Losse downplays the risks associated with asbestos products;
(6) a 1965 letter from Robert Alexander of Sun Shipbuilding asking Eagle-Picher for information regarding various product hazards;
(7) a 1968 letter from P.K. Maitra of Eagle-Picher to Shell Oil stating that Eagle-Picher products are not toxic; and
(8) portions of three medical publications found in Eagle-Picher's Research Library which discuss in general terms some of the health risks posed by asbestos exposure.
Plaintiffs argue that these items are sufficient to support a punitive damages verdict. Defendant contends that they provide no evidence whatever of the requisite knowledge of asbestos-related health risks. I do not face this question unaided. Both parties have offered, in support of their respective positions, a number of recent decisions in which other judges ruled on similar motions by Eagle-Picher. Two of these decisions bear directly on this case, because they apply New Jersey law and because they appear to consider much the same evidence as is before me in this case.
In Konrad v. H.W. Porter Co., No. L28838-80, Slip Op. (N.J. Super. Ct. Law Div., Middlesex County April 27, 1984), the court analyzed the Aber memorandum and the medical article to which it refers. As the court recognized, the chief subject of the Aber memorandum was not asbestos, but mineral wool. The memorandum relates Aber's discussion with a Mr. Wardlow of the Texas State Board of Health Laboratories regarding allegations by employers of Humble Oil & Refining Company (an Eagle-Picher customer) that mineral wool products were unsafe. In the fourth paragraph of the memorandum, Aber mentions that there is an article in Occupation and Health regarding asbestos. The memorandum then states, "If you think mineral wool's dangerous, you should read this," and explains how copies of the article might be obtained. The court in Konrad, after examining the article in question, concluded that the article discussed the risks of exposure to raw asbestos rather than finished products, and that the article's authors predicted that low levels of dust concentration would prove safe. Slip op. at 8-9, 13. Finding that the article was insufficient to support a punitive damages verdict, the court dismissed the punitive damages claim against Eagle-Picher. Id. at 13.
In Herber v. Johns-Manville Corp., Civil Action No. 80-2081, Bench Op. (D.N.J. Nov. 8, 1984), Judge Barry reached a different conclusion. Judge Barry found, based on four of the eight items which plaintiffs have submitted in this case,
that a jury could determine that the Berg-Fischer requirements for punitive awards were met. Bench op. at 7-9.
The Konrad and Herber decisions are not necessarily in conflict. Judge Barry considered a number of items not mentioned in Konrad ; one might reasonably infer that the cumulative effect of this additional evidence tipped the scales in plaintiff's favor in Herber. Because my own evaluation of the evidence differs somewhat from Judge Barry's, however, I proceed to consider the record before me afresh.
Plaintiffs' evidence can conveniently be broken down chronologically. Three items -- the Aber memorandum, the Harrington memorandum, and the medical publications found in Eagle-Picher's research library -- bear on what defendant knew about asbestos-related health risks prior to 1964, the year in which defendant began using warnings on its asbestos products.
The rest of plaintiffs' submissions concern defendant's knowledge after 1964.
The chronological divide is an important one for purposes of assessing the viability of plaintiffs' punitive damages claim. Defendant is liable for punitive damages based on its pre-1964 conduct if, given its knowledge of the relevant health risks, its silence as to those risks constituted reckless indifference to the possible ill effects of its products on Mr. Goncalves and others like him. Once defendant began using warnings, the inquiry changes substantially: the question becomes whether the warnings were so inadequate as to constitute reckless indifference given defendant's knowledge. As a practical matter, it is easier to satisfy Berg's reckless indifference prong by defendant's silence than by the use of an insufficient warning. Because of this difficulty, evidence of defendant's knowledge after warnings are used ordinarily goes to the adequacy of the warnings and not to punitive damages. Gill v. Pacor, Inc., 24 Pa. D. & C. 3d 659, 679 (Pa. Ct. Common Pleas, Phila. County 1982) (Takiff, J.) (applying Pennsylvania law). With this common-sense distinction in mind, I turn to the evidence of Eagle-Picher's pre-1964 knowledge of the risk of asbestos-related disease.
Neither the Aber memorandum nor the Harrington memorandum suffices to create a fact issue regarding defendant's knowledge. The Aber memorandum does not itself convey any information about asbestos, and there is no evidence that anyone besides Aber read the article to which he refers. Moreover, that article, as Konrad suggests, is at most a heavily qualified statement of the risks of asbestos. Defendant may well have been negligent to overlook such data, but no reasonable jury could find that it was recklessly indifferent within the meaning of Berg and Fischer. The Harrington memorandum is even less helpful to plaintiffs. That document, written in 1962, reviews the incidence of asbestos-related workers' compensation claims. Harrington states that eighteen such claims have been filed nationwide, and calls this frequency a "fad." None of the claims to which Harrington refers were filed against Eagle-Picher. The memorandum suggests not knowledge, but ignorance: Harrington concludes by noting that a producer association "is now compiling information on this problem," and calls for the development of more data on the subject. In short, the Harrington memorandum may be evidence of Eagle-Picher's negligence; it does not create a fact issue with regard to the company's knowledge.
The other item of pre-1964 evidence is more substantial. Plaintiffs have introduced portions of three medical publications found in Eagle-Picher's Research Library. Each of the publications was stamped received by the research library; the dates ranged from 1930 to 1953. The one-page excerpt of "The Chemistry of Industrial Toxicology" states, inter alia, that "asbestos . . . causes a fibrotic lung condition known as asbestosis, which resembles silicosis in many respects and can be almost as serious." The excerpted portions of "Industrial Dust" discuss the pathology of asbestosis; there is no discussion of causes or acceptable and unacceptable exposure levels. The third publication, entitled "Occupational Medicine and Industrial Hygiene," is excerpted at greater length, and contains some discussion of exposure levels. The important passage for our purposes reads:
One point of practical significance may be indicated by these observations; namely, that very finely ground asbestos is not dangerous. This conclusion has support in clinical observation, for it has long been known that at the Thetford Mills there was no clinical asbestosis even though in former years the atmosphere was very dusty and the dust was extremely fine. The fact that fabrication of fibres of the same mineral in American plants could produce disease was one of the puzzling features of this disease. But those experiments offer a plausible explanation. The fine dust in the mills is composed of serpentine and extremely short chrysotile fibres; that in the spinning and weaving mills contains many more long fibres.
R. Johnstone, Occupational Medicine and Industrial Hygiene 369, 372 (1948) (excerpted in Exhibit C to Plaintiffs' Supplemental Brief in Opposition to Motion for Partial Summary Judgment).
The quoted passage, together with the rest of the excerpted materials, suggests (1) that exposure to certain types of asbestos fibers is dangerous, and (2) that exposure to "very finely ground asbestos" is not. Unfortunately, there is nothing in the record before me concerning the nature of Anthony Goncalves' exposure to asbestos. Given the posture in which I consider the issue -- a motion for partial summary judgment by the defendant -- I must assume that Mr. Goncalves' exposure was of the sort which the Johnstone book defines as dangerous.
The record is incomplete in another critical respect. There is nothing before me concerning the role defendant's research library played in its operations, or the manner in which information such as this flowed from the library to the concerned divisions of the company. Accordingly, I must assume, for purposes of deciding the instant motion, that the information contained in the articles is fully chargeable to responsible Eagle-Picher officials.
Given my assumptions concerning the nature of plaintiff's exposure and the scope of defendant's knowledge of materials in its research library, I must conclude that there is an issue of material fact with regard to defendant's knowledge of asbestos-related risks prior to 1964. Taking the most favorable view (for plaintiff) of the evidence before me, a jury could conclude that defendant had knowledge of the relevant risks. And if such knowledge were found, a jury could also reasonably find that the failure to warn users such as Mr. Goncalves exhibited reckless indifference to the potential consequences of their exposure to asbestos.
For these reasons, defendants' motion for partial summary judgment will be denied insofar as it seeks dismissal of plaintiffs' punitive damages claim. I need not consider the effect of the evidence regarding post-1964 knowledge.
An appropriate Order accompanies this Memorandum.
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
(1) Defendants motion for partial summary judgment on the conspiracy and fraud claims contained in count IV of the Complaint is GRANTED AS UNOPPOSED; and
(2) Defendant's motion for partial summary judgment on the punitive damages claim is DENIED.