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Urbach v. The Okonite Co.

Court of Appeals of Missouri, Eastern District

March 28, 2017

JEAN URBACH, Individually and as Representative of the Estate and Surviving Heirs of Keith Urbach, Deceased, Plaintiff/Respondent,
v.
THE OKONITE COMPANY, Defendant/Appellant.

         Appeal from the Circuit Court of the City of St. Louis Hon. Steven Ohmer

          OPINION

          Lisa S. Van Amburg, Judge.

         The Okonite Company, Inc. (Okonite) appeals from a judgment of the Circuit Court of the City of St. Louis entered in favor of Jean Urbach. We affirm.

         Background and Procedural History

         Plaintiff Jean Urbach brought claims of negligence, strict liability, willful and wanton misconduct, and loss of consortium against Okonite and twenty-eight other defendants, [1] claiming that the defendants' products caused her husband, Keith Urbach (Urbach), to be exposed to asbestos fibers during his career as an electrician from 1963 to 2001. Plaintiff alleged Urbach's inhalation of respirable asbestos fibers from the defendants' products caused Urbach to develop mesothelioma, which was diagnosed in August 2011, and that this disease caused his death in February 2012. Plaintiff specifically claimed that Okonite-brand asbestos fixture wire contributed to Urbach's death.

         Urbach died before he was able to testify about his exposure to asbestos-containing products. Therefore, Plaintiff introduced evidence of exposure through the videotaped depositions of Urbach's co-workers and union brothers, Thomas Kepler (Kepler) and Joseph Strenger (Strenger). These depositions were the subject of several motions to strike, in which Okonite argued that portions of the testimony were improper because they were speculative and included opinion testimony by a lay witness. The trial court denied the motions, and the testimony was presented to the jury.

         Generally, both Kepler and Strenger testified about the tasks performed by electricians on large commercial projects and how electricians were divided into crews that performed discrete tasks. They also testified about the products they used or with which they came into contact at the various work sites, many of which Urbach also used. The product attributed to Okonite was fixture wire that Urbach's co-workers referred to as "asbestos fixture wire." Okonite denies selling any asbestos-containing fixture wire or any other type of asbestos-containing wire that would be used for lighting fixtures.

         Kepler testified that he worked at a number of job sites with Urbach, including the Columbia Generating Station, the University of Wisconsin Hospital, the Oscar Meyer plant, the Byron Nuclear Plant, the Arthur Andersen building, the American Family Insurance project, and a bowling alley remodeling project. Kepler testified that he and Urbach worked together on the fixture crew on the American Family Insurance project and that they used asbestos fixture wire. Kepler testified that he and Urbach installed approximately eight miles of lighting fixtures over the course of a year and a half on that project. He testified that he knew the fixture wire on the project contained asbestos based on his observation of the wire and the fact that the wire was harder to strip. He identified Carol and Okonite as the brand names of fixture wire he had used over the course of his career. However, he was unable to identify the specific brand name of the fixture wire used for the American Family Insurance project.

         Although Kepler did not have any independent recollection of Urbach working with Okonite-brand fixture wire, he opined that any fixture wire that Urbach would have handled would have contained asbestos. This included the work he and Urbach performed hanging light fixtures at the University of Wisconsin Hospital, where he and Urbach also performed piping and wiring work in addition to hanging fixtures.

         Strenger was also assigned to many of the same job sites as Urbach over the course of Urbach's career, although he was not assigned to the same crew as Urbach at any of the sites. At the University of Wisconsin Hospital, Strenger testified that he was assigned to the light fixture crew, while Urbach was assigned to the switchgear unit. Strenger recalled Urbach visiting and talking with Strenger every once in a while during a break while Strenger was cutting and stripping Okonite-brand "asbestos" fixture wires and performing other fixture work. Strenger testified he was on a ladder underneath the fixture when he worked with the fixture wire. When stripping fixture wire, Strenger testified that debris would fall into his mouth and onto the floor. Strenger testified that he would continue working with and stripping the fixture wire during Urbach's visits. However, Strenger could not testify as to the number of times Urbach visited Strenger during the time they periodically worked together at the University of Wisconsin Hospital, nor could he testify as to the duration of each visit.

         Urbach worked on a team of electricians at the University of Wisconsin during the 1990s for about ten years, and Strenger testified that he was periodically assigned to short-term projects at that location. He opined that Urbach, as a member of the university's crew of electricians, would not have gone more than two days without working on a fixture. This would necessarily involve using asbestos fixture wire.

         Strenger testified that in the course of an electrician's duties hanging fixtures, the electrician would cut and strip fixture wire on a daily basis, although he was unable to assign a percentage to that type of work over the course of his career. He recalled the fixture wire he generally used as being manufactured by Okonite, and he testified that he believed fixture wire generally contained asbestos because everyone in the industry, including his foreman, called it "asbestos wire." Specifically, Strenger testified "[The fixture wire was called asbestos wire] [o]n every job I've ever been on. And I'm going back to the first day I walked on a job site as an electrician, and the foreman told me get the asbestos fixture wire." Based on this characterization of the wire, Strenger believed it contained asbestos.

         Three experts testified on Plaintiff's behalf, Dr. Arnold Brody, Dr. John Maddox, and Steven Hayes. None of the experts testified that Okonite wire contributed to Urbach's mesothelioma. Dr. Brody's testimony primarily concerned background information regarding asbestos, how mesothelioma develops, and the causal link between asbestos exposure and mesothelioma on a molecular and cellular level. He testified about how asbestos enters the lungs and causes cancer when inhaled in sufficient quantities. He opined that the cumulative asbestos exposure that Urbach experienced throughout his working history was the cause of his mesothelioma.

         Dr. Maddox testified about how mesothelioma is diagnosed, how the disease progresses, the latency period for the disease to develop, and the prognosis of patients with the disease. He opined that a person's cumulative asbestos exposure determines their overall risk for developing malignant mesothelioma. Dr. Maddox reviewed Urbach's medical records and pathology material and concluded to a reasonable degree of medical certainty that Urbach had malignant mesothelioma, which ultimately caused his death. He opined that based on his examination of Urbach's lung tissue and Urbach's exposure history, Urbach's mesothelioma was caused by exposure to asbestos.

         Plaintiff's industrial hygienist, Steven Hays, testified about his experience testing asbestos-containing products for the release of fibers. He testified that "AF wire" was asbestos fixture wire and was the same type of wire described by Strenger and Kepler. He testified that based on his examination of a photograph of asbestos fixture wire, the insulation on asbestos fixture wire was fibrous and that asbestos fibers would be released into a worker's breathing zone by that worker handling the wire. Mr. Hays specifically discussed Strenger's testimony describing his use of Okonite-brand asbestos fixture wire while Urbach was present as a bystander. Mr. Hays opined that the fibers released by Strenger while working on the fixture wire would exceed the permissible exposure limit set by the Occupational Safety and Health Administration and that Urbach would have been exposed to such levels as a bystander.

         Prior to the case being submitted to the jury, Okonite filed a motion for directed verdict, which the trial court denied. The jury returned a verdict in favor of Plaintiff in the amount of $4, 165, 000, including an award of $1, 825, 000 for post-death loss of society and companionship. It apportioned 5% fault to Okonite, resulting in a total jury verdict against Okonite in the amount of $208, 250.

         Following the verdict, Okonite filed a motion for judgment notwithstanding the verdict (JNOV). It argued that Plaintiff failed to present competent evidence to support her claims sufficient to make a submissible case to the jury. It argued in the alternative that the judgment be amended in accordance with Wisconsin's comparative fault statute and reduced in accordance with Wisconsin's damages cap. Okonite also filed a motion to compel assignment of Plaintiff's asbestos bankruptcy trust claims, arguing that under Wisconsin law, a plaintiff who obtains a verdict on a claim involving an injury due to asbestos exposure may not collect any amount of the judgment until she assigns to the defendant all future rights or claims she has or may have for a personal injury claim against an asbestos bankruptcy trust. The trial court denied all of Okonite's motions, and this appeal follows.

         Discussion

         Okonite raises four points on appeal. In Point I, it argues the trial court erred by denying Okonite's motions to strike and by allowing Plaintiff to introduce opinion testimony by lay co-worker fact witnesses. In Point II, Okonite argues that the trial court erred when it denied Okonite's motion for directed verdict and for judgment notwithstanding the verdict because Plaintiff's evidence was insufficient under Wisconsin law to establish causation and, therefore, Plaintiff failed to make a submissible case. Okonite argues in Point III that the trial court erred by entering a judgment that failed to reduce damages for post-death loss of consortium in accordance with Wisconsin's cap on damages awarded in wrongful death actions. In Point IV, Okonite argues the trial court erred by failing to require Plaintiff ...


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