MORGAN, Senior Circuit Judge:
The panel opinion dated September 8, 1987, is hereby withdrawn and this opinion is substituted in lieu thereof.
The primary issue in this case concerns the applicability under Georgia law of punitive damages in asbestos cases. Appellant/defendant National Gypsum manufactured a joint compound, used to cover seams between sheets of wallboard, that contained asbestos. Appellee/plaintiff Julian P. Wammock, a carpenter, was exposed to asbestos through the use of National Gypsum's joint compound. After Wammock was diagnosed in 1981 as having asbestosis, Wammock sued National Gypsum under negligence and strict liability theories.
The Georgia Supreme Court declined to answer either certified question. See National Gypsum Co. v. Wammock, 256 Ga. 803, 353 S.E.2d 809 (1987). The Georgia Supreme Court regarded the first question as anticipatory because there had only been one punitive damages award against National Gypsum. As to the second question, the Georgia Supreme Court stated that the district court had not correctly instructed the jury on the reasons for awarding punitive damages under Georgia law. Therefore, the Georgia Supreme Court declined to answer the question. Consequently, the case is back before us for resolution. We affirm the jury's verdict in favor of Wammock in the amount of $40,000 compensatory damages and $250,000 punitive damages.
Georgia law governs this diversity case, and we must interpret the law as would a Georgia court. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1938). Even "[i]n the absence of controlling precedent, we must nonetheless decide ... issue[s] as we believe a [Georgia] court would decide [them] ..." Green v. Amerada-Hess Corp., 612 F.2d 212, 214 (5th Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980).
In our role as a Georgia court, we must first outline the Georgia law on punitive damages.
National Gypsum contends that the limited deterrent purpose of punitive damages under Georgia law
Another question is whether there was sufficient evidence to support an award of punitive damages in this case. The district court instructed the jury in the following manner on the reasons to award punitive damages:
This instruction is an incorrect statement of Georgia law.
City of Massachusetts v. Kibbe, 480 U.S. ___, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987), discusses this issue. In Kibbe, the Supreme Court dismissed the writ of certiorari as improvidently granted because the city had failed to preserve for review the negligence issue. The attorney had not objected to the gross negligence instruction, had proposed an instruction to the same effect, and had not raised the question before the United States Court of Appeals for the First Circuit. See Rule 51 of the Federal Rules of Civil Procedure ("[n]o party may assign as error the giving ... [of] an instruction unless he objects thereto before the jury retires to consider the verdict."). We also refuse to reverse an incorrect jury instruction on punitive damages never objected to at trial or challenged on appeal.
Accordingly, we address the issue National Gypsum did raise: whether there was sufficient evidence to support an award of punitive damages under Georgia law? For the jury properly to award punitive damages, Wammock had to present evidence of National Gypsum's willful misconduct, malice, fraud, wantonness or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.
At trial, Wammock presented evidence that National Gypsum was aware of hazards of asbestos exposure in other contexts, such as the hazards faced by miners, plant workers and others who were exposed to higher concentrations of asbestos fiber than were workers in Wammock's position. National Gypsum contends that there is no evidence that National Gypsum extrapolated from known risks of high level exposure and drew any conclusion whatsoever about risks of lower level exposures to users of joint compound.
Wammock also presented the testimony of Dr. Gerritt Schepers, the former director of the Saranac Laboratory and Albert Fay, a former National Gypsum officer. Dr. Schepers testified that he wrote a letter to National Gypsum before 1964, criticizing the company for continuing to sell asbestos
The latest amendment to O.C.G.A. Sec. 51-12-5.1(a) (Supp.1987), states the following:
For simplicity, we will refer to the damages in this case as punitive damages.
This code section applies only to causes of action arising on or after July 1, 1987. O.C.G.A. Sec. 51-12-5.1(h).
Although the district court had incorrectly stated the reasons for punitive damages, the court had correctly charged the jury as to what they would have to find in order to award punitive damages.