UNION CARBIDE V. AUBIN

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 10-1982

Case Date: 06/20/2012

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2012
Opinion filed June 20, 2012. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-1982 Lower Tribunal No. 08-68233 ________________

Union Carbide Corporation,
Appellant, vs.

William P. Aubin,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Joseph P. Farina, Judge. Carlton Fields, P.A., and Matthew J. Conigliaro (St. Petersburg) and Dean A. Morande (West Palm Beach), for appellant. The Ferraro Law Firm, and James Louis Ferraro, Melissa D. Visconti, and Juan P. Bauta, for appellee. Before SUAREZ, ROTHENBERG, and EMAS,1 JJ. ROTHENBERG, J.

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Judge Emas participated in the decision, but did not hear oral argument.

Union Carbide Corporation ("Union Carbide") appeals from a final judgment awarding William P. Aubin ("Aubin") $6,624,150 in damages on his asbestos-related, products liability claims. Because Aubin failed to present any evidence demonstrating that the defective design of SG-210 Calidria caused Aubin's harm, peritoneal mesothelioma, we reverse the trial court's denial of Union Carbide's motion for a directed verdict as to Aubin's design defect claim. In addition, because the jury instructions given by the trial court were inconsistent with the law in the Third District and in effect directed the verdict in favor of Aubin, we reverse and remand for a new trial as to the warning defect claim consistent with this opinion. THE FACTS I. Background From October 1972 to September 1974, Aubin worked as a superintendent at his father's company, Aubin Construction. During those years, Aubin supervised the construction of a model home community known as Desoto Lakes. As part of his duties, Aubin routinely handled and was otherwise exposed to joint compounds and ceiling textures that were created and distributed by Georgia-Pacific, Kaiser Gypsum, Premix-Marbletite, and other intermediary manufacturers. One of the ingredients used in those joint compounds and ceiling textures was a product mined, processed, and sold in bulk by Union Carbide named SG-210 Calidria, a

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particular grade of chrysotile asbestos.2 II. Union Carbide's SG-210 Calidria asbestos Union Carbide touted SG-210 Calidria as being a highly efficient grade of asbestos. Jack Walsh, a Union Carbide sales representative, attributed SG-210's enhanced efficiency to Union Carbide's carefully designed asbestos processing regimen, or as Union Carbide called it, its "proprietary manufacturing process." He testified that SG-210 asbestos was twice passed through a centrifuge in order to separate the chrysotile asbestos fibers and thereby increase the product's effectiveness. While short-fiber SG-210 Calidria may have been more efficient than other asbestos products, it was also found more dangerous with respect to the development of asbestosis, according to several studies proffered by Aubin. This much was acknowledged by Dr. Carl Dernehl, Union Carbide's former toxicology expert, in a letter he wrote to Union Carbide's medical director in 1967. In that letter, Dr. Dernehl described a study he conducted to discern how the effects of Calidria compared to those of "standard fiber" and "long fiber" asbestos. Based on the results, Dr. Dernehl warned Union Carbide's medical director that: "The only Union Carbide sold asbestos in bulk to intermediary manufacturers. The intermediary manufacturers then combined the asbestos with other ingredients to manufacture and sell finished products, such as joint compounds and texture sprays, to distributors, contractors, and consumers. Importantly, Union Carbide had no involvement in the packaging or distribution of the finished products.
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conclusion we can draw from this crude test is that it is possible that our [Calidria] product may be more hazardous to use than long fiber asbestos in that it may induce the disease, asbestosis, at an early time after exposure." Although Aubin presented studies linking SG-210 Calidria to a higher degree of danger with respect to the development of asbestosis than other types of asbestos, he failed to introduce any evidence suggesting SG-210 Calidria was more dangerous than other asbestos fibers with respect to the contraction of cancer or peritoneal mesothelioma. While there was evidence generally linking chrysotile asbestos to the contraction of mesothelioma, the only relevant evidence in the record suggests that SG-210 Calidria, and chrysotile asbestos generally, was either less dangerous than other types of asbestos with respect to the contraction of mesothelioma, incapable of causing it, or inconclusive on the issue. For instance, in 1967, Dr. I.C. Sayers, of Union Carbide's toxicology department, prepared a report explaining that an experiment comparing the carcinogenic effects of chrysotile asbestos to those of amosite and crocidolite was underway, but not yet complete. Thus, Dr. Sayers wrote that "it is not yet known whether there are significant differences in the number of tumours produced by different types of fibres." Later, in 1970, Dr. Dernehl wrote a report on the toxicity of Calidria asbestos, and concluded that it should be assumed that "Calidria Asbestos will behave like other asbestos" with regard to "the development of lung cancer and

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mesothelioma." In addition, Aubin proferred the testimony of Dr. Brody, a cell biologist, who testified that while chrysotile asbestos could cause peritoneal mesothelioma, other types of asbestos were "more dangerous" and "more likely to cause the disease" than chrysotile asbestos. Finally, Union Carbide presented the testimony of Dr. Roggli, a pathologist at Duke University, who testified that exposure to chrysotile asbestos cannot cause peritoneal mesothelioma. The dangers associated with SG-210 Calidria are perhaps better understood by examining its intended use. The evidence showed that Union Carbide marketed and sold SG-210 Calidria to intermediary manufacturers knowing that they would incorporate the asbestos into their joint compound and texture spray products. It was also established that Union Carbide representatives knew the joint compounds and texture sprays ultimately would be sanded and sprayed by contractors during the installation of drywall and completion of finishing work, and that such sanding and spraying would liberate the SG-210 Calidria fibers into the air, creating a cloud of asbestos-laden dust. And as is explained below, that is exactly what happened at Desoto Lakes. III. The Use of SG-210 Calidria at the Desoto Lakes Construction Site, and Aubin's Exposure to Asbestos-Laden Dust Nelson Yoder, the drywall subcontractor for Desoto Lakes, explained that at the Desoto Lakes construction site, he administered texture sprays with a spray gun onto the walls and ceilings, and applied joint compounds to the walls. After the 5

joint compounds were applied, all the joints and nails were sanded to eliminate imperfections in the finish work and to smoothen the surface. Yoder confirmed that the processes of sanding and spraying created what he described as a "fog" of dust, and that this dust was ever present at the Desoto Lakes construction site. Yoder also attested to the fact that Aubin was regularly present throughout all phases of construction, and, consequently, was exposed to and inhaled the dust. In fact, by all accounts, Aubin was an active supervisor. Aubin testified that he worked hands on with the joint compounds and texture sprays, hanging and finishing drywall, and cleaning up after the subcontractors when they finished sanding and spraying. Like Yoder, Aubin recalled that the process of sanding and spraying generated thick "clouds" of dust that were present throughout the construction of Desoto Lakes. Aubin specifically remembered using joint compounds made by Kaiser Gypsum and Georgia-Pacific, but did not recall warnings of any kind on the containers or packages in which they were delivered. IV. The Warnings Union Carbide stipulated at trial that neither Union Carbide nor the intermediary manufacturers placed warnings on the joint compounds and texture sprays. Union Carbide representatives testified that Union Carbide began placing warnings on its own bags of asbestos in 1968, which read: "Warning, breathing dust may be harmful. Do not breathe dust." Aubin challenged this proposition by

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offering the testimony of Howard Schutte, a Georgia-Pacific corporate representative, who stated that he did not recall such labels on Union Carbide's bags. In 1972, the Occupational Safety and Health Administration ("OSHA") required that all containers of raw asbestos or asbestos mixtures contain the following warning: CAUTION Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Harm Union Carbide representatives testified that pursuant to this regulation, Union Carbide began placing these warnings on their bags of asbestos in 1972. It was also hotly contested as to whether Union Carbide otherwise adequately informed intermediary manufacturers about the dangers of asbestos. Union Carbide representatives testified that along with the OSHA warning label, Union Carbide regularly updated its clients regarding the dangers of asbestos as such dangers came to light. Conversely, Aubin introduced evidence suggesting that Union Carbide actively downplayed and even concealed the truth about the dangers of asbestos from its clients and the public, and engaged in a "misinformation campaign." In any event, Union Carbide stipulated that the intermediary manufacturers did not place any warnings on their products, Union Carbide knew the

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intermediary manufacturers did not place any warnings on their products, and Union Carbide itself did not directly warn end-users about the dangers of asbestos. Aubin claims that because there were no warnings on these products, he was unaware of the dangers associated with the liberation of SG-210 Calidria asbestos fibers into the air, and, therefore, did not wear any respiratory masks or protective gear while exposed to the asbestos. As a consequence, for roughly two years, Aubin routinely inhaled the lethal dust. V. The Litigation Aubin thereafter contracted peritoneal mesothelioma, an incurable, terminal disease. Aubin attributed his contraction of mesothelioma to his exposure to asbestos, and filed a complaint in the Miami-Dade Circuit Court against numerous defendants, including Union Carbide. In his complaint, Aubin alleged claims of negligence and strict liability based on theories of design, manufacturing, and warning defects. Aubin proceeded to trial against Union Carbide alone, settling or otherwise dismissing his claims against the remaining defendants. Relying on the component parts doctrine recognized by the Restatement (Third) of Torts: Products Liability

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