Cimino v. Raymark Industries, Inc.
| Decision Date | 17 August 1998 |
| Docket Number | Nos. 93-4452,s. 93-4452 |
| Citation | 151 F.3d 297 |
| Parties | Claude CIMINO, et al., Plaintiffs-Appellees, Cross-Appellants, v. RAYMARK INDUSTRIES, INC., et al., Defendants, Pittsburgh Corning Corporation and Asbestos Corporation Limited, Defendants-Appellants, Cross-Appellees. through 93-4611. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry G. Garrard, III, Rikard L. Bridges, Blastingame, Burch, Garrard, Bryant, Athens, GA, G. Luke Ashley, Deborah G. Hankinson, Jeffrey S. Boyd, Debora Beck McWilliams, Thompson & Knight, Austin, TX, W. Thomas McGough, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, PA, for Pittsburgh Corning Corp.
Roxie Huffman Viator, Orange, TX, for Intervening Plaintiffs.
Michael L. Baker, Richard L. Scheer, John W. Bridger, Strong, Pipkin, Nelson, Bissell & Ledyard, L.L.P., Beaumont, TX, for Asbestos Corp., Ltd.
Walter Umphrey, Greg Thompson, Provost & Umphrey, Richard J. Clarkson, Wayne A. Reaud, Reaud, Morgan & Quinn, John W. Bridger, Strong, Pipkin, Nelson & Bissell, Beaumont, TX, Otto D. Hewitt, Hewitt Law Firm, Alvin, TX, for Appellees.
Charles Clark, Mediator, Jackson, MS, for Other Interested party.
Appeal from the United States District Court for the Eastern District of Texas.
Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.
Before us are appeals and cross-appeals in personal injury and wrongful death damage suits against several manufacturers of asbestos-containing insulation products and some of their suppliers, the district court's jurisdiction being based on diversity of citizenship and the governing substantive law being that of Texas. This is the same set of cases addressed in In re Fibreboard, 893 F.2d 706 (5th Cir.1990), but the judgments now before us result from a trial plan modified following that decision. 1 Principally at issue on this appeal is the validity of that modified trial plan.
The district court originally consolidated the some 3,031 such cases then pending in the Beaumont Division of the Eastern District of Texas for trial of certain common issues under Fed.R.Civ.P. 42(a) and also certified a class action under Fed.R.Civ.P. 23(b)(3), the class generally consisting of the insulation and construction workers, their survivors and household members, who were plaintiffs in those pending cases. As explained in more detail below, the trial plan ultimately implemented after Fibreboard consisted of three phases, generally described as follows. Phase I comprised a complete jury trial of the entire individual cases of the ten class representatives and By the time of the phase I trial, many of the defendants had settled and others had taken bankruptcy or otherwise been disposed of, so only five remained, namely appellant Pittsburgh Corning Corporation (Pittsburgh Corning), Carey Canada, Celotex, Fibreboard, and appellant Asbestos Corporation, Limited (ACL). The case against ACL was tried to the court under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330(a), 1603(b). By the time the amount of the extrapolation case judgments was to be calculated, all defendants except Pittsburgh Corning and ACL had passed out of the case. 4
also a class-wide determination of issues of product defectiveness, warning, and punitive damages (including a multiplier as to each defendant). Phase II, which was to address exposure on a craft and job site basis, was dispensed with on the basis of a stipulation. In phase III, 160 different individual cases ("sample cases"), some from each of the five different allegedly asbestos-related diseases included in the entire group of underlying cases, were tried to two other juries to determine only each of those individual sample case plaintiffs' respective actual damages from their asbestos-related disease. Thereafter, and following a one-day bench hearing on the basis of which the district court determined that in each disease category the 160 sample cases were reliably representative of the cases involving the like disease among the remaining some 2,128 cases, 2 the court ruled that each of these remaining 2,128 cases (the "extrapolation cases") would be assigned by the court to one of the five disease categories and each would be entitled to judgment based on an amount of actual damages equal to the average of the verdicts rendered in those of the 160 sample cases involving the same disease category. 3 Punitive damages in each case would be essentially based on the phase I verdict
Judgment was entered against ACL in only two of the ten class representative cases (and in none of either the phase III sample cases or the extrapolation cases). Judgment was actually entered against Pittsburgh Corning in a total of 157 cases, consisting of 9 of the class representative phase I cases, 143 of the phase III sample cases, and 5 of the extrapolation cases (1 from each of the 5 different diseases included in the class). 5 In these 157 cases, Pittsburgh Corning has been cast in judgment for a total of approximately $69,000,000. 6 Pittsburgh Corning and ACL each appeal the referenced judgments entered against them, and the plaintiffs cross-appeal as to each. 7 The issues presented in the ACL appeal and cross-appeal are few and narrow, and we address them last.
Pittsburgh Corning's appeal presents essentially two groups of contentions, summarized as follows: first, those challenging the
implemented Cimino trial plan as a whole, particularly its asserted failure to properly try and determine individual causation and, in the five extrapolation cases, damages also, as to any plaintiffs other than the class representatives, assertedly contrary to our decision in Fibreboard and Texas substantive law and in derogation of Pittsburgh Corning's Seventh Amendment and Due Process rights; and second, various other issues of a more particular and traditional sort. Plaintiffs' cross-appeal presents issues of only the latter variety. We now turn to consider Pittsburgh Corning's appeal, addressing first its attacks on the trial plan.
PITTSBURGH CORNING APPEAL
Initial Plan
The Cimino trial plan initially adopted by the district court, which we subsequently set aside in Fibreboard, also called for three phases. In phase I, the jury would decide which, if any, of each defendant's products were defective as marketed and unreasonably dangerous, when each defendant knew or should have known workers or their household members were at risk, whether each defendant was guilty of gross negligence in marketing its offending product and, as to each defendant so guilty, a punitive damages multiplier. In phase II, the same jury would decide the percentage of plaintiffs in the class exposed to each defendant's products, the percentage of claims barred by limitations and other defenses, and would determine a lump sum amount of actual damages for each disease category for all plaintiffs in the class. The jury in this phase would also make a full determination of liability and damages with respect to each of the eleven class representatives individually. And the jury in phase II would also hear such evidence as the parties desired to present from up to thirty other illustrative plaintiffs, fifteen chosen by the defense and fifteen by plaintiffs, as well as expert testimony regarding the total actual damages of the class, such expert testimony to be based, among other things, on questionnaires filled out by all class members and other discovery, including forty-five-minute oral depositions of class members taken by defendants. In phase III, to be non-jury, the court would distribute the awarded damages among the individual class members. 8
Fibreboard
In Fibreboard, we found "no impediment to the trial of Phase I," id. at 712, but held the balance of the plan invalid, stating:
These requirements of proof define the duty of the manufacturers.
... The inescapable fact is that the individual claims of 2,990 persons will not be presented. Rather, the claim of a unit of 2,990 persons will be presented.
....
... That procedure cannot focus upon such issues as individual causation, but ultimately must accept general causation as sufficient, contrary to Texas law. It is evident that these statistical estimates deal only with general causation, for 'population-based probability estimates do not speak to a probability of causation in any one case; the estimate of relative risk is a property of the studied population, not of an individual's case.' This type of procedure does not allow proof that a particular defendant's asbestos 'really' caused a particular plaintiff's disease; the only 'fact' that can be proved is that in most cases the defendant's asbestos would have been the cause." Id. at 711-712 (). 9
Following this Court's decision in Fibreboard, the district court initially determined that "[t]his case will now proceed under the procedures set out in Jenkins v. Raymark "--i.e. phase I to be followed by a series of mini-trials for all plaintiffs on their individual causation and damage issues (see note 8, supra )--and set its previously...
To continue reading
Request your trial
-
Duran v. U.S. Bank Nat'l Ass'n
...to absent class members. The question has arisen in numerous contexts, ranging from mass torts (e.g., Cimino v. Raymark Industries, Inc. (5th Cir.1998) 151 F.3d 297, 319–320 ) to employment discrimination (e.g., Wal–Mart Stores, Inc. v. Dukes, supra, 564 U.S. at p. ––––, 131 S.Ct. at pp. 25......
-
Blue Cross & Blue Shield of N.J. v. Philip Morris
...claims. Accepting for arguments sake the conclusions reached by the court of appeals for the Fifth Circuit in Cimino[ v. Raymark Industries, Inc., 151 F.3d 297 (5th Cir.1998)] and Fibreboard — that the right to a jury is violated by the use of statistics to extrapolate findings of liability......
-
Blue Cross & Blue Shield of N.J. v. Philip Morris
...support for this proposition, defendants rely on a pair of decisions from the court of appeals for the Fifth Circuit: Cimino v. Raymark Indus., 151 F.3d 297 (5th Cir.1998); and In re Fibreboard Corp., 893 F.2d 706 (5th Cir.1990). Neither decision stands for the proposition that defendants c......
-
Dukes v. Wal-Mart, Inc.
...to a jury trial on all issues pertinent to an award of statutory damages . . . including the amount itself."); Cimino v. Raymark Industries, Inc., 151 F.3d 297, 311 (5th Cir.1998) (finding Seventh Amendment and due process violations where district court's trial plan for class action did no......
-
Money matters: judicial market interventions creating subsidies and awarding fees and costs in individual and aggregate litigation.
...681 F.2d 334 (5th Cir. 1982). (131) See Cimino v. Raymark Indus., Inc., 751 F. Supp. 649, 653 (E.D. Tex. 1990), rev'd on this issue, 151 F.3d 297, 314-21 (5th Cir. 1998); see also In re Chevron U.S.A., Inc., 109 F.3d 1016, 1021 (5th Cir. 1997) (prohibiting sample trials from having preclusi......
-
Effective communication of warnings in the workplace: avoiding injuries in working with industrial materials.
...employer is in a position of superior knowledge regarding the product and potential dangers). (16.) See Cimino v. Raymark Indus., Inc. 151 F.3d 297, 335 (5th Cir. 1998) (holding that it would create an unbearable burden on the manufacturer of the raw asbestos "building block" material later......
-
The Class Action Fairness Act of 2005 in historical context: a preliminary view.
...This was particularly true in cases seeking both compensatory and punitive damages. (219) See, e.g., Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998); In re Sch. Asbestos Litig., 789 F.2d 996, 1008-11 (3d Cir. 1986), cert. denied, 479 U.S. 852 (1986); Jenkins v. Raymark Indus., ......
-
CHAPTER § 10.03 Standing and Remoteness
...require an inquiry in to the specifics of each doctor-patient relationship implicated by the lawsuit."); Cimino v. Raymark Indus., Inc., 151 F.3d 297, 300, 335 (5th Cir. 1998) (reversing verdicts in 157 "representative" trials on the ground that the need for individualized proof precluded t......