Document gDVwZLdyo82eDxDrvw8vjR48Q

FILE NAME Manhattan RBM DATE 1978 DOC RBM048 DOCUMENT DESCRIPTION Legal - Court Order in Barnett V. OwensCorning " =~ STATE OF SOUTH CAROLINA COUNTY OF GREENVILLE yo --') | ) oo IN THE COURT OF COMMON PLEAS . Bennie M. Barnett Administrator ) of the Estate of Gordon Luther ) Barnett Deceased ) ) . - Plaintiff . ) | ey yo -VS- ). AMENDED ORDER oo Owens Corning Fiberglass et al - Corp. fs caw ; Defendants ) Survival ) Actions ) )~ ) and Wrongful Death y % This matter is before the Court onplaintiff's motion discovery for a new trial on the ground of of new evidence trial This case is one of series of product liability occupational disease suits brought by construction workers after who allege the contraction of various asbestos related diseases as the result of exposure to asbestos containing thermal insulation products The deceased Gordon Barnett was a former insulation worker who allegedly contracted mesothelioma a rare cancer of the lining of the lungs , -and other asbestos diseases his exposure as a result of his to asbestos products manufactured and distributed by the defendants during work career The first reported case of this type Borel v Fibreboard Paper ee Products Co. 493 F.2d 1076 5th Cir 1973 explains in detail the two basic theories of liability advanced by diseased insulator out plaintiffs in these cases - strict tort liability arising of failure to test the product and also a failure to warn of foreseeable risks The duties to test and to warn are entrenched in the elaborated here Co. 108 S.E. 401 law See S. of South Carolina and need not be e.g. Patterson v Orangeburg Fertilizer C. 1921 duty to test and Mickle v Blackmon 166 S.E.2d 173 S. C. 1969 duty to warn The Barnett case was the third of this series to be set for trial in Greenville the first having been removed to Federal Court shortly before trial and the second having been settled by Barnett was set special Order in late February and thereafter a trial conference was held Trial commenced on March 27th testimony ending April 6th and the jury after considerable deliberation returned a verdict in favor oe of all defendants on April 7th Thereafter plaintiff moved | for a new trial as to all defendants and n.o.v. as judgment Order one defendant said motions being denied bywritten Court carefully weighed the new trial motion finding that while this writer was persuaded by the plaintiff's case a to This _ | new trial should not be ordered The instant motion for new trial on the ground of after discovered evidence was filed on June 30 1978 and was supported by three affidavits of plaintiff's and numerous exhibits including excerpts from the voluminous discovery record in these cases The defendants of course strongly contest this affidavits exhibits responded motion and have by way returns and briefs The parties of are to be commended on their able presentations on this motion A hearing was held in on July Greenville 17th at which all parties | were represented Because of the submission by [Hey | plaintiff of additional supporting exhibits and the unavailability copies defendants of adjourned of same to some of the to allow such defendants the hearing was an opportunity to review and these documents to file additional legal memoranda by August 20th This Court has carefully reviewed all affidavits ' | exhibits returns briefs and its own trial notes and for the reasons stated below grants plaintiff's motion as to certain of the defendants C: C 7) The Newly Discovered Evidence . . The evidence newly discovered by plaintiff is of two brevity distinct types and for sake of will be denominated as follows | correspondence 1 Raybestos Manhattan 2 Contract Unit1 occupational disease A brief recitation of the core positions claims of the parties discovered at trial is essential to an appreciation of the newly evidence A manufacturer's adequately liability law strict tort manufacturer's or distributor's distributor's duty at either or negligencenegligence to _ warn consumers is based on foreseeability of risk to users of re the product See Borel v Fibreboard Paper Products Corp. supra The 1 foreseeability of a risk from use of a product may arise from constructive knowledge or actual knowledge of the risk Central manufacturer to is the former is the standard of held - it is an expert in the _ care to which a arts sciences technology and processes | has a duty to of its field of keep abreast of manufacture Thus scientific advances themanufacturer and discoveries constructively through in its field and is held aware of such advances Actual knowledge of a hazard may be obtained testing done by the company or by notice example by prior similar claihmsazard which show the existence of a evidence as is established for brought against such manufacturer Where the issue is one of in the foreseeability evidencoe f what has actually been experienced same or comparable situations constitutes proof of the greatest probative value 4th Cir 1971 Gardner v Q.H.S. 448 F.2d 238 244 that that The major defense used by the defendants in Barnett was the state insulators of the art was such that such as plaintiff were at they risk had no knowledge to contract asbestos 1. Contract units are divisions on and engage in thermal insulators as employees insulation of manufacturers contracting jobs which bid hiring C | related diseases In support of this defense of lack of subjective knowledge the defendants inter alia contended that there was an utter lack of scientific and medical literature establishing a risk to insulators The defendants conceded knowledge that asbestos caused disease mining and but argued vigorously that insulators manufacturing employees were different in that it was unforeseeable that the nature and quality of their exposure cause disease Certain of the defendants pointed the pride to their reaction to the disclosure of evidence | with in 1930's that manufacturing respecting of their responsible employees were atrisk and promotion of medical research made much such hazard Both sides called eminently qualified scientists who engaged in extended debate about what their experiences revealed what the medical literature contained historically and their own efforts in the field of occupational and environmental medicine This parade of subjective reconstruction of the history of asbestos disease was the main battleground in the case The sole item of actual knowledge evidence introduced by plaintiff was the deposition testimony of Dr. K. W. Smith deceased page list former medical director of of names of insulators who Manville and filed occupational a fifteen disease claims against the defendant Armstrong Cork and import of Dr. Smith's testimony was hotly The significance contested by Manville and the bald summary of claims against Armstrong - Cork a distributor did not reflect that these claims were likewise brought - against certain other defendants the This Court has carefully evaluated new evidence adduced by plaintiff both categories of The Raybestos correspondence reveals written evidence that Manhattan and Manville exercised an editorial prerogative over the C . publication of the first study of the asbestos industry which they sponsored in 1935. ; It further reflects a conscious effort by the industry in the 1930's to downplaoyr arguably suppress the dissemination of information to employees and the public for fear of the promotion of law suits workers compensation common law by suits employees At trial plaintiff unsuccessfully attempted to reconstruct just such a concerted a effort at suppressions to establish not ignorance but indifference After careful evaluation of this evidence and a comparison with this writer's trial notes this court reaches the inescapable conclusion that the Manhattan correspondence is cogent material relevant cummulative impeaching | and indeed substantial evidence The voluminous evidence of contract unit disease claims constitute compelling proof of actual notice to certain manufacturers that asbestos containing thermal insulation products indeed caused disease in insulators These records reveal multiple disease claims by insulators against not only Armstrong but also Manville Corning Celotex Phillip Carey and to a lesser extent the time when these Keene Baldwin all predating companies alleged they first recognized the hazard to insulators I conclude and find that this evidence is cogent material relevant cummulative impeaching and substantial The Elements of Proof Requisite to to a New Trial Entitlement system Our of jurisprudence places premiums on both the right to a fair trial and on the finality of judgments obtained by adherence to this right Plaintiff recognizes that new trials on the ground of after and that the evidence must be discovered considered evidence are disfavored in a light most favorable to the defendants The requirements for obtaining an Order directing a new trial on the ground of newly discovered evidence were clearly set forth by the Supreme Court in Ortowski v Ortowski 117 S.E.2d 360 362 S. C. 1961 the moving party has the burden of showing 1 That the evidence is such as will probably change _ the result if a new trial is granted 2 That it has been discovered since the trial 3 That it could not have been discovered before trial by the exercise of due diligence 4 That it is material to the issue and 5 That it is not merely cummulative or impeaching 1 Discovery of the Evidence It is not seriously contested by the defendants that plaintiff did not discover the Manhattan evidence in question until after the trial Plaintiff's affidavit on this issue is substantially uncontradicted Submitted at the hearing were xerox copies of Clerk of Court and a a bill from the cancelled check Knox County Tennessee for xerox costs incurred dated June 9 1978. Plaintiff's affidavit avers procurement of the Raybestos correspondence in early June 1978 Plaintiff's counsel strenuously argued that it was inconceivable that he would have possessed and failed to use evidence of this nature Having witnessed the vigorous manner in which the parties prosecuted their respective causes and examined the evidence - in question this Court agrees I find as a fact that this evidence was not procured It is notsufficient until after the trial that plaintiff merely discover the evidence after trial plaintiff must also sustain the burden of establishing that the evidence could not by the use of due diligence have been discovered in time to have been offered at the former trial Boykin v Capehart 31 S.E.2d 506 508 S. C. 1944 Wh the source of the new Siden Siden is irrelevant to this requirement the documents in question were in the possession of certain defendants from whom plaintiff sought discovery The failure of Manhattan to promptly produce the Manhattan correspondence gives this Court great concern On two separate occasions September 1977 pursuant to subpoena duces tecum and December 1977 pursuant to to Produce , plaintiff sought to discovethre Raybestos Request correspondence in question On both occasions Raybestos advised plaintiff that the documents were being compiled and subsequently be made available for inspection In contrast to would a this assertion it produced in April is uncontroverted that the same documents were / 1977 in New Jersey asbestos law suit by Manhattan and maintained in New Jersey in possession of Raybestos counsel and produced through Mr. Sims of Manhattan who is in charge nationwide of the asbestos litigation Thus Raybestos has left unanswered the question Who was compiling documents already produced and _ compiled five months prior to plaintiff's initial request for production In fact the documents in question were not produced until after the instant motion was filed fourteen months after their production in New Jersey Manhattan has not explained were not produced satisfactorily to this Court why the documents following the duly noticed deposition and subpoena duces tecum in _ Manhattan's explanation September 1977. Nor is Raybestosfor the failure to produce in obedience to the December 1977 Request to Produce satisfactory While it is true that a moratorium was declared in late December 1977 in an aborted attempt to settle these cases the suspension of discovery was dissolved when the Barnett case was set for trial| Manhattan's response to the December 1977 Request 2. obtained The parties have commendably agreed in the United States District Court to allow discovery for the District of in South Carolina and in State Court to be equally either Court excepting Interrogatories applicable to Produce was not filed until the trial had begun and again merely stated that documents which had been produced and compiled twelve months earlier were in the process of being compiled and would be available for inspection at some unspecified future date Raybestos did not at time of filing nor does now contest the discoverability | of the instant documents | - . Oo It is also clear that the defendant Manvill upe on whom the December Request to Produce was also served had in its possession since April 1977 the Raybestos correspondence Manville's which also involved its corporate agents While | explanation of its failure to produce is more plausible plaintiff need not establish a Watergate cover to prevail | but must only negate inferences that the discovery of the evidence trial was caused by his failure to exercise due diligence Here plaintiff plaintiff employed reasonable discovery procedures only to have his efforts deflected or blunted by defendants Manhattan and to a lesser degree Johns- Manville failurte o promptly respond unit The discovery after trial records presentsa closer by plaintiff of the question On March contract 20 1978 one week prior to trial plaintiff deposed certain officials of AC Inc. a defendant contracting concern who were former employees of Armstrong Cork At this deposition the defendant Armstrong Cork produceda summary list of occupational disease workmen's compensation claims filed by insulator employees of Armstrong Cork The list date and place of the claim included the and in some name of the claimant instances the disposition of the claim At the aforesaid deposition counsel for AC objected to the production by Armstrong Cork of a document 3. counsel Indeed the affidaviotf Dennis for Manville concedes the the contested documents per the December Markusson corporation producability of Request to Produce reflecting in parc claims against AC and its predecessor After questioning the deponent briefly about the list and being assured that the list summarized all such claim files plaintiff's counsel returned the list to counsel for Armstrong Cork so that AC could approve release of the information Plaintiff's counsel was given a copy trial and the list was introduced as of an the list during the exhibit during trial According to counsel's affidavit upon obtaining a copy of this list plaintiff retained an investigator to obtain copies of records of claims filed by these claimants in California The records which were subsequently obtained reflect that these claims in a large number of cases were also filed against additional parties in California some of whom are defendants in these cases Plaintiff has attached as exhibits to this motion copies of the Armstrong Cork claim files in their entirety and certain portions | of the files of the California Industrial Accident Commission These files indeed indicate a not insubstantial number of insulator claims against Armstrong Cork Corning Manville Phillip Carey Celotex and Baldwin Keene prior to the time these defendants respectively alleged inclusioon f a warning label on their products and knowledge of the asbestos hazard Further the Armstrong Cork records contain correspondence indicating knowledge by Armstrong Cork ofa disease problem in insulation work in the late 1950's Prior to obtaining the Armstrong Cork records plaintiff had sought through discovery procedures to obtain whatever workmen's compensation occupational disease claims were in the possession of the defendants who had contracting divisions It is uncontroverted that these efforts proved to be fruitless with respect to labelling claims prior to the production of the Armstrong Cork list From an assessment of the plaintiff's efforts prior to trial and the confusion surrounding the production by Armstrong C| -10- | C Cork of the summary list I conclude and find as a fact that plaintiff used unit evidence due diligence in attempting to discover this contract I do not find that Armstrong Cork acted unreasonably or was dilatory in producing the actual files themselves but it is not a requirement upon plaintiff that he prove delay or circumvention of discovery procedures by defendant Defendants unanimously and strenuously contend that the e plaintiff has failed to sustain his burden that the evidence is | such as will probably change the resulit f a new trial is granted This Court has very carefully examined the in its entirety and compared same with the extensive new evidence trial notes | taken by the writer during trial The Manhattan correspondence very arguably shows a pattern of denial of disease and attempts at suppression of information which is highly probative and which constitute the cornerstone of plaintiff's case The contract unit claims are material and substantial actual notice of a hazard the existence of which was denied . defendants Plaintiff is not required to establish beyond all doubt that a different result would obtain but only that evidence is of such decisive and important a character as the to new render a different result reasonably certain See e.g. State v Strickland 22 S.E.2d 417 C. C. 1942 I find as a fact that both the Manhatt aa nd n the contract unit claims constitute items of new evidence which are material cummulative nor impeaching and are of a kind and quality such as would probably change the result if a new trial was granted Therefore it is the Court's considered opinion that a new trial on the grounds of newly discovered evidence be granted To Which Defendants Should Trial Be Granted the New The defendants Covil a distributor Picher Eight Insulation Pittsburgh Corning and Nicolet argue with vigor that as none of the new evidence + is applicable to them -11- C C and as they played no part active or passive in failing to produce the documents in question they should perforce be exempted from a new trial Order I agree For the foregoing reasons a new trial is granted as to Manville Manhattan Corning Celotex Keene and Armstrong Cork and denied as to the other defendants AND IT IS SO ORDERED ; me oa Resident Circuit Ja Judge Thirteenth Judicial Certified Copy . RRacheal cRhaechlel Clerk Court C. P. G. S. Officio Clerk County Court Greenville County S. C. Dated AUG 24 24 1978