734 F.2d 1036 (5th Cir. 1984), 82-2276, Hansen v. Johns-Manville Products Corp.

Docket Nº:82-2276.
Citation:734 F.2d 1036
Party Name:Beatrice Mae HANSEN, et al., Plaintiffs-Appellees, v. JOHNS-MANVILLE PRODUCTS CORPORATION, et al., Defendants, Johns-Manville Sales Corporation, Defendant-Appellant.
Case Date:June 11, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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734 F.2d 1036 (5th Cir. 1984)

Beatrice Mae HANSEN, et al., Plaintiffs-Appellees,



Johns-Manville Sales Corporation, Defendant-Appellant.

No. 82-2276.

United States Court of Appeals, Fifth Circuit

June 11, 1984

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[Copyrighted Material Omitted]

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Ervin A. Apffel, Jr., Otto D. Hewitt, James L. Ware, Galveston, Tex., Michael D. Taber, Denver, Colo., for defendant-appellant.

Atreus M. Clay, Mike N. Cokins, Houston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN and RANDALL, Circuit Judges, and SEAR [*], District Judge.

RANDALL, Circuit Judge:

Johns-Manville Sales Corporation and Johns-Manville Products Corporation (collectively "Johns-Manville") appeal a jury verdict awarding compensatory and punitive damages to the widow of Andrew Hansen, a former shipyard worker, for wrongful death caused by exposure to Johns-Manville asbestos products. We affirm as to liability, but remand to the district court to order a remittitur or a new trial at the option of the plaintiff.


Andrew Hansen ("decedent") began working for Todd Shipyards in 1940 as a pipefitter, tearing out old insulation in ships and installing new insulation. During his employment, decedent worked primarily with products containing asbestos 1

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that were manufactured by Johns-Manville. Decedent suffered a serious ankle injury in 1976 and retired due to that injury.

In 1978, at age 65, decedent developed chest problems. He was ultimately diagnosed as suffering from asbestosis and mesothelioma, both of which are caused by exposure to asbestos. 2 Thirteen months later, he died.

Decedent's widow ("Hansen") filed suit against Johns-Manville and thirteen other defendants in 1979. Hansen alleged causes of action based upon strict liability for the manufacture of the asbestos-containing insulation and upon negligence for failure to adequately test and inspect, and for failure to warn. Prior to trial, all defendants, except Johns-Manville, were non-suited on Hansen's motion. A jury trial was then held. The jury returned answers to special interrogatories finding for Hansen on all counts and awarded Hansen $260,000 for loss of care and services, $800,000 for decedent's anguish and pain and suffering, and $1,000,000 in punitive damages. Judgment in the amount of $2,060,000 was entered by the district court on May 11, 1982. Johns-Manville's motions for judgment n.o.v., remittitur, and new trial were denied. Johns-Manville appeals.


On appeal, Johns-Manville raises twelve distinct issues relating to evidence submitted at trial, interrogatories submitted to the jury, the various post-judgment motions, and the award of punitive damages. We will address each of these issues in turn.

Deposition Testimony of Dr. Kenneth Smith.

Johns-Manville asserts that the trial judge erred in admitting the deposition testimony of Dr. Kenneth Smith, former medical officer of Johns-Manville, because no proper foundation was laid showing the nature of his employment at the time of the deposition, the course of his knowledge, or his authority to speak for the company. See generally H. Wigmore, Evidence Sec. 654 (3d ed. 1940). This argument is without merit. Dr. Smith's deposition clearly reveals the nature of his medical practice at the time of the taking of the deposition. As to the course of his knowledge, Dr. Smith's deposition relates his educational background and the fact that he served as Medical Director of Johns-Manville until 1966. Finally, since Dr. Smith was not testifying as an agent for Johns-Manville, authority to speak as an agent was not required. Dr. Smith's deposition was properly admitted.

The "Sumner Simpson" Papers.

Johns-Manville contends that the district court erred in admitting into evidence several documents from the "Sumner Simpson" papers. These papers consist of various correspondence, surveys and memoranda compiled by Sumner Simpson, the President and later Chairman of the Board of Raybestos Corporation ("Raybestos"), and discovered after his death. Raybestos, like Johns-Manville, employed asbestos in its products. Several documents from the collected papers were admitted into evidence to show that Johns-Manville knew of the alleged dangers of asbestos prior to 1964

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and thus was negligent and grossly negligent in failing to warn of those dangers. Johns-Manville objects to the admission of these documents on the grounds that the papers were not authenticated, that they were hearsay and not within any exception, and that they are irrelevant to any issue in the case.

In a similar case decided recently by this court, Jackson v. Johns-Manville Sales Corp., 727 F.2d 506 (5th Cir.1984), we held that the district court erred in admitting three letters from the Sumner Simpson papers, including one admitted in the present case, on the ground that they were relevant to no issue in the case. We determined that, because the letters introduced concerned studies having to do with workers in asbestos mines, they were irrelevant to the issue of the defendants' knowledge of dangers regarding insulation workers. We need not decide, however, whether admission of the Sumner Simpson papers was erroneous in this case, for even assuming, arguendo, that such admission was error, we find that, on the record presented in this case, it was harmless error.

The Sumner Simpson papers were introduced in this case to show that Johns-Manville knew or should have known of the dangers of asbestos to shipyard workers and insulators prior to 1964 and thus, that Johns-Manville had a duty to warn of that danger. However, Hansen presented other evidence, particularly the testimony of Dr. Smith, 3 which would show that Johns-Manville knew of the dangers of asbestos to insulation workers well before 1964. Thus, the introduction of the Sumner Simpson papers was merely cumulative. It is well settled that the improper admission of evidence that is merely cumulative on matters shown by other admissible evidence is harmless error. Coughlin v. Capitol Cement Co., 571 F.2d 290, 307 (5th Cir.1978). Thus, even if the district court erred in admitting the Sumner Simpson papers in this case, an issue that we expressly do not decide, it was harmless error.

Punitive Damages/Gross Negligence.

Johns-Manville raises several issues with regard to the jury's finding of gross negligence and award of punitive damages. Under Texas law, a plaintiff is entitled to punitive damages upon a showing of gross negligence, i.e., that the defendant was consciously, knowingly indifferent to the plaintiff's welfare and safety. Maxey v. Freightliner Corp., 665 F.2d 1367, 1374 (5th Cir.1982). Johns-Manville argues that the potential for overkill in the award of punitive damages in mass products liability situations such as this 4 is inconsistent with the underlying policy objectives of both strict liability and punitive damages. Johns-Manville also argues that it has been subjected to repeated awards of punitive damages, thus unconstitutionally subjecting it to double jeopardy. Johns-Manville further argues that the district court erred in denying its motions for directed verdict, 5

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judgment n.o.v., and new trial with regard to gross negligence and punitive damages.

In Jackson v. Johns-Manville Sales Corp., supra, we held that Mississippi substantive law would disallow punitive damages in asbestos products liability actions. In Jackson, the plaintiff, who had contracted asbestosis, brought a products liability action against Johns-Manville and Raybestos-Manhattan, Inc. After the jury returned a verdict in favor of the plaintiff and awarded actual and punitive damages, the defendants appealed. A panel of this court disallowed the punitive damages awarded, holding that Mississippi substantive law would disallow such awards in a similar situation, because in the extraordinary circumstances in which asbestosis litigation is set, the allowance of punitive damages is incompatible with the objectives of and would disrupt the viability of the strict liability cause of action. Finding that strict liability in Mississippi "seeks not merely to assure compensation for the individual plaintiff, but to achieve the broader societal objective of equitable loss distribution," the Jackson panel determined that the presence of a viable enterprise is essential to the maintenance of effective loss distribution in strict liability. Because of the number of similar suits already filed, asbestos defendants face repeated assessments of punitive damages that threaten to exhaust their resources. Therefore, the panel determined that, at the point at which awards of punitive damages destroy the viability of the enterprise, the remedy of punitive damages becomes antithetical to the policy of strict liability and thus, that punitive damages must not be allowed. Furthermore, the panel found that the basic policy objectives of punitive damages--punishment and deterrence--are satisfied by multiple exposure to compensatory damages. Johns-Manville presents similar arguments in the present case, urging that the very attributes of the Mississippi law of strict liability that prompted the Jackson panel to find that Mississippi law would disallow punitive damages in this type of case are present in Texas law as well. Thus, Johns-Manville argues, this panel should follow the panel decision in Jackson.

Following a review of the relevant decisions of the Texas courts, we find that we are unable to follow Jackson in this case. At least one Texas court has said that punitive damages may be recovered under Article 16, Section...

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