Threadgill v. Armstrong World Industries, Inc., 90-3599

• Citation: 928 F.2d 1366
• Decision Date: 19 March 1991
• Docket Number: No. 90-3599,90-3599
• Parties: , 32 Fed. R. Evid. Serv. 699, Prod.Liab.Rep.(CCH)P 12,828 Selena H. THREADGILL, Individually and as Executrix of the Estate of Walter L. Threadgill; Gerald G. Threadgill, Nancy L. Threadgill and Barbara E. Threadgill Ross, children of Walter L. Threadgill, deceased v. ARMSTRONG WORLD INDUSTRIES, INC., formerly known as Armstrong Cork Company; Atlas Turner, Ltd., formerly known as Atlas Asbestos Company, a division of Bell Asbestos Mines, Ltd.; Bell Asbestos Mines Ltd.; Celotex Corporation, Individually and as Successor-in-Interest to the Philip Carey Manufacturing Company, Philip Carey Corporation, Smith and Kanzer, Briggs Manufacturing Company and Panacon Corporation; Carey Canadian Mines, Ltd.; Eagle-Picher Industries, Inc.; Fibreboard Corporation; GAF Corporation, Individually and as Successor-in-Interest to Rubberoid Corporation; H.K. Porter Company, Inc., Individually and as Successor-in-Interest to Rubberoid Corporation; Mattison Company, Bell Asbestos Mines, Ltd. (including its wholly-owned subsidiary Atlas Asbestos Company) and Atlas Turner Ltd.; Selena Threadgill, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1366

928 F.2d 1366

59 USLW 2582, 32 Fed. R. Evid. Serv. 699,

Prod.Liab.Rep.(CCH)P 12,828

Selena H. THREADGILL, Individually and as Executrix of the Estate of Walter L. Threadgill Gerald G. Threadgill, Nancy L. Threadgill and Barbara E Threadgill Ross, children of Walter L. Threadgill, deceased v. ARMSTRONG WORLD INDUSTRIES, INC., formerly known as Armstrong Cork Company; Atlas Turner, Ltd., formerly known as Atlas Asbestos Company, a division of Bell Asbestos Mines, Ltd.; Bell Asbestos Mines Ltd.; Celotex Corporation, Individually and as Successor-in-Interest to the Philip Carey Manufacturing Company, Philip Carey Corporation, Smith and Kanzer, Briggs Manufacturing Company and Panacon Corporation; Carey Canadian Mines, Ltd. Eagle-Picher Industries, Inc.; Fibreboard Corporation; GAF Corporation, Individually and as Successor-in-Interest to Rubberoid Corporation; H.K. Porter Company, Inc. Individually and as Successor-in-Interest to Rubberoid Corporation; Mattison Company, Bell Asbestos Mines, Ltd. (including its wholly-owned subsidiary Atlas Asbestos Company) and Atlas Turner Ltd.; Selena Threadgill, Appellant.

No. 90-3599.

United States Court of Appeals, Third Circuit.

Argued Feb. 4, 1991.

Decided March 19, 1991.

Robert Jacobs (argued), Jacobs & Crumplar, Wilmington, Del., for appellants.

John C. Phillips, Jr. (argued), Carmella P. Keener, Phillips & Snyder, Wilmington, Del., for appellee Manville Corp. Asbestos Disease Compensation Fund.

Before MANSMANN and SCIRICA, Circuit Judges, and POLLAK, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This appeal requires that we resolve an evidentiary dispute arising in the context of a personal injury action alleging negligence and conspiracy on the part of various manufacturers and distributors of asbestos-containing products. The plaintiffs appeal the district court's denial of their motion for a new trial following a jury verdict in favor of the defendants, contending that the district court erred in excluding certain exhibits, well-known in asbestos litigation, as the "Sumner Simpson documents," on authenticity grounds. The district court declined to review the disputed documents and based its ruling of inadmissibility on a prior decision involving essentially the same documents rendered by another district judge in an unrelated case in the same district. Because we conclude that the district court erred in excluding the documents on the basis of authenticity, we will reverse the order of the district court and remand the case for a new trial.

I.

The procedural history of this litigation shapes the issues before us. Thus, we set forth the procedural facts in detail.

On March 18, 1988, the widow and children of Walter Threadgill filed suit in the United States District Court for the District of Delaware against multiple defendants. ¹ The plaintiffs contended that as a result of the defendants' negligent failure to warn of health hazards associated with asbestos, and conspiracy to conceal those hazards, Walter Threadgill was exposed to asbestos, contracted mesothelioma, and died. Prior to trial, all of the defendants except the Manville Corporation Asbestos Disease Compensation Fund ("the Fund"), were dismissed on limitations grounds. ²

In anticipation of trial, the parties filed witness and exhibit lists. Among the documents listed by the plaintiffs were some of the approximately 6,000 so-called "Sumner Simpson documents." These documents, which have been considered with some frequency in the context of asbestos litigation, consist primarily of correspondence among a former president of Raybestos-Manhattan Sumner Simpson, Johns-Manville's former in-house counsel Vandiver Brown, and others. The documents, originally produced by Raybestos-Manhattan in the course of nation-wide asbestos litigation, have been offered by various plaintiffs in other asbestos-related actions in an attempt to show that as early as the 1930's, asbestos manufacturers knew of the health hazards associated with asbestos and knowingly concealed those dangers. While many courts considering these documents have admitted them, others, responding to various defense objections, have not. Neither of the parties in this case made any pre-trial effort, with the exception of the plaintiffs' exhibit list, to direct the district court's attention specifically to the Sumner Simpson documents.

At the start of trial, the plaintiffs' counsel, preparing to make an opening statement and to examine a state-of-the-art witness, delivered a letter to the district court reiterating his intention to refer to the Sumner Simpson documents. He also submitted a binder containing the documents and additional supporting evidence included to meet any hearsay or authenticity challenge. Because they were aware of the fact that some courts had sustained objections to the documents, "to be prudent," the plaintiffs asked that the district court rule on the documents' admissibility.

On May 15, 1990, the parties addressed the Sumner Simpson documents in argument before the district court. The plaintiffs' counsel briefly described the documents themselves and the additional documents being offered for purposes of authentication. He recognized that the Sumner Simpson documents had been ruled inadmissible in a prior asbestos-related action tried in the District of Delaware ³ but argued that authenticating documents not available in the prior action required a reevaluation of admissibility in this case.

Counsel for the Fund objected to introduction of the Sumner Simpson letters and consideration of the authenticating documents on the ground that the ruling in Williams represented "the law of the district" and that the plaintiffs' motion to "overturn [the Williams] ruling comes too late." Counsel for the Fund claimed to have interpreted the documents' inclusion on the exhibit list as nothing more than an attempt to "preserve [the plaintiffs'] record as to objections that might be made under [the Williams] ruling." Counsel for the Fund also claimed that he had not been provided with all of the documents supporting authentication and objected that certain of the supporting documents had not been included on the plaintiffs' exhibit list. "I would suggest to the Court that I have been highly prejudiced by this last-minute, late-night effort.... If somebody wants to change the law of the district, then they are obliged to bring that before the Court and try to do so before you are starting trial."

The plaintiffs' counsel responded that the Fund had been provided with all of the supporting documents and was on full notice of the plaintiffs' intent to rely on the Sumner Simpson documents by virtue of their having been included, some months earlier, on the plaintiffs' exhibit list. ⁴ The plaintiffs also argued that it was inappropriate to characterize Williams as the law of the circuit or the district. "It was one Pennsylvania case that reviewed it all and [Williams] followed it. And I don't believe it's the law of this district ... [D]ifferent Judges make different rulings."

Concluding that the plaintiffs' motion to depart from the ruling in Williams was untimely, the district court refused to consider the Sumner Simpson documents or the documents supporting authenticity. In so ruling, the district court adopted the Williams decision holding the Sumner Simpson documents inadmissible on authenticity grounds. The substance of the Williams decision was not discussed.

Trial continued and, following the presentation of the plaintiffs' case, the court directed a verdict on the conspiracy claim. The question of liability on the negligence count was submitted to the jury which responded as follows to the interrogatory presented:

1. Do you find [the Fund] liable under the instructions I have given in the death of Walter Threadgill?

Yes _______

No X______

The plaintiffs filed a motion for a new trial based in part on the court's exclusion of the Sumner Simpson documents. The motion was denied by opinion on July 27, 1990 and this appeal followed. The district court's exclusion of the Sumner Simpson documents is the only error assigned on appeal.

II.

"Where a contention for a new trial is based on the admissibility of evidence, the trial court has great discretion ... which will not be disturbed on appeal absent a finding of abuse." Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921 (3d Cir.1986). With this standard in mind, we turn to the plaintiffs' claim that the district court erred in failing to conduct an independent examination of the Sumner Simpson documents and in adopting the ruling in Williams that the documents were inadmissable in that their authenticity had not been established.

The district court arrived at its decision to adopt the holding in Williams via a procedural route. Because it concluded that the plaintiffs bore the responsibility for focusing the attention of the court upon the admissibility of the Sumner Simpson documents and had failed to do so in a timely manner, the district court declined to consider the plaintiffs' argument that this case was distinguishable from Williams, declined to evaluate the merits of the Sumner Simpson dispute, and declined to consider documents ⁵ bearing on authentication which the plaintiffs argued had not been available to the district court in Williams. ⁶

Our review of this record convinces us that the district court erred in concluding that the plaintiffs bore the burden of raising the admissibility of the Sumner Simpson documents and that their attempt to secure a ruling on this issue was untimely.

First, it is clear that there is no such thing as "the law of the district." Even where the facts of a prior district court case are, for all practical purposes, the same as those presented to a different district court in the same district, the prior "resolution of those claims does not bar reconsideration by this Court of similar...