MEMORANDUM AND ORDER
BECHTLE, District Judge.
This is a diversity action brought by former workers of the Philip Carey Manufacturing Company, Inc. ("Philip Carey"), their spouses, and representatives of decedents' estates, for compensatory and punitive damages arising out of the claimants' exposure to asbestos fiber while they were employed at the Philip Carey manufacturing plant in Plymouth Meeting, Pennsylvania. Presently before the Court are the post-trial motions filed both by plaintiffs and defendants. For the reasons which follow, the motions are denied.
On November 28, 1978, this action was commenced by the filing of plaintiffs' complaint in the Court of Common Pleas of Montgomery County, Pennsylvania. On December 19, 1978, defendants removed this case to federal court. Plaintiffs' complaint was brought on behalf of twenty-four former employees of the Philip Carey manufacturing plant, located in Plymouth Meeting, Pennsylvania. At this plant, Philip Carey manufactured asbestos-insulation products which contained raw asbestos fiber. The Plymouth Meeting plant opened in 1907 and closed in 1962. Plaintiffs sued Celotex Corporation ("Celotex"), as the successor-in-interest to Philip Carey, because plaintiffs allegedly contracted asbestos-related diseases through the inhalation of asbestos fiber used in the manufacture of insulation material at that plant. Plaintiffs also sued the following five companies because they allegedly supplied asbestos fiber to the Plymouth Meeting manufacturing plant during the time periods in which plaintiffs worked at that plant — Asbestos Corporation Limited ("Asbestos Corp."); Bell Asbestos Mines, Limited ("Bell Asbestos"); Carey-Canadian Mines, Limited ("Carey-Canadian"); Johns-Manville Corporation, Johns-Manville Products Corporation, Johns-Manville Sales Corporation, Canadian Johns-Manville Company, Limited, Canadian Johns-Manville Mining Company, Limited, Canadian Johns-Manville Asbestos, Limited (collectively "Johns-Manville"); and North American Asbestos Corporation ("NAAC").
Following the initiation of the action, two years of protracted discovery and lengthy pretrial proceedings with attendant delay ensued. Finally, on February 20, 1981, fifteen of the twenty-four claims were consolidated for trial and a jury was empaneled to hear the case.
Workers Employment(1) George Neal 1926-1962 (2) Louis Romano (deceased) 1929-1962 (3) Harry F. Belz 1944-1961 (4) Walter Bogdanski 1929-1962 (5) Arnold Foulke (deceased) 1936-1962 (6) Edward J. Hojnacki (deceased) 1950-1961 (7) Ronald A. Lenzi, Sr. 1947-1962 (8) Joseph Mancini 1936-1961
Dates of Workers Employment(9) Corrie Mitchell 1933-1962 (10) Salvatore Pascale 1946-1962 (11) Vincent Raymond 1948-1959 (12) Pasquale Romano 1950-1961 (13) Gerald C. Wilmer 1951-1960 (14) Jerry Henley 1945-1962 (15) Nathaniel Satterwhite 1946-1962
Defendants admitted that each of these workers had an asbestos-related condition by reason of exposure to asbestos fiber at the Plymouth Meeting plant but contested liability for each of the plaintiffs' injuries. Four principal issues were presented to the jury with respect to each plaintiff at the liability trial:
(1) whether the plaintiff, prior to November 28, 1976, knew or had reason to know that he had an asbestos-related condition caused by his exposure to asbestos fiber at Philip Carey's Plymouth Meeting manufacturing plant;
(2) whether the supplier defendants — Carey-Canadian, Asbestos Corp., Johns-Manville, NAAC and Bell Asbestos — were liable because they supplied asbestos fiber, without a warning of the dangers of asbestos exposure to the manufacturing plant, which proximately caused plaintiffs' injuries;
(3) whether Celotex was liable because Philip Carey intentionally failed to warn its former employees that they might have acquired an asbestos-related disease when Philip Carey officials had been advised by Dr. Thomas F. Mancuso, in October, 1963, that its former employees should be informed of this danger; and
(4) whether the conduct of Philip Carey, whether negligent or intentional in failing to warn, was a superseding cause for any injuries sustained by plaintiffs after October 1, 1963.
The liability trial, which was the first multi-plaintiff asbestos case tried in this district, lasted twenty-nine trial days, during which thirty-eight live witnesses testified, ten depositions were read, and over one hundred exhibits were presented to the jury. Following two and one-half days of deliberation, the jury returned its liability verdict which can be summarized as follows:
(1) all of the claims except that of George Neal were not barred by the Pennsylvania statute of limitations;
(2) all of the supplier defendants, except Bell Asbestos, were liable under § 402A products liability and negligence principles for the asbestos-related diseases suffered by each plaintiff;
(3) Celotex was liable for the aggravation of each plaintiff's injuries because of its intentional failure to warn;
(4) Celotex and Johns-Manville were additionally liable for punitive damages because of their outrageous conduct; and
(5) Celotex's conduct was not a superseding cause of each plaintiff's injuries suffered after October 1, 1963.
Following the liability verdicts, individual damage trials were held which lasted a sum total of twenty-five trial dates during which individual damage verdicts were rendered for each plaintiff. The actual compensatory and punitive damages awarded by the jury for each individual plaintiff in the order in which the cases were presented is summarized in the chart in footnote 4.
II. Motions for Judgment N. O. V. by All Defendants — Statute of Limitations
The Pennsylvania statute of limitations, 42 Pa.C.S.A. § 5524 provides in pertinent part:
With respect to injuries or disease for which the causes are not readily apparent, the statute of limitations does not begin to run against the prospective plaintiff until such time that plaintiff either knew or had reason to know of the injury, the operative cause of the injury, and the causal relationship between the injury and the operative conduct. Anthony v. Koppers, Co. Inc., 284 Pa.Super. 81, 425 A.2d 428, 436 (1980) (quoting Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phila.C.P.1980)). See Bayless v. Philadelphia National League Club, 579 F.2d 37, 39 (3d Cir. 1978).
This so-called "discovery rule" has been applied in asbestos cases. Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phila.C. P.1980) (Takiff, J.); DeMato v. Turner & Newall, Ltd., 651 F.2d 908, 909 (3d Cir. 1981); Grabowski v. Turner & Newall, 516 F.Supp. 114, 118-119 (E.D.Pa.1980). A statute of limitations is an affirmative defense for which the defendant has the burden of proof. See Fed.R.Civ.P. 8(c). Before a Court can direct a verdict in favor of the moving party, it must find that the evidence was overwhelming and that there is insufficient evidence to permit any different finding in favor of the non-moving party. Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).
(A) Edward Hojnacki
Defendants assert that there is overwhelming evidence in the record that Edward Hojnacki knew of his asbestos-related condition, the operative cause, and the causal relationship prior to November 28, 1976. Defendants cite the testimony of Dr. Eugene Labowski, Mr. Hojnacki's former treating physician, as dispositive of this question. Although Dr. Labowski's testimony sufficiently establishes that Mr. Hojnacki knew that he suffered from a chronic lung condition prior to November 28, 1976, the Court finds that his testimony does not overwhelmingly establish that Mr. Hojnacki knew or had reason to know of the operative cause of his injury — that of exposure to asbestos fiber at the Philip Carey plant. See N.T. 21.151 — N.T. 21.155. Helen Hojnacki testified that, to the best of her knowledge, her husband was not aware, prior to 1978, that he had an asbestos-related condition as a result of exposure to asbestos fiber. N.T. 26.62. For these reasons, the Court holds that the jury's findings
(B) Nathaniel Satterwhite
Defendants also assert that plaintiff Nathaniel Satterwhite knew or had reason to know that he had an asbestos-related disease caused by his exposure to asbestos fiber at the Plymouth Meeting plant, prior to November 28, 1976, on the basis of the testimony of William H. Rodgers, M.D., who was Mr. Satterwhite's treating physician. Dr. Rodgers testified that he informed Mr. Satterwhite in 1972 of his asbestos-related condition caused by his exposure to asbestos fiber at the Philip Carey plant. N.T. 22.87, N.T. 22.89. However, Mr. Satterwhite testified that he did not learn that he had asbestosis caused by his exposure to asbestos fiber until the early spring of 1978 when he began to have breathing problems at his new place of employment. N.T. 15.14-15.15. Moreover, Mr. Satterwhite specifically testified that he did not know back in 1972 or 1973 that his lung condition, revealed by earlier chest x-rays, was caused by exposure to asbestos fiber. N.T. 15.29-15.30. The issue of credibility was for the jury. For these reasons, the Court holds that there is sufficient evidence from which a jury could find that Mr. Satterwhite did not know or have reason to know of the operative cause of his asbestos-related condition and defendants' motion for judgment n. o. v., therefore, will be denied.
III. Motions for Judgment N. O. V. by Supplier Defendants
(A) Absence of Warning — Proximate Causation
First, supplier defendants contend that they had no duty to warn as a matter of law. The jury found that, pursuant to § 402A product liability, the asbestos fiber supplied by supplier defendants was defective because it was not accompanied by an adequate warning and that it proximately caused each plaintiff's asbestos-related condition. Moreover, the jury found that each supplier defendant was negligent for failing to provide an adequate warning and that this conduct was a proximate cause of each plaintiff's asbestos-related injuries. Supplier defendants contend that there was no duty to warn employees, like plaintiffs, of the dangers associated with asbestos exposure because such dangers were already known by plaintiffs' employer, Philip Carey.
In strict products liability actions under § 402A of the Restatement (Second) of Torts, the Pennsylvania Supreme Court, in Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), made it clear that a manufacturer of an inherently dangerous product has a non-delegable duty to provide warnings to the ultimate consumer or user. The court stated:
Id. at 103, 337 A.2d at 903 (emphasis added).
In a negligence case, section 388 of the Restatement (Second) of Torts, provides
Restatement (Second) of Torts, § 388 (1965) (emphasis added). Defendant suppliers are imposed with the duty to warn of asbestos exposure hazards under § 388 because plaintiffs were ultimate users of this asbestos fiber. See Dougherty v. Hooker Chemical Corp., 540 F.2d 174 (3d Cir. 1976). Supplier defendants nevertheless cite the cases of Toppi v. United States, 332 F.Supp. 513 (E.D.Pa.1971) and Lockett v. General Electric Co., 376 F.Supp. 1201 (E.D.Pa.1974), aff'd, 511 F.2d 1394 (3d Cir. 1975) in support of their contention that there was no duty to warn because of the employer's independent knowledge of the hazards associated with asbestos exposure. In Toppi v. United States, supra, the Court held after a non-jury trial that both the plaintiff and plaintiff's employer were well aware of the dangerous explosive potential of tetryl, the product which plaintiff claimed to be defective because of the absence of a warning. 332 F.Supp. at 517. In Lockett v. General Electric Co., supra, the court granted defendant's motion for a judgment n. o. v. because there was no duty by the defendant manufacturer of a gear to warn a subsequent assembler or the assembler's employee that an employee's arm may be caught by a gear because of the obviousness of the danger of operating an unguarded gear. 376 F.Supp. at 1208-1213. Both Toppi and Lockett are distinguishable from the facts of the present case because the dangers associated with asbestos exposure are not readily apparent to the user in the absence of an adequate warning. See, e.g., Dougherty v. Hooker Chemical Corp., supra. In both Toppi and Lockett the dangers of the respective products were either readily obvious or made known. The record is replete with testimony that plaintiffs were never warned by Philip Carey during the tenure of their employment of the dangers associated with asbestos exposure and that they were not aware of the dangers until many years after the termination of their employment relationship. Due to the latent dangers associated with exposure to asbestos fiber and the foreseeable risk that an employer with knowledge of such dangers would not warn its own employees of this danger, see Restatement (Second) of Torts § 388, comment n, the Court will deny the motions for judgment n. o. v. because of the supplier defendants' non-delegable duty to warn users of asbestos fiber of the hazards associated with exposure to asbestos fiber.
(B) Proximate Causation
Secondly, supplier defendants argue that neither the absence of a warning on the bags of defendants' asbestos fiber or the alleged negligence of the suppliers in failing to provide a warning was a proximate cause of plaintiffs' injuries as a matter of law. It is admitted by defendants that the cause of plaintiffs' asbestos diseases was that of their exposure to asbestos fiber at the Philip Carey plant. Supplier defendants contend, however, that the absence of a warning or their failure to provide a warning was not a proximate cause or a substantial contributing factor in causing each plaintiff's asbestos-related condition. Rather, supplier defendants point to the conduct of Philip Carey, which was not within their immediate control, as the proximate cause of each plaintiff's injuries. In determining whether a judgment n. o. v. should be granted to a defendant,
Third, supplier defendants argue that the conduct of the employer defendant, Philip Carey, was the sole proximate cause of plaintiffs' asbestos-related conditions as a matter of law. Supplier defendants specifically cite the acts or omissions of the employer, Philip Carey — the failure to reduce the quantum of asbestos dust in the manufacturing plant, the failure to advise its employees of the consequences of asbestos exposure, the failure to require the use of respirators in the general work environment, and the failure to maintain an active medical examination and health surveillance program for its employees — as the sole proximate cause of plaintiffs' asbestos-related conditions. Essentially, supplier defendants' argument is another variant of their argument that the absence of a warning or their failure to warn was not a proximate cause of plaintiffs' asbestos-related conditions. A defendant's conduct is a proximate cause of an injury whenever it is a substantial contributing factor in bringing about the harm. Whitner v. VonHintz, 437 Pa. 448, 263 A.2d 889, 893-894 (1970); Restatement (Second) of Torts, § 431 (1965). In this case, there is substantial evidence that supplier defendants' failure to place a warning on the asbestos bags was a proximate cause of plaintiffs' injuries. For the reasons stated earlier, judgment n. o. v. will not be awarded on this ground.
(C) Superseding Cause
Fourth, supplier defendants argue that the conduct of plaintiffs' employer, Philip Carey, was a superseding cause of plaintiffs' injuries as a matter of law. Section 447 of the Restatement (Second) of Torts has been adopted in Pennsylvania for defining "superseding cause" in order to determine when an original tortfeasor will be absolved from liability because of an intervening act. Grainy v. Campbell, 493 Pa. 88, 425 A.2d 379, 381-382 (1981); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). Section 447 provides:
Restatement (Second) of Torts, § 447 (1965) (emphasis added). In addition, an original tortfeasor may be relieved from liability because of a third person's failure to act:
Restatement (Second) of Torts, § 452(2). The factors to be considered in determining whether all duty and responsibility for the prevention of harm has passed to a third person are as follows:
Restatement (Second) of Torts, § 452(2), comment f. Supplier defendants contend that the conduct of Philip Carey in failing to provide adequate protection for its workers from hazardous asbestos exposure was a superseding cause as a matter of law because the duty had shifted to Philip Carey to provide such protection. Supplier defendants cite the substantial magnitude of the risk and degree of danger resulting from exposure to asbestos fiber and dust, the independent duty of Philip Carey to provide a safe workplace, the contention that Philip Carey knew of the dangers of asbestos fiber and dust, and the lapse of a significant period of time from the late 1920's to the plant's closing in 1962, during which time efforts could have been made to provide adequate protection. Supplier defendants cite Schreffler v. Birdsboro Corp., 490 F.2d 1148 (3d Cir. 1974) (holding that employer's unilateral modification of a transfer table to allow an employee to stand on top of the table when processing hot steel billets, interval of six years between the date of sale and the accident, and employer's failure to implement safety recommendations amounted to superseding cause of plaintiff's injuries as a matter of law) and Meuller v. Jeffrey Mfg. Co., 494 F.Supp. 275 (E.D.Pa.1980), affirmed, 649 F.2d 860 (3d Cir. 1981) (holding that employer's failure to guard opening in floor by steel cage ordinarily used for that purpose and lapse of fifteen years from the sale of sand handling equipment to employer and date of plaintiff's injuries amounted to superseding cause of employee's injuries as a matter of law). Second, supplier defendants contend that Philip Carey's failure to provide adequate protection and warning was highly extraordinary and unforeseeable to supplier defendants. The Court holds that Schreffler v. Birdsboro Corp., supra, and Meuller v. Jeffrey Mfg. Co., supra, are distinguishable from the facts of the present case. The dangers in Schreffler and Meuller were patent and obvious to both the employer and employees. In the present case, the dangers of asbestos exposure are not immediately obvious and, therefore, latent as opposed to patent defects. The fact that Philip Carey was in a better position to protect the plaintiffs from exposure to asbestos fiber and dust does not automatically mean that Philip Carey's conduct was a superseding cause of plaintiffs' injuries. Supplier defendants did not present any evidence that the conduct of the employer, Philip Carey, was highly extraordinary within the industry and, thus, unforeseeable to the supplier defendants. See N.T. 21.74-21.77; 21.224-21.225; 21.228-21.233. Rather, supplier defendants presented evidence of inadequate dust control, the absence of warnings, and the absence of adequate medical monitoring which, although relevant to the issue of
(D) Asbestos Fiber — Product
Asbestos fiber is an indestructible material known for its heat resistance. Supplier defendants contend that raw asbestos fiber is not a product because it is a mineral mined from the ground. Section 402A of the Restatement provides:
Restatement (Second) of Torts, § 402A (1965). Strict liability extends "to any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate consumer or user." Restatement (Second) of Torts, § 402A, comment d. Moreover:
Restatement (Second) of Torts, § 402A, comment e. Thus, it is clear that asbestos fiber which is extracted through the crushing of the asbestos rock and then compacted into bags is a product within the definition of § 402A. It is no different than a poisonous mushroom extracted from the ground, which, no matter what changes it undergoes, is still poisonous to the user or consumer.
Moreover, sufficient evidence was produced at trial that asbestos fiber is an "unavoidably unsafe product" because of its indestructible propensity which can only be made safe through the provision of an adequate warning. See Restatement (Second) of Torts, § 402A, comment k. Thus, because asbestos fiber, although a mineral, is marketed for potential use by the consumer, it falls within the definition of "product" for purposes of both the § 402A products liability and § 388 negligence claims. For these reasons, supplier defendants' motion for judgment n. o. v. on the ground
IV. Motions for Judgment N.O.V. by Individual Suppliers
(A) North American Asbestos Corporation
NAAC contends that plaintiffs have failed to show that NAAC was a supplier of asbestos fiber to the Plymouth Meeting plant. NAAC argues that it was a mere "facilitator" for the delivery of asbestos fiber from Cape Asbestos Corporation in South Africa to the Plymouth Meeting plant. NAAC argues that it served as a mere message center for shipping arrangements and that it never exercised any control or title to the asbestos fiber delivered to the Plymouth Meeting plant. Under Pennsylvania law, liability under § 402A may be imposed upon the manufacturer, Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 29, 319 A.2d 903 (1974), and others who take title to or have physical control over the product. See, e.g., Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) (beer distributors); Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977) (equipment lessors). Similarly, liability for negligence under § 388 of the Restatement (Second) of Torts can only attach if the person was a supplier of the product — defined as one who "gives possession" or one who has "control." Restatement (Second) of Torts, § 388, comment c. The Court holds that there is sufficient evidence from which the jury could find that NAAC was a supplier of asbestos fiber to the Plymouth Meeting plant. First, various witnesses testified that crocidolite asbestos fiber from South Africa was used at the Plymouth Meeting plant, the type of fiber NAAC sold. Second, plaintiffs presented the testimony of Joseph P. Lobb, who was an employee at the Plymouth Meeting plant from June, 1946 to December, 1957. Mr. Lobb testified that he held the position of receiving clerk from 1949 to 1952, during which he prepared receiving reports for asbestos fiber at the Plymouth Meeting plant. N.T. 10.40. He testified that from 1952 to 1955, he was an assistant purchasing agent and monitored the requisition orders of NAAC fiber. N.T. 10.43. Finally, from 1955 to 1957, Mr. Lobb was a supervisor of accounts payable with the duty of matching the invoices for asbestos fiber against the receiving reports which were then to be forwarded to Philip Carey headquarters at the Lockland, Ohio plant. N.T. 10.47. Mr. Lobb identified NAAC as a supplier of raw asbestos fiber to the Plymouth Meeting plant by virtue of its requirement contracts. N.T. 10.50. Third, Max Meyer, a former director of NAAC, testified that NAAC was incorporated as a wholly owned subsidiary of Cape Asbestos Company, Limited, in 1953, with the stated purpose "to manufacture, buy, sell, deal in and with asbestos and asbestos products." N.T. 24.95-24.96. The parent corporation, Cape Asbestos Company, Limited, also owned the South African Egnep Mines and Cape Blue Mines in which the crocidolite fiber was mined. N.T. 24.87. Finally, plaintiffs' exhibit 191 showed that NAAC received both sales income and commission income during 1954 to 1960 for the distribution of asbestos fiber to North America. This evidence expressly showed that NAAC engaged in the sale of asbestos fiber. For these reasons, the Court holds that there is sufficient evidence, both direct and circumstantial, from which the jury could reasonably find that NAAC was not a "facilitator" but a seller of asbestos fiber to the Plymouth Meeting plant.
(B) Carey-Canadian Mines, Limited
Carey-Canadian contends that plaintiffs failed to produce sufficient evidence from which the jury could reasonably conclude that Carey-Canadian qua Carey-Canadian supplied raw asbestos fiber to the Plymouth Meeting plant. In addition to operating several manufacturing facilities across the country including the Plymouth Meeting plant, Philip Carey, in 1918, opened an asbestos
In 1955, Carey-Canadian was also incorporated as a wholly-owned subsidiary of Philip Carey. In September, 1958, Carey-Canadian started to mine raw chrysotile asbestos fiber from a new mine located four miles up the road from the old QAC mine. N.T. 23.138-23.139. Abner H. Bagenstose, a former industrial sales manager for Philip Carey, testified that the chief operating officers and management personnel from the old QAC mine went right to work at the new Carey-Canadian mine. N.T. 24.22-24.23. Moreover, the old workers of the QAC mine were transplanted to the new Carey-Canadian mine. N.T. 24.23. Carey-Canadian continued to sell to the same customers, used some of QAC's old equipment, and used a similar logo to that of the QAC on their asbestos bags. N.T. 24.25. Carey-Canadian advertised in Asbestos Magazine that Carey-Canadian had started in the asbestos business back in 1918 with the mining of chrysotile asbestos in Quebec, Canada. N.T. 8.232-8.233. Finally, in answers to interrogatories, Carey-Canadian admitted that "Defendant [Carey-Canadian] is a successor to the Quebec Asbestos Corporation, Ltd., which was incorporated in 1924 in Quebec, Canada." N.T. 12.15-12.16.
The Court charged the jury that Carey-Canadian could only be held liable to the extent that it furnished fiber after it came into existence in 1955. N.T. 29.31. The Court added, however, that Carey-Canadian could also be held liable for asbestos fiber furnished by QAC if the jury found that Carey-Canadian was essentially a continuation of the business of QAC. N.T. 29.31-29.32. See Knapp v. North American Rockwell Corp., 506 F.2d 361, 363 (3d Cir. 1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975) (liability for successor corporations). The jury returned a verdict in which the jury found that each plaintiff had been exposed to asbestos fiber supplied by Carey-Canadian to the Plymouth Meeting plant. Carey-Canadian contends that it cannot be held liable because it presented substantial evidence that Carey-Canadian qua Carey-Canadian did not supply asbestos fiber to the Plymouth Meeting plant from September, 1958, the date that it began to mine asbestos fiber, to 1962, the date of the closing of the Plymouth Meeting plant. N.T. 23.175. Nevertheless, testimony was presented by Joseph Lobb (N.T. 10.50), Frank Dixon (N.T. 6.159, 6.162), Howard McClure (N.T. 8.69) and Odell Smith (N.T. 7.125), to substantiate the existence of "Carey" fiber from 1943 to 1958 at the Plymouth Meeting plant. Thus, the issue, more properly stated is whether there is sufficient evidence from which a jury could find that Carey-Canadian supplied asbestos fiber to the Plymouth Meeting plant either as Carey-Canadian qua Carey-Canadian or Carey-Canadian qua predecessor QAC. Abner Bagenstose testified that seventy-five percent of the asbestos fiber produced from the QAC mine was consumed by the individual Philip Carey manufacturing plants. N.T. 23.119-23.120. The Court holds that there is sufficient evidence from which the jury could find that Carey-Canadian was a successor to the QAC and that "Carey" fiber was supplied to the Plymouth Meeting plant. For these reasons, Carey-Canadian's motion for judgment n. o. v. will be denied.
(C) Johns-Manville Corporations
First, Johns-Manville contends that plaintiffs' evidence is insufficient to impose punitive damages on any of the Johns-Manville defendants. In order to grant a judgment n. o. v., the Court must find as a matter of law that plaintiffs failed to advance sufficient facts to justify the verdict. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). The rule of punitive damages set forth in the Restatement (Second) of Torts § 908 has been adopted in Pennsylvania. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). That section provides as follows:
Restatement (Second) of Torts, § 908 (1965) (emphasis added). In the present case, the Court dismissed the plaintiffs' punitive damage claims against all of the supplier defendants except the Johns-Manville defendants because "presence alone or knowledge alone or involvement on an association basis without more or even possession of the knowledge without some further evidence as to wantonness is insufficient to support the question of punitive damages being considered by the jury." N.T. 23.57. Nevertheless, the Court holds that there was sufficient evidence presented to the jury from which a reasonable jury could find that the conduct of Johns-Manville amounted to outrageous conduct which would support a punitive damages award on behalf of each plaintiff. Testimony indicating that Johns-Manville continually failed to warn users of hazards associated with the inhalation of asbestos fibers, despite overwhelming knowledge of those hazards by high ranking corporate officials, was presented through the deposition testimony of Hugh M. Jackson and Dr. Kenneth Wallace Smith. Hugh Jackson was the director of safety for Johns-Manville from 1947 to 1952 and manager of the industrial health program from 1952 to 1960. Mr. Jackson was directly responsible for the management of the Johns-Manville industrial health program. N.T. 5.156. Mr. Jackson first became aware of the dangers of asbestos exposure in 1947. N.T. 5.205-5.206. He became a member of the American Industrial Hygienists Association ("AIHA") and attended several symposia at the Saranac Lake Laboratories in New York on the subject of asbestos disease during the 1950's. N.T. 5.208. In addition, Mr. Jackson was a member of the Air Hygiene Committee of the Asbestos Textile Institute ("ATI") from 1948 to 1955, and chairman of that committee from 1953 to 1955. In his capacity as chairman, Mr. Jackson became acutely aware of the dangers of asbestos exposure and the inhalation of asbestos fiber and dust. N.T. 5.224-5.237; N.T. 6.7-6.15. Mr. Jackson discussed the subject of a warning on the bags containing asbestos fiber with Dr. Kenneth Smith during the 1950's; however, Johns-Manville never affixed such a warning until 1969. N.T. 6.46-6.51; see N.T. 35.57.
Dr. Kenneth Smith joined Canadian Johns-Manville, a division of Johns-Manville, as a medical officer in 1943 or 1944 and assumed the position of medical director for Canadian Johns-Manville from 1947 to 1951. In 1952, Dr. Smith became the chief medical director for the entire Johns-Manville corporation and served in that capacity until 1966. Dr. Smith specialized in industrial medicine and occupational diseases. N.T. 7.40-7.41. Dr. Smith also authored several papers on asbestosis and the effects of the inhalation of asbestos dust during the late 1940's through the middle 1960's. N.T. 7.43-7.46. Dr. Smith, as well as other corporate officers of Johns-Manville, were familiar with early pulmonary disease studies conducted at the Saranac Lake Laboratories in New York during the late 1930's and in Great Britain with respect to inhalation of asbestos dust. N.T. 7.49-7.51. However, Dr. Smith did not become aware of the problems associated with the inhalation of asbestos dust until he first began to work for Canadian Johns-Manville in the mid-1940's. N.T. 7.56-7.57. In the late 1940's, Dr. Smith conducted a study with respect to the effects of inhalation of asbestos dust by Johns-Manville employees and then issued a report recommending various steps to decrease the level of exposure
The aforementioned testimony sufficiently establishes that high ranking corporate officials were fully aware of the dangers of asbestos exposure during the mid-1940's and through the early 1960's and that they continually refused to act despite their ready knowledge of these dangers. Such testimony sufficiently supports an award of punitive damages against Johns-Manville since a reasonable jury could find by virtue of this evidence that Johns-Manville engaged in outrageous conduct by exhibiting a reckless indifference to the health and wellbeing of plaintiffs. Johns-Manville argues that Johns-Manville took affirmative steps to prevent and control the dangers of exposure to asbestos dust by pursuing their own studies, participating in the development and dissemination of knowledge through trade associations and independent institutions, and acting in positive pursuit of employee safety through physical plant improvements, personal protective gear and training. These arguments speak, however, to the weight of the evidence and not the sufficiency of the evidence from which a jury could reasonably conclude that Johns-Manville officials participated in outrageous conduct. For these reasons, Johns-Manville's motion for judgment n. o. v. on the asserted ground of insufficient evidence will be denied.
Secondly, Johns-Manville contends that punitive damages cannot be assessed in mass tort litigation because multiple punitive damage awards will annihilate or bankrupt a corporation. This argument has its genesis from dicta in Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967) (diversity action applying New York law). In Roginsky, the Second Circuit reversed an award of punitive damages against a defendant drug manufacturer who had been sued in hundreds of cases nationwide due to its distribution of a drug named MER/29 which caused cataracts in unsuspecting patients. The court affirmed the jury's verdict insofar that it awarded compensatory damages to the plaintiff but reversed the award of punitive damages because of insufficient evidence of "complicity." In dictum, Judge Friendly expressed the fear that recovery of punitive damages in multiple tort actions might serve to bankrupt the tortfeasor corporation and end the business life of a company because of a single management sin. 378 F.2d at 838-841. Judge Friendly hypothesized that multiple awards of compensatory damages would serve a sufficient punitive element even though product liability insurance would blunt somewhat the deterrent effect. Id. at 841. Nevertheless, Judge Friendly noted that no court has held that the first punitive award would exhaust all claims for punitive damages and stated that it would be neither fair nor practicable to limit punitive recoveries to an indeterminate number of first-comers and, thus, deny punitive damages to future plaintiffs. Id. at 839.
Courts and commentators have noted that punitive damages serve as a critical deterrent in the area of consumer safety by encouraging manufacturers to take affirmative steps in product safety. Punitive damages serve to deter manufacturers from accepting the risk of paying compensatory damages rather than changing the business practice which would result in extra costs. See, e.g., Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437, 451-457 (1980); Sturm, Ruger & Co., Inc. v. Day, Alaska, 594 P.2d 38, 47 (1979); Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257, 1277-1299 (1976). See also State ex. rel. Young v. Crookham, 290 Or. 61, 618 P.2d 1268, 1271 (1980) (apprehension of corporate annihilation by punitive damages is exaggerated). Moreover, there is no legal or equitable basis to allow punitive damage awards to
Third, Johns-Manville contends that punitive damage awards are violative of the constitutional guarantees of due process. Johns-Manville argues that punitive damage standards are so vague so as to not afford adequate notice of the prohibited conduct. Moreover, Johns-Manville contends that the standards for punitive damages are so vague so as to leave judges and jurors free to decide without any legally fixed standards what the prohibited conduct is within the particular circumstances of the case. The essence of due process is fundamental fairness. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Pennsylvania law provides: "Punitive damages will be allowed for torts committed willfully, maliciously, or so carelessly as to indicate wanton disregard for the rights of the party injured." Thompson v. Swank, 317 Pa. 158, 159, 176 A. 211 (1934). The purpose behind awards of punitive damages is to punish defendants for outrageous conduct and to deter similar future conduct. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). Without determining whether constitutional standards may present a bar to the assessment of punitive damages in a civil case, see Curtis Publishing Co. v. Butts, 388 U.S. 130, 159, 87 S.Ct. 1975, 1993, 18 L.Ed.2d 1094 (1967) (plurality opinion of Harlan, J.), the Court finds that the standard for outrageous conduct — "willfully, maliciously or so carelessly as to indicate wanton disregard of the rights of the party injured" — provides sufficient notice to a defendant of the consequences that such a wrongful act may have in a suit brought by plaintiffs for damages. See N.T. 29.72-29.75 (Court's charge on punitive damages). Defendants are justifiably expected to be aware that, by placing a product in the stream of commerce, they are potentially liable for compensatory damages caused by that product to a potential user or consumer. Similarly, defendants can be expected to be aware that, if their conduct is outrageous because it is willful, malicious or a wanton disregard of the rights of the party injured, then punitive damages may be awarded on the basis of the deficiencies of their product in light of their "outrageous" conduct. Accord, Sturm, Ruger & Co., Inc. v. Day, Alaska, 594 P.2d 38, 46 (1979); Egan v. Mutual of Omaha Ins. Co., 63 Cal.App.3d 659, 133 Cal.Rptr. 899, 914-915 (1976). Finally, the standard for punitive damages is no more vague than the standards for preponderance of the evidence or proximate cause, or any number of court-defined standards that are applied frequently by judges and juries in civil or criminal cases.
Fourth, Johns-Manville contends that the double jeopardy provision prohibits successive awards of punitive damages as punishment for "the same act." Johns-Manville has not cited any case law in support of the proposition that the fifth amendment double jeopardy provision protects a defendant who injures a plaintiff through its product. Nevertheless, the Court holds that, as a matter of law, since a
Finally, Johns-Manville contends that punitive damages cannot be assessed in a products liability action because the basis for liability is the defectiveness of the product which is incompatible and inconsistent with the basis for punitive damages which is the defendant's conduct. The Court finds that there is no theoretical problem in a jury finding that a defendant is liable because of the defectiveness of a product and then judging the conduct of the defendant in order to determine whether punitive damages should be awarded on the basis of "outrageous conduct" in light of the injuries sustained by the plaintiff. Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 144-147 (3d Cir. 1973); Thomas v. American Cystoscope Makers, Inc., 414 F.Supp. 255, 263-267 (E.D.Pa.1976). Punitive damage awards provide a useful function in punishing the wrongdoer and deterring product suppliers from making economic decisions to not remedy the defects of the product. Sturm, Ruger & Co., Inc. v. Day, Alaska, 594 P.2d 38, 47 (1979). By dispensing with the need to prove fault for purposes of establishing liability under section 402A, the law of strict liability does not preclude consideration of "aggravated fault," if the plaintiffs can properly meet their burden of demonstrating sufficient evidence of the defendant's outrageous conduct. In the present case, as previously mentioned, plaintiffs produced sufficient evidence to show that the asbestos fiber was defective in the absence of an adequate warning and that Johns-Manville's conduct in failing to affix such a warning amounted to a reckless indifference of the health and safety of plaintiffs in light of the knowledge held by its corporate officials. For these reasons, Johns-Manville's motion for judgment n. o. v. will be denied.
V. Motion for Judgment N.O.V. by Celotex Corporation
(A) Intentional Tort
Celotex argues that there is insufficient evidence from which a jury could reasonably find that its predecessor-in-interest, Philip Carey, had committed an intentional tort. In Pennsylvania, the liability of an employer to an employee for work-related injuries is limited solely to the provisions and remedies provided by the Pennsylvania Workmen's Compensation Act, Pa.Stat.Ann. tit. 77, §§ 1-1066; and Pennsylvania Occupational Disease Act, Pa.Stat.Ann. tit. 77, §§ 1201-1603. See generally Hyzy v. Pittsburgh Coal Co., 384 Pa. 316, 121 A.2d 85 (1956), Hartwell v. Allied Chemical Corp., 457 F.2d 1335 (3d Cir. 1972). However, an employee may recover against an employer for an intentional tort if the employer deliberately acts to injure his employee. In Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963), the Pennsylvania Superior Court held that an employee can recover for injuries sustained by reason of a physical assault by the employer upon the employee. The court reasoned that the Workmen's Compensation Act "provide[s] for recovery of an injury arising out of an accident in the course of the employment. Nothing is said in any of them about deliberate acts or assaults by the employer." Id. at 137, 191 A.2d at 696 (emphasis added). However, in Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646
391 F.Supp. at 1268 (quoting 2 Larson, The Law of Workmen's Compensation, § 68.13 (1975)). See also Keating v. Shell Chemical Co., 610 F.2d 328, 332 (5th Cir. 1980); Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D. Maine 1981).
In the present case, Dr. Thomas F. Mancuso testified that he was specifically hired by Philip Carey in October, 1962 to study the problems of asbestos exposure at the Philip Carey facilities and to propose an occupational health program in order to decrease the number of worker asbestos exposure claims. N.T. 18.100-18.102. Dr. Mancuso had been the director of the Division of Industrial Hygiene for the State of Ohio from 1945 to 1962. As part of his work, Dr. Mancuso studied the death certificates of workers from Philip Carey's Plymouth Meeting plant from the time period of 1953 to 1962 and determined that there was a high degree of asbestos-related diseases and an occupational cancer problem in workers formerly employed at the Plymouth Meeting plant. N.T. 18.112-18.114. Dr. Mancuso discussed these problems with the president of Philip Carey, John Humphrey, and Carl Krieg, the employee relations manager, at a conference in July, 1963. N.T. 18.116-18.117. At that time, Dr. Mancuso specifically advised these high ranking corporate officials that there was an occupational cancer risk, that the former Philip Carey workers, which would have included the plaintiffs here, should be informed that they had a risk involving occupational cancer, and that they should be placed under medical surveillance for early detection of asbestos related conditions. N.T. 18.117. During the course of this meeting, Humphrey and Krieg disclosed that they were knowledgeable of the worker compensation claims that had been filed for asbestosis and lung cancer. N.T. 18.118. On September 23, 1963, Dr. Mancuso submitted his report to Philip Carey which recommended that the workers be warned that they were at risk because of the dangers of exposure to asbestos, that necessary protective measures be taken, and that these workers be placed under medical surveillance for early detection of asbestos-related conditions. N.T. 18.122-18.126. Moreover, Dr. Mancuso recommended a special study of the Plymouth Meeting workers because of important circumstantial evidence of the mortality pattern connected with the workers' exposure to asbestos at that plant. N.T. 18.123-18.124. After submitting his report, Dr. Mancuso's employment with Philip Carey was terminated. Celotex argues that there is insufficient evidence from which a reasonable jury could find that Philip Carey's
Finally, this case is strikingly similar to that of Sumski v. Sauquoit Silk Company, Inc., 66 Lackawana Jurist 118 (1965), in which an employer was held liable for an intentional tort outside of the Pennsylvania Workmen's Compensation Act. In Sumski, the employer knew that one of the employees had become severally ill due to the repeated inhalation of a dry cleaning solvent, carbon tetrachloride. Nevertheless, the employer fraudulently substituted the former solvent in unmarked bottles unbenownst to the employee because the new solvent, chlorothene, had not been as satisfactory a cleaning agent as the tetrachloride. The court held that the plaintiff employee could recover for her injuries against the employer because the employer, in substituting the tetrachloride in the unmarked bottles for that of chlorothene, had deliberately acted to harm the plaintiff. Similarly, in the present case, the highest officials of Philip Carey, in the face of the repeated urgings and recommendations of Dr. Mancuso that its employees be warned of the dangers of asbestos exposure, deliberately acted to aggravate each plaintiff's asbestos-related condition by their failure to follow Dr. Mancuso's advice. See also
(B) Proximate Cause
Celotex argues that plaintiffs have failed to produce sufficient evidence to show that Philip Carey's failure to warn was a proximate cause of the asbestos-related conditions of claimants Arnold Foulke, Louis Romano, Edward Hojnacki, Pat Romano, Jerry Henley, Nathaniel Satterwhite and Ronald Lenzi. At trial, Drs. Schepers and Atkinson testified at length about the necessity concerning former asbestos workers for (1) early detection, (2) medical surveillance, (3) avoidance of future exposure to any dust, asbestos or any other suspected carcinogen, (4) the prompt cessation of cigarette smoking, and (5) the avoidance of strenuous work. Moreover, Dr. Mancuso testified that the early detection of each plaintiff's asbestos-related condition would have helped reduce the extent of harm ultimately experienced by each of these plaintiffs. N.T. 18.133-18.135. For these reasons, there is sufficient evidence from which a jury could find that an intentional failure to warn by Philip Carey which Philip Carey knew or believed would be substantially certain to result in harm to plaintiffs was a proximate cause or substantial contributing factor to plaintiffs' individual ultimate asbestos-related conditions.
(C) Punitive Damages
Celotex contends that there is insufficient evidence from which the jury could impose punitive damages on Celotex as the successor-in-interest to Philip Carey. The evidence clearly shows that Philip Carey took absolutely no action to contact any of its former employees in the face of Dr. Mancuso's recommendations in September, 1963, that the company advise its employees of the risks that they contracted an asbestos-related condition. N.T. 23.82-23.85. The pertinent test is whether the conduct of Philip Carey was "outrageous" in that it exhibited a reckless indifference to the rights of plaintiffs. Restatement (Second) of Torts, § 908(2). The Court finds that there is sufficient evidence from which the jury could find that Philip Carey engaged in outrageous conduct. For these reasons, the Court finds that there is sufficient evidence for an award of punitive damages against Celotex because Philip Carey failed to warn the plaintiffs of the risks that each had an asbestos-related condition when Philip Carey knew or believed that a failure to warn of this risk would be substantially certain to cause or aggravate each plaintiff's injuries.
VI. Motions for New Trial — Supplier Defendants
Motions for a new trial may be granted where "the verdict is against the weight of the evidence, or that for other reasons the trial was not fair." 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2805, at 37 (1973). A motion for a new trial on the ground that the verdict was against the weight of the evidence is addressed to the sound discretion of the trial court. Lind v. Schenley Industries, Inc., 278 F.2d 79, 88-89 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960). In the present case, the Court has reviewed all of the evidence presented with respect to the liability of each supplier defendant and is satisfied that the jury's verdict was not contrary to the weight of the evidence presented at trial. Second, the jury's verdict which found that Johns-Manville was additionally liable for punitive damages because of "outrageous conduct" was not contrary to the weight of the evidence presented at trial. Finally, the Court will review each of the contentions raised by the supplier defendants which form the basis for their motions for a new trial.
(A) Supplier Defendants Generally
(1) Exclusion of Evidence of Knowledge of Philip Carey
Supplier defendants contend that the Court erred in prohibiting the defendant, Asbestos Corp., from offering evidence of the knowledge of Philip Carey officials at the Lockland, Ohio headquarters. Supplier defendants' offer of proof consisted of excerpts from the depositions of Carl Krieg, Safety Supervisor for Philip Carey; Louis Pechstein, Assistant Secretary for Philip Carey; John Cantlon, Actuarial Consultant to Philip Carey; and Michael Muldoon, Officer of Ohio. See N.T. 22.3-22.39.
First, supplier defendants contend that this evidence would have established that Philip Carey's pre-1962 conduct was extraordinary and, therefore, a superseding cause of plaintiffs' asbestos-related conditions. The Court reviewed this evidence and noted that even with the offer of proof testimony the defendants had still failed to show the necessary level and proof for a superseding cause defense — i.e., highly extraordinary or unforeseeable conduct by Philip Carey. See N.T. 22.10-22.16; 22.19. Knowledge of the hazards of asbestos exposure by Philip Carey officials was not probative of highly extraordinary or unforeseeable conduct simply because all of the members of the asbestos industry, including the defendant, had knowledge of the hazards of asbestos exposure during the 1950's. See N.T. 21.74-21.77; 21.224-21.225; 21.228-21.233. Nevertheless, evidence of the conditions at Philip Carey's Plymouth Meeting plant had been presented earlier to the jury by the plaintiffs.
Secondly, supplier defendants contend that this evidence was improperly excluded on the issue of proximate causation. The Court excluded this evidence because knowledge or motive was not relevant to the issue of the proximate cause of plaintiffs' injuries. The Court stated at trial:
N.T. 22.34-22.35. The applicable rule of law is that a plaintiff must show that the defendant's conduct was a proximate cause of an injury — i.e., a "substantial contributing factor" in bringing about the harm in order to recover. Whitner v. VonHintz, 437 Pa. 448, 263 A.2d 889, 893-894 (1970); Restatement (Second) of Torts, § 431 (1965). In the present case, the conduct of Philip Carey was relevant on the issue of proximate cause; however, the motive or reasons for that conduct was completely irrelevant as to what caused plaintiffs' injuries. For these reasons, the Court did not err in excluding this evidence.
(2) Sole Proximate Cause
Supplier defendants contend that the Court erred in failing to provide the following instruction to the jury:
Requested Instruction of Supplier Defendants Docketed as 888. The Court extensively charged the jury on the issue of proximate cause both with respect to the products liability and negligence claims. N.T. 29.54-29.57; 29.63-29.64. Supplier defendants' proposed point for charge was, at most, another form of charging the jury
(3) Severance of Actions
Supplier defendants contend that the Court erred in consolidating all fifteen claims for trial. Rule 42(a) of the Federal Rules of Civil Procedure provides that:
In this case, all fifteen claims arose out of the exposure of a group of employees working at the same plant over substantially the same period of time to asbestos fiber and dust allegedly supplied to the plant by supplier defendants. All fifteen claims involved common as well as individual questions of law and fact, with the common issues predominating. See Pretrial Conference, February 7, 1981, N.T. 11.17. Consolidation of all fifteen claims resulted in considerable judicial economy, as well as the avoidance of unnecessary litigation costs and attendant delay. Supplier defendants have not shown any demonstrable prejudice resulting from the consolidation of all fifteen claims. Special interrogatories were submitted by the Court with respect to each individual plaintiff to be answered with respect to each individual defendant and were so answered by the jury. Moreover, individual summary sheets were provided to the jury for each individual plaintiff which listed the plaintiff's name, dates of employment, and diagnosis by plaintiff's medical expert, Dr. Atkinson. N.T. 27.122. Photographs of the individual plaintiffs were available upon the request of the jury and plaintiffs were present throughout most of the trial. In examining the verdict, it is readily apparent that each plaintiff's case was considered separately and that the liability of each defendant was individually and fully deliberated by the jury. Finally, individual damage hearings were held following the jury's verdict on liability because individual issues of law and fact did predominate in those proceedings. For these reasons, the Court did not abuse its discretion in consolidating all fifteen claims for trial on the liability and damages issues.
(1) Admission of Plaintiffs' Exhibit No. 191
Plaintiffs' Exhibit No. 191 is a seven-year summary of NAAC's sales activities for the years 1954 through 1960. NAAC argues that the document was never properly authenticated for receipt into evidence. Nevertheless, Max Meyer, a former director of NAAC, identified the document as a worksheet prepared either by Robert Cryor himself, or under Mr. Cryor's own direction, during the early 1960's. N.T. 24.106-24.107. Mr. Cryor was the past president of NAAC. N.T. 24.98. This authentication testimony was sufficient to allow the document to be admitted as either a business record or as an admission by NAAC.
(2) Motion for Mistrial
NAAC contends that the Court erred in refusing to grant a mistrial because of plaintiffs' counsel's question on redirect examination of Max Meyer concerning whether mesothelioma was the cause of the death of Robert Cryor, the past president of NAAC. The incident occurred on the twenty-fourth day of trial. The Court had sustained NAAC's objection on the ground that the question was irrelevant and denied a motion for mistrial following the luncheon recess. N.T. 24.111-24.113. NAAC argues that the question was clearly prejudicial to NAAC. Nevertheless, while the Court does not condone this type of questioning, in evaluating all of the circumstances at trial, the Court does not find that the tenor of the question was of the type that unfairly prejudiced NAAC to such a degree that would warrant a completely new trial. The Court sustained the objection and no further mention was made by plaintiffs' counsel of the cause of Mr. Cryor's death during the two month trial. For these reasons, NAAC's motion for new trial will be denied.
(1) Successorship Issue — Pleadings
First, Carey-Canadian contends that the Court erred in allowing the plaintiffs to present evidence that it was the "successor" to Quebec Asbestos Corporation, Ltd. ("QAC") because the issue had never been raised by plaintiffs in their pleadings, pre-trial memorandum or any amendments to these pre-trial submissions. Carey-Canadian specifically contends that QAC was never named as a party in this litigation in either plaintiffs' original or amended complaint and that plaintiffs never alleged that Carey-Canadian was "the successor" to QAC in its pleadings. Moreover, Carey-Canadian cites the absence of any specific allegation by plaintiffs in their pre-trial memorandum that Carey-Canadian was "the successor" to QAC. For these reasons, Carey-Canadian asserts that the plaintiffs should have been precluded from asserting the "successorship" issue at trial because it was untimely and highly prejudicial. A trial judge has broad discretion to determine whether to admit evidence supportive of a theory not disclosed at pretrial. Price v. Inland Oil Co., 646 F.2d 90, 94-96 (3d Cir. 1981); Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972). In this case, the Court holds that Philip Carey had adequate notice of the "successorship" theory and that Carey-Canadian was not unfairly prejudiced by the admission of such evidence at trial. First, plaintiffs' complaint satisfied the prerequisites of Fed.R.Civ.P. 8(a) that "a short and plain statement" of the nature and basis of each plaintiff's claim be asserted. Plaintiffs' complaint stated that each plaintiff sought damages because of each claimant's exposure to asbestos fiber furnished by Carey-Canadian and other alleged supplier defendants to the Plymouth Meeting plant from the period 1926-1962. Second, Carey-Canadian had notice of this issue because it provided answers to plaintiffs' interrogatories in July, 1979, almost two years before trial, that it was a successor to the QAC. Moreover, Carey-Canadian never propounded interrogatories or requests for admissions to determine whether plaintiffs would seek to hold Carey-Canadian liable as a successor to the QAC. Finally, the extraordinary length of the trial allowed sufficient opportunity for Carey-Canadian to present a formidable defense to the "successorship" issue and, therefore, no demonstrable prejudice to Carey-Canadian appears on the record. For these reasons, a new trial will not be granted on this ground.
(2) Successorship Issue — Court's Charge
Next, Carey-Canadian contends that the Court erred in its charge to the jury on the issue of successor liability. See N.T. 29.31-29.33. Carey-Canadian contends that the Court's charge was "one-sided" and that it improperly commented on the evidence. See Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1137 (3d Cir. 1972). In reviewing the charge on the "successorship" issue, the Court finds that it did not express any views respecting the probative value or
(3) Successorship Issue — Special Interrogatories
Carey-Canadian contends that the Court erred in failing to frame a special interrogatory to the jury which would ask the jury to determine (1) whether QAC supplied asbestos fiber to the Plymouth Meeting plant to which plaintiffs were exposed, and (2) whether Carey-Canadian was the successor to QAC. Pursuant to Fed.R. Civ.P. 49, a trial judge has wide discretion in determining the form of the special verdict and written interrogatories submitted to the jury. Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1139 (3d Cir. 1972). The only limitations imposed upon the Court's discretion is that the interrogatories be adequate to determine the factual issues essential to the judgment in the case and that the interrogatories be fashioned in such a manner that valid theories of recovery or defenses are not withdrawn from consideration by the jury in the case. Kornicki v. Calmar Steamship Corp., supra. In the present case, the Court submitted a special interrogatory to the jury with respect to each claimant which asked whether the plaintiff was exposed at his place of employment to asbestos fiber supplied by Carey-Canadian Mines. The Court specifically instructed the jury that they could find Carey-Canadian liable if they supplied asbestos fiber to which plaintiffs were exposed after they came into existence in 1955 or if the jury found that plaintiffs were exposed to fiber supplied by QAC prior to the formation of Carey-Canadian if Carey-Canadian was found to be a successor to QAC. N.T. 29.30-29.34. The Court's charge was sufficiently clear for the jury to determine whether Carey-Canadian, either as Carey-Canadian or as the successor to QAC, had supplied asbestos fiber to which each plaintiff had been exposed. For these reasons, the Court did not err in its framing of the special interrogatories.
(4) Limitation of Argument
Finally, Carey-Canadian argues that the Court erred in limiting its argument to thirty minutes. A trial court has wide discretion in allotting the time and extent of counsel's summation. Wagner v. Pennsylvania R. Co., 282 F.2d 392, 396 (3d Cir. 1960). In this case, counsel for each defendant was permitted thirty minutes for summation; however, the Court was willing to allow forty-five minutes if necessary. N.T. 26.70-26.71. There were five supplier defendants in addition to Celotex. Plaintiffs had been allotted three hours for their summation. N.T. 26.72. Under all of the circumstances, the Court's allotment of time was fair and reasonable and defendants have not shown any prejudice resulting from the time limitations imposed upon their arguments.
(1) Admission of Dr. Kenneth Smith's Deposition
Johns-Manville contends that the court erred in allowing the admission of the former deposition testimony of Dr. Kenneth Smith. Johns-Manville argues that there was an absence of the requisite identity of parties or substantial similarity of issues or motives for cross-examination between this action and the two cases for which Dr. Smith was deposed. The two depositions were taken in DeRocco v. Forty-Eight Insulations, Inc., No. 7407-2880, 2881 (Allegheny C.C.P.), on January 13, 1976, in Pittsburgh,
Fed.R.Evid. 804(b)(1) provides:
The Court finds that Johns-Manville had a sufficient opportunity to cross-examine Dr. Kenneth Smith and a similar motive to develop the testimony by direct, cross, or redirect examination because of the substantial similarity of the issues in the cases when the depositions were taken and the instant case. First, Dr. Kenneth Smith was a high ranking official of Johns-Manville, which was a defendant in both cases. Second, both cases were suits based on negligence, strict liability and breach of warranty against Johns-Manville because of plaintiffs' exposure to asbestos products manufactured by Johns-Manville. No reasonable distinction can be drawn from the fact that the plaintiffs in the former two cases were insulation workers exposed to asbestos-containing insulation products from the instant case where plaintiffs were plant workers exposed to raw asbestos fiber. In each case, the asbestos fiber and dust was the cause of plaintiffs' asbestos-related conditions. Third, both depositions were taken by plaintiffs for use against Johns-Manville. Fourth, there is a sufficient identity of issues to allow admission of these former depositions because the depositions were taken for purposes of showing the knowledge of Johns-Manville officials about the dangers of asbestos. The same issue was readily present in the former two cases and, thus, Johns-Manville had a motive to protect itself through cross-examination. Fifth, any contention that they were taken for discovery purposes only is without merit because such deposition testimony could still be used at trial. Finally, no technical objections to the admission of the depositions can be sustained because the depositions were taken and recorded in substantial compliance with the applicable rules for the admission of depositions necessary to assure that the testimony contained in those depositions was that which was actually offered by the witness during the taking of the depositions. With respect to Dr. Smith's deposition in Pittsburgh, Dr. Smith had submitted a signed correction sheet after he had reviewed the deposition which noted his corrections and the approval of his deposition. N.T. 5.245.25. With respect to the deposition taken in Ontario, Canada, any submittal of the deposition to the witness for reading and signature was waived by counsel for failure to make such a timely request to the court reporter who recorded the deposition testimony. For these reasons, the Court did not err in the admission of the former deposition testimony of Dr. Smith.
(2) Admission of Exhibits to Smith Deposition
Johns-Manville contends that the Court erred in the admission of certain Johns-Manville memoranda which discuss the impact of Dr. Smith's study of asbestos hazards at Johns-Manville because they lack relevance to this case. This argument is without merit because these documents were relevant for purposes of demonstrating knowledge of the dangers of asbestos exposure by Johns-Manville corporate officials which was a key in the jury's assessment
(3) Admission of James Hutchinson Deposition
Johns-Manville contends that the Court erred in the admission of the deposition testimony of James Hutchinson with respect to the development of its asbestos fiber bags after the year 1962 because the plaintiffs were no longer exposed to such asbestos fiber following the closing of the Plymouth Meeting plant. First, no error was committed because the evidence was probative on the issue of whether the asbestos bags were defective because they allowed asbestos fibers to sift out of the bags and contaminate the entire plant. Second, no unfair prejudice resulted from the admission of this testimony because the Court did not allow the issue of the defectiveness of the asbestos bags to go to the jury because of plaintiffs' failure to introduce sufficient evidence on the defectiveness of the asbestos bag containers. For these reasons, the Court did not err in the admission of this testimony.
(4) Punitive Damages
Johns-Manville contends that the trial court erred in allowing the jury to award damages against all of the Johns-Manville defendants instead of just Canadian Johns-Manville and Johns-Manville Sales Corporation. This contention is totally without merit since Johns-Manville Corporation is the parent corporation for all of the Johns-Manville subsidiary corporations and Johns-Manville Corporation exercised its decision-making authority with respect to all of these subsidiaries which resulted in the damages due to the plaintiffs. N.T. 35.4-35.6. All of the Johns-Manville subsidiary corporations, which mined and sold asbestos fiber, were wholly-owned subsidiaries of the parent corporation, Johns-Manville Corporation. Similarly, the officers and members of the board of directors of the various subsidiary corporations were identical to that of the officers and board of directors of the parent corporation. N.T. 20.69-20.77; 33.33-33.37; N.T. 35.435.6. For these reasons, damages could be awarded against all of the Johns-Manville defendants identified by the Court to the jury as the Johns-Manville defendants.
(5) Admission of Johns-Manville Financial Statement
Johns-Manville contends that the Court erred in allowing punitive damages to be assessed on the basis of the consolidated Johns-Manville financial statement. The Court did not err because Johns-Manville Corporation, as the parent corporation, made the controlling decisions which resulted in plaintiffs' injuries. N.T. 35.6. Moreover, evidence of a defendant's financial position is readily admissible for the jury's determination of a punitive damages award. Arye v. Dickstein, 337 Pa. 471, 12 A.2d 19 (1940); Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944); Restatement (Second) of Torts, § 908(2) and comment e. For these reasons, the Court did not err in the submission of Johns-Manville's consolidated balance sheet for consideration by the jury on the punitive damages issue.
(6) Offer of Proof of Impact of Punitive Damage Awards
Johns-Manville contends that the Court erred because it did not permit Johns-Manville to present testimony on the impact of asbestos-related personal injury lawsuits filed against them for purposes of the punitive damage awards. Comment e to section 908 of the Restatement (Second) of Torts provides:
(7) Submission of Financial Statement During Damages Stage
Next, Johns-Manville contends that the Court erred in allowing the jury to consider the financial statements when it considered the compensatory damage issue. In effect, Johns-Manville argues that the issue of punitive damages should have been severed at the damages stage. The Court instructed the jury that the Johns-Manville financial statements were only relevant to the issue of an award of punitive damages. Moreover, the Court instructed the jury that the plaintiff had the burden of proof with respect to both compensatory and punitive damages. A review of the evidence presented at the damages stage and a comparison with the amount of the verdicts rendered readily reveals that the jury did not make an improper misuse of the financial statements submitted which were only submitted for the purpose of assessing punitive damages. For these reasons, the Court did not err in severing the punitive damages issue.
(8) "Most Innocent" Rule
Johns-Manville contends that the Court erred in failing to instruct the jury that punitive damages are to be assessed according to the acts of the most innocent defendants. This rule was first announced by the Pennsylvania Supreme Court in McCarthy v. DeArmit, 99 Pa. 63, 72 (1881). The rule is best summarized as follows:
Randall v. Fenton Storage Co., 121 Pa.Super. 62, 65, 182 A. 767 (1936) (emphasis added). The McCarthy rule was premised on the old common law doctrine that in a suit against joint tortfeasors the plaintiff was entitled to only one verdict and one judgment against all the defendants found to be liable to plaintiff. See MacHolme v. Cochenour, 109 Pa.Super. 563, 167 A. 647 (1933). The "most innocent" rule served to
(9) Comments of Plaintiffs' Attorneys
Johns-Manville contends that certain comments of plaintiffs' attorneys during closing summations were improper and overly prejudicial so as to warrant a new trial. The conduct of counsel is within the sound control and discretion of the trial judge. Arkwright Mutual Ins. Co. v. Philadelphia Electric Co., 427 F.2d 1273, 1277 (3d Cir. 1970). It is a matter for the trial judge's discretion to weigh the alleged prejudicial remarks and to make a determination as to whether they are so prejudicial as to affect the fairness of the trial. Corbett v. Borandi, 375 F.2d 265, 270 (3d Cir. 1967). In this case, the Court has considered all the circumstances and the nature and extent of the objected to remarks. The Court finds that, under all the circumstances, a completely new trial is not warranted in this case.
VII. Motion for New Trial — Celotex
First, the Court has reviewed all of the evidence presented with respect to Philip Carey, as the predecessor to Celotex, and is satisfied that the jury's verdict with respect to liability was not contrary to the weight of the evidence presented at trial. Moreover, a new trial is not warranted on the punitive damages issue with respect to Celotex because the jury's verdict awarding punitive damages was not contrary to the weight of evidence presented at trial. Finally, the Court will review each of the contentions of error raised by Celotex which form the basis for its motion for a new trial.
(1) Interrogatories to the Jury
Celotex contends that the Court erred in failing to submit a special interrogatory to the jury which would have required the jury to specifically answer whether or not Philip Carey, in failing to follow the advice of Dr. Mancuso, knew that there was a "substantial certainty" that its conduct was going to result in harm to plaintiffs. A trial judge has wide discretion in determining the form of special interrogatories to be submitted to the jury. Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1139 (3d Cir. 1972). In the present case, the Court submitted the following interrogatory on the issue of the liability of Philip Carey for an intentional tort:
Celotex argues that the Court erred in failing to submit a second interrogatory or
(2) Punitive Damages — Multiple Torts
Celotex contends that the Court erred in allowing the jury to impose multiple punitive damage awards for the same conduct of Philip Carey. Celotex contends that an initial award of punitive damages prohibits successive punitive damage awards because the specific conduct was punished by the first award to the first plaintiff. Celotex's argument must be rejected for the same reasons as that which the Court posited with respect to Johns-Manville. Philip Carey's conduct is separate and distinct with respect to each plaintiff in failing to warn of the risks that each individual plaintiff contracted an asbestos-related condition. The twin goals of punishment and deterrence are served by separate awards of punitive damages because of a jury's finding that the tortfeasor engaged in "outrageous conduct" with respect to each individual plaintiff.
(3) Punitive Damages — Consideration of Past Awards
Next, Celotex contends that the Court erred in refusing to allow counsel for Celotex to argue during summation that the jury could consider that they had already awarded punitive damages in the first plaintiff's case and thereafter and that this factor should be considered by the jury with respect to any future punitive damage awards. Comment e to the Restatement (Second) of Torts, § 908 explicitly provides:
(Emphasis added). The Court stated its agreement with this principle earlier during the damages stage. See N.T. 34.25-34.27. The specific colloquy between counsel and the Court on this point was as follows:
N.T. 40.24. The context of this colloquy was understood by the Court to be that of the argument that successive punitive damage awards were prohibited as a matter of law. See N.T. 40.23-40.25 (context of argument). Celotex's counsel's offer was vague and ambiguous and at no time cited the pertinent authority of comment e to § 908 of the Restatement (Second) of Torts on this point. Celotex never asked for reconsideration by submitting a brief or specifying the exact contours of this argument by citing the pertinent authority for the argument. Because of this total lack of clarity in counsel's presentation of the objection at the time of trial, any objection by Celotex was never properly preserved. Moreover, even if any error is to be found, it is harmless error, under all of the circumstances of the case, because the jury was well aware of their prior punitive damage awards without it being argued to the jury. This jury was not a virgin jury who would not have known of such prior punitive damage awards in this case. The first punitive damages ever assessed against Celotex (or Johns-Manville) with respect to these issues was that of this very case. The jury was well aware of their own punitive damage finding rendered days before. The amount of their later punitive damage awards reflect this awareness. Thus, nothing could have been gained by further argument to the jury on this point. For these reasons, the objection was never properly preserved and any error, if so committed, was harmless to defendants under all the facts and circumstances presented at trial.
(5) Punitive Damages — Successor Corporation
Celotex contends that the Court erred in permitting the jury to consider and award punitive damages against Celotex based upon the conduct of its predecessor-in-interest, Philip Carey. This argument is without merit since a successor corporation is liable for the torts arising out of the conduct of its predecessor corporation including that of punitive damages because the successor is essentially identical to that of the predecessor corporation. Moe v. Transamerica Title Insurance Co., 21 Cal.App.3d 289, 98 Cal.Rptr. 547, 557 (1971); see generally 15 Fletcher, Cyclopedia of Corporations, ¶ 7123.
(6) Consideration of Compensatory and Punitive Damages Simultaneously
Celotex contends that the Court erred in permitting the jury to consider and determine the issues of compensatory and punitive damages in one proceeding. This contention is without merit since the Court found that it was in the best interests of all parties within the relevant concerns of judicial economy and expediency to try all the damage issues with respect to each plaintiff during a single damages stage. No unfair prejudice resulted to defendants and a new trial is, therefore, not warranted on this ground.
(7) Evidentiary Rulings
Finally, Celotex contends that the Court made certain errors in its evidentiary rulings. First, Celotex contends that the Court erred in permitting counsel for plaintiffs to cross-examine Louis Pechstein regarding a letter that Mr. Pechstein had written to John Cantlon on November 4, 1969. See Plaintiffs' Exhibit No. 246 (397); N.T. 25.159-25.162. This letter was offered on the issue of the credibility of the witness. Fed.R.Evid. 608(b). The letter requested that a short, evasive answer be
Second, Celotex contends that the Court erred in permitting plaintiffs' counsel to cross-examine John Cantlon concerning correspondence he had with Dr. Mancuso and Mr. Louis Pechstein subsequent to the termination of Dr. Mancuso's contractual relationship with Philip Carey in October, 1963, because it was beyond the scope of the direct examination. See N.T. 25.84-25.105. Rule 611(b) of the Federal Rules of Evidence provides:
These letters, dated November, 1963 through December, 1964, exhibited Dr. Mancuso's continued commitment to warn Philip Carey of the dangers of asbestos exposure and to urge Philip Carey to warn its employees of this danger. The Court did not abuse its discretion in allowing cross-examination on this material which was relevant to the factual question whether Philip Carey committed an intentional tort and which was probative of the truthfulness of Mr. Cantlon's testimony whether Dr. Mancuso expressed a sincere interest in warning the former employees of the Plymouth Meeting facility of this danger.
VIII. Motion for Judgment N. O. V. and/or New Trial — Plaintiffs
(A) George Neal — Statute of Limitations
The Estate of George Neal contends that defendants did not produce sufficient evidence to support the jury's finding that the claim of George Neal was barred by the Pennsylvania statute of limitations. Evidence was presented at trial that George Neal was a former personnel manager of the Plymouth Meeting plant and that he was responsible for the health and safety of the plant's employees. Reasonable inferences can be drawn from the evidence that Mr. Neal knew of the dangers of asbestos exposure by virtue of his management position and his access to information about asbestos in that position. See, e.g., N.T. 4.54-4.56; 5.39-5.41; 5.45-5.46. Evidence was presented that Mr. Neal had contracted his lung condition prior to November 28, 1976. For these reasons, there is sufficient evidence present in the record from which the jury could find that George Neal knew or had reason to know prior to November 28, 1976, that he had an asbestos-related condition caused by his exposure to asbestos fiber at the Plymouth Meeting plant. Plaintiff's motion for judgment n. o. v. and/or new trial will be denied.
(B) Bell Asbestos Mines, Limited
Plaintiffs contend that a new trial should be granted against Bell Asbestos because the weight of the evidence established that Bell Asbestos supplied fiber to Philip Carey's Plymouth Meeting plant to which each plaintiff was exposed. Plaintiffs argue that they showed through circumstantial evidence that Bell's fiber was present at the plant by reason of the testimony that asbestos fiber was supplied in bags with a bell shaped logo on the bag and the testimony that established the existence and likelihood that such fiber was obtained from the nearby Keasby-Mattison plant. Nevertheless, Bell Asbestos presented sufficient evidence through the testimony of
(C) Apportionment of Damages Between Celotex and Supplier Defendants
Plaintiffs argue that the Court erred in permitting the jury to apportion damages between Celotex and the supplier defendants. Plaintiffs contend that since Celotex was not jointly liable and since the jury found that the conduct of Celotex was distinct from that of the supplier defendants, there was no reasonable basis on which damages could be apportioned between Celotex and the supplier defendants. Plaintiffs argue that independent damages caused by Celotex should have been awarded to plaintiffs. This argument is without merit by reason of the fact that the apportionment of damages between Celotex and the supplier defendants was both factually and legally appropriate under all of the circumstances of this case. Restatement (Second) of Torts, §§ 434(1)(b) and (2)(b). In Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979), the Pennsylvania Superior Court affirmed a lower court order which apportioned plaintiff's ultimate damages between a tortfeasor who originally caused the injury and a physician who subsequently aggravated or caused a new injury. The court held that "where identifiable acts of negligence of the original wrongdoer and the negligent physician are separate from each other in nature and time, the damages are accordingly apportionable." Id. at 180, 397 A.2d at 806. The present case is almost identical to that of the facts in Lasprogata. In the present case, the supplier defendants, who supplied asbestos fiber without warning to the Plymouth Meeting plant to which the plaintiffs were ultimately exposed, were found by the jury to be liable as joint tortfeasors because they originally caused plaintiffs' injuries. Philip Carey was found to have aggravated plaintiffs' injuries by intentionally failing to warn the plaintiffs that they were at risk because they might have acquired an asbestos-related condition originally caused by exposure to asbestos fiber supplied by the supplier defendants. For these reasons, the Court did not err in apportioning plaintiffs' compensatory and consortium damages between the original tortfeasors and Philip Carey, the latter which aggravated plaintiffs' injuries by intentionally failing to warn the plaintiffs of their asbestos-related conditions. A new trial against Celotex will not be granted on this ground.
(D) In Camera Examination of Two Jurors
Plaintiffs contend that the Court erred in its selection of a procedure for meeting in camera with two jurors, each on separate occasions, who, without any encouragement by the Court, requested to speak directly with the Court. Plaintiffs argue that a mistrial should have been declared with respect to the damages trials.
Following a nine to one verdict in the Salvatore Pascale damage trial, which was accepted both by the plaintiffs and defendants and which was the sixth damages trial held, the Court received the following note from one of the jurors:
I request a meeting with you, one on one,
The Court immediately advised the parties of the contents of this note but did not reveal the name of the juror. N.T. 47.3-47.4. Plaintiffs did not take exception to the Court speaking with the juror in camera; however, plaintiffs requested that they be provided with the in camera transcript immediately after the in camera meeting. N.T. 47.10. The Court advised the plaintiffs that it would take under advisement whether or not to release the in camera transcript for inspection until after
Id., at 8-9. The Court instructed the juror to continue to discuss all the viewpoints offered in the juryroom and to seek a verdict upon which all the jurors could agree which they would deem proper and just under all the facts of the case and the law as instructed by the Court. Thereafter, the juror expressed his willingness to continue as a juror and, also, his perception that each of the verdicts previously rendered except that of the nine to one verdict in the Salvatore Pascale case had been fair and reasonable under all the evidence presented in each case. Id., at 24-25. Immediately after the in camera meeting, the Court advised all counsel that the Court was convinced that the juror fully understood his duties as a juror, that he was qualified to continue to serve as a juror, and that his ability to serve as a juror had not in any way been impaired. N.T. 47.16. Later that day, as soon as a portion of the transcript could be transcribed by the court reporter, the court revealed the substance of the in camera meeting and read the pertinent excerpts from the transcript to all counsel. N.T. 47.99-47.100.
The next day, plaintiffs submitted proposed questions to be asked of the jury panel which would inquire into the jury's deliberative process in arriving at each of the previous damage verdicts rendered by the jury. See N.T. 48.16; Proposed Plaintiff's Questions to be Propounded to the Jury Panel Subsequent to the Court's Interrogatories of a Juror Who Would Not Join in the Verdict. The Court reviewed each question proposed by plaintiffs and properly ruled that such questions were impermissible and could not be asked of the jury because they improperly inquired into the deliberative process of the jury. United States v. Jelsma, 630 F.2d 778, 779 (10th Cir. 1980) ("court may not examine the factors influencing [a juror] to assent or dissent from the verdict"); United States v. D'Angelo, 598 F.2d 1002, 1005 (5th Cir. 1979) ("The necessary consequence of the rule against examination of the jury's mental process is that convictions must stand despite the presence of plausible suspicion that the jury's mental process was ill-conceived."); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148-150 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); Fed.R.Evid. 606(b). Thereafter, a second note was received from a different juror which stated:
N.T. 48.41. Counsel agreed that the Court should meet with the juror in camera to learn of the juror's question. During the meeting, the Court learned that the juror wanted to know whether the damage awards should include the possible costs of legal fees and court costs. N.T. 48.62. See Voir Dire of Juror Who Had a Question, at 16. The Court advised counsel of this question, N.T. 48.62, and instructed the full jury that they should not include the possible cost of legal fees and court costs in their damage awards. N.T. 48.73-48.74.
Plaintiffs now contend that the Court erred in the procedure followed by the Court in conducting the in camera examination of the two jurors in seeking a new damages trial for each plaintiff. Plaintiffs do not suggest that the substance of the Court's conversations with either juror was in error or that any actual prejudice resulted from the substance of the Court's discussions with the two jurors. Rather, plaintiffs contend that the procedures followed by the Court were in error as a matter of law because the Court had contact with the two jurors. In United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), cited by plaintiffs in support of their arguments, the United States Supreme Court concluded upon its review of the record below that, under the circumstances surrounding the deliberation of the jury in a lengthy antitrust case, the trial court had "encroached on the jury's authority" and had improperly foreclosed a possible no verdict outcome because of its ex parte communications with the foreperson of the jury on the seventh day of the jury's deliberations. The court stated:
Id. at 461-462, 98 S.Ct. at 2885-2886 (emphasis added and citations omitted). In the present case, counsel were immediately notified of the substance of the Court's conversations with each of the jurors. N.T. 47.3-47.4; 47.16; 47.99-47.100; 48.41. A review of the record discloses no encroachment on the jury's authority by the Court to return whatever it deemed to be a proper verdict in the damages trials. The Court met with each of the jurors at the juror's request and counsel agreed that the in camera meetings should be held. Ex parte communications by the Court with a juror, although to be avoided, do not constitute grounds for a new trial unless prejudice to the parties can be shown. See Powell v. Kroger Co., 644 F.2d 1245 (8th Cir. 1981). Here, no prejudice has been shown by plaintiffs which may have resulted from the manner that the Court conducted the in camera examinations or the fact that plaintiffs were not immediately provided the full in camera transcript. The Court revealed the substance of the communications to counsel immediately after the in camera meetings and read the pertinent excerpts of the transcripts, which were transcribed by Court Order, to counsel at trial. Although plaintiffs may be disappointed in the verdicts
(E) Adequacy of Damage Verdicts
Plaintiffs assert that a new trial is warranted because the amount of damages awarded to each plaintiff was so grossly inadequate so as to shock the conscience of the Court. See 6A Moore's Federal Practice ¶ 59.08 (2d ed. 1982). The Court has reviewed the amounts of the verdicts set forth earlier and all of the facts and circumstances of each individual plaintiff's case. The Court holds that each verdict was returned within a proper realm of damages which could have been awarded under the facts and circumstances of each case. Therefore, the motions for new damages trials will be denied.
(F) Scheduling of Individual Damage Claims
Finally, plaintiffs contend that the Court erred in its scheduling of the individualized damage trials. Plaintiffs suggest that the Court's adherence to its strict schedule prevented the plaintiffs from calling as witnesses the treating family physicians in each of their cases to their prejudice. This argument is totally without merit since the plaintiffs never objected to the commencement of any damages case on the date that it started because a proposed witness was unavailable. Plaintiffs presented the testimony of Dr. Atkinson on the damages issue for each plaintiff and offered no further medical evidence in a stated offer of proof. Finally, the Court specifically set forth the ground rules for the commencement of each damages case following the return of the jury's verdict on the preceding case during the first damage case. N.T. 37.8-37.10. Thus, adequate notice was provided by the Court from which all the parties could determine their scheduling needs and be able to raise to the Court prior to the commencement of each damage trial any scheduling difficulties.
For the foregoing reasons, each plaintiffs' and defendants' motions for judgment n. o. v. and/or new trial will be denied.
An appropriate Order will be entered.
The following interrogatories were submitted to the jury by the Court with respect to each individual plaintiff at the liability trial:
CIVIL ACTION NO. 78-4242 --------------------------- THIS PLAINTIFF I.
AS TO ALL DEFENDANTS1. Did this plaintiff, on or before November 28, 1976: (A) know or have reason to know that he had a form of disease? YES ____ NO ____ (B) know or have reason to know that it had been caused by his exposure to asbestos fiber? YES ____ NO ____ (C) know or have reason to know that there was a causal relationship between his disease and that exposure to asbestos by reason of his employment at the Philip Carey Manufacturing Plant? YES ____ NO ____ (If you answer "yes" to (A) and(B) and(C), answer no more questions; if "no" to either (A) or (B) or (C), answer question 2.)
II. AS TO THE ALLEGED SUPPLIER-DEFENDANTS -------------- 2. Was this plaintiff exposed at his place of employment to asbestos fiber supplied by any or all of the following defendants? Carey-Canadian Mines YES ____ NO ____ Asbestos Corp. Ltd. YES ____ NO ____ Johns-Manville YES ____ NO ____ North American Asbestos YES ____ NO ____ Bell Asbestos YES ____ NO ____ (As to any defendant you answer "yes" to, answer question 3; as to any defendant you answer "no" to, answer no more questions.) 3. As to those defendants you answered "Yes" to in question 2, was the asbestos to which this plaintiff was exposed in a defective condition by reason of the absence of any warning as of the time it left the control of such defendant? Carey-Canadian Mines YES ____ NO ____ Asbestos Corp. Ltd. YES ____ NO ____ Johns-Manville YES ____ NO ____ North American Asbestos YES ____ NO ____ Bell Asbestos YES ____ NO ____ (As to any defendant you answer "yes" to, answer question 4; as to any defendant you answer "no" to, answer question 5.) 4. As to those defendants you answered "Yes" to in question 3, was such defect (absence of warning) a proximate cause of the plaintiff's asbestos-related condition? Carey-Canadian Mines YES ____ NO ____ Asbestos Corp. Ltd. YES ____ NO ____ Johns-Manville YES ____ NO ____ North American Asbestos YES ____ NO ____ Bell Asbestos YES ____ NO ____ (Answer question 5.) 5. As to any of the following defendants, was its conduct in failing to provide a warning "negligent"? Carey-Canadian Mines YES ____ NO ____ Asbestos Corp. Ltd. YES ____ NO ____ Johns-Manville YES ____ NO ____ North American Asbestos YES ____ NO ____ Bell Asbestos YES ____ NO ____ (As to any defendant you answer "yes" to, answer question 6; as to an defendant you answer "no" to, answer question 7.) 6. As to any defendant you answered "Yes" to in question 5, was that negligence a proximate cause of plaintiff's ultimate asbestos-related condition? Carey-Canadian Mines YES ____ NO ____ Asbestos Corp. Ltd. YES ____ NO ____ Johns-Manville YES ____ NO ____ North American Asbestos YES ____ NO ____ Bell Asbestos YES ____ NO ____ (Answer question 7.) 7. Did this plaintiff knowingly and voluntarily assume the risk of harm to himself? YES ____ NO ____ (Answer question 8.)
8. If your answer to question 7 is "Yes," was this plaintiff's assumption of risk a proximate cause of his asbestos-related condition? YES ____ NO ____ (Answer question 9.) 9. Was this plaintiff contributorily negligent in respect to his acquiring an asbestos-related condition? YES ____ NO ____ (If you answer "yes," answer question 10; if "no," answer question 11.) 10. Was this plaintiff's contributory negligence a proximate cause of his asbestos-related condition? YES ____ NO ____ (Answer question 11.) 11. (Answer this question only if your answers to questions 2 and 3 and 4 as to defendant Johns-Manville are "yes.") Should defendant Johns-Manville be liable to this plaintiff for punitivedamages in addition to any compensatorydamages the plaintiff may be entitled to recover? YES ____ NO ____ -------------- III. AS TO PHILIP CAREY MANUFACTURING COMPANY (CELOTEX) ONLY-------------- 12. Did this defendant intentionally fail to warn this plaintiff at any time after October 1, 1963, that this plaintiff might have acquired an asbestos-related disease by reason of his exposure to asbestos during his employment at the Philip Carey Manufacturing Plant? YES ____ NO ____ (If your answer is "yes," answer question 13; if "no," answer question 15.) 13. Was this failure to warn a proximate cause of the asbestos-related condition that this plaintiff ultimately experienced? YES ____ NO ____ (If your answer is "yes," answer question 14; if "no," answer question 15.) 14. If by reason of your answers to questions 12 and 13 defendant Philip Carey Manufacturing Company is found by you to be liable to this plaintiff for compensatory damages, should this defendant also be liable for punitivedamages in addition to any compensatory damages this plaintiff may be entitled to recover? YES ____ NO ____ 15. Was the conduct of Philip Carey Manufacturing Company after October 1, 1963, a superceding cause of any compensatory damages any of the below-named defendants may be liable to this plaintiff for after October 1, 1963? Carey-Canadian Mines YES ____ NO ____ Asbestos Corp. Ltd. YES ____ NO ____ Johns-Manville YES ____ NO ____ North American Asbestos YES ____ NO ____ Bell Asbestos YES ____ NO ____ __________________________________ /s/ Foreperson of the Jury
The following interrogatories were submitted to the jury by the Court with respect to each individual plaintiff during the damage trials:
LOSS OF PUNITIVE DAMAGES CONSORTIUM OR COMPENSATORY WRONGFUL DEATH TOTAL CLAIMANT DAMAGES JOHNS-MANVILLE CELOTEX WIFE AWARD ------------------------------------------------------------------------------------------- Joseph Mancini $ 71,000 $10,000 $ 3,000 $ 5,000 $ 89,000 Arnold Foulke, decedent $105,000 $30,000 $60,000 Not Applicable $195,000 Louis Romano, decedent $ 50,000 $35,000 $ 7,000 $40,000 $132,000
LOSS OF PUNITIVE DAMAGES CONSORTIUM OR COMPENSATORY WRONGFUL DEATH TOTAL CLAIMANT DAMAGES JOHNS-MANVILLE CELOTEX WIFE AWARD ------------------------------------------------------------------------------------------- Edward Hojnacki, decedent $300,000 $90,000 $15,000 $72,000 $477,000 Pasquale Romano $261,000 $50,000 $ 3,000 $ 5,000 $319,000 Salvatore Pascale $ 7,000 -0- -0- -0- $ 7,000 Jerry Henley $ 10,000 $ 2,000 $ 1,500 -0- $ 13,500 Nathaniel Satterwhite $139,500 $60,000 $ 500 Not Applicable $200,000 Vincent Raymond Settled --- --- --- Settled Walter Bogdanski Settled --- --- --- Settled Corrie Mitchell Settled --- --- --- Settled Gerald Wilmer $ 85,000 $10,000 -0- $ 5,000 $100,000 Ronald Lenzi $ 80,000 $20,000 $ 5,000 -0- $105,000 Harry Belz $105,000 $36,000 -0- $ 9,000 $150,000