Fibreboard Corp., In re
| Citation | 893 F.2d 706 |
| Decision Date | 25 January 1990 |
| Docket Number | 89-4945 and 90-4015,Nos. 89-4937,s. 89-4937 |
| Parties | In re FIBREBOARD CORPORATION, Petitioner. In re PITTSBURGH CORNING CORPORATION, Petitioner. In re ACANDS, INC., Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert S. Daggett, Thomas M. Peterson, Brobeck, Phleger & Harrison, San Francisco, Cal., R. Lyn Stevens, Weller, Wheelus & Green, Beaumont, Tex., for Fibreboard Corp.
Henry G. Garrard, III, Gary B. Blasingame, Blasingame, Burch, Garrard & Bryant, Athens, Ga., Robert Fanning, Phillip S. Brown, Fanning, Harper & Martinson, Dallas, Tex., for Pittsburgh Corning Corp.
Kevin R. Tully, Christovich & Kearney, New Orleans, La., Jerry Kacal, Dunn, Kacal, Adams, Pappas & Law, Houston, Tex., Frank H. Griffin, III, Gollatz, Griffin, Ewing & McCarthy, Philadelphia, Pa., for Acands, Inc.
On Petitions for Writ of Mandamus to the United States District Court for the Eastern District of Texas.
Before HIGGINBOTHAM, DAVIS and DUHE, Circuit Judges.
Defendants Fibreboard Corporation and Pittsburgh Corning Corporation, joined by other defendants, petition for writ of mandamus, asking that we vacate pretrial orders consolidating 3,031 asbestos cases for trial entered by Judge Robert Parker, Eastern District of Texas.
In 1986 there were at least 5,000 asbestos-related cases pending in this circuit. We then observed that "because asbestos-related diseases will continue to manifest themselves for the next fifteen years, filings will continue at a steady rate until the year 2000." 1 Id. at 470. That observation is proving to be accurate. In Jenkins v. Raymark, we affirmed Judge Parker's certification of a class of some 900 asbestos claimants, persuaded that the requirements of Rule 23(b)(3) were met for the trial of certain common questions including the defense. After that order and certain settlements, approximately 3,031 asbestos personal injury cases accumulated in the Eastern District of Texas.
The petitions for mandamus attack the district court's effort to try these cases in a common trial. In summary, and we will explain later in more detail, the district court has set these 3,031 cases for trial commencing February 5, 1990. The trial will proceed in three phases. Phase I is similar to the procedure approved in Raymark in which common defenses and punitive damages will be tried. In Phase II, and before the same jury, certain representative cases will be fully tried and the jury will decide the total, or "omnibus" liability to the class. In Phase III, any awarded damages will be distributed utilizing various techniques. Petitioners grumble over Phase I, conceding that it is no more than we have approved in Raymark, and focus their fire upon Phase II. Petitioners also attack limits placed on discovery from class members as well as the intense schedule for their oral depositions.
The standard of review is familiar. We are to issue a writ of mandamus only "to remedy a clear usurpation of power or abuse of discretion" when "no other adequate means of obtaining relief is available." In re Paradyne Corp., 803 F.2d 604, 612 (11th Cir.1986) (). As we stated in In re Willy, 831 F.2d 545, 549 (5th Cir.1987):
Mandamus cannot be used as a substitute for appeal even when hardship may result from delay or from an unnecessary trial. Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964). Mandamus is an extraordinary remedy that should be granted only in the clearest and most compelling cases. Kerr v. United States District Court, 426 U.S. 394, 402-03, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976); In re Davis, 730 F.2d 176, 181 (5th Cir.1984). A party seeking mandamus must show that no other adequate means exist to attain the requested relief and that his right to the issuance of the writ is 'clear and indisputable.' Kerr v. United States, 426 U.S. at 403, 96 S.Ct. at 2124 (quoting Banker's Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953).
Finally, mandamus relief is ordinarily inappropriate when review is obtainable on direct appeal. After a brief look at the background of these cases, we will return to the question of whether petitioners have met this extraordinary burden.
On September 20, 1989, Professor Jack Ratliff of the University of Texas Law School filed his special master's report in Cimino v. Raymark. The special master concluded that it was "self-evident that the use of one-by-one individual trials is not an option in the asbestos cases." The master recommended four trial phases: I (classwide liability, class representatives' cases), II (classwide damages), III (apportionment) and IV (distribution). On October 26, the district court entered the first of the orders now at issue. The district court concluded that the trial of these cases in groups of 10 would take all of the Eastern District's trial time for the next three years, explaining that it was persuaded that "to apply traditional methodology to these cases is to admit failure of the federal court system to perform one of its vital roles in our society ... an efficient, cost-effective dispute resolution process that is fair to the parties." The district court then consolidated 3,031 cases under Fed.R.Civ.P. 42(a) "for a single trial on the issues of state of the art and punitive damages and certified a class action under rule 23(b)(3) for the remaining issues of exposure and actual damages." The consolidation and certification included all pending suits in the Beaumont Division of the Eastern District of Texas filed as of February 1, 1989, by insulation workers and construction workers, survivors of deceased workers, and household members of asbestos workers who were seeking money damages for asbestos-related injury, disease, or death.
Phase I is to be a single consolidated trial proceeding under Rule 42(a). It will decide the state of the art and punitive damages issues. The district court explained that:
"the jury will be asked to decide issues such as (a) which products, if any, were asbestos-containing insulation products capable of producing dust that contained asbestos fibers sufficient to cause harm in its application, use, or removal; (b) which of the Defendants' products, if any, were defective as marketed and unreasonably dangerous; (c) when each Defendant knew or should have known that insulators or construction workers and their household members were at risk of contracting an asbestos-related injury or disease from the application, use, or removal of asbestos-containing insulation products; and (d) whether each Defendant's marketing of a defective and unreasonably dangerous product constituted gross negligence. In answering issue (d), the Jury will hear evidence of punitive conduct including any conspiracy among the Defendants to conceal the dangers (if any) of asbestos. The wording of issues (c) and (d) will depend on the applicability of the 1987 Texas Tort Reform legislation to a particular class member's individual case.
By its order of December 29, 1989, the district court explained that "the jury may be allowed to formulate a multiplier for each defendant for which the jury returns an affirmative finding on the issue of gross negligence."
The district court also described the proceedings for Phase II in its October 26 order. In Phase II the jury is to decide the percentage of plaintiffs exposed to each defendant's products, the percentage of claims barred by statutes of limitation, adequate warnings, and other affirmative defenses. The jury is to determine actual damages in a lump sum for each disease category for all plaintiffs in the class. Phase II will include a full trial of liability and damages for 11 class representatives and such evidence as the parties wish to offer from 30 illustrative plaintiffs. Defendants will choose 15 and plaintiffs will choose 15 illustrative plaintiffs, for a total of 41 plaintiffs. The jury will hear opinions of experts from plaintiffs and defendants regarding the total damage award. The basis for the jury's judgment is said to be the 41 cases plus the data supporting the calculation of the experts regarding total damages suffered by the remaining 2,990 class members.
Class members have answered questionnaires and are testifying in scheduled oral depositions now in progress. Petitioners attack the limits of discovery from the class members, but we will not reach this issue. It is sufficient to explain that defendants are allowed a total of 45 minutes to interrogate each class member in an oral deposition. These depositions will not be directly used at the trial in Phase II. Rather, the oral depositions, with the other discovery from class members, provide information for experts engaged to measure the damages suffered by the class.
Defendants find numerous flaws in the procedures set for Phase II of the trial. They argue with considerable force that such a trial would effectively deny defendants' rights to a jury under the seventh amendment, would work an impermissible change in the controlling substantive law of Texas, would deny procedural due process under the fifth amendment of the United States Constitution, and would effectively amend the rules of civil procedure contrary to the strictures of the enabling acts.
Plaintiffs deny that Phase II would deny defendants any right. Plaintiffs argue that every plaintiff is effectively before the court; that the evidence to be offered by their experts is more the use of summary evidence under Rule 1006 of the Federal Rules of Evidence than the use of math models to extrapolate total damages from sample plaintiffs. Plaintiffs concede that the contemplated trial is extraordinary, but argue that extraordinary measures are...
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