Hendrix v. Raybestos-Manhattan, Inc.

• Decision Date: 26 November 1985
• Docket Number: RAYBESTOS-MANHATTA,INC,No. 82-8548,82-8548
• Citation: 776 F.2d 1492
• Parties: , 19 Fed. R. Evid. Serv. 903, Prod.Liab.Rep.(CCH)P 10,890 Aubrey HENDRIX, et al., Plaintiffs-Appellees, v., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1492

776 F.2d 1492

3 Fed.R.Serv.3d 1169, 19 Fed. R. Evid. Serv. 903,

Prod.Liab.Rep.(CCH)P 10,890

Aubrey HENDRIX, et al., Plaintiffs-Appellees, v. RAYBESTOS-MANHATTAN, INC., et al., Defendants-Appellants.

No. 82-8548.

United States Court of Appeals, Eleventh Circuit.

Nov. 26, 1985.

Michael V. Elsberry, Atlanta, Ga., for defendants-appellants.

Albert H. Parnell, Frank C. Bedinger, III, H. Lane Young & Sally D. Hauptfuhrer, Atlanta, Ga., for Johns-Manville Prod. Corp.

Richard K. Hines, Edgar A. Neely, Jr., Atlanta, Ga., For Raybestos-Manhattan.

Thomas H. Hart, III, Ronald L. Motley, Charles W. Patrick, Jr., Charleston, S.C., Jerry Phillips, Knoxville, Tenn., for plaintiffs-appellees.

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

Before TJOFLAT and HATCHETT, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Manville Corporation ¹ and Raymark Industries, Inc. ² appeal from money judgments entered in these diversity cases ³ pursuant to jury verdicts in favor of four workers in the insulation industry who contracted asbestosis, a progressive and incurable lung disease, as a result of handling appellants' asbestos insulation products. The jury found appellants liable to these workers on the theory that appellants had negligently failed to warn them that they could contract asbestosis if they failed to wear a respirator to prevent inhalation of the asbestos dust ordinarily generated by the routine handling of asbestos insulation products.

Appellants seek a new trial on several grounds. They do not question the sufficiency of the evidence to make out a case of negligent failure to warn or allege that the instructions under which this theory of liability was submitted to the jury were erroneous; ⁴ accordingly, this opinion will not address these issues. The only error the appellants assert that requires reversal is the district court's submission of the appellees' claims for future medical expenses to the jury. To remedy this error, we order remittiturs. The judgments are otherwise affirmed.

I.

Appellants' threshold position in this appeal is that, in consolidating these cases for trial, the district court prevented appellants from receiving a fair trial. The gist of their argument is that the four cases were We begin our assessment of appellants' argument by consulting Fed.R.Civ.P. 42(a), and the cases applying it, which circumscribe a district court's authority to consolidate civil actions for trial. Rule 42(a) provides:

so factually dissimilar on the issues of liability and damages that a fair trial was impossible. Accordingly, we should set aside all four judgments and remand the cases for separate trials.

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

This rule is a codification of a trial court's inherent managerial power " 'to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.' " In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1012 (5th Cir.1977) (quoting Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936)). ⁵ We have encouraged trial judges to "make good use of Rule 42(a) ... in order to expedite the trial and eliminate unnecessary repetition and confusion." Dupont v. Southern Pacific Co., 366 F.2d 193, 195 (5th Cir.1966), cert. denied, 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106 (1967).

A district court's decision under Rule 42(a) is purely discretionary. In re Air Crash, 549 F.2d at 1013; Whiteman v. Pitrie, 220 F.2d 914, 917-18 (5th Cir.1955). In exercising its discretion, the court must determine:

[W]hether the specific risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives.

Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir.1982), cert. denied, 460 U.S. 1102, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983) and 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984). The court must also bear in mind the extent to which the risks of prejudice and confusion that might attend a consolidated trial can be alleviated by utilizing cautionary instructions to the jury during the trial and controlling the manner in which the plaintiffs' claims (including the defenses thereto) are submitted to the jury for deliberation. We will not disturb a trial court's decision to consolidate unless it constitutes a clear abuse of discretion. In re Air Crash, 549 F.2d at 1013; Whiteman, 220 F.2d at 918.

When the district court consolidated these actions for trial, it had pending before it forty-four asbestosis cases. Each case had been brought by an individual (and, perhaps, his or her spouse) claiming to have contracted asbestosis as a result of inhaling asbestos dust on the job site. Some of these individuals had been exposed to the dust while engaged in the manufacture of asbestos-containing products; some, like the appellees, had been exposed while handling such products. Johns-Manville and Raymark were but two of several manufacturers of asbestos products sued in these cases.

The court consolidated appellees' cases, over appellants' objection, because appellees were similarly situated in terms of the manner in which they had been exposed to asbestos and the extent of their disease. ⁶ All of the appellees, two of In deciding to consolidate appellees' claims for trial, the court rejected appellants' argument that the similarities of the claims were superficial and that the differences in appellees' exposure to asbestos dust would make it difficult for the jury to consider each claim on its own merits. To ensure that each claim would receive separate consideration, the court announced that it would adopt the following procedure at trial; each juror would be given a notebook, tabbed for each plaintiff and each defendant, and during the presentation of evidence the jurors would be given time, as necessary, to make notes.

whom are brothers, were insulators and had worked out of the same union hall in Savannah, Georgia, frequently on the same jobs. Their exposure to asbestos-containing insulation products had occurred during the same time frame. Each suffered from asbestosis and was being treated by the same physician. Moreover, their medical prognoses were nearly identical.

In our view, the court's pretrial ruling to consolidate these cases was entirely reasonable. The four cases presented common issues of law and fact, and the factors we have referred to, supra, which inform a court's decision whether to consolidate, were duly considered. The striking similarity of these cases became even more apparent at trial, thus demonstrating the wisdom of the trial court's decision.

Appellee Aubrey Hendrix, age fifty-five, grew up on his parents' farm in south Georgia and quit school at the age of thirteen to help on the farm. He began working as an insulator in 1954 and was active in the trade, obtaining his job assignments from the local union hall, until 1963 when he took up farming. In 1970, he resumed work as an insulator until his retirement in 1980. Hendrix is nearly illiterate. He testified that, prior to 1979, when x-rays of his lungs disclosed asbestosis, he had no knowledge that asbestos dust presented a health hazard. His overall medical prognosis is bleak. In addition to suffering from asbestosis, Hendrix has high blood pressure, enlargement of the heart, high blood sugar, chronic bronchitis, and abnormal liver function. These other conditions have been caused in part by obesity and by smoking a pack of cigarettes a day for thirty-five years.

Appellee Wainwright Hendrix, Aubrey's brother, was fifty-two years of age at the time of trial. He attended school through the ninth grade and can read and write. Wainwright Hendrix began working out of the Savannah union hall as an insulator in 1952. He worked numerous jobs in the south Georgia area, many with his brother and with the two other appellees. His only breaks from the trade, before retiring in 1981, occurred in 1960, when he was unable to find work for six months, and from 1971 to 1973. Wainwright Hendrix said he first learned of the dangerous propensities of asbestos dust in 1974 when he saw respirators at the job site. His health problems track those of his brother. Aside from asbestosis, he suffers from high blood pressure, angina, and emphysema. He also smoked cigarettes, the equivalent of fourteen "pack years," from 1951 until 1979.

Appellee Tyres D. Watson, sixty-three years of age, finished the eighth grade at age eighteen and is barely literate. After farming for five years in south Georgia, Watson got his first job as an insulator in 1946 and joined the union in 1949. He estimated that he worked between seventy-five and one hundred insulation jobs in his career. He retired from the trade in 1980. Watson testified that he had no knowledge of any health hazards associated with asbestos dust. Watson was a heavy smoker, having consumed the equivalent of forty "pack years" of cigarettes since the age of eighteen. In addition to a case of severe asbestosis, Watson suffers from asthma and chronic bronchitis.

Appellee William H. DeLoach, age fifty-one at trial, was the only one of the four appellees still employed as an insulator at the time of trial. DeLoach began working as an insulator in 1952 and joined the local union one...