O'Banion v. Owens-Corning Fiberglas Corp.
968 F.2d 1011, 1992 U.S. App. LEXIS 14896, 1992 WL 146751 (1992)
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Rule of Law:
In asbestos-related personal injury cases under Oklahoma law, evidence of cancer or increased risk of cancer is inadmissible without a proffer of expert medical testimony establishing a reasonable medical probability of developing cancer; further, while admitting prior testimony without a finding of witness unavailability is an abuse of discretion under Fed.R.Evid. 804(b)(1), it is not reversible error absent a showing of prejudice.
Facts:
- Stanley John O'Banion worked as a plumber and pipefitter from 1962 through 1980.
- During his employment, O'Banion was exposed to asbestos-containing products manufactured or sold by various companies, including Owens-Corning Fiberglas Corporation.
- Plaintiff-appellants alleged that O'Banion suffered from an asbestos-related disease as a result of this exposure.
- O'Banion's case did not involve mesothelioma or other carcinogenic diseases, nor did he present expert testimony stating there was a reasonable medical probability of him developing cancer from his asbestos exposure.
Procedural Posture:
- Plaintiff-appellants, including Stanley John O'Banion, filed a products liability and negligence action under Oklahoma law against defendant-appellees, including Owens-Corning Fiberglas Corporation, in a federal district court, alleging asbestos-related disease.
- Prior to trial, the district court issued a Master Order in a consolidated asbestos litigation, granting a motion in limine to exclude evidence relating to cancer in 'non-cancer' asbestos cases without a diagnosis of carcinogenic asbestos-related disease or evidence of reasonable medical probability.
- The district court further denied plaintiffs' subsequent motion to permit mention of cancer, defining a 'non-cancer case' as one without admissible expert medical evidence of a reasonable medical probability of developing cancer.
- The district court conducted a one-week trial, presided over by Judge Ellison.
- The jury rendered a verdict in favor of the defendants.
- Plaintiff-appellants appealed the district court's pretrial rulings and the judgment to the United States Court of Appeals for the Tenth Circuit.
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Issue:
1. Did the district court abuse its discretion by excluding evidence relating to cancer in a non-cancer asbestos case where no expert testimony established a reasonable medical probability of the plaintiff developing cancer? 2. Did the district court abuse its discretion by admitting former expert testimony from a different case without an explicit finding that the witness was unavailable, as required by Fed.R.Evid. 804(b)(1)? 3. Did the district court err in instructing the jury on the 'state of the art' in a manner that allegedly misstated Oklahoma law regarding products liability?
Opinions:
Majority - Saffels, District Judge
1. No, the district court did not abuse its discretion by excluding evidence relating to cancer in a non-cancer asbestos case. The court affirmed the district court's ruling, finding that because the case did not involve a carcinogenic disease and the plaintiff did not proffer expert testimony of a reasonable medical probability of developing cancer, references to cancer were properly excluded due to lack of relevance and the danger of unfair prejudice or confusion under Federal Rule of Evidence 403. Oklahoma law generally does not allow recovery for purely speculative damages, and evidence of cancer is considered highly prejudicial in the absence of a reasonable medical probability of its development. The court cited cases like Lohrmann v. Pittsburgh Corning Corp. and Adams v. Johns-Manville Sales Corp. to support this standard. 2. Yes, the district court abused its discretion by admitting former expert testimony from a different case without an explicit finding that the witness was unavailable, as required by Fed.R.Evid. 804(b)(1), but this error was not prejudicial and therefore not reversible. The court explicitly states that one of the express requirements of this hearsay exception is the witness's unavailability, which was not established in the record. However, the court found the error non-prejudicial because appellants failed to explain how their interests were compromised or why the prior cross-examination of the expert (Dr. Hans Weill) was inadequate. Furthermore, a review of Dr. Weill's testimony revealed a thorough cross-examination by the plaintiff's predecessor in interest with a similar motive. 3. No, the district court did not err in instructing the jury on the 'state of the art' as it relates to products liability. The court concluded that the 'state of the art' instruction, when read in the context of the entire set of instructions, accurately reflected Oklahoma law. While acknowledging a slight ambiguity, the court found the instruction not misleading or prejudicial, especially given that it also stated compliance with the state of the art does not constitute an absolute defense and read in conjunction with the strict liability instruction that a manufacturer is liable even if all possible care was exercised.
Analysis:
This case clarifies the high bar for admitting evidence of future cancer risk in asbestos litigation, requiring a 'reasonable medical probability' to prevent speculative damages and unfair prejudice. It also reinforces the strict procedural requirements of Federal Rule of Evidence 804(b)(1) regarding witness unavailability for former testimony, though it illustrates that an abuse of discretion in admitting such evidence may not lead to reversal if no prejudice can be demonstrated. The ruling further provides guidance on the appropriate jury instructions for 'state of the art' in Oklahoma products liability cases, emphasizing that it is not an absolute defense against strict liability.
