Rogers v. Raymark Industries, Inc.

922 F.2d 1426, 1991 WL 648
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 9, 1991
DocketNo. 89-15066
StatusPublished
Cited by13 cases

This text of 922 F.2d 1426 (Rogers v. Raymark Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rogers v. Raymark Industries, Inc., 922 F.2d 1426, 1991 WL 648 (9th Cir. 1991).

Opinion

RYMER, Circuit Judge:

This is an asbestos case. The appeal raises questions about the extent of a trial judge’s discretion to exclude expert and percipient witness opinion testimony under Fed.R.Evid. 403 and to permit use of third-party x-rays for demonstrative purposes even though they had not been identified in the pre-trial order.

Hester Rogers (“plaintiff”), widow of Clinton Rogers (“Rogers”), sued Fibre-board Corporation and Keene Corporation, two asbestos manufacturers (“defendants”), following her husband’s death from lung cancer. Plaintiff claimed that Rogers’s fatal lung cancer could be traced in part to his exposure to asbestos as a shipyard worker at the Kaiser Shipyard # 1 in Richmond, California, during World War II.Defendants countered that Rogers developed lung cancer solely from cigarette smoking. Mrs. Rogers appeals from the judgment entered on a special jury verdict in favor of defendants, challenging the district court’s evidentiary rulings. We affirm.

I

Clinton Rogers worked as a welder at Kaiser Shipyard # 1 from 1942 through 1945. He primarily worked below deck building “Liberty” cargo ships. There, workers of various crafts worked side-by-side at a frantic pace to build ships for the war effort. Rogers also spent part of his time in a twenty-by-thirty foot canvas shack training new workers in a variety of skills.

Rogers was exposed to asbestos in several ways. He used asbestos cloth to shield himself and the ship from welding sparks. He frequently worked alongside insulators who stirred up asbestos dust as they cover[1428]*1428ed the pipes throughout the ship. Finally, when Rogers worked in the training shack, he showed new workers a variety of tasks, including how to apply and remove asbestos from pipes.

Rogers smoked between half a pack and two packs of cigarettes a day for 45 years. He smoked during the period he worked at Kaiser. Rogers died of lung cancer in 1982.

Both sides agree that cigarette smoking was the primary cause of Rogers’s lung cancer. Plaintiff claimed, however, that asbestos also contributed significantly to her husband’s cancer.

Her experts testified that when a person smokes cigarettes and inhales asbestos at the same time, the two substances work together to increase the absorption of carcinogens. Opinions were in conflict about what evidence is needed to link asbestos to a particular person’s cancer. Some experts thought epidemiological evidence alone was enough. Others required epidemiological evidence along with the presence of asbestosis or some other disease specifically linked to asbestos. Still others required epidemiological studies combined with the presence of pleural plaques.

Epidemiological studies showed that workers in asbestos production plants have the highest cancer rates. Workers who install insulation — for example, the pipe insulators at shipyards like Kaiser — also develop cancer at an increased rate but not as frequently as plant workers. Shipyard workers do not develop cancer at a greatly increased rate; but welders do show some increased cancer rates. Finally, there was evidence that workers exposed to asbestos during World War II have developed cancer at rates higher than similar workers before and after the War.

Plaintiff argued that Rogers should not be considered a shipyard worker for the purpose of determining his cancer risk because that group included people with jobs and exposure levels unlike Rogers’s. Instead she urged that Rogers’s exposure level was closer to that of insulation workers because the frenzied pace of work during World War II forced him to spend much time working alongside insulators. There was evidence that Rogers’s additional task of instructing workers in installation and removal of asbestos increased his level of exposure beyond that experienced by an ordinary welder. Defendants countered that Rogers’s risk could not be compared to that of insulators because he only spent a small portion of his time around insulation work, • and that any increased risk of cancer could not be traced to asbestos because welders are exposed to a variety of other carcinogens, including nickel and cadmium.

The parties likewise disagreed about whether Rogers’s lungs evidenced significant exposure to asbestos. It was undisputed that he did not have asbestosis or any other disease specifically associated with asbestos. Yet plaintiff claimed that Rogers had one pleural plaque, and that the presence of this plaque indicated asbestos exposure. Pleural plaques are bulges in the lining of the lung. They do not cause pain or inhibit breathing and they are not malignant, but there was evidence that plaques are frequently seen in people who have been exposed to significant doses of asbestos and may serve as markers of that exposure. Some experts opined that if a patient had true asbestos-related plaques, there would be more than one plaque, and the plaques would be found on both sides of the chest cavity. Defendants’ experts testified that the abnormality in Rogers’s lung was not a plaque but rather was a change related either to the lung cancer or to a previous respiratory illness, and that, even if it were a plaque, it was irrelevant because true asbestos plaques are multiple and bilateral. Finally, the defense claimed that Rogers’s lungs showed the types of abnormalities and diseases specifically associated with cigarettes.

The jury returned a special verdict, finding that defendants’ products contained a design defect, that defendants knew of the defect when it left their possession, and that the defect did not cause Rogers’s lung cancer. Mrs. Rogers contends that the district court erred by (1) excluding testimony proffered by Buddy Ay, one of plaintiff’s [1429]*1429expert witnesses, which would have explained how asbestos was installed on Liberty ships; (2) excluding testimony of Harry Dutton, a percipient witness, offered to show that the level of dust at Kaiser was greater than the level of dust at certain asbestos production factories for which no epidemiological studies existed; and (3) permitting defendants’ expert physician to use x-rays of an unidentified person to demonstrate what a supposedly true pleural plaque would look like, when these x-rays had not been identified in the pre-trial order.

II

We review decisions regarding admission of evidence for abuse of discretion. Daily Herald Co. v. Munro, 838 F.2d 380, 388 (9th Cir.1988). In the area of admission of expert testimony, we will uphold the district court’s decision unless that decision is “manifestly erroneous.” Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313, 317 (1962); United States v. Cuevas, 847 F.2d 1417, 1429 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1989).

The admissibility of demonstrative evidence lies largely within the discretion of the trial court. Lies v. Farrell Lines, Inc., 641 F.2d 765, 773 n. 9 (9th Cir.1981) (citing Wright v. Redman Mobile Homes, Inc.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. WR Grace
504 F.3d 745 (Ninth Circuit, 2007)
45 Fed. R. Evid. Serv. 1143, 96 Cal. Daily Op. Serv. 8007, 96 Daily Journal D.A.R. 13,300 Johanna Trevino v. Daryl Gates Tom Bradley Tom Reddin Roger Murdock Ed Davis Herbert Boeckmann James Fisk Stephen Gavin Maxwell Greenberg Elbert Hudson Marguerite Justice Emmett McGaughey Salvador Montenegro Barbara Schlei Robert Talcott Reva Tooley Robert Weil Samuel Williams Stephen Yslas Lapd Officers Jerry Brooks Joseph Callian Warren Sirk Richard Spellman Gary Strickland James Tippings Richard Zierenberg Manuel Avila Charles Bennett Brian Davis John Fruge Joseph Freia E.T. Guiza Peter Sanchez Reginald Weaver James Toma C.S. Winston Philip Wixon Gary Zerbey Joel Wachs Joy Picus John Ferraro Zev Yaroslavsky Ruth Galanter Ernani Bernardi Nate Holden Marvin Braude Hal Bernson Michael Woo Joan Flores One Hundred Unknown Named Employees or Officials of the City of Los Angeles, All in Both Their Individual and Official Capacities City of Los Angeles, Johanna Trevino v. Daryl F. Gates, Chief of Police Tom Bradley Tom Reddin Roger Murdock Ed Davis Herbert Boeckmann James Fisk Stephen Gavin Maxwell Greenberg Elbert Hudson Marguerite Justice Emmett McGaughey Salvador Montenegro Barbara L. Schlei Robert Talcott Reva B. Tooley Robert Weil Samuel L. Williams Stephen D. Yslas Jerry Brooks Joseph Callian Warren Eggar David B. Harrison John Helms Michael Sirk Richard Spellman Gary Strickland James Tippings Richard Zierenberg Manuel Avila Charles Bennett Brian Davis John Fruge Joseph Freia E.T. Guiza Peter Sanchez Reginald Weaver James Toma C.S. Winston Philip Wixon Gary Zerbey Joel Wachs Joy Picus John Ferraro Zev Yaroslavsky Ruth Galanter Ernani Bernardi Nate Holden Marvin Braude Hal Bernson Michael Woo Joan Milke Flores One Hundred Unknown Named Employees/officials of the City of Los Angeles, All in Both Their Individual and Official Capacities City of Los Angeles
99 F.3d 911 (Ninth Circuit, 1996)
Textron Inc. by and Through Homelite v. Barber-Colman Company
903 F. Supp. 1558 (W.D. North Carolina, 1995)
Martinez v. City of Stockton, Cal.
12 F.3d 1107 (Ninth Circuit, 1993)
Franklin v. City of Boise
806 F. Supp. 879 (D. Idaho, 1992)
Go-Video, Inc. v. Motion Picture Ass'n of America
977 F.2d 588 (Ninth Circuit, 1992)
United States v. Oliver Delano Burke
977 F.2d 592 (Ninth Circuit, 1992)
Lloyd Chiate v. Stevland Morris, Aka: Stevie Wonder
972 F.2d 1337 (Ninth Circuit, 1992)
Rogers v. Raymark Industries, Inc.
922 F.2d 1426 (Ninth Circuit, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
922 F.2d 1426, 1991 WL 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-raymark-industries-inc-ca9-1991.