Alton Petes, Plaintiff-appellant, v. John P. Hayes, et al., Defendants, v. American Optical Corporation, et al., Defendants-appellees, 664 F.2d 523 (5th Cir. 1981)

Alton Petes filed this diversity suit claiming that respirators which were supplied to him on his job were defective and caused his debilitating lung condition. The jury returned a verdict for the defendant, and Petes appeals. We find that the district court's special interrogatories were inconsistent with the jury instructions and therefore likely to confuse or mislead the jury. In order to correct this error, we reverse and remand.

Petes was employed by National Gypsum Company from 1948 to 1977. Beginning in February 1949, he worked as a cutter in the asbestos shingle department. Initially, he was provided with a cloth mask to screen the asbestos dust and fibers. After 1960, Petes and other employees were furnished respirators and filters manufactured by American Optical Corporation.

In July 1977, Petes had to stop work because of a lung condition which had progressively worsened until he became disabled. Petes filed the instant complaint against National Gypsum Company and American Optical Corporation, alleging that his lung condition was asbestosis. Subsequently, Petes voluntarily dismissed his claim against National Gypsum Company and proceeded to trial against American Optical Corporation on two theories: (1) the respirators and filters were defective and failed to prevent the inhalation of unsafe amounts of asbestos dust; and (2) American Optical Corporation failed to warn of possible hazards concerning the use of the respirators.

The trial record is replete with expert testimony offered by both parties. The witnesses called by Petes testified that his condition was caused by inhalation of asbestos particles. The witnesses called by American Optical Corporation testified that Petes was suffering from tuberculosis, not asbestosis, and that his condition was caused by cigarette smoking. The experts also disagreed whether tuberculosis can be caused by the inhaling of asbestos dust and particles.

The trial judge correctly instructed the jury as to the meaning of proximate cause under Louisiana law, and he correctly charged that the finding of more than one proximate cause does not necessarily preclude recovery.¹  The case was submitted to the jury on four special interrogatories.²  The first read:

Does plaintiff, Alton Petes, suffer from disability or disease which specifically results from the inhalation of asbestos particles during that period of his employment by National Gypsum after American Optical Corporation's respirators were placed in use? Yes or no. If no, do not go any further and return to the courtroom.

The jury answered this special interrogatory "No" and, accordingly, did not reach the other three.

Although we will not substitute our judgment as to the wording, we may not permit inconsistency between the special interrogatories and the instructions. The interrogatories must pose the questions accurately and be stated in a manner that avoids the potential for confusing or misleading the jury.

In Abernathy v. Southern Pacific Co., 426 F.2d 512 (5th Cir. 1970), we approved special interrogatories after finding that they were submitted under a proper general charge, adequately tested the general verdict, and did not confuse the jury, and in no way prejudiced the losing party.

Applying these standards to the case at bar we are persuaded that the district judge erred.³  The court correctly instructed the jury that under Louisiana law recovery is permitted where there is more than one cause contributing to the injury. Straley v. Calongne Drayage and Storage, Inc., 346 So. 2d 171 (La.1977). The interrogatory was phrased "Does plaintiff, Alton Petes, suffer from disability or disease which specifically results from the inhalation of asbestos particles ..." (Emphasis added.) "Specifically" was not defined in the general charge. In its everyday usage, "specifically" is restrictive and could logically have been understood by the jury to mean "solely" or "only." Webster's New Twentieth Century Dictionary (2d ed. 1977) defines the ordinary meaning of "specific" as "limited; limiting; tending to specify or particularize; definite; precise." Such an interpretation, of course, is in direct conflict with the judge's instructions on proximate cause.

The conflict we perceive is not one of semantics or linguistic preferences but is one which cuts to the heart of the legal issue in this case. The jurors were correctly instructed on the applicable rules of law and then given a possibly contradictory interrogatory. The charge instructed that two or more causes of Petes' injuries would not preclude recovery; the interrogatory implied that Petes could not recover if other causes contributed to his injury.⁴ 

Although we specifically approve of the district court's use of special interrogatories, which avoid the "inscrutable mystery of a general verdict (and) impenetrable uncertainty," Tugwell v. A. F. Klaveness & Co., 320 F.2d 866, 868 n.2 (5th Cir. 1963), cert. denied, 376 U.S. 951, 84 S. Ct. 967, 11 L. Ed. 2d 970 (1964), we conclude that special interrogatory number one, when compared to the jury instruction on proximate cause, was so likely to mislead and confuse the jury that it cannot be said that the contested issues were adequately presented to the jury.

REVERSED and REMANDED.