King v. Armstrong World Industries, Inc.
| Decision Date | 12 July 1990 |
| Docket Number | No. 89-2640,89-2640 |
| Citation | 906 F.2d 1022 |
| Parties | 30 Fed. R. Evid. Serv. 752, Prod.Liab.Rep.(CCH)P 12,554 Lloyd D. KING, et al., Plaintiffs-Appellees, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants, The Celotex Corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Donald J. Verolancken, Randa L. Duncan, Elizabeth M. Thompson, Houston, Tex., for defendant-appellant.
Paul L. Sadler, Rex Houston, Welborn, Houston, Adkison, Mann & Sadler, Henderson, Tex., for plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of Texas.
Before WISDOM, POLITZ and JOHNSON, Circuit Judges.
Celotex Corporation appeals a judgment against it in favor of a number of plaintiffs 1 for injuries arising out of the plaintiffs' exposure to the defendant's asbestos-containing products. The plaintiffs were exposed to asbestos dust in the course of their employment by the defendants. After a ten-day jury trial, the jury awarded the plaintiffs $1,897,500 in compensatory damages. In apportioning the degree of responsibility for causing the injury, the jury held that Celotex, the only non-settling defendant, 2 was responsible to the extent of fifty-five percent. The jury also awarded the plaintiffs $1,550,000 in punitive damages against Celotex. We affirm the judgment.
On appeal, Celotex contends: (1) the district court committed reversible error in three of its evidentiary rulings; (2) there was insufficient evidence to support the apportionment of fifty-five percent causation to Celotex; and (3) the court improperly awarded punitive damages.
Plaintiff Albert Marble alleged that he had been exposed to the asbestos-containing products of Philip Carey Corporation and its successor, Celotex, among others. In 1985 he was diagnosed as having malignant mesothelioma, and in that same year he filed suit against the defendants. Subsequently, in response to the district court's standing order for asbestos cases, he prepared a list by hand detailing his work history and the asbestos-containing products he used on various jobs. He compiled the list from his own memory and from the recollections of his former co-workers. After he finished the list, but before his deposition or the trial, Marble died. His wife and daughter later made a typewritten copy of the original handwritten list and disposed of the original. The two provided the typed list to the attorney handling the case. At trial, the district judge admitted the typed version of the list in evidence over the objection of defense counsel.
Celotex contends that the list is inadmissible hearsay. Arguing that the product list was the only evidence of Marble's exposure to Celotex or Philip Carey products, a necessary element of the plaintiff's case, the defendant seeks reversal of the judgment.
We need not decide whether the list would be admissible under an exception to the hearsay because Celotex judicially admitted that Marble was exposed to its products. During closing argument, counsel for Celotex discussed the verdict form with the jury. Counsel for the plaintiff had just finished his summation in which he suggested to the jury how it should answer the various interrogatories. Counsel for Celotex addressed the jury and spoke to the issue of exposure:
3
By stating to the jury that it could properly answer the question on exposure affirmatively, counsel for the defendant admitted the point. A "party is bound by the acts of his attorney;" 4 Celotex cannot now complain that the district court admitted evidence establishing a fact that it conceded in argument.
Sumner Simpson was the president of the Raybestos-Manhattan Corporation from 1929 to 1953. The "Sumner Simpson papers" consist of correspondence between Simpson and the general counsel for Johns-Manville during the years 1935-1939. The papers tend to show awareness of the dangers of asbestos. No persons employed by Celotex or Philip Carey wrote or received the letters. Celotex objected when the plaintiffs sought to admit the papers into evidence. The trial court overruled the objection and admitted the exhibit with a limiting instruction. 5 Celotex contends that the papers are inadmissible because they are not relevant to its knowledge and that they are unduly prejudicial. 6 We review the district court's evidentiary ruling under an abuse of discretion standard. An erroneous ruling does not merit reversal of a judgment unless "a substantial right of the party" is affected. 7
Since Borel v. Fibreboard Paper Products Corp., 8 it has been settled that in asbestos cases "the manufacturer is held to the knowledge and skill of an expert". The manufacturer is "obliged to keep abreast of any scientific discoveries and [is] presumed to know the results of all such advances". 9 Accordingly, the scientific knowledge of one manufacturer may help the plaintiff prove that the dangers of asbestos were discoverable at the time of the plaintiff's exposure to the asbestos. 10
In Jackson v. Johns-Manville Sales Corp., 11 this Court upheld the trial court's admission of the Sumner Simpson papers in evidence against a manufacturer of asbestos products. Celotex argues that Jackson is inapplicable because officers of the defendants in that case, Johns-Manville and Raybestos-Manhattan, generated the correspondence. Celotex overlooks that under Borel and Dartez v. Fibreboard Corp., such evidence is relevant to the issue of what knowledge was scientifically discoverable by the industry as a whole at a certain time. That the evidence directly shows "only the knowledge of a nonparty does not affect its relevance ...". 12 The trial court did not abuse its discretion in admitting this evidence.
Richard Gaze worked as a scientist for Cape Industries, a South African company engaged in the mining of raw asbestos. Gaze began his employment with the company in 1940. In 1975, he was deposed in connection with an action in federal court against his employer. The plaintiff in that case alleged injuries from the raw asbestos that Cape Industries sold to his company for processing. Gaze died. The plaintiffs in this case sought to enter Gaze's deposition in evidence to show the state of scientific knowledge in the field. The trial court admitted the deposition in evidence with a limiting instruction. 13
We find no abuse of discretion and we uphold the trial court's evidentiary ruling under Rule 804(b)(5) of the Federal Rules of Evidence, the residual hearsay exception for unavailable declarants. That rule provides for the admission of
(5) [a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
There is no dispute that Gaze was "unavailable as a witness" at the time of trial under Rule 804(a)(4). We also find that his testimony possesses "circumstantial guarantees of trustworthiness". As was the case in Dartez, Gaze's deposition represents sworn testimony in an adversary proceeding. It is true, as the defendant points out, that the underlying suit for which Gaze was deposed concerned the hazardous effect of raw asbestos. We conclude that this distinction does not affect the trustworthiness or the relevance of the testimony, although it does bear on the weight of the evidence. 14
The other elements of Rule 804(b)(5) are satisfied as well. The deposition was offered as evidence of a material fact--the state of scientific knowledge on the dangers of asbestos before the plaintiffs' exposure. Gaze's testimony also has probative value on the state of the art. At the time of his testimony, Gaze was the Executive Director and Chief Scientist of Cape Industries. He became aware of the dangers of breathing asbestos dust when he was first employed. Throughout the 1960's, Gaze discussed the hazards with those who purchased asbestos from his company. The deposition carries the stamp of trustworthiness and its admission into evidence in this case serves the interests of justice.
Celotex contends that the evidence is insufficient to support the jury's finding that Celotex was fifty-five percent responsible for causing the plaintiffs' injuries. The company argues that each plaintiff testified that he was exposed to the asbestos-containing insulation products of several defendants, and that there is no basis for the high percentage of causation the jury attributed to Celotex. 15
Under Texas law, Celotex is liable only for its share in causing the injury. 16 The burden of allocating causation, however, rests with the defendants, not the plaintiffs. 17 In evaluating Celotex's challenge to the award, "[t]his Court must review all the evidence in the light most favorable to the jury's verdict and must affirm the verdict unless the evidence points 'so strongly and overwhelmingly in favor of one party that reasonable men could not...
To continue reading
Request your trial
-
Dunn v. HOVIC
...part, 326 Md. 107, 604 A.2d 47 cert. denied, --- U.S. ----, 113 S.Ct. 204, 121 L.Ed.2d 145 (1992); see also King v. Armstrong World Indus., Inc., 906 F.2d 1022, 1030 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2236, 114 L.Ed.2d 478 (1991); Simpson v. Pittsburgh Corning Corp., 901......
-
Owens-Corning Fiberglas Corp. v. Malone
...from the same course of conduct: We, as well as other courts, have expressed concerns in that regard."); King v. Armstrong World Indus., Inc., 906 F.2d 1022, 1033 (5th Cir.1990) ("With some misgivings, the panel holds that it is bound [by previous Fifth Circuit decisions]" to reject defenda......
-
Davis v. Celotex Corp.
...Cork Co., 946 F.2d 1085 (5th Cir.1991), cert. denied, 503 U.S. 1011, 112 S.Ct. 1778, 118 L.Ed.2d 435 (1992); King v. Armstrong World Indus., Inc., 906 F.2d 1022 (5th Cir.1990), cert. denied, Celotex Corp. v. King, 500 U.S. 942, 111 S.Ct. 2236, 114 L.Ed.2d 478 (1991); Man v. Raymark Indus., ......
-
William Dunn, Hess Oil Virgin Islands Corp. v. Hovic
...App. 1991), aff'd in part & rev'd in part, 604 A.2d 47 (Md.), cert. denied, 113 S. Ct. 204 (1992); see also King v. Armstrong World Indus., Inc., 906 F.2d 1022, 1030 (5th Cir. 1990), cert. denied, 111 S. Ct. 2236 (1991); Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 281 (2d Cir.), cert......