## Facts

- Stanley John O’Banion worked as a plumber and pipefitter from 1962 to 1980 and alleged asbestos exposure from products associated with Owens-Corning Fiberglas Corp. and Celotex Corp.
- O’Banion claimed an asbestos-related, non-cancer condition; he had no diagnosis of mesothelioma or other cancer.
- Plaintiffs did not present expert proof that O’Banion faced a reasonable medical probability of developing cancer from the alleged exposure.
- In coordinated asbestos litigation in the Northern District of Oklahoma, the court entered a master pretrial order restricting certain categories of evidence in “non-cancer” cases.
- After a one-week jury trial, the jury returned a verdict for defendants.
- On appeal, plaintiffs challenged (1) exclusion of cancer-related evidence, (2) striking of a civil conspiracy claim, (3) admission of former testimony from an expert in another asbestos trial, and (4) a “state of the art” jury instruction.

## Issues

1. Whether the district court abused its discretion by excluding cancer-related evidence (including “fear of cancer” or “increased risk” theories) in a non-cancer case lacking proof of a reasonable medical probability of future cancer.
2. Whether the district court erred by striking plaintiffs’ civil conspiracy claim alleging manufacturers conspired to suppress information about asbestos hazards.
3. Whether admitting an expert’s former testimony from another asbestos trial was proper under Federal Rule of Evidence 804(b)(1).
4. Whether instructing the jury on “state of the art” was erroneous under Oklahoma products liability law.

## Decision

- The Tenth Circuit affirmed the judgment for Owens-Corning.
- The court held that excluding cancer-related evidence in a non-cancer case was within the district court’s discretion under Rules 401–403 and consistent with the master pretrial order.
- The court upheld striking the civil conspiracy claim, concluding plaintiffs showed no reversible error under Oklahoma law and the claim did not supply a distinct actionable theory.
- The court found no abuse of discretion in admitting former expert testimony under Rule 804(b)(1), based on unavailability and a similar motive and opportunity for prior examination.
- The court approved the “state of the art” instruction as consistent with Oklahoma law and not misleading.

## Legal Principles

- Trial courts have broad discretion under Federal Rules of Evidence 401–403 to exclude marginally relevant evidence when unfair prejudice or jury confusion substantially outweighs probative value, including through coordinated pretrial orders in mass-tort dockets.
- In asbestos cases without a cancer diagnosis, evidence and damages theories based on fear of cancer or increased risk generally require proof of a reasonable medical probability of developing a carcinogenic disease; absent such proof, cancer evidence may be excluded.
- Under Oklahoma law, civil conspiracy is derivative and requires an underlying actionable wrong; a conspiracy count may be stricken where it adds no independent basis of liability and would complicate the trial.
- Federal Rule of Evidence 804(b)(1) permits admission of former testimony when the witness is unavailable and the opponent had a prior opportunity and similar motive to develop the testimony by examination.
- Under Oklahoma products liability law, “state of the art” evidence and instructions may be used to evaluate defect and warning issues by reference to contemporaneous knowledge and feasible safety measures, as long as treated as a factor rather than a complete defense.

## Conclusion

The Tenth Circuit left intact a defense verdict in a non-cancer asbestos case, holding that the district court properly managed evidence and theories at trial by excluding cancer-related material lacking a medically supported cancer claim, rejecting a derivative conspiracy theory, admitting former expert testimony under Rule 804(b)(1), and instructing on state of the art consistent with Oklahoma law.


O’Banion v. Owens-Corning Fiberglas Corp., 968 F.2d 1011 (10th Cir. 1992)