760 F.2d 481 (3rd Cir. 1985), 82-1608, Van Buskirk v. Carey Canadian Mines, Ltd.

Docket Nº:al., in No. 82-1608.
Citation:760 F.2d 481
Party Name:VAN BUSKIRK, Eleanor, Administratix of the Estate of Van Buskirk, Kenneth, and Van Buskirk, Eleanor, on her own behalf, et al., v. CAREY CANADIAN MINES, LTD., et al. Appeal of Stella J. NEAL, Admx. of the Estate of George R. Neal, and Stella J. Neal, on her own behalf, et
Case Date:April 17, 1985
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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760 F.2d 481 (3rd Cir. 1985)

VAN BUSKIRK, Eleanor, Administratix of the Estate of Van

Buskirk, Kenneth, and Van Buskirk, Eleanor, on her

own behalf, et al.,



Appeal of Stella J. NEAL, Admx. of the Estate of George R.

Neal, and Stella J. Neal, on her own behalf, et

al., in No. 82-1608.

Appeal of ASBESTOS CORPORATION, LIMITED, in No. 82-1622.

Nos. 82-1608, 82-1622.

(Held C.A.V. for Supplemental Briefing).

United States Court of Appeals, Third Circuit

April 17, 1985

Argued Nov. 15, 1984.

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Page 484

Neil R. Peterson (argued), Greitzer and Locks, Philadelphia, Pa., Shor, Levin & Weiss, Wyncote, Pa., for appellant.

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Frederic L. Goldfein (argued), Ellen Brown Furman, Ominsky, Joseph & Welsh, P.C., Philadelphia, Pa., for appellee Asbestos Corp., Ltd.

Anthony S. Minisi, Barry M. Klayman (argued), Philadelphia, Pa. (Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., of counsel), for appellee North American Asbestos Corp. [*]

Before ADAMS, GIBBONS and WEIS, Circuit Judges.


ADAMS, Circuit Judge.

This is an appeal from the first multi-plaintiff asbestos litigation to be tried to a jury in the Eastern District of Pennsylvania. The complaint was filed by former employees of the Philip Carey Manufacturing Company, Inc. (Philip Carey), and their spouses or legal representatives, against five suppliers of asbestos and Celotex Corporation, the successor-in-interest to the employer. After a lengthy trial, the jury awarded compensatory and punitive damages to all but one of the non-settling plaintiffs. Plaintiffs and defendants filed cross-appeals, raising a myriad of issues. Because we find no reversible error, we will affirm the judgment.


Suit was originally filed on November 28, 1978 in the Court of Common Pleas of Montgomery County, Pennsylvania. On December 19, 1978, defendants removed the action to federal district court pursuant to 28 U.S.C. Sec. 1441 (1982). The case falls under the federal court's diversity jurisdiction, and it is conceded that Pennsylvania law applies.

Philip Carey employed the workers whose claims form the basis of this lawsuit at its plant in Plymouth Meeting, Pennsylvania, for varying periods of time until it closed in 1962. Philip Carey manufactured asbestos-insulation products using raw asbestos fibers allegedly supplied by five asbestos companies--Asbestos Corp. Limited ("ACL"); Bell Asbestos Mines, Limited; Carey-Canadian Mines, Limited; Johns-Manville Corporation and several of its subsidiaries (collectively "Johns-Manville"); and North American Asbestos Corporation.

The action proceeded under theories of strict liability and negligence. Plaintiffs alleged, inter alia, that the defendants had failed to warn its employees of the dangers of asbestos, and that the employer's conduct was intentionally tortious and thus justified imposing damages beyond the scope of the Pennsylvania Workmen's Compensation Act, Pa.Stat.Ann. tit. 77, Secs. 1-1066 (Purdon 1952 & Supp.1984-85). Defendants admitted that the employees involved in this suit had asbestos-related conditions caused by their exposure at the Philip Carey facility, but disputed liability.

A twenty-nine day trial on liability ensued. The district court characterized the issues as follows:

(1) whether [each] 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

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(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.

Neal v. Carey-Canadian Mines, Ltd., 548 F.Supp. 357, 366 (E.D.Pa.1982).

The jury's verdict was summarized by the district court 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 Sec. 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.

Id. at 366.

After the jury had made its liability determinations, separate trials to determine damages were held for each plaintiff; 1 the jury awarded damage verdicts ranging from $7,000 to $477,000, with the average approximately $150,000. See id. at 366 n. 4 (listing damages awards for each plaintiff). Plaintiffs and several defendants then moved for new trials or judgments n.o.v., and all post-trial motions were denied.

Plaintiffs and defendants filed timely appeals. While the appeals were pending, several defendants--Celotex; Carey-Canadian Mines; and North American Asbestos Corporation--settled. Johns-Manville's appeal was stayed pursuant to the automatic stay provision of the Bankruptcy Reform Act of 1978, 11 U.S.C. Sec. 362(a)(1) (1982). Thus, at this time we need only resolve the contentions advanced by the plaintiffs and ACL. 2


We first address the issues raised by the plaintiffs, and then turn to ACL's appeal. Plaintiffs press four claims. First, it is argued that as a matter of law Stella Neal's claim was not barred by the statute of limitations, and that therefore the jury's determination that the statute of limitations barred Neal's claim should be reversed. Second, plaintiffs contend that the district court's in camera discussions with two jurors tainted the damage verdicts, and thus a new trial is required on damages. Third, they challenge the adequacy of the damage verdicts. Finally, plaintiffs assert that the district court abused its discretion in scheduling the damage trials seriatim.


The first question the jury was asked to resolve was whether the statute of limitations barred any of the plaintiffs' claims. It was proper to instruct the jury that the discovery rule was applicable; consequently the relevant inquiry was whether each employee knew or had reason to know that

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he had an asbestos-related condition caused by exposure to asbestos fiber at the Philip Carey plant prior to November 28, 1976 (two years before suit was filed). The jury concluded that fourteen of the fifteen employees did not know or have reason to know the salient facts, but that George Neal did have such knowledge. Stella Neal's claim on behalf of George Neal was therefore barred by the statute of limitations. Counsel for plaintiffs maintains that defendants did not produce sufficient evidence to support the jury's conclusion that the claim on behalf of Stella Neal's husband was barred by the statute of limitations.

Federal courts sitting in diversity cases must apply the substantive laws of the states in which they sit, and statutes of limitations are considered substantive. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Witherow v. Firestone Tire and Rubber Co., 530 F.2d 160 (3d Cir.1976).

The statute of limitations is an affirmative defense, and the burden of establishing its applicability to a particular claim rests with the defendant. Melhorn v. AMREP Corp., 373 F.Supp. 1378, 1380 (M.D.Pa.1974). Where a plaintiff seeks to establish that the statute should be tolled by fraud or equitable estoppel, however, the burden shifts to the plaintiff. Id. The Pennsylvania Superior Court has applied this burden-shifting to the discovery rule, stating:

The plaintiff has the burden of justifying any delay beyond the date on which the limitation would have expired if computed from the date on which the acts giving rise to the cause of action allegedly occurred. He must allege and prove facts which show that he made reasonable efforts to protect his interests and which explain why he was unable to discover the operative facts for his cause of action sooner than he did. Patton v. Commonwealth Trust Co., 276 Pa. 95, 99, 119 A. 834 (1923).

Bickell v. Stein, 291 Pa.Super. 145, 150, 435 A.2d 610, 612 (1981). Consequently, it appears to be the burden of a plaintiff to establish that the discovery rule should apply to his or her particular case. 3

Whether or when a plaintiff knows or has reason to know of the existence and cause of his or her injury will often turn on inferences drawn from disputed facts. Where the question goes to the jury, as it did here, our review is limited to ascertaining whether sufficient evidence existed to support the jury's conclusion. The evidence on which the jury may have based its determination included testimony that Neal's asbestosis was well-established by the late 1950s or early 1960s, that x-ray reports showed that he had the disease as early as 1971, and that Neal was in a management position with Philip Carey and thus had access to information about asbestosis. From this evidence, the jury could reasonably conclude that Neal knew or had reason to know more than two...

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