Rejecting a Union Carbide defense for the second time, a 4th District Court of Appeal panel ruled that bulk suppliers of asbestos are required to give the public adequate safety warnings -- even if they don't sell asbestos directly to the public.


Late last month, a 4th DCA panel unanimously overturned a Palm Beach Circuit judge who ruled that the standard jury instructions for product liability suits did not apply in an asbestos case against Houston-based Union Carbide.


In William McConnell and Elizabeth McConnell v. Union Carbide, the defendant argued that because it only handled raw asbestos, it did not produce a product that could be deemed defective under Florida product liability law.


In July 2004, Judge Timothy McCarthy agreed. He said Union Carbide provided adequate warnings to its wholesale customers, which in turn sold finished products containing asbestos to the public.

Follow up:

McCarthy provided standard jury instructions to the jury, instead of those designed for product liability cases. The product liability instructions emphasize that a product is "unreasonably dangerous" when used as intended because of a manufacturing or design defect.


The jury found in favor of the defendant, and the plaintiffs appealed. The 4th DCA reversed the judge's decision and ordered a new trial.


But the 4th DCA previously had ruled in a separate case that Union Carbide was required to warn the final users of asbestos of the product's inherent dangers. McCarthy was also the judge in that case. In a June 2004 opinion in Union Carbide v. Dennis M. Kavanaugh and Ingeborg Kavanaugh, the 4th DCA panel stated that the defendant's negligence led to Dennis' asbestosis because it did not take "reasonable precautions." Judge Melanie May served on both panels.


That unanimous panel decision, written by Judge Mark E. Polen, held that Union Carbide's warning to its customer Georgia-Pacific -- which used the asbestos in its compound -- was not adequate. It found that Union Carbide did not "fully disclose the magnitude of the hazards then known to exist" to Georgia-Pacific.


In the recent 4th DCA decision in McConnell, the panel noted that it was essentially repeating the Kavanaugh ruling to the same parties and lawyers.


In Kavanaugh, the plaintiff alleged that he was injured by exposure to asbestos through sanding Ready-Mix, a Georgia-Pacific product that contained Union Carbide-provided asbestos. A jury awarded him $1.2 million in damages and found Union Carbide to be 100 percent liable. Union Carbide appealed.


In that case, a 4th DCA panel upheld the verdict but said it wanted to discuss the responsibility of bulk suppliers to provide warnings of dangerous products.


Last month in McConnell, the 4th DCA panel said

"Kavanaugh involved this identical defendant, this identical product, this identical use by a plaintiff, this identical injury, the identical theories of liability, the same underlying issues, and [finally] much the same evidence.

"Nor has it gone unnoticed that trial counsel for plaintiffs is the same in both cases," the panel wrote. "We rejected the very same defense underlying Carbide's special jury instruction given in the present case, and held that Carbide had failed in its duty to warn."

The McConnell panel said that while it could not prevent Union Carbide from relitigating the same issue because the two cases differed, it does "considerable disservice to respect for law when different legal rules are applied to the same facts and issues, leading to conflicting outcomes."


The court also stated that it wouldn't have been too much of a burden for Union Carbide to contractually require its customers, like Georgia-Pacific, to affix warnings of asbestos to the finished product going to the public.


Union Carbide's attorney, Lawrie Demorest of Alston & Bird in Atlanta, said she sees some differences between the two appellate decisions but would not elaborate. She said the defense is considering its appellate options. Demorest deferred further comment to Union Carbide's representatives, who did not return calls for comment.


McConnell's attorney, David Jagolinzer of the Ferraro Law Firm in Miami, said he's pleased with the 4th DCA ruling. He said Judge McCarthy decided to disregard the 4th DCA's Kavanaugh decision when he didn't provide product liability standard jury instructions.


During the 1970s and 1980s, plaintiff William McConnell worked in Alabama and Florida as a carpenter for a drywall business in which he sanded Ready-Mix. Georgia-Pacific manufactured the joint compound Ready-Mix, which included an ingredient called Calidria Asbestos. Union Carbide made, marketed and sold this asbestos.


McConnell alleged he developed asbestosis, an occupational lung disease, as a result of sanding this material. He also alleged that he was never warned that this compound contained dangerous asbestos.


In August 2003, McConnell sued Union Carbide and a number of other defendants. According to last month's 4th DCA decision, written by Judge Gary Farmer, the plaintiff requested that the court provide the jury with instructions for product liability for "failing to warn of serious risk of harm when a dangerously defective product is used as intended."


Union Carbide argued that it did not manufacture anything. But the appellate panel found that the company's asbestos "reached an ultimate user like plaintiff McConnell without any essential change affecting its deleterious properties." The court also found that Union Carbide's marketing literature "touted" Calidria Asbestos as being "produced" to be better than other forms of asbestos.


Source: Law.com


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