Martin v. American Petrofina, Inc.

779 F.2d 250, 19 Fed. R. Serv. 1454, 1985 U.S. App. LEXIS 25633
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 30, 1985
DocketNo. 84-3563
StatusPublished
Cited by17 cases

This text of 779 F.2d 250 (Martin v. American Petrofina, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. American Petrofina, Inc., 779 F.2d 250, 19 Fed. R. Serv. 1454, 1985 U.S. App. LEXIS 25633 (5th Cir. 1985).

Opinion

GEE, Circuit Judge:

Victor Martin worked as a pipefitter at various industrial plants in Baton Rouge, Louisiana, from the mid-1950s until the early 1980s. He brought this action in the district court against various manufaetur-ers of asbestos-containing insulation products, alleging that his exposure to asbestos at work caused him to contract mesothelio-ma, a cancer of the lung lining. The district court rendered summary judgment in favor of five defendants, and fourteen of the remaining fifteen compromised with Martin before the matter was submitted to the jury. The sole remaining defendant, the Benjamin Foster Division of Achem Products (Benjamin Foster), was found liable to Martin by the jury for 2% of his damages, which the jury set at $500,000.

Benjamin Foster now appeals from the district court’s denial of judgment notwithstanding the verdict, while Martin appeals1 the district court’s instructions to the jury regarding the apportionment of fault. For the reasons assigned below, we affirm the district court’s denial of j.n.o.v. and modify the award rendered in favor of Victor Martin.

I. EXPOSURE

At the outset, Benjamin Foster challenges the sufficiency of the evidence adduced at trial for the jury’s finding that Victor Martin was exposed to Benjamin Foster asbestos products. We, then, are obliged to apply in this diversity suit the federal standard for the sufficiency of the evidence. Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1143 (5th Cir.1985).

In reviewing a district court’s ruling on motion for j.n.o.v., all of the evidence must be considered in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, granting of the motion was proper. If, however, the evidence is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the jury’s verdict should remain intact. A [252]*252mere scintilla of evidence is insufficient basis for a verdict, but it is the function of the jury as the finder of fact, and not that of the district court or the reviewing court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc).

Martin worked as a pipefitter at an Exxon plant in Baton Rouge for nine months in 1951. After a four year interruption for military service, he returned to the plant in 1956 and worked there until 1961. Although he worked at other industrial plants after this time, and actually returned to the Exxon plant in the early 1980s, Martin only attempted to prove that he was exposed to Benjamin Foster asbestos products at the Exxon plant in 1951 and 1956-1961.

Martin could not recall whether he had worked with products bearing the Benjamin Foster name. As a pipefitter, part of his work entailed the removal, through tearing, burning, or grinding of “mastics” —a weather protective coating, similar to roofing tar, containing asbestos — that had been applied to insulation on steel and pipes, most of which were out-of-doors. R.L. Anderson, an insulation supply company officer in Baton Rouge during the 1950s, testified that beginning in the “mid-fifties”, Benjamin Foster mastics containing asbestos were used “throughout” the Exxon plant, along with the mastics of other manufacturers.

Ivy Thompson, an insulator employed by various contractors in Baton Rouge during the 1950s and 1960s, testified that he applied mastics at the Exxon plant during the time in question, and that he used Benjamin Foster mastics more than any other. Another insulator at the Exxon plant during the time in question, D.A. Ball, testified that Benjamin Foster mastics were used throughout the Exxon plant.

In light of the foregoing testimony, and since Martin testified that a substantial portion of his duties as a pipefitter at the Exxon plant from 1956 to 1961 comprised “tear-out” operations of mastics by removing it through cutting and tearing, we cannot say that the jury’s finding that Martin was exposed to Benjamin Foster mastics products is one that reasonable men could not have arrived at. There was sufficient evidence for a finder of fact to conclude that, more probably than not, Martin was exposed to Benjamin Foster mastics.

II. WERE THE BENJAMIN FOSTER MASTICS DEFECTIVE?

Louisiana products liability law, which governs this diversity case, holds that the maker of a product may be held liable to one injured due to a defect in that product that renders the product “unreasonably dangerous to normal use." Lebouef v. Goodyear Tire and Rubber Co., 623 F.2d 985, 988 (5th Cir.1980), citing Chappuis v. Sears, Roebuck and Co., 358 So.2d 926, 929 (La.1978) (emphasis in the original). Benjamin Foster argues that even if Martin had been exposed to its products, there was no evidence that its mastics were defective, or that its mastics were unreasonably dangerous in normal use.

Anderson, the insulation contractor, testified that as a general rule, a mastics insulation job could be expected to last five to ten years before it began to break down by becoming brittle and cracking. D.A. Ball testified that the mastics might begin breaking down as soon as a year after it had been applied, depending upon the temperature of the area. When this decaying mastic was removed — through use of the hands, or with tools such as a hoe or hatchet, it could create dust.

The plaintiffs expert witness, a Dr. West, testified that, in his opinion, when mastics such as the Benjamin Foster type began to break down — either through increasing age or when forcibly removed through tearing, burning, or grinding— that their asbestos fibers could be released into the atmosphere. On the other hand, Foster’s expert witness, Wayne Ellis, a re[253]*253tired industrial chemist, testified that he could envision no circumstances in which Foster mastics would release asbestos fibers into the atmosphere, even after prolonged exposure to the weather or having been burned and torn.

The testimony of Martin’s witnesses supported the claim that the Benjamin Foster mastics were defective, since in the course of normal use — either due to their gradual breakdown as a result of exposure to the elements, or as a result of removal by Exxon personnel — asbestos fibers were released into the air. Benjamin Foster’s expert witness denied that such a release was possible. Given the jury’s role in evaluating the evidence and the credibility of the witnesses, we cannot say that the jury’s acceptance of the plaintiff’s witnesses’ testimony was something that reasonable men could not have done. ■

Based on the evidence before it, the jury found that Martin had been exposed to Benjamin Foster mastics and that those mastics had defectively released asbestos fibers into the air. Martin’s medical testimony indicated that even minimal exposure to asbestos was associated with mesothelio-ma and that the risk increased as the exposure did.

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Cite This Page — Counsel Stack

Bluebook (online)
779 F.2d 250, 19 Fed. R. Serv. 1454, 1985 U.S. App. LEXIS 25633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-american-petrofina-inc-ca5-1985.