                                                                    20IU AUG 25 AH 10:5'.


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RALMA EHLERT, individually and as                 NO. 70309-9-1
Personal Representative of the
Estate of ROBERT S. EHLERT; and                   DIVISION ONE
TAMARA JONES, as Personal
Representative of the Estate of
JAMES A. JONES,                                   UNPUBLISHED OPINION

                     Appellants,

       v.
                                                  FILED: August 25, 2014

BRAND INSULATIONS, INC.,

                     Respondent,

HASKELL CORPORATION,

                     Defendant.



       Leach, J. —Raima Ehlert and Tamara Jones (collectively Ehlert)1 appeal
a trial court judgment dismissing their asbestos claims against Brand Insulations
Inc. Ehlert challenges the court's dismissal of his strict liability claims at the close
of all evidence, its jury instructions, and its exclusion of Ehlert's proffered
newspaper articles about asbestos. Brand cross appeals, challenging the trial
court's denial of its motions for judgment as a matter of law at the close of
 Ehlert's case on Ehlert's strict liability and negligence claims and at the close of


      1 Ehlert filed this action individually and as personal representative of her
 husband's estate. Jones filed this action as personal representative of her
 husband's estate. Because both individuals represent their husbands' estates,
 we use masculine pronouns.
NO. 70309-9-1 / 2




evidence on Ehlert's negligence claims. Because we reject Ehlert's claims, we

do not consider Brand's cross appeal. We affirm.

                                      FACTS


      In 1970, Brand subcontracted with general contractor Ralph M. Parsons

Inc. to install insulation at the ARCO Cherry Point Refinery. This subcontract

contained hot insulation specifications listing brands and types of insulation

materials that Parsons required Brand to use. The subcontract stated, "All piping

shall be insulated with 'chloride free' calcium silicate insulation as manufactured

by PABCO Division of Fibreboard Corporation, Emeryville, California and/or

Johns-Manville Sales Corporation, Industrial Insulations Division."2             This

subcontract also required that Brand invoice Parsons for the cost of materials,

labor hours, and scaffolding that it used to complete the work.

       Between 1971 and 1972, Robert Ehlert worked as a welder and James

Jones worked as a pipefitter at the ARCO Cherry Point Refinery. Both worked

near the insulators during the entire course of the installation.         When the

insulators cut the insulation, they generated "lots of dust" that "would be flying all

over the place." The dust was in the air, on workers' clothes, and "like snow" on

the ground. The insulators took no precautions to minimize the dust generated



       2 At trial, the parties disputed if all of the insulation installed contained
asbestos. Neither party raises this issue on appeal.
                                         -2-
NO. 70309-9-1 / 3




by their work and did not wear respirators or masks. They provided no indication

to Ehlert or Jones that either should avoid breathing the dust.

       Both Ehlert and Jones died after developing mesothelioma.           In 2010,

Ehlert's and Jones's widows filed this lawsuit, asserting product liability and

negligence claims.

      At the close of Ehlert's case at trial, Brand moved for judgment as a matter

of law on both the product liability and negligence claims. It argued that Ehlert

failed to prove his exposure to asbestos at the ARCO facility was a substantial

factor in his development of mesothelioma. The court denied this motion.

       At the close of evidence, Brand renewed its motion for judgment as a

matter of law.   The court dismissed the strict liability claim and submitted the

case to the jury on Ehlert's negligence theories.

       The court rejected Ehlert's request to instruct the jury on negligent failure

to warn and instead gave a general negligence instruction. The jury found that

Brand was not negligent. The trial court entered a judgment on the verdict and

for Brand's attorney fees and costs.

       Ehlert appeals, and Brand cross appeals.
NO. 70309-9-1/4




                                    ANALYSIS


       Ehlert first claims that the trial court should not have dismissed his strict


liability claim based upon Brand's alleged status as a seller or distributor of a

product containing asbestos. CR 50(a)(1) states,

      If, during a trial by jury, a party has been fully heard with respect to
      an issue and there is no legally sufficient evidentiary basis for a
      reasonable jury to find or have found for that party with respect to
      that issue, the court may grant a motion for judgment as a matter of
      law.

      When reviewing a motion for judgment as a matter of law, we apply the

same standard as the trial court.3 In considering a motion for a judgment as a

matter of law, the court must accept as true all competent evidence favorable to

the plaintiffs and must also give them "the benefit of every favorable inference

which may be reasonably drawn from such evidence."4                The court must

"'determine[ ] whether the proffered result is the only reasonable conclusion.'"5 A

court properly denies a motion for a judgment as a matter of law when

substantial evidence for and against liability makes the issue of the defendant's




       3 Guiiosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250
(2001).
       4 Wilcoxen v. City of Seattle, 32 Wn.2d 734, 737, 203 P.2d 658 (1949)
(citing Vercruvsse v. Cascade Laundry Co., 193 Wash. 184, 187, 74 P.2d 920
(1938); Keller v. City of Seattle, 200 Wash. 573, 578, 94 P.2d 184 (1939)).
      5 Estate of Bordon v. Dep't of Corr., 122 Wn. App. 227, 241, 95 P.3d 764
(2004) (alteration in original) (quoting Hollmann v. Corcoran, 89 Wn. App. 323,
331, 949 P.2d 386 (1997)).
                                        -4-
NO. 70309-9-1 / 5




liability a question for the jury.6 Substantial evidence exists if "'it is sufficient to

persuade a fair-minded, rational person of the truth of the declared premise.'"7

       The Washington product liability act, chapter 7.72 RCW, does not apply to

Ehlert's claims because they arose before July 26, 1981.8 Therefore, § 402A of

the Restatement (Second) of Torts (1965) applies. This provision states,

       (1) One who sells any product in a defective condition
       unreasonably dangerous to the user or consumer or to his property
       is subject to liability for physical harm thereby caused to the
       ultimate user or consumer, or to his property, if
              (a) the seller is engaged in the business of selling such a
       product, and
              (b) it is expected to and does reach the user or consumer
       without substantial change in the condition in which it is sold.
       (2) The rule stated in Subsection (1) applies although
              (a) the seller has exercised all possible care in the
       preparation and sale of his product, and
             (b) the user or consumer has not bought the product from or
       entered into any contractual relation with the seller.

Comment c to § 402A states,

      On whatever theory, the justification for the strict liability has been
      said to be that the seller, by marketing his product for use and
      consumption, has undertaken and assumed a special responsibility
      toward any member of the consuming public who may be injured by
      it; that the public has the right to and does expect, in the case of
      products which it needs and for which it is forced to rely upon the
      seller, that reputable sellers will stand behind their goods; that
      public policy demands that the burden of accidental injuries caused
       by products intended for consumption be placed upon those who
       market them, and be treated as a cost of production against which

      6 Jones v. Hoqan, 56 Wn.2d 23, 25, 351 P.2d 153 (1960).
      7 Guijosa, 144 Wn.2d at 915 (quoting Brown v. Superior Underwriters, 30
Wn. App. 303, 306, 632 P.2d 887 (1980)).
      8 RCW 4.22.920.
                                          -5-
NO. 70309-9-1 / 6



      liability insurance can be obtained; and that the consumer of such
      products is entitled to the maximum of protection at the hands of
      someone, and the proper persons to afford it are those who market
      the products.

Comment f to § 402A states,

      Business of selling. The rule stated in this Section applies to any
      person engaged in the business of selling products for use or
      consumption. It therefore applies to any manufacturer of such a
      product, to any wholesale or retail dealer or distributor, and to the
      operator of a restaurant. It is not necessary that the seller be
      engaged solely in the business of selling such products. Thus the
      rule applies to the owner of a motion picture theatre who sells
      popcorn or ice cream, either for consumption on the premises or in
      packages to be taken home.
             The rule does not, however, apply to the occasional seller of
      food or other such products who is not engaged in that activity as a
      part of his business. .. . This Section is also not intended to apply
      to sales of the stock of merchants out of the usual course of
      business.

Comment j to § 402A provides,

      Directions or warning. In order to prevent the product from being
      unreasonably dangerous, the seller may be required to give
      directions or warning, on the container, as to its use. The seller
      may reasonably assume that those with common allergies, as for
      example to eggs or strawberries, will be aware of them, and he is
      not required to warn against them. Where, however, the product
      contains an ingredient to which a substantial number of the
      population are allergic, and the ingredient is one whose danger is
      not generally known, or if known is one which the consumer would
      reasonably not expect to find in the product, the seller is required to
      give warning against it, if he has knowledge, or by the application of
      reasonable, developed human skill and foresight should have
      knowledge, of the presence of the ingredient and the danger.
NO. 70309-9-1 / 7




       Strict liability applies        retroactively   to   all claims against product

manufacturers and those in the business of selling or distributing a product.9 A

cause of action arises at the time of a plaintiff's exposure to asbestos, not when

the plaintiff discovers an injury.10

       In Simonetta v. Viad Corp.,11 our Supreme Court explained, "We justify

imposing liability on the defendant who, by manufacturing, selling, or marketing a

product, is in the best position to know of the dangerous aspects of the product

and to translate that knowledge into a cost of production against which liability

insurance can be obtained."

       Ehlert alleges that Brand was a seller of asbestos insulation because it

"acquired the insulation itself, through its own business channels, and invoiced

Parsons for the product." Ehlert further asserts, "Brand's position in the chain of

distribution is akin to a wholesaler, purchasing asbestos insulation from an entity

up the chain of distribution, then turning around and reselling it to a general

contractor as part of its business of providing and installing insulation."




       9 Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 148, 542 P.2d 774
(1975).
       10 Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 34, 935 P.2d
684 (1997) (citing Koker v. Armstrong Cork, Inc., 60 Wn. App. 466, 471-72, 804
P.2d 659 (1991); Krivanek v. Fibreboard Corp., 72 Wn. App. 632, 865 P.2d 527
(1993); Viereckv. Fibreboard Corp., 81 Wn. App. 579, 915 P.2d 581 (1996)).
        11 165Wn.2d341.355, 197P.3d 127(2008).
                                              -7-
NO. 70309-9-1 / 8




      The trial court disagreed, noting that "the only evidence I have in this case

is one sale from Brand to Parsons of insulation." The court observed,

      [l]t seems to me that for Brand to be held under here that they have
      to, say, hire insulation installers to go out and do these things and
      then either ahead of time say we'll come out and we'll install it but
      you've got to buy this product from us and then we'll come and put
      it in. Or basically Brand does two things. They install insulation
      when an owner requests that they come and do it or they sell
      insulation products to other installers to put in. But when a general
      contractor says we want you to install insulation and you've got to
      buy this type of insulation and you've got to put this in our facility, I
      don't see that as a sale.

The court stated,

      [Sjupplying isn't the standard. You have to be a manufacturer or a
      seller. Because if a supplier was the standard then anybody, once
      a product is put in the chain of customers who delivers, a supplier is
      nothing more than a deliverer of a product. So once a product is
      put into the chain of customers, and they transfer that item to
      somebody else, they're a supplier. And that would make the entire
      population susceptible to a suit under strict liability.

       Michael McGinnis, who served as a project coordinator at Brand, testified,

"Brand was not a distributor [of insulation products]. We bought materials for our

own use. We didn't sell them as a distributor would." He testified that for the

Cherry Point project, Parsons provided a form subcontract to all companies

bidding on the project. The bidders included in their bids insulation products from

a list of project specifications provided by Parsons. McGinnis testified that Brand

chose the particular insulation products it used because "[t]he price was better."



                                         -8-
NO. 70309-9-1 / 9




He estimated that 70 percent of Brand's bid represented labor costs and 30

percent represented the cost of materials.

      McGinnis described his job as follows:

      I laid out all of the drawings, identified the drawings from which we
      bid the project. I laid the work scope out for the supervision for the
      project. I purchased all the materials. I purchased the supplies. I
      did the progress reporting for Ralph M. Parsons. I managed the
      admin staff in the office .... And then also generated drafts of all
      the billings and got those approved by Parsons and then went to
      formal processing of those invoices and submitted them to Parsons
      for payment.                                        ,

McGinnis noted, "Those would have been regarded as progress payments and

the preponderance of the job was done on lump sum. At some point. . . Parsons

reverted the contract from a hard money or lump sum project to a cost

reimbursable or T[&]M project." McGinnis distinguished Brand from companies

that "had both a contracting arm that did insulations and a sales arm that actually

distributed insulation products." He further stated that Brand filed an insurance

claim with the insulation supplier, PABCO, when it experienced problems with

some of the insulation materials.

      Although Brand invoiced Parsons for the materials it used to complete the

subcontract, these invoices do not demonstrate that Brand was in the business of

selling insulation products.        Ehlert presented no evidence that Brand

manufactured the insulation or that it marketed          insulation for   use and
NO. 70309-9-1/10




consumption.12 Brand chose the insulation it installed from a list that Parsons

provided. The record shows that Brand merely received reimbursement for the

cost of materials it used to complete a service contract; any alleged "sale" was

incidental to the contract to provide installation services. At most, Brand was an

occasional seller of insulation.13 We conclude that substantial evidence supports

the court's ruling that Brand was not a "seller" for the purposes of § 402A and

affirm the judgment as a matter of law.

       Ehlert also claims that if Brand was not a seller, strict liability still applies to

Brand as a supplier in the chain of distribution.        Ehlert relies upon Simonetta,

which he notes "repeatedly included the term 'supply' in its discussion of the

chain of distribution under § 402A." Although Simonetta stated that defendant

Viad did not "manufacture or supply" the asbestos insulation at issue, the court

did not hold that "suppliers" such as Brand are subject to strict liability under this

provision.14 Instead, the court held that Viad was not strictly liable for failure to

warn about the dangers of asbestos because it did not market or manufacture

asbestos insulation or have control over the type of insulation selected by the


       12 Restatement (Second) of Torts § 402A cmt. c.
       13 See Barham v. Turner Constr. Co.. 803 S.W.2d 731, 738 (Tex. Ct. App.
1990) ("Any alleged 'sale' of the steel columns by Turner Construction was
incidental to its contract to provide the services necessary to construct a building.
At most, Turner Construction was an occasional seller of components of
buildings; it was not engaged in the sale of steel columns as part of its
business.").
       14 Simonetta. 165 Wn.2d at 358.
                                          -10-
NO. 70309-9-1/11




navy. Because we see no meaningful distinction between Viad and Brand, the

court's actual holding defeats Ehlert's argument.

       Next, Ehlert alleges, "The trial court erred by finding that the asbestos

insulation was not an inherently dangerous product, and by inserting an irrelevant

'control' analysis into a failure to warn context."     In response to the Ehlert's

proposed jury instruction on product liability, the court stated,

       Here's what you're asking that I instruct the jury. A seller has a
       duty to supply products that are reasonably safe for use at the time
       they leave the seller's control.
              Now, in this case the only evidence, let's assume that Brand
       qualifies as a seller, the only evidence in this case is that the sale
       occurred after that, the product did not leave the seller's control, if
       Brand is the seller, until it was installed, and clad and banded. And
       an invoice was given to Parsons saying we get paid for this. So
       that product had not yet, if they are a seller, had never left their
       control when the alleged injury is suppose[d] to have occurred. It
       was in the possession of the seller the whole time. So it hadn't left
       the seller's control.

Because we conclude that the record does not contain evidence sufficient to

show Brand was a seller subject to strict liability, we do not address this claim.

       Ehlert also challenges the adequacy of the trial court's general negligence

jury instruction.    We review de novo the adequacy of challenged jury

instructions.15 "'Jury instructions are sufficient when they allow counsel to argue

their theory of the case, are not misleading, and when read as a whole properly



     15 State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005) (citing State v.
DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003)).
                                         -11-
NO. 70309-9-1/12




inform the trier of fact of the applicable law.'"16 The instruction is erroneous if any

of these elements is missing, but an erroneous instruction is reversible error only

if it prejudices a party.17     Where jury instructions state the applicable law

correctly, "the court's decision to give the instruction will not be disturbed absent

an abuse of discretion."18

       We also review a trial court's refusal to give a proposed jury instruction for

an abuse of discretion.19     A trial court abuses its discretion if its decision is

manifestly unreasonable or based on untenable grounds.20

       The trial court's jury instruction stated,

       Negligence is the failure to exercise ordinary care. It is the doing of
       some act that a reasonably careful person would not do under the
       same or similar circumstances or the failure to do some act that a
       reasonably careful person would have done under the same or
       similar circumstances.




       16 State v. Davis, 174 Wn. App. 623, 635, 300 P.3d 465 (internal quotation
marks omitted) (quoting State v. Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669
(2010)), review denied, 178 Wn.2d 1012 (2013).
       17 Anfinson v. FedEx Ground Package Svst., Inc., 174 Wn.2d 851, 860,
281 P.3d 289 (2012) (citing Joyce v. Dep't of Corr., 155 Wn.2d 306, 323-25, 119
P.3d 825 (2005)).
       18 Micro Enhancement Int'l. Inc. v. Coopers & Lvbrand. LLP, 110 Wn. App.
412, 430, 40 P.3d 1206 (2002) (citing Cramer v. Dep't of Highways, 73 Wn. App.
516^ 520, 870 P.2d 999 (1994)).
       19 In re Pet, of Pouncv, 168 Wn.2d 382, 390, 229 P.3d 678 (2010).
       20 State v. Emery, 161 Wn. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006)), affd, 174 Wn.2d 741, 278
P.3d 653 (2012).
                                          -12-
NO. 70309-9-1/13




       Ehlert claims that the court should have instructed the jury on both strict

liability and negligent failure to warn. Ehlert's proposed instruction stated,

                 Each Plaintiff brings this action on the basis of two separate
       claims:


                 1.      Products Liability

              2.         Negligence

                 You are to consider each claim separately with respect to
       each Plaintiff.

             Each instruction will have a heading at the top indicating
       whether the instruction applies to the theory of product liability, or
       negligence or both.

                 With respect to Plaintiffs' product liability claims, each claim
       that Brand Insulations distributed, sold or supplied products that
       were not reasonably safe for use because:

                 1.      These products contained asbestos, which as [sic] not
                         reasonably safe to human life and health; and

                 2.      These products did not contain adequate warning of
                         the precise dangers involved with asbestos use.

             With respect to each Plaintiff's negligence claim, each
       contend that Brand Insulations was negligent in one or more of the
       following respects:

                 1.      Failure to warn foreseeable product users of the
                         dangers of asbestos;

                 2.      Failure to substitute safe products;

                 3.      Failure to institute proper ventilation methods during
                         product use;



                                              -13-
NO. 70309-9-1 /14



                4.      Failure to isolate asbestos dust during application and
                        removal of its products;

                5.      Failure to clean up during the application of its
                        asbestos products.

                The Plaintiffs claim that one or more of these acts was a
        proximate cause of the injuries and damage to Robert Ehlert and/or
        James Jones.          Brand Insulations denies these claims and, further,
        denies the nature and extent of Plaintiffs' claimed injuries.

               The foregoing is merely a summary of the claims of the
        parties. You are not to take the same as proof of the matter
        claimed unless admitted by the opposing party, and you are to
        consider only those matters which are admitted or established by
        the evidence. These claims have been outlined solely to aid you in
        understanding the issues.

        Because we affirm the court's judgment as a matter of law on strict

liability, we conclude that the court properly declined to give a strict product

liability jury instruction.

        The Restatement (Second) of Torts § 388 (1965) governs negligent failure

to warn claims.21 This provision states,

        One who supplies directly or through a third person a chattel for
        another to use is subject to liability to those whom the supplier
        should expect to use the chattel with the consent of the other or to
        be endangered by its probable use, for physical harm caused by
        the use of the chattel in the manner for which and by a person for
        whose use it is supplied, if the supplier

               (a) knows or has reason to know that the chattel is or is likely
        to be dangerous for the use for which it is supplied, and




       21 Mele v. Turner. 106 Wn.2d 73, 78, 720 P.2d 787 (1986) (citing Fleming
v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 467-68, 423 P.2d 926 (1967)).
                                             -14-
NO. 70309-9-1/15



              (b) has no reason to believe that those for whose use the
       chattel is supplied will realize its dangerous condition, and

              (c) fails to exercise reasonable care to inform them of its
       dangerous condition or of the facts which make it likely to be
       dangerous.

       A supplier is "any person who for any purpose or in any manner gives

possession of a chattel for another's use . .. without disclosing his knowledge

that the chattel is dangerous for the use for which it is supplied or for which it is

permitted to be used."22

       The law of negligence requires a defendant to exercise ordinary care.23 A

supplier's duty of ordinary care includes a duty to warn of hazards involved in the

use of a product which are or should be known to the supplier.24 Therefore, in a

negligent failure to warn cause of action, we focus on the supplier's conduct.25

       When rejecting Ehlert's proposed instruction, the trial court explained,

"The plaintiff, even if I give the generic one, plaintiff is going to be able to argue

whatever theories of negligence they have."        The court's given instruction is

taken verbatim from WPI 10.0126 and states the general law of negligence

accurately.




       22 Restatement (Second) of Torts § 388 cmt. c.
       23 Simonetta, 165 Wn.2d at 348.
       24 Restatement (Second) of Torts § 388.
       25 Simonetta, 165 Wn.2d at 348.
       26 6 Washington Practice: Washington Pattern Jury Instructions:
Civil 10.01, at 124 (2012).
                                        -15-
NO. 70309-9-1/16




       Ehlert argues, "The problem with the general negligence instruction is that

it does not take into account the particularized standards of conduct Washington

law imposes on those in the chain of distribution." But Ehlert does not show that

the court's general negligence instruction prevented him from arguing his failure

to warn theory of negligence. While other judges might have instructed the jury

more specifically on the duty to warn, the trial court did not abuse its discretion

when it declined to give Ehlert's proposed instruction and gave a general

negligence instruction.

       Ehlert also challenges the trial court's exclusion of three newspaper

articles from the Seattle Times and two articles from the Chicago Tribune related

to asbestos.    We review a trial court's evidentiary rulings for an abuse of

discretion.27 A party challenging the court's ruling bears the burden of proving an

abuse of discretion.28

       Ehlert claims that the proffered articles "were relevant to proving Brand's

knowledge of the risk of asbestos exposure in using insulation materials in the

early 1970's [sic], a critical component of Ehlert's and Jones' failure to warn

theory." The trial court ruled,

       I don't think that it's relevant. I really don't. . . . [Y]ou could pull out
       an article from any newspaper in the United States and say so and

       27 Hernandez v. Stender           Wn. App.        , 321 P.3d 1230, 1233 (2014)
(citing Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000)).
       28 Hernandez, 321 P.3d at 1233 (citing Davis, 174 Wn. App. at 642).
                                          -16-
NO. 70309-9-1/17



         so thought something, it was a problem, and therefore these people
         should have known. I don't know how you can say a Chicago
         company should be put on notice either—well, didn't know unless
         they admit they read the article or should have been able to find the
         article or had a duty to look for an article. I don't see how this is a
         connection. It's just too speculative where you're asking the jury to
         say that the defendant should have been searching newspaper
         articles about anything they were using on the work site to see if
         somebody thought there were problems with it.

         Evidence is relevant if it has "any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence."29 Only relevant evidence is

admissible.30

         Newspaper articles are not admissible as evidence to prove the truth of

their contents.31 A newspaper article is admissible for impeachment purposes if

the witness "admitted having read or authorized the article."32

         Ehlert could not offer these articles to establish the state of medical

science about the dangers of asbestos exposure. He fails to demonstrate the

relevance of the proffered newspaper articles to his negligent failure to warn

claim.    Ehlert does not show that Brand read or authorized the articles or that

Brand had a duty to know about the dangers of the products it selected from the

list that Parsons provided in the subcontract for installation services. We hold


         29ER401.
         30 ER 402.
         31 State ex rel. Pierce County v. King County, 29 Wn.2d 37, 45, 185 P.2d
134(1947).
         32 Pierce County, 29 Wn.2d at 45.
                                          -17-
NO. 70309-9-1/18




that the trial court did not abuse its discretion when it excluded the newspaper

articles.


        On cross appeal, Brand claims that the trial court should have granted its

motion for judgment as a matter of law at the close of Ehlert's case and also that

the court should have granted its motion for judgment as a matter of law on

Ehlert's negligence claim. Because we affirm the trial court, we do not address

Brand's cross appeal.

                                  CONCLUSION


        The record supports the trial court's dismissal of Ehlert's strict liability

claims. The trial court did not abuse its discretion when it instructed the jury or

when it excluded Ehlert's proffered newspaper articles about asbestos. Because

we reject Ehlert's claims, we do not consider Brand's cross appeal. We affirm.



                                                       /^^Bt^ft
WE CONCUR:




 yOt<C>t**<?~) C,\JV



                                        -18-
