776 F.2d 1565 (6th Cir. 1985), 82-5393, Cathey v. Johns-Manville Sales Corp.

Docket Nº:Martha Jo CATHEY, Plaintiff-Appellant (82-5393),
Citation:776 F.2d 1565
Case Date:November 13, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1565

776 F.2d 1565 (6th Cir. 1985)

Martha Jo CATHEY, Plaintiff-Appellant (82-5393),

Plaintiff-Appellee (82-5425),

Mary Cavett, Administratrix, Plaintiff-Appellee (82-5580),

v.

JOHNS-MANVILLE SALES CORPORATION; Raymark Industries; the

Celotex Corporation; Pittsburgh-Corning Corporation;

Owens-Corning Fiberglass Corporation; Fibreboard

Corporation; GAF Corporation; Nicolet, Inc.; Southern

Asbestos Company and Owens-Illinois, Incorporated,

Defendants- Appellees (82-5393),

Johns-Manville Sales Corporation, Defendant-Appellant

(82-5425, 82-5580)

Nos. 82-5393, 82-5425 and 82-5580.

United States Court of Appeals, Sixth Circuit

November 13, 1985

Argued Feb. 19, 1985.

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H. Douglas Nichol (argued), Paul Gillenwater, Gillenwater, Whelchel & Nichol, Knoxville, Tenn., for appellant.

Fred H. Cagle, Jr., W. Kyle Carpenter (argued), Knoxville, Tenn., M. Anderson Cobb, Jr., Harris, Shelton, Dunlap & Cobb, Memphis, Tenn., H. Keith Jarvis (argued), Montgomery, Green & Jarvis, Englewood, Colo., for Johns-Manville.

Donald F. Paine, Dwight E. Tarwater (argued), T. Harold Pinkley, Egerton, McAfee, Armistead & Davis, Knoxville, Tenn., for Raymark Industries, Inc.

George B. McGugin; William Southerland (argued), Watkins, McGugin, McNeilly & Rowen, Nashville, Tenn., for Celotex Corp.

Charles C. Trabue, III, Gayle E. Malone, Jr., Gary M. Brown (argued), Trabue, Sturdivant & DeWitt, Nashville, Tenn., for Pittsburgh-Corning Corp.

Darrell G. Townsend, Howell, Fisher, Branham & North, Nashville, Tenn., for Owens Corning Fiberglass Corp.

Hugh J. Moore, Jr. (argued), Witt, Gaither & Whitaker, Chattanooga, Tenn., for GAF Corp.

Graham Bartlett, Knoxville, Tenn., for Nicolet, Inc.

William A. Young (argued), Taylor & Grover, Knoxville, Tenn., for Fibreboard Corp.

Louis C. Woolf (argued), Robert G. McDowell, J. Randolph Bibb, Jr., Baker, Worthington, Crossley, Stansberry & Woolf, Nashville, Tenn., for Owens-Illinois, Inc.

Before KEITH and JONES, Circuit Judges, and NEWBLATT [*], District Judge.

KEITH, Circuit Judge:

These two cases involve actions for personal injuries brought against various manufacturers of asbestos containing insulation products. Although the two cases have been consolidated on appeal, given the number and complexity of the issues raised by each case, we will analyze each case separately.

I.

CAVETT v. JOHNS-MANVILLE SALES CORPORATION

This appeal arises out of an action brought by plaintiff, James O. Cavett, against Johns-Manville Sales Corporation and numerous other manufacturers of asbestos-containing insulation products. By the time of the trial, however, Johns-Manville was the only remaining defendant. The case was tried in the United States District Court for the Eastern District of Tennessee before the Honorable David S. Porter, sitting by designation. The jury returned a verdict in favor of the plaintiff

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for $800,000 compensatory and $1,500,000 punitive damages.

After entry of the judgment, Johns-Manville filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial. Johns-Manville also filed a motion to amend the judgment so as to allow a credit for the amount paid in settlement by other defendants. In an order entered August 20, 1982, the district court addressed the various post-judgment motions. The district court expressly denied the motion for judgment notwithstanding the verdict and instructed the clerk to enter judgment in favor of Cavett for the amount of the verdict. The court, however, granted Johns-Manville's motion allowing a credit for the amount paid by other defendants in settlement.

Johns-Manville filed a timely appeal from the district court's judgment. Although Johns-Manville had filed for Chapter 11 reorganization under the Bankruptcy code, the bankruptcy court has entered an order allowing this appeal to proceed. Also, while this appeal was pending, plaintiff, James O. Cavett, died and his administratrix, Mary Cavett, has been substituted as plaintiff-appellee.

In approximately 1939, Mr. Cavett began working as a boilermaker. For over forty years Mr. Cavett worked as a boilermaker, building and repairing boilers in various stone plants. As a boilermaker, Mr. Cavett worked in close proximity to insulation workers, who applied various types of insulation products to the boilers and pipes.

At the trial, Mr. Cavett described the dust conditions caused by the insulation materials as so bad that it looked as if "someone dumped a barrel of flour on you". Mr. Cavett also testified that he recalled seeing Johns-Manville insulation products on every job he worked and that Johns-Manville provided approximately 80 to 90 percent of the insulation materials for all the jobs on which he worked. Mr. Cavett's testimony was supported by two insulation workers who testified that they had worked with Mr. Cavett on particular jobs, that the insulation materials they applied were products of Johns-Manville and that the dust conditions created by the insulation products were such that dust could be seen on the boilermaker's workclothes.

Dr. William K. Swann, Mr. Cavett's treating physician, also testified at the trial. Dr. Swann testified that he had been treating Mr. Cavett since May 1980, when Mr. Cavett was initially seen for chest problems resulting from a collapsed lung. In January 1981, Dr. Swann diagnosed Mr. Cavett as suffering from lung cancer. Subsequently, Dr. Swann also diagnosed Mr. Cavett as suffering from asbestosis and in approximately November 1981, rendered the opinion that Mr. Cavett's lung cancer was caused by his asbestos exposure.

As a result of Mr. Cavett's lung cancer, surgery was performed removing the upper portion of his right lung. Mr. Cavett was again hospitalized in September 1981, at which time it was discovered that he had experienced a recurrence of lung cancer. This recurrence was treated by cobalt radiation. Mr. Cavett was again hospitalized in March 1982 for further cobalt therapy and during that hospitalization it was discovered that the cancer had spread to his bones. In April 1982, Mr. Cavett was hospitalized and started on chemotherapy. He was again hospitalized from May 30, until June 5, 1982, for supportive therapy in an effort to get him to eat, since he had lost 65 pounds from the time of his initial surgery.

At the time of trial Mr. Cavett was once again hospitalized because of his inability to eat, his weight loss, and his extreme weakness. All of these problems were a result of his lung cancer, and he was placed on pain medication consisting of morphine and percodan. Dr. Swann expressed the opinion at trial that Mr. Cavett was suffering from terminal cancer, which was spread beyond its original site to distant places and that his outlook was very poor.

Dr. Lynn Blake, Chief of Pathology and Director of Laboratories at the East Tennessee Baptist Hospital, testified that he had reviewed Mr. Cavett's lung tissue slides. Based upon this review, Dr. Blake rendered the opinion that Mr. Cavett was

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suffering from asbestosis and lung cancer, and that the lung cancer was caused by Mr. Cavett's asbestos exposure and asbestosis.

Dr. Bertram Carnow, a professor of occupational and environmental medicine at the University of Illinois Medical Center in Chicago, Illinois, testified as to his review of medical records and x-rays of Mr. Cavett. Based upon this review, Dr. Carnow was also of the opinion that Mr. Cavett had asbestosis, and that Mr. Cavett's cancer was, to the largest degree, caused by asbestos.

On appeal Johns-Manville raises six issues:

WHETHER TENNESSEE LAW PERMITS AN AWARD OF PUNITIVE DAMAGES IN THIS PRODUCTS LIABILITY ACTION;

WHETHER JOHNS-MANVILLE'S CONSTITUTIONAL RIGHT TO DUE PROCESS IS VIOLATED BY MULTIPLE AWARDS OF PUNITIVE DAMAGES FOR THE SAME COURSE OF CONDUCT;

WHETHER THE DAMAGE AWARDS ARE SO EXCESSIVE THAT JOHNS-MANVILLE SHOULD BE GRANTED A REMITTITUR OR NEW TRIAL;

WHETHER THIS CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR A RULING ON THE DEFENDANT'S MOTION FOR NEW TRIAL;

WHETHER A NEW TRIAL SHOULD BE GRANTED BECAUSE OF ERRORS IN EVIDENTIARY RULINGS IN THE TRIAL BELOW;

WHETHER JOHNS-MANVILLE HAS A VESTED RIGHT IN THE STATUTE OF REPOSE CONTAINED IN THE TENNESSEE PRODUCTS LIABILITY ACT WHICH COULD NOT BE ABROGATED BY RETROACTIVE APPLICATION OF THE AMENDMENT REMOVING ASBESTOS CASES FROM THE PURVIEW OF THE STATUTE OF REPOSE.

We will treat each issue.

Punitive Damages

The principal issue in both this case and its companion, Cathey v. Johns-Manville Sales Corporation, Nos. 82-5393, 82-5425, is whether, under Tennessee law, punitive damages can be awarded in an asbestos products liability case. Since the Tennessee Supreme Court has not ruled upon this issue, under the Erie Doctrine this Court is obligated to exercise its best judgment as to how the Tennessee High Court would rule if confronted with this issue. Bagwell v. Canal Insurance Company, 663 F.2d 710 (6th Cir.1981).

Although the trial judge below allowed the issue of punitive damages to go to the jury and upheld the jury's subsequent punitive award, the trial judge expressed doubt as to the propriety of such an award in an asbestos products liability case. See Joint Appendix at A-50. As we understand it, the trial judge was concerned about the possibility of the "overkill" of the defendant through the potential award of punitive damages in each of the numerous suits currently pending against Johns-Manville. Also, the trial judge was concerned that the repeated award of large sums for punitive damages to the current generation of litigants would quickly exhaust the resources of the defendant and...

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