -Vt~ ^ * 'VjJ .u~-~ir-*.r - ;^y v*. >- /i^.ro-.r. : .j1 ^^ t^ t ' -5.V*^?/,?:i...-.`.-' : ' -7, _ .--i7. . - ,--7; -';'.... .' ' ` ..;-' '- ;--_-_-.--- -v . v . ..- -, . , 1^*---tr'>- -*-ji '* '*; 1 :;... -v.-f r V-~V--J ' ^ >. ;./- -- i->e`resr;,v* Jr. '\f' *E*"l,*`*r-V 'V^,;^;-; ` -U^-^ . ".' y"- '*VrS^; ..^'.^jj.V-` -Vi -- ;-- *T.' '.'''."7 - ^ rA^ >. - V ?*/'* -rrjJ,-- r*' r; rvV- -"r;v--:^^j-j,-- ,'~r..' '.'-vvw:'- -v.v Tv.''; ..j- .-,- . v r'^^f^'.t" **vSS*V'f .'.-vtj ^gt****'* >~ -. 4-v.vV:"'cV:4'".'-~v^'..':':v--.-4?4;,;4; -.-;- - V V-' v_A^ .'i _' > . . v . 'V'.'v -V '7 -- ' ; V*: -::. T - - , ' - : -. ' ` > VV_. , -, 'l* '- -. f.- ' . ';' ' ^ v. *' ^:-_r>-V'-' ' ''"' ' 1-'-7-.;'''* "-': .. . - ai- - v^ ' - '^ - v^T*- ^<< va :;v*-*' L. v --C" ' ' _j ..t- '*.; . - ". '.... '.,... t ^ ` ' v*!.' . * .H ^'' ''';`7'r-.-S---- v';~ -- . :.--VI:--'-'- v-T;Uv :s5; '7rtr-'vv'.4^.-`r' - /7vr +''?; wr'7?^' -`'^rr.is?*.- -- v`-~ .' .' - 'V ': '- - . - ` . - ->:',_ >. ' ' ViV- ' - ` ---- " 1' ' - :. ' ^vS~-v-v;*' ' V;-^. ,.<. ;;"v-->*!,*^'. "C'.^-' '-; i-.J">:; '-:v;.. hi; V;/'' -- ,4 - 5' ' V--' -v>- . "0 *'- .'*-* V - 4^4 /.'- r1; - .-* r- ;: 'V ~ : -. - r '" ... r _ ^ > -':<?; V `"~V I 'Jr- " '7'^* 4-7.. -C. ;4/->.: 44:' ' K- B. .-- j'--Av: ... . " '- v,, ........ x * ,. ' '.41 - *.-...- . ' :^4.:-;r.`j.7.:.-'a ' J r- .: "ir/-- -'" v- .._ - - ; . *?**'-- *-.-v~ ;- .-.-r:*f-`--.J.... ____ ... - .. . .... V-. `A- -< ^ '-r--...<,. . V:>-, .' '-'-v,=.: ./-Vj:...%. Jr: , .* MOTION IN LIMINE OF DEFENDANT UNITED STATES GYPSUM COMPANY TO EXCLUDE ARGUMENT AND EVIDENCE RELATING TO THE SARANAC EXPERIMENTS Defendant United States Gypsum Company ("U.S. Gypsum") hereby moves in limine to exclude argument and evidence relating to animal asbestosis experiments conducted at the Saranac Laboratory in New York in the late 1930s and early 1940s. 1. Plaintiffmay seek to introduce evidence and argue that the Saranac experiments established that asbestos causes cancer in humans, and that U.S. Gypsum paricipated in improperly concealing that finding. 2. The argument is not supported by the evidence. Courts that have examined the documents has concluded that (i) there was no concealment, (ii) the observations allegedly concealed had no scientific validity in any event, and (in) the alleged concealment, even if it occurred, could not have caused any harm to plaintiff. Moreover, U.S. Gypsum neither sent nor received the majority of the Saranac documents. 3. If the Saranac documents that plaintiff selects are admitted, and plaintiff is permitted to assert that the documents show improper suppression of valid scientific evidence, U.S. Gypsum will be irreparably prejudiced. 4. The Saranac documents are inadmissible because they are irrelevant and their admission would create a substantial danger of unfair prejudice and jury confusion.1' See Perlmutterv. United States Gypsum Co., No. 87 M 510, Tr. at 595-99 (D. Colo. May 6, 1991); J.H. Snyder Co. v. Carey Canada, Inc., No. C 728 816, Order (Cal. Super., L.A. Cty. Apr. 18, 1/ The documents also are inadmissible hearsay, and the evidence lacks authentication, foundation and/or identification. U.S. Gypsum reserves these objections, but does not present them fully herein. 1994). 5. Courts that have examined the evidence have concluded that there was no concealment: The Saranac documents do not contain "any evidence... linking U.S. Gypsum to efforts to conceal the results or to pressure Dr. Gardner or his successors to limit publication of their findings!." Sealover v. Carey Canada, 793 F. Supp. 569, 577 (M.D. Pa. 1992). No "evil motive can be imputed to USG for following Dr. Gardner's advice" to omit the observations ofthe eleven mice from the final report Pigozzi v. United States Gypsum Co., No. 98 L 04457, slip op. at 3 (HI. Cir., Cook Cty. Aug. 15, 1999). "What I saw was minimal evidence with respect to Gypsum connecting them to the study... in that they struck a provision relating to cancer, for perhaps good reasons and maybe perhaps for bad reasons, but that it was done in a fair exchange of ideas at the time." Davis v. Armstrong World Indus., 86-CTV-763 (W. Va. Cir., Monongalia Cty. June 30,1988). u[T]here certainly couldn't be any proximate cause from it because the information was disseminated, there wasn't any secret kept about it" Board ofEduc. ofCity ofDetroit, Tr. at 19 (Mich. . Cir., Wayne Cty. Sept 4, 1992). 6. Courts that have examined the evidence have concluded that the Saranac experiments did not establish an asbestos-cancer link: 2 "[J]ust a simple analysis of relevance based upon the scientific really I don't mean to be unkind about the plaintiffs position here, but the scientific worthlessness of the minuscule information that U.S. Gypsum had or at least that plaintiffs can establish that U.S. Gypsum had... Lammers v. OwensCaming Fiberglas Corp.y No. 97CV005649, Tr. at 56-57 (Wis. Cir., Milwaukee Cty. Jan. 29, 1999). The Saranac experiments reveal "a lack of sound research." Pigozzi, slip op. at 2. "Dr. Gardner found only a possible relationship between exposure to massive amounts ofasbestos and malignant tumors in white mice. He himself stated that the implications were unclear... Sealover, 793 F. Supp. at 575. "When you look at Dr. Gardner's report there is no credibility attached to that issue. He says there isn't He says it is suspect There just isn't anything there." Board ofEduc. ofCity ofDetroit v. Celotex Corp., No. 84-429-634-NP, Tr. at 23-24 (Mich. Cir., Wayne Cty. Oct 20,1989). "I am satisfied that there was no scientific validity or no scientific basis then based upon Gardner's studies for the conclusion that there was a tie in with cancer." Board ofEduc. ofCity ofDetroit, Tr. at 18-19 (Mich. Cir., Wayne Cty. Sept. 4,1992). For the foregoing reasons, U.S. Gypsum respectfully requests that this Court enter an order in limine precluding plaintiff from introducing any argument or evidence concerning -animal experiments conducted by Dr. LeRoy Gardner at the Saranac Laboratory in the late 1930s and early 1940s. j MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE OF DEFENDANT UNITED STATES GYPSUM COMPANY TO EXCLUDE .ARGUMENT AND EVIDENCE RELATING TO THE SARANAC EXPERIMENTS Defendant United States Gypsum Company ("U.S. Gypsum") submits this memorandum or law in support of its motion in limine to exclude argument and evidence that U.S. Gypsum participated with other manufacturers in an effort to suppress certain results of the Saranac experiments. This argument is no; supported by the evidence, and allowing plaintiff to so argue would irreparably prejudice U.S. Gypsum. The documents show no such conduct by U.S. Gypsum -- indeed, the documents indicate that U.S. Gypsum never was apprised of or participated in any allegedly improper conduct. The Saranac documents are inadmissible because they are irrelevant and their admission would create a substantial danger of unfair prejudice and jury confusion.^ The purpose ofthe Saranac experiments was to study the manifestation of asbestosis in laboratory animals. The first step was to induce asbestosis by injection of asbestos into and the inhalation of hundreds ofmillions ofraw asbestos fibers by a variety of animals, including guinea pigs, cats, rats, rabbits and mice. No attempt was made to simulate levels associated with handling of finished products containing only minor amounts of asbestos. Plaintiff argues that the experiments proved that asbestos causes cancer in humans and that the companies that funded the experiments improperly suppressed this finding. The basis for the argument is that Dr. Gardner, who conducted the experiments, observed tumors in eleven out of the hundreds of animals he used. Plaintiffs argument is flatly contradicted by Dr. Gardner himself and numerous other eminent scientists who followed up on, spoke and wrote about, and 1/ The documents also are inadmissible hearsay, and the evidence lacks authentication, foundation and/or identification. U.S. Gypsum reserves these objections, but does not present them fully herein. rejected the tumor observations. Moreover, plaintiffs argument has been rejected by courts that have examined the evidence. Those courts have concluded that: * The Saranac documents do not contain "any evidence... linking U.S. Gypsum to efforts to conceal the results or to pressure Dr. Gardner or his successors to limit publication of their findings." Sealover v. Carey Canada, 793 F. Supp. 569, 577 (M.D. Pa. 1992) (Exhibit A). * No "evil motive can be imputed to USG for following Dr. Gardner's advice" to omit the observations of the eleven mice from the final report Pigozzi v. United States Gypsum Co., No. 98 L 04457, slip op. at 3 (EL Cir., Cook Cty. Aug. 15,1999) (Exhibit B). * "What I saw was minimal evidence with respect to Gypsum connecting them to the study... in that they struck a provision relating to cancer, for perhaps good reasons and maybe perhaps for bad reasons, but that it was done in a fair exchange ofideas at the time." Davis v. Armstrong World Indus., 86-CTV-763 (W. Va.Cir.t Monongalia Cty. June 30,1988) (Exhibit Q. The data allegedly concealed was determined by Dr. Gardner and other eminent scientists to be ofno value, and was omitted from the final report ofthe Saranac experiments for reasons consistent with good science. From his earliest interim report on the asbestosis work. Dr. Gardner himself expressed doubt as to whether his tumor observations were any evidence of a cancer causing action. Dr. Gardner wrote that his observations on this issue "are suggestive bur not conclusive" and that his methodology was "open to several criticisms." See Outline of Proposed Monograph on Asbestosis at 7-8 (Exhibit D). He stated that he felt that the dubious tumor observations "would better be omittedfrom the present report." See Cover Letter to Report, February 24,1943, at 1 (emphasis supplied) (Exhibit E). 2 Consistent with its marginal role, U.S. Gypsum did not receive a copy of Dr. Gardner's Outline. Nor did U.S. Gypsum participate in or receive the voluminous correspondence between and among the lead sponsors and Dr. Gardner during the late 1930s and early to mid-1940s. Contrary to the argument plaintiff urges, the companies that funded the experiments did not prohibit Dr. Gardner from sharing his observations. Dr. Gardner applied to the National Cancer Institute ("NCI") for a grant to study the issue of asbestos as a cancer-causing agent.2' Summarising the discussion ofthe eminent cancer specialists who reviewed the application, one doctor stated that he did not "believe that this infonnation would be of any tremendous value." See Transcript ofProceedings at 26 (Exhibit F). Others, too, voiced significant doubt as to the scientific importance ofDr. Gardner's observations. Dr. Gardner's grant application was put to a vote and was denied. Id. The transcript of that proceeding has been a matter ofpublic record for over 55 years. Dr. Gardner died suddenly in October 1946, without finishing a final report on the asbestosis experiments. His materials were sent to Dr. Kenneth Lynch of the Medical College of the State of South Carolina, whose own work had indicated a possible link between high-level asbestos exposure and cancer. Dr. Lynch cited Dr. Gardner's tumor observations in speeches and published articles.1' On each occasion Dr. Lynch opined - bolstered by his own research -- that 2/ The NCI was established by the National Cancer Institute Act of 1937. As defined by Congress, its duties included "conducting researches, investigations, experiments, and studies relating to the cause, diagnosis, and treatment of cancer, assisting and fostering similar research activities by other agencies, public and private; and promoting a coordination ofall such researches and activities and the useful application of their results, with a view to the development and prompt wide-spread use of the most effective methods-of prevention, diagnosis and treatment of cancer." i/ See Address to the Gordon Research Conferences, August 31,1930, at 3 (Exhibit G) ("we also have knowledge of an unexpectedly high incidence of lung tumors in mice that had been experimentally exposed to asbestos dust Since this (continued...) 3 "[ajmmal experimentation has not yet provided any conclusive evidence" of a possible relation ship between asbestosis and lung cancer - After Dr. Gardner's death, and after his successors at Saranac had reviewed his research, the Saranac researchers stated in a draft report that the nature of the tumors observed Dr. Gardner was unknown, and noted that Dr. Gardner's own laboratory notes referred to the development of non-cancerous tumors or "adenomas." See Interim Report, Sept. 30,1948, at 49 (Exhibit K).1' It is the omission of these equivocal descriptions of Dr. Gardner's chance observations, pending further study, from the final report published in the American Medical Association Archives of Industrial Hygiene and Industrial Medicine in 1951 that plaintiff argues somehow caused the entire medical, scientific and regulatory communities to remain ignorant of the hazards of asbestos for decades, thereby causing injury to plaintiff. Based upon the myriad problems identified by Dr. Gardner regarding his tumor observations in a few mice, numerous courts have recognized that the data U.S. Gypsum is alleged to have concealed was ofno scientific value. In Lammers v. OwensComing Fiberglas 2/(...continued) experiment was not designed with the possible production of cancer in mind, it was not controlled in such a manner as to permit any conclusion"); Summary of Presentation at Seventh Saranac Symposium, September 24, 1952, at 9 (Exhibit H) (describing Gardner's work as an "uncompleted experiment" that was "uncontrolled" as to tumor susceptibility of mice used); Lynch, Mclver A Cain, "Pulmonary Tumors in Mice Exposed To Asbestos Oust," 15 A.M.A. Arch, of Ind. Health 207,213 (March 1957) at n. 13 (Exhibit 0: 4/ Lynch and Pran-Thomas, "Carcinoma of the Lung in Asbestosis; Report ofTwo Additional Cases," 48 So. Med. J. 565,568 (Junel955) ("[mjiee exposed to concentrations of asbestos dust having the proper specifications as regards particle volume arid size do not develop asbestosis or carcinoma, although the ubiquitous pulmonary adenoma is frequently present") (Exhibit J); Lynch, Mclver A Cain, "Pulmonary Tumors in Mice Exposed To Asbestos Dust," 15 A.M.A. Arch, of lnd. Health 207,213 (March 1957) ("[n]o significant histological or cyrological difference was observed between tumors in the control and dusted groups" and "[n]o cleaScut proof of malignancy was found in any of the tumors studied") (Exhibit l). i/ One of Dr. Gardner's successors at Saranac, Dr. Philip Pratt, has stated under oath that based upon Dr. Gardner's notes and his own independent analysis of the tissue slides, he concluded in 1948 and believes at present that rhe lesions were adenomas and not maiignant cancers. See Affidavit of Philip Pratt 1 9 (Exhibit L) (exhibits omitted). 4 Carp., No. 97CV005649, Tr. at 56-57 (Wis. Cir., Milwaukee Cty. Jan. 29, 1999) (Exhibit M), the court excluded all reference to Dr. Gardner's speculative observations regarding cancer based upon just a simple analysis of relevance based upon the scientific -- really I don't mean to be unkind about the plaintiff's position here, but the scientific worthlessness of the minuscule information that U.S. Gypsum had or at least that plaintiffs can establish that U.S. Gypsum had____ [W]e've got a rule of law that requires that scientific evidence be treated with honesty and applying intellectual honesty in this case, the information about possible cancer producing effects of long fibre asbestos noted by Dr. Gardner in 1943 and reported as a question in 1948 that that is again applying the legal standard here not relevant... Other courts have reached similar conclusions: The Saranac experiments reveal "a lack of sound research." Pigozzi, slip op. at 2 (Exhibit B). "Dr. Gardner found only a possible relationship between exposure to massive amounts of asbestos and malignant tumors in white mice. He himself stated that the implications were unclear...." Sealover v. Carey Canada, 793 F. Supp. 569, 575 (M.D. Pa. 1992) (Exhibit A). "When you look at Dr. Gardner's report there is no credibility attached to that issue. He says there isn't He says it is suspect There just isn't anything there." Board ofEduc. of City ofDetroit v. Celotex Corp., No. 84429-634-NP, Tr. at 23-24 (Mich. Cir., Wayne Cty. Oct 20, 1989) (Exhibit N). "I am satisfied that there was no scientific validity or no scientific basis then based upon Gardner's studies for the conclusion that there was a tie in with cancer." Board ofEduc. ofCity ofDetroit, Tr. at 18-19 (Mich. Cir., Wayne Cty. Sept. 4, 1992) (Exhibit O). 5 As noted by these courts. Dr. Gardner's data were, by his own admission, of highly dubious scientific value. Even had any concealment occurred, it could have had no effect on the medical community's knowledge regarding a link between high level exposure to raw asbestos and the development of lung cancer. Regardless of the scientific validity ofDr. Gardner's data, the Saranac documents are not probative ofconcealment because no concealment occurred. It was Dr. Gardner's suggestion that the data not be included in the final report because it was both unreliable and inconclusive. In addition, the data was disseminated widely. In 1943, Dr. Gardner himself sent fire data to the NCI where it was openly discussed by cancer specialists from around the country, and Dr. Lynch referred to the observations at major symposia in 19S0 and 1952, and in articles published in 1955 and 1957. Even if it were true that some sponsors ofDr. Gardner's work attempted to suppress his findings, U.S. Gypsum was not a party to such efforts. There is no evidence that U.S. Gypsum either sent or received the majority of the Saranac documents, including the 1943 report and voluminous correspondence among other funders of the experiments, which has been produced in asbestos litigation. U.S. Gypsum was not informed of and never participated in any attempt to improperly suppress Dr. Gardner's observations. Accordingly, the documents are not admissible to show the conduct or motivation ofU.S. Gypsum. Wesley Theological Seminary ofthe United Methodist Church v. United States Gypsum Co., No. CA-85-1606, Order at 3-4 (D.D.C. March . 25,1988) (Exhibit P), affd in relevant part, rev `d in part, 876J;.2d 119, 123 (D.C. Cir. 1989), cert, denied, 494 U.S. 1003 (1990). 6 Whatever its motivation, the omission of Dr. Gardner's speculative cancer findings could not have caused any injury to plaintiff. As the court held in Board ofEduc. of dry ofDetroit, Tr. at 19 (Mich. Cir., Wayne Cty. Sept. 4,1992) (Exhibit 0): "[Tjhere certainly couldn't be any proximate cause from it because the information was disseminated, there wasn't any secret kept about it" Information regarding the hazards of asbestos dust exposure, as understood by the science ofthe time, including Dr. Gardner's inconclusive results, was published in the scientific literature both before and during the time in which plaintiff alleges concealment Indeed, plaintiff's own state of the art experts routinely opine that a link between asbestos exposure and cancer was well-established and accepted before 1951, when the final report of the Saranac experiments was published.* Thus, any assertion that the omission of a reference to tumors in the final report ofDr. Gardner's asbestosis experiments in 1951 somehow concealed the cancer issue is absurd. Even more absurd is the suggestion that plaintiff, whose first alleged exposure to asbestos-containing products occurred years later, was harmed by the failure to include a questionable finding of noncancerous tumors in the report on the Saranac experiments. Plaintiff will attempt to present bits and pieces of the Saranac story out of context, and U.S. Gypsum will be forced to respond by presenting extensive scientific and medical evidence to the contrary. The evidence is highly inflammatory and bears no relevance to causation, which is plaintiffs burden in this liability case. See Perlmutter v. United States Gypsum Co., No. 87 M / Set. e.g.. Wigiey v. United States Gypsum Company, tt at.. Cause No. 98-10710-B (Dallas Cty., Texas) July 29,1999 Tr. 88:18-89:1 ("[CJenainly there was a general consensus, if not a complete consensus, that by 1949, based on that JAMA editorial that was in the medical community, that asbestos could cause Cancer [sic].") (Exhibit Q): Sanches v. United States Gypsum Company, tt al. Cause No. 96-2807 (El Paso Cty., Texas) July 29, 1999 90:22-24 ("Q: We are talking about lung cancer now and the development of chat relationship? A: By the end of the '40s.") (Exhibit R). 7 510, Tr. at 595-99 (D. Colo. May 6, 1991) (Exhibit S); J.H. Snyder Co. v. Carey Canada. Inc., No. C 728 816, Order (Cal. Super., L.A. Cty. Apr. 18, 1994) (Exhibit T). For the foregoing reasons, U.S. Gypsum respectfully requests that this Court enter an order in limine precluding plaintiff from introducing any argument or evidence concerning animal experiments conducted by Dr. LeRoy Gardner at the Saranac Laboratory in the late 1930s and early 1940s. 8