781 F.2d 394 (5th Cir. 1986), 82-4288, Jackson v. Johns-Manville Sales Corp.

Docket Nº:82-4288.
Citation:781 F.2d 394
Party Name:James Leroy JACKSON, Plaintiff-Appellee, v. JOHNS-MANVILLE SALES CORPORATION and Raybestos-Manhattan, Inc., Defendants- Appellants.
Case Date:January 22, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 394

781 F.2d 394 (5th Cir. 1986)

James Leroy JACKSON, Plaintiff-Appellee,

v.

JOHNS-MANVILLE SALES CORPORATION and Raybestos-Manhattan,

Inc., Defendants- Appellants.

No. 82-4288.

United States Court of Appeals, Fifth Circuit

January 22, 1986

Page 395

Roy C. Williams, Pascagoula, Miss., Lively M. Wilson, Dorothy J. Chambers, Louisville, Ky., John H. Holloman, III, William N. Reed, Jackson, Miss., for defendants-appellants.

Mark B. Stern, Dept. of Justice, Civil Div., Appellate Staff, Washington, D.C., for amicus curiae, U.S.

Richard F. Pate, Mobile, Ala., Danny E. Cupit, Jackson, Miss., Ronald L. Motley, Barnwell, S.C., Arthur R. Miller, Harvard Law School, Cambridge, Mass., for plaintiff-appellee.

Joseph R. Steele, Port Arthur, Tex., for amicus curiae, Abestos Claimants in the State of Tex.

Adoph J. Levy, New Orleans, La., for amicus curiae, The Ass'n of Trial Lawyers of America.

Broadus A. Spivey, Austin, Tex., amicus curiae, pro se.

Page 396

Ransom P. Jones, Pascagoula, Miss., for Other Interested Persons.

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

Before CLARK, Chief Judge, GEE, RUBIN, GARZA, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, and HILL, Circuit Judges. [*]

RANDALL, Circuit Judge:

This Mississippi diversity case involves plaintiff Jackson's efforts to recover compensatory and punitive damages from Johns-Manville Sales Corporation, Raybestos-Manhattan, Inc., and H.K. Porter Company, all manufacturers of asbestos products. Jackson was injured as a result of his exposure to asbestos products during the course of his employment as a shipyard worker. The district court, after a lengthy trial, entered judgment in favor of Jackson against all defendants except H.K. Porter Company in the amount of $391,500 in compensatory damages and $625,000 in combined punitive damages. On appeal, a panel of this court affirmed in part, reversed in part, and remanded for a new trial. Jackson v. Johns-Manville Sales Corp., 727 F.2d 506 (5th Cir.1984) ("Jackson I"). We granted en banc rehearing, which had the effect of vacating the panel opinion. See Fifth Circuit Internal Operating Procedures, Rules of the United States Court of Appeals for the Fifth Circuit 98 (July 1983). Upon rehearing en banc, we certified to the Mississippi Supreme Court three significant questions of Mississippi law. Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314 (5th Cir.1985) (en banc) ("Jackson II"). The Mississippi Supreme Court declined certification without discussion. Jackson v. Johns-Manville Sales Corp., 469 So.2d 99 (Miss.1985). The case is consequently back before us for resolution of the issues previously certified to the Mississippi Supreme Court.

The three issues left unresolved by this court's en banc opinion in Jackson II are as follows:

(1) whether a Plaintiff whose cause of action is based upon strict liability in tort can recover punitive damages against Defendants who have been or may be subjected to multiple awards of compensatory and punitive damages for the same wrongful conduct;

(2) whether a Plaintiff who does not presently have cancer can state a claim or recover damages in an action based upon strict liability in tort for mental distress resulting from his knowledge that he has an increased risk of contracting cancer in the future;

(3) whether a Plaintiff who does not presently have cancer can state a claim or recover damages in an action based upon strict liability in tort for the reasonable medical probability of contracting cancer in the future.

We now answer each question affirmatively, and affirm the judgment of the district court.

I. PROCEDURE FOR CONSTRUING MISSISSIPPI LAW. 1

The en banc court determined that Mississippi law, and not federal common law, properly governs the resolution of these issues. 2 Thus, we must interpret the law as would a Mississippi court. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In making an Erie-guess, "[i]t is our duty ... to view ourselves ... as an inferior state court and to

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reach the decision that we think a state court would reach." Dipascal v. New York Life Ins. Co., 749 F.2d 255, 260 (5th Cir.1985). Even "[i]n the absence of controlling precedent, we must ... decide ... issue[s] as we believe a Mississippi court would decide [them]." Green v. Amerada-Hess Corp., 612 F.2d 212, 214 (5th Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980).

As a federal court, "it is not for us to adopt innovative theories of [state law], but simply to apply that law as it currently exists," Galindo v. Precision American Corp., 754 F.2d 1212, 1217 (5th Cir.1985), and to rule as we believe the state's highest tribunal would rule, Green, 612 F.2d at 214. We are emphatically not permitted to do merely what we think best; we must do that which we think the Mississippi Supreme Court would deem best. See, e.g., United States v. Little Joe Trawlers, Inc., 776 F.2d 1249, 1253 (5th Cir.1985) ("In our Erie role, we make no value judgments as to what [Mississippi] law ought to be."). If the law of Mississippi is to be changed, "[i]t is up to the Supreme Court of [Mississippi] and not this court to change the substantive law of that state." Cargill, Inc. v. Offshore Logistics, Inc., 615 F.2d 212, 215 (5th Cir.1980). Finally, "under Erie we cannot skirt the clear import of state decisional law solely because the result is harsh." Parson v. United States, 460 F.2d 228, 234 (5th Cir.1972).

The denial of certification does not give us a license to change Mississippi law. We are still to apply the law as it exists. The privilege (or duty) of changing the law belongs to the Mississippi courts or legislature. 3 We certify questions in order to avoid having to make "unnecessary Erie guesses," Thompson v. Johns-Manville Sales Corp., 714 F.2d 581, 584 (5th Cir.1983) (Goldberg, J., dissenting), cert. denied, 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984), and to offer the state court the opportunity to alter existing law--in effect, to change direction. The denial of certification forces us to make the Erie-guess which we sought to avoid, but it does not enable us to alter existing law or to change direction. To paraphrase Judge Gee:

In matters of [Mississippi] substantive law, our relationship to the [Mississippi] Supreme Court is all but identical to that of a [lower Mississippi] court. Indeed, if it differs at all as regards substantive innovation, it is weaker instead of stronger than that of such a court. Even in the rare case where a course of [Mississippi] decisions permits us to extrapolate or predict with assurance where that law would be had it been decided, we should perhaps--being out of the mainstream of [Mississippi] jurisprudential developments--be more chary of doing so than should an inferior state tribunal.

Rhynes v. Branick Mfg. Corp., 629 F.2d 409, 410 (5th Cir.1980).

When making an Erie guess in the absence of specific guidance from the Mississippi Supreme Court, our prediction of state law looks to: (1) lower state court decisions and Supreme Court dicta, (2) the lower court ruling in this case, (3) the general rule on the issue, (4) the rule in other states looked to by Mississippi courts when they formulate the substantive law of Mississippi, and (5) other available legal sources, such as treatises and law review commentaries. See generally Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); 19 C. Wright,

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  1. Miller, & E. Cooper, Federal Practice and Procedure Sec. 4507 (hereinafter Wright & Miller, Federal Practice ); 1A (pt. 2) J. Moore, Moore's Federal Practice, p 0.309. As Professors Wright and Miller explain:

    In vicariously creating state law ..., the federal court may consider all available legal sources, including the Restatements of Law, treatises, law review commentaries, decisions from other jurisdictions whose doctrinal approach is substantially the same, and "the majority rule." The federal court must keep in mind, however, that its function is not to choose the rule that it would adopt for itself; it must choose the rule that it believes the state's highest court ... is likely to adopt in the future.

    Wright & Miller, Federal Practice Sec. 4507, at 100-03 (emphasis added). Numerous decisions of this Circuit have repeated, in some form or another, the rule of law stated by Professors Wright and Miller. For example, we recently explained that where the Mississippi Supreme Court has not expressly addressed an issue, this court "must ... do what a lower Mississippi court would do, predict the course of the Mississippi Supreme Court.... In that effort, '[a]bsent evidence to the contrary, we presume that the Mississippi courts would adopt the prevailing rule if called upon to do so.' " Turbo Trucking Company v. Those Underwriters at Lloyd's London, 776 F.2d 527, 529 (5th Cir.1985) (quoting Hensley v. E.R. Carpenter Co., 633 F.2d 1106, 1109 (5th Cir.1980)) (citation omitted) (bracket in original). See also Nobs Chemical, U.S.A., Inc. v. Koppers Co., Inc., 616 F.2d 212, 214-15 (5th Cir.1980) (looking to treatises and decisions in other states for guidance when there was no state law "directly on point").

    Further, although the district court did not squarely resolve the issues we certified to the Mississippi Supreme Court and which we now confront, it did overrule defendants' objections to the jury instructions, deny their motions for directed verdict and for judgment notwithstanding the verdict, and enter judgment on the verdict in question. It therefore must be noted that we also give "special weight ... to the determination of the district court judge who is familiar with local law." Green, 612 F.2d at 214. See also Acree v. Shell Oil Co., 721 F.2d 524, 525 (5th Cir.1983) ("district court's interpretation of state law will not be...

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