Brisboy v. Fibreboard Paper Products Corporation

384 N.W.2d 39 (1986)

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Nature of the Case

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Facts

Charlotte Rand (P) filed a complaint seeking damages for the wrongful death of her husband, Charles Rand. P alleged that Charles died as a result of lung cancer caused by asbestosis contracted during his 26-year career as an asbestos insulation worker. The defendants were nine employers that Charles had worked for from 1951 until 1977. All settled before the verdict except for D. The testimony revealed that Charles worked for D for at least six months and at most nine months as an asbestos insulator, i.e., applying insulation material containing asbestos to various pipes. The evidence revealed that Charles was a heavy cigarette user, having smoked two packs per day for 30 years. Dr. Joseph Wagoner, appearing on behalf of P, discounted the effect of cigarette smoking on the grounds that Charles died of adenocarcinoma, and that cigarette smoking is more related to the squamous-type cell, not the adeno type. Dr. Wagoner concluded that cigarette smoking does not increase an asbestos worker's risk of developing lung cancer. Dr. Leighton Kong admitted that cigarette smoking can be related to adenocarcinoma of the lung, and in fact could have been the sole cause of the lung cancer. Dr. Kong believed that there is a stronger link between asbestosis and cancer than cigarette smoking and cancer. The jury found the history of smoking cigarettes for 30 years to have been evidence of negligence. In comparison with that of D, Charles' negligence was found to be 55 percent of the cause of his death. The trial court refused to apply the doctrine of comparative negligence and held the D responsible for 100% of the injury which resulted in death. The trial judge based this action upon his conclusion that, as a matter of law, there was no evidence in the record which would permit a reasonable mind to conclude that Charles knew or should have known that, as a cigarette smoker, his exposure to asbestos dust could create an increased risk of contracting cancer of the lung. D appealed. D argues that there was insufficient evidence to establish that the six- to nine-month exposure to D's asbestos products was a proximate cause of death.